EXHIBIT 10.3 CONFIDENTIAL TREATMENT
REQUESTED BY
CARRIER1 INTERNATIONAL S.A.
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EXECUTION COPY
STRATEGIC ANCHOR TENANT AGREEMENT
BETWEEN
CARRIER1 INTERNATIONAL S.A.
AND
HUBCO S.A.
NOVEMBER 23, 1999
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CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
STRATEGIC ANCHOR TENANT AGREEMENT
THIS STRATEGIC ANCHOR TENANT AGREEMENT (the "Agreement") is
made as of this 23d day of November, 1999 (the "Effective Date"), between HUBCO
S.A., a Luxembourg Societe Anonyme ("HUBCO"), and Carrier1 International S.A., a
Luxembourg Societe Anonyme ("Strategic Anchor Tenant").
RECITALS
A. An Affiliate of Strategic Anchor Tenant, along with other
entities, has jointly formed HUBCO to acquire, develop and operate a
pan-European network of carrier hotel/collocation facilities ("Facilities")
which will be located in the countries and cities more particularly described in
Exhibit A;
B. Strategic Anchor Tenant desires that its local subsidiaries
(each a "Strategic Anchor Tenant Subsidiary") shall lease from local
subsidiaries of HUBCO (each a "HUBCO Subsidiary") space in the Facilities, as
such space is generally described in Exhibit A (each such space a "Space" and
such spaces collectively the "Spaces"), wherein a HUBCO Subsidiary will deliver
to each Strategic Anchor Tenant subsidiary each Space as either Raw Space,
Conditioned Space, or a combination of Raw Space and Conditioned Space (as such
types of space are described in Exhibit B and in the Construction Agreement (as
defined in Section 4.2 below), respectively), and will render certain managed
services to each such Space as such services are preliminarily described in
Exhibit C (the "Shared Services"), and HUBCO has agreed, through its HUBCO
Subsidiaries, to lease to certain Strategic Anchor Tenant Subsidiaries each
Space and provide to each Space the Shared Services, upon the terms and subject
to the conditions set forth herein and in the Leasing Term Sheet ("Leasing Term
Sheet") attached as Exhibit D and more particularly described in Section 2.2(d)
below;
C. HUBCO, the parent company of the HUBCO Subsidiaries, will
deliver a guaranty, more particularly described in Section 7.6 below, with
respect to the obligations of each HUBCO Subsidiary under this Agreement and
under each Final Tenancy Agreement;
D. Strategic Anchor Tenant, the parent company of the
Strategic Anchor Tenant Subsidiaries, will deliver a guaranty, more particularly
described in Section 7.6 below, with respect to the obligations of each
Strategic Anchor Tenant Subsidiary under this Agreement and under each Final
Tenancy Agreement; and
E. Strategic Anchor Tenant and HUBCO desire to enter into an
agreement setting forth the basic terms and conditions of the development,
construction, lease and operation of the Facilities and Spaces.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing premises and
the mutual covenants and agreements hereinafter set forth, which the parties
agree is good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Unless otherwise defined herein, when used herein, the following terms
shall have the following meanings:
"ACCEPTANCE CRITERIA" means the acceptance criteria set forth in
Section 8.2(a).
"ACCEPTANCE TESTING" has the meaning set forth in Section 8.1.
"ACCEPTANCE TESTING SPECIFICATIONS" has the meaning set forth in
Section 8.2(a).
"ADDITIONAL CAPITAL COSTS" means [*]
"AFFILIATE" means, with respect to any Person, any other Person
which directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with, such Person; provided that
HUBCO shall not be treated as an Affiliate of any Shareholder (as defined in
the Shareholders Agreement). For purposes of this Agreement, the term
"control" (and the derivative terms "controlling" and "controlled") shall
mean the possession, directly or indirectly, of the power to elect or cause
the election of a majority of the directors or managers of a Person, whether
through the ownership of voting securities, by contract or otherwise;
PROVIDED that (i) beneficial ownership of [*] or more of the Voting Stock (as
defined in the Shareholders Agreement) of a Person shall be deemed to be
control and (ii) the general partner of a limited partnership and the
managing member of a limited liability company shall be deemed to control
such limited partnership or limited liability company, as the case may be.
"AGREEMENT" has the meaning set forth in the Preamble.
"CARLYLE" has the meaning given such term in the Shareholders
Agreement.
"CERTIFICATE OF PROVISIONAL ACCEPTANCE" means a certificate issued by
Strategic Anchor Tenant in accordance with Section 8.4(c) to HUBCO
certifying that a Space is Ready for Provisional Acceptance.
"COMMENCEMENT DATE" has the meaning set forth in Section 4.2(c).
"COMMISSIONING REPORT" means a written report from HUBCO demonstrating
that a Space is Ready for Provisional Acceptance.
"COMPETITOR" means any Person, directly or indirectly, engaged
(whether by way of ownership, as a provider of services or otherwise) in a
Restricted Business.
"CONDITIONED SPACE" means Raw Space having such additional
improvements and modifications outlined in the Construction Agreement.
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"CONNECTIVITY" means access to redundant high-speed fiber optic
networks operated by Strategic Anchor Tenant as applicable.
"CONSTRUCTION AGREEMENT" has the meaning set forth in Section 4.2(a).
"DATE OF PROVISIONAL ACCEPTANCE" means the date of a Certificate of
Provisional Acceptance.
"DEFICIENCY" means an instance of a failure to conform to the
Acceptance Criteria.
"DOLLARS" or "US$" means United States dollars.
"EFFECTIVE DATE" has the meaning set forth in the Preamble.
"ELECTIVE LEASED SPACE" has the meaning set forth in Section 3.2(a).
"FACILITY" has the meaning set forth in the Recitals.
"FACILITY DECISION NOTICE" has the meaning set forth in Section
2.4(a).
"FINAL TENANCY AGREEMENT" has the meaning set forth in Section 2.2(d).
"GRANDFATHERED PROPERTY" shall mean:
[*]
"HUBCO" has the meaning set forth in the Preamble.
"HUBCO GUARANTY" has the meaning set forth in Section 7.6.
"HUBCO SUBSIDIARY" has the meaning set forth in the Recitals.
"INVITEE" means any invitee, agent, employee, subtenant licensee,
assignee, contractor or invitee of any such other person or entity.
"LAND" means the land upon which each Facility sits and the land
surrounding each Facility which is appurtenant to or services each Facility.
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"LEASING TERM SHEET" means the Leasing Term Sheet attached as Exhibit
D and more particularly described in Section 2.2(d).
"MINIMUM SPACE OBLIGATION" has the meaning set forth in Section 3.1.
"MOST FAVORED NATION LEASING RATE" has the meaning set forth in
Section 3.3.
"OPT OUT" has the meaning set forth in Section 2.4.
"PERSON" means any natural person or corporation, limited liability
company, general partnership, limited partnership, venture, trust, business
trust, estate or other entity.
"PROJECT CLOSE-OUT" means the date that (i) all permits and approvals
for operation of any Facility have been obtained; (ii) all contractors,
subcontractors, suppliers, architects and others who perform work have been paid
in full; (iii) the Date of Provisional Acceptance has occurred and (iv) all
punchlist items have been completed.
"PROVIDENCE" has the meaning given such term in the Shareholders
Agreement.
"PUNCH LIST" has the meaning set forth in Section 8.4(a).
"RAW SPACE" means Space having the specifications outlined in Exhibit
B.
"READY FOR PROVISIONAL ACCEPTANCE" means (i) with respect to
Conditioned Space:
(a) such Space is complete in all material respects, except for a
Punch List, reasonably agreed to between HUBCO and Strategic Anchor Tenant,
listing the items of the Work not yet completed, and
(b) the results of Acceptance Testing of such Conditioned Space
demonstrate that such Conditioned Space has satisfied the Acceptance Criteria;
and (ii) with respect to any Raw Space, such Space has been delivered to
Strategic Anchor Tenant and meets the specifications outlined in Exhibit B.
"RESTRICTED BUSINESS" shall mean [*]
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"ROLLOUT SCHEDULE" means the list of Scheduled RFS Dates for each
Space in each city as set forth in Exhibit A. The Rollout Schedule may be
amended from time to time, by Supermajority Board Approval (as defined in the
Shareholders Agreement), which Supermajority Board Approval shall include the
vote of at least one Director Designee (as defined in the Shareholders
Agreement) nominated by a Person that shall have entered into a Strategic Anchor
Tenant Agreement (as defined in the Shareholders Agreement) or any other Person
which has signed an agreement substantially similar to this Agreement.
"SCHEDULED RFS DATE" means, with respect to each Space, the date set
forth in Exhibit A with respect to such Space, as any such date may be extended
for and during the period of any delay described in Section 9.14 or by agreement
of the parties. The Scheduled RFS Dates shall only apply to the
ready-for-service dates for Raw Space.
"SHARED SERVICES" means the managed services preliminarily outlined in
Exhibit C. The Shared Services may be modified from time to time, prospectively
on a Facility-by-Facility basis for any newly acquired Facility.
"SHAREHOLDERS" has the meaning set forth in the Shareholders
Agreement.
"SHAREHOLDERS AGREEMENT" means that certain Shareholders' Agreement,
dated November 23, 1999, by and among HUBCO and the other parties thereto.
"SPACE" has the meaning set forth in the Recitals.
"STRATEGIC ANCHOR TENANT" has the meaning set forth in the Preamble,
and where the context so requires, shall include the Strategic Anchor Tenant
Subsidiary.
"STRATEGIC ANCHOR TENANT GUARANTY" has the meaning set forth in
Section 7.6.
"STRATEGIC ANCHOR TENANT SUBSIDIARY" has the meaning set forth in the
Recitals.
"SUPPLIES" means any and all materials, plant, machinery, equipment,
hardware and items supplied by HUBCO under this Agreement.
"TERM" has the meaning set forth in Section 2.1.
"TOTAL LEASED SPACE" has the meaning set forth in Section 3.2(b).
"TOTAL PROJECT COST" means the sum of (i) the purchase price paid by
HUBCO to purchase the Facility and all direct costs related to the acquisition
of the Facility, and (ii) improvement and development costs incurred by HUBCO
through Project Close-out to prepare the Facility and construct any initial
improvements to the Facility and related on-site paving, landscaping and utility
lines, including without limitation infrastructure costs and associated fees
required to develop the Space; labor and materials to construct any initial
improvements; permit fees, sales taxes and fees payable to contractors;
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project landscaping, including related design fees and permits; water, gas and
electrical hookup fees and related miscellaneous costs; builder's risk
insurance; a prorated share of property tax assessed during the construction
period (beginning upon acquisition and ending on the Date of Provisional
Acceptance); reasonable expenses incurred by HUBCO in managing the construction
process, including air fare, hotels and car rentals; HUBCO's average cost of
coverage for liability insurance during the construction period; services for
verification of compliance with city ordinances and other laws; brokerage
commissions for the acquisition of the Facility; and imputed interest at
[*] percent on actual costs incurred by HUBCO (imputed interest begins to
accrue on actual cost as and when incurred up to the Date of Provisional
Acceptance).
"TRANSFER" has the meaning set forth in Section 9.2(b).
"WORK" means all activities and services necessary to be
performed or provided in developing, planning, engineering, designing,
manufacturing, procuring, constructing, delivering, and testing each Space in
accordance with the terms hereof until each Space is Ready for Provisional
Acceptance.
1.2 Unless otherwise defined herein, all terms used herein which
are commonly used in the terrestrial telecommunications industry shall have
the meanings commonly given such terms in the industry.
ARTICLE 2.
LEASE OF SPACES
2.1 TERM. This Agreement shall be effective as of the date hereof and
shall terminate on the earlier of: (i) the [*] anniversary of the date
hereof or (ii) the termination of this Agreement pursuant to Article 6 (the
"Term").
2.2 AGREEMENT TO LEASE SPACES.
(a) HUBCO agrees to lease, through its HUBCO Subsidiaries, the
Spaces and provide the Shared Services to each Strategic Anchor Tenant
Subsidiary (if such Shared Services are elected by Strategic Anchor Tenant) and
Strategic Anchor Tenant hereby agrees to lease and accept such Spaces and
HUBCO's provision of the Shared Services (as applicable) on the terms and
conditions of this Agreement and on the terms and conditions contained in the
Leasing Term Sheet (attached as Exhibit D and further defined below). Strategic
Anchor Tenant shall elect, by written notice to HUBCO within twenty-one (21)
days after the acquisition date of the subject Facility, to have the Space it
will lease be delivered as Raw Space or Conditioned Space or a combination of
the two types of space. The parties agree that the terms and conditions of each
Final Tenancy Agreement (as defined below) shall be substantially as set forth
in the Leasing Term Sheet (as defined below), except for modifications which are
necessary to make any business terms enforceable under the local law of each
country where such Space is located (such modifications "Local Law
Modifications").
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(b) A HUBCO Subsidiary and a Strategic Anchor Tenant
Subsidiary shall execute and deliver each applicable Final Tenancy Agreement as
soon as reasonably practicable after (i) the purchase or lease of the Facility
where the subject Space will be located and (ii) all Local Law Modifications
have been made to the applicable Leasing Term Sheet.
(c) A Strategic Anchor Tenant Subsidiary shall pay to
the applicable HUBCO Subsidiary the rental charges outlined in Sections 3.2(b)
and 3.3(a) and (b) below. All other terms and conditions with respect to the
payment of rental charges shall be substantially as set forth in the Leasing
Term Sheet. Strategic Anchor Tenant shall pay its pro rata share of the
operating expenses and taxes chargeable to the Facility as more particularly
described in the Leasing Term Sheet.
(d) A final tenancy agreement ("Final Tenancy
Agreement") for each Facility shall be executed substantially in the form of the
Leasing Term Sheet. The term of each Final Tenancy Agreement shall be [*].
(e) The parties acknowledge that HUBCO may lease (as
opposed to purchasing) all or a portion of a Facility and in turn may sublease a
Space within such leased Facility to Strategic Anchor Tenant. The parties hereby
acknowledge and agree to negotiate in good faith such amendments to this
Agreement or the Leasing Term Sheet, as any of the parties may reasonably
request, to reflect and better define the respective rights and obligations of
the parties in a context where HUBCO leases a Facility and subsequently (through
a HUBCO Subsidiary) subleases a Space therein to Strategic Anchor Tenant.
2.3 AGREEMENT TO PROVIDE CONNECTIVITY.
(a) Strategic Anchor Tenant shall provide connectivity
to a high-speed fiber optic network on commercially reasonable terms to each
Facility in which it leases a Space within [*] months after the Date of
Provisional Acceptance for each such Facility. Strategic Anchor Tenant shall
also provide Connectivity to Strategic Anchor Tenant's own high speed fiber
optic networks for each Facility in which it leases a Space. Such provision of
Connectivity shall be on commercially reasonable terms on a best efforts basis
and shall be provided within [*] months after the Date of Provisional
Acceptance of the applicable Space. Strategic Anchor Tenant shall provide
sufficient capacity (including upgrading connections if necessary) to prevent
service degradation as telecommunications traffic increases through a Facility.
(b) Strategic Anchor Tenant may elect to satisfy its
obligations under Section 2.3(a) by jointly undertaking to provide such
Connectivity with another strategic anchor tenant which has signed a strategic
anchor tenant agreement. Notwithstanding any such joint undertaking, Strategic
Anchor Tenant shall remain liable and responsible for its obligations under
Section 2.3(a).
2.4 OPTION TO DECLINE TO LEASE SPACES AND PROVIDE CONNECTIVITY.
(a) As HUBCO develops, acquires or leases new
Facilities consistent with the Rollout Schedule, HUBCO shall promptly notify
Strategic Anchor Tenant (such notice a "Facility Decision
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Notice") of any upcoming meeting of the Board of Directors of HUBCO wherein the
acquisition or lease of particular facility will be submitted for Board
approval. Strategic Anchor Tenant may decline, in writing and within the later
of (i) [*] days of receiving a Facility Decision Notice and (ii) [*]
after the approval of the Board of Directors of HUBCO of such acquisition or
lease, on a rolling basis, to lease a Space in, and provide Connectivity to, any
Facility in any city on the Rollout Schedule (such declination an "Opt Out" and
such notice an "Opt Out Notice"), provided, however Strategic Anchor Tenant may
only Opt Out of up to [*] (the "Default Threshold") of the Facilities owned
and or operated by HUBCO at the time of the applicable Facility Decision Notice.
The number of Facilities of which Strategic Anchor Tenant may Opt Out under this
Section 2.4 shall be rounded down to the nearest whole number of Facilities.
(b) If Strategic Anchor Tenant Opts Out of a particular
Facility Strategic Anchor Tenant shall not receive the Most Favored Nation
Leasing Rate in such Facility or any other benefits accruing to Strategic Anchor
Tenant pursuant to this Agreement or a Final Tenancy Agreement.
(c) In the event Strategic Anchor Tenant delivers to
HUBCO a number of Opt Out Notices greater than the Default Threshold (such
action an "Opt Out Default"), HUBCO may, in its sole discretion, either (a)
terminate this Agreement with respect to Spaces leased by Strategic Anchor
Tenant at the time of the Opt Out Default and reprice the leasing rates for all
Space leased by Strategic Anchor Tenant at the time of the Opt Out Default to
the prevailing market rate for comparable space in the applicable Facility
leased at a comparable volume or (b) continue to hold Strategic Anchor Tenant
liable for all of its obligations (and Strategic Anchor Tenant shall enjoy all
of its rights) under this Agreement. The provisions of this Section 2.4(c) shall
be the sole remedy of HUBCO in the case of an Opt Out Default, except as
provided in the Shareholders Agreement.
2.5 STRATEGIC ANCHOR TENANT MARKETING AND SALES COMMITMENT.
Strategic Anchor Tenant commits to use its respective sales
and marketing personnel to market and sell HUBCO's carrier hotel/collocation
products and services (collectively, the "Products") in conjunction with
Strategic Anchor Tenant's bandwidth services. HUBCO, in its sole and absolute
discretion, shall determine the pricing points upon which any Products may be
sold, except for Strategic Anchor Tenant sale decisions relating to Strategic
Anchor Tenant's Minimum Space Obligation. To compensate Strategic Anchor Tenant
for marketing and selling the Products, HUBCO will pay a market-level commission
(the "Resale Commission") for each such transaction. The parties hereby agree to
negotiate in good faith within [*] days of the execution of this Agreement,
an agreement setting forth the terms and conditions of Strategic Anchor Tenant's
marketing and sale of the Products, including, without limitation, an
appropriate Resale Commission.
2.6 ACQUISITION OF STRATEGIC ANCHOR TENANT.
If a Competitor acquires more than [*] of the equity
interest of Strategic Anchor Tenant, or Strategic Anchor Tenant sells [*]
of its assets or HUBCO stock (such actions each an "Acquisition"), Strategic
Anchor Tenant must inform HUBCO of such Acquisition by written notice within
[*] days of such Acquisition. HUBCO, in its sole discretion but within
[*] days after receipt of written notice from
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Strategic Anchor Tenant of such Acquisition, may (i) terminate this Agreement
solely with respect to Spaces not leased by Strategic Anchor Tenant at the time
of an Acquisition and reprice the leasing rates for all Space leased by
Strategic Anchor Tenant at the time of such Acquisition to the prevailing market
rate for comparable space leased in the applicable Facility at a comparable
volume or (ii) continue to hold Strategic Anchor Tenant liable for all of its
obligations (and Strategic Anchor Tenant shall enjoy all of its rights) under
this Agreement. The provisions of this Section 2.6 shall be the sole remedy of
HUBCO in the case of an Acquisition except as provided in the Shareholders
Agreement.
ARTICLE 3.
SPACE REQUIREMENTS
3.1 MINIMUM OBLIGATION TO LEASE SPACE.
Strategic Anchor Tenant shall lease Space in each Facility on
the Rollout Schedule upon the Date of Provisional Acceptance, subject only to
the provisions of this Article 3 and the "opt-out" provisions of Section 2.4
above. Any Space leased by Strategic Anchor Tenant in a Facility shall have a
minimum interior square footage equal to the lesser of [*] square feet or
[*] of the total interior square footage of the Facility (the "Minimum
Space Obligation"). The Strategic Anchor Tenant shall lease an amount of space
equal to its Minimum Space Obligation at the Most Favored Nation Leasing Rate
(as defined in Section 3.3 below) for such Facility.
3.2 ELECTIVE LEASED SPACE.
(a) In the event that any Facility has less than
[*] total rentable square feet, and Strategic Anchor Tenant is leasing its
Minimum Space Obligation in such Facility, Strategic Anchor Tenant may elect to
lease additional interior space in the Facility up to an amount equal to the
difference between [*] square feet and its Minimum Space Obligation in that
Facility (the "Elective Leased Space").
(b) Any Elective Leased Space shall be leased by
Strategic Anchor Tenant at [*] (the "Third Party Rate"). Until such time as a
Facility has at least one non-Strategic Anchor Tenant leasing space
comparable to Raw Space, the leasing rate for Raw Space leased by Strategic
Anchor Tenant will be the Most Favored Nation Leasing Rate. The Most Favored
Nation Leasing Rate shall apply only to the lease of Elective Leased Space up
to [*] square feet of Space. Each square foot of Space leased above [*]
square feet shall be priced at a market rate to be negotiated by the parties.
The Minimum Space Obligation for Strategic Anchor Tenant plus any Elective
Leased Space leased by Strategic Anchor Tenant shall be referred to
collectively as the "Total Leased Space" for Strategic Anchor Tenant with
respect to a particular Facility.
(c) Notwithstanding any of the foregoing in this
Section 3.2, no Strategic Anchor Tenant may lease an amount of Elective Leased
Space which will cause Strategic Anchor Tenant's Total Leased Space to be
greater than [*] of the total square footage of the applicable Facility
without the prior
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approval of a majority of the disinterested directors of the board of HUBCO.
Strategic Anchor Tenant does not receive such prior approval with respect to its
request for a certain amount of Elective Leased Space, Strategic Anchor Tenant
may: (i) elect to lease only its Minimum Space Obligation; or (ii) elect to
lease the amount of Elective Leased Space which, when added to Strategic Anchor
Tenant's Minimum Space Obligation, will total [*] of the total square
footage of the applicable Facility (its "Maximum Unilateral Election"); or (iii)
elect to lease an amount of Elective Leased Space which is less than its Maximum
Unilateral Election.
(d) Notwithstanding any of the foregoing, the amount of
Elective Leased Space for Strategic Anchor Tenant under Subsection 3.2(c)(iii)
above must be elected in increments of [*] square feet.
3.3 MOST FAVORED NATION LEASING RATES.
(a) The annual per square foot rental charge to
Strategic Anchor Tenant for the first [*] years of the term of each Final
Tenancy Agreement for each Space shall be [*] (the "Variable Rate"). The
Variable Rate shall be determined according to the chart attached as Exhibit F.
The first calculation of the Variable Rate shall occur on the Commencement Date
for each Space and shall be recalculated on the anniversary of each Commencement
Date thereafter.
(b) In addition to the rent payable pursuant to Section
3.3(a), Strategic Anchor Tenant shall pay its prorated share of any Additional
Capital Costs, amortized at the Variable Rate over the longer of (x) the useful
life of the item included in Additional Capital Costs and (y) the remaining term
of the applicable Final Tenancy Agreement, as it may be extended or renewed, in
either case, not to exceed an amortization period of [*] years.
(c) The Most Favored Nation Rates calculated in
subsections 3.3(a) and (b) herein do not include taxes charged directly to
Strategic Anchor Tenant by a municipality or other similar entity, sales,
excise, value added or similar taxes or any of the common charges set forth in
the Leasing Term Sheet.
3.4 NONCOMPETE.
Subject only to Sections 2.6, 3.5 and 6.2, Strategic Anchor
Tenant and its Affiliates shall not, during the Term, operate, manage or acquire
any equity interest in or assets of any Restricted Business; provided, however,
Strategic Anchor Tenant and its Affiliates may (A) acquire not more than
[*] of the capital stock of a Restricted Business; (B) operate, manage or
acquire any equity interest in any Person that derives not more than [*] of
its revenues from a Restricted Business or (C) own or lease a Grandfathered
Property, provided further that this restriction shall not apply to Affiliates
of Strategic Anchor Tenant if such Affiliate qualifies as an Affiliate solely by
reason of common control with Providence or Carlyle.
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3.5 HUBCO RIGHT OF FIRST REFUSAL ON FUTURE SPACE REQUIREMENTS.
If Strategic Anchor Tenant requires carrier hotel/collocation
facilities in any location, HUBCO will have a right of first refusal to provide
such facilities on terms consistent with those set forth in this Article 3.
Strategic Anchor Tenant shall notify HUBCO of its needs in a written notice
which sets forth: (i) the city (or the region of such city) where Strategic
Anchor Tenant needs space; (ii) the amount of square footage requested, (iii)
the requested delivery date for such additional facilities, and (iv) if
applicable, the material terms offered to Strategic Anchor Tenant by any third
party for the development of such a facility (such notice a "ROFR Notice").
HUBCO will notify Strategic Anchor Tenant of whether HUBCO intends to provide
the additional facilities requested within [*] days of receiving the ROFR
Notice. If HUBCO declines to provide such facilities in the city requested, with
the amount of square footage needed and by the requested delivery date and, if
Strategic Anchor Tenant has received a third party offer, upon the material
terms set forth in such third party offer, Strategic Anchor Tenant will be free
to develop its own carrier hotel/collocation facilities in such city, on the
express condition that Strategic Anchor Tenant (i) develops facilities no larger
than the square footage requested in the ROFR Notice and in the location set
forth in such ROFR Notice; (ii) executes and enters into a binding agreement to
develop such facilities within [*] days of HUBCO's declination of the
opportunity to provide the additional facilities requested by Strategic Anchor
Tenant on terms no less favorable in the aggregate to Strategic Anchor Tenant
than those set forth in the third party offer, if any, and (iii) if the facility
contains more than [*] square feet of rentable space, offers to HUBCO the
right to lease space comparable to Raw Space in such additional facilities in an
amount equal to the lesser of (x) [*] of the total rentable area of such
facility and (y) [*] square feet, at a rate per square foot not more than
the lowest rate per square foot paid by any other tenant in such facility.
3.6 RELOCATION.
HUBCO reserves the right, at HUBCO's sole cost, to change the
location or configuration of the Space, provided however, that HUBCO shall not
arbitrarily or discriminatorily require such changes. HUBCO and Strategic Anchor
Tenant shall work in good faith to minimize any disruption in Strategic Anchor
Tenant's use of the Space that may be caused by such changes in location or
configuration of the Space.
3.7 RIGHT TO MATCH.
If at any time after the Effective Date of this Agreement
HUBCO enters into another strategic anchor tenant agreement covering the same
subject matter as this Agreement (such agreement a "Third Party Agreement") then
Strategic Anchor Tenant shall have the right to elect to amend and restate this
Agreement so that the terms and conditions of this Agreement conform in their
entirety with the terms and conditions of the Third Party Agreement. If
Strategic Anchor Tenant makes the election outlined in the foregoing sentence,
Strategic Anchor Tenant shall not have the right to conform this Agreement with
only selected provisions of the Third Party Agreement but must amend and restate
this Agreement to conform with the Third Party Agreement in its entirety.
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
11
ARTICLE 4.
CONSTRUCTION
4.1 TECHNICAL SPECIFICATIONS FOR FACILITIES.
(a) Each Facility shall be engineered in accordance
with general technical specifications applicable to each Facility as are
established by HUBCO with the approval of Strategic Anchor Tenant, such approval
not to be unreasonably withheld, conditioned or delayed (the "Technical
Specifications"). The Technical Specifications may be amended from time to time
with the approval of Strategic Anchor Tenant, such approval not to be
unreasonably withheld, conditioned or delayed. The parties hereby agree to
negotiate, draft and establish, in good faith and within [*] days of the
execution of this Agreement, the Technical Specifications. If Strategic Anchor
Tenant requests HUBCO's consent to a modification of a Technical Specification,
such consent shall not be unreasonably withheld.
(b) As necessary, HUBCO, in its reasonable discretion,
may make modifications to the Technical Specifications required to ensure
building code compliance or to comply with engineering specifications or
modifications required by any governmental or semi-governmental agency or review
board.
(c) HUBCO shall provide sufficient access for cabling
from the entrance facilities of each Facility to each Space and to other points
of interconnection in the Facility, subject to generally applicable rules and
regulations promulgated by HUBCO from time to time.
4.2 CONSTRUCTION OF SPACES.
(a) In consideration of the mutual promises and
covenants herein between the parties, HUBCO will design and construct the
collocation infrastructure of each Space pursuant to the tenant-specific design
and construction specifications and Work to be established by the parties in
accordance with this Section. The parties hereby agree to negotiate and draft,
in good faith and within [*] days of the execution of this Agreement, a
construction agreement (the "Construction Agreement"). The Construction
Agreement may be amended from time to time with the approval of Strategic Anchor
Tenant, such approval not to be unreasonably withheld, conditioned or delayed.
(b) If this Agreement is terminated by HUBCO pursuant
to the terms herein prior to the execution of all of the Final Tenancy
Agreements, Strategic Anchor Tenant shall, pro rata, promptly reimburse HUBCO
for all of its reasonable expenses incurred with respect to the design and
construction of each Space for which a Final Tenancy Agreement has not been
executed. HUBCO shall send to Strategic Anchor Tenant invoices reasonably
detailing such expenses.
(c) The commencement date for each Space under each
Final Tenancy Agreement (each such date, a "Commencement Date") shall be the
Date of Provisional Acceptance for such Space.
(d) Within [*] days of the Effective Date of this
Agreement, representatives of the parties to this Agreement shall meet to
discuss the network deployment plans of Strategic Anchor Tenant.
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
12
During such meeting the parties, in good faith, shall attempt to agree upon
revisions to the Rollout Schedule to reflect a revised set of Scheduled RFS
Dates For Space based upon Strategic Anchor Tenant's network deployment plan.
The parties also hereby agree to meet periodically (such meetings to occur no
less frequently than once every [*] days) to share new developments
relevant to each parties' obligations under this Agreement.
ARTICLE 5.
DEFAULT
5.1 DEFAULT BY STRATEGIC ANCHOR TENANT.
(a) With respect to all payments required to be made by
Strategic Anchor Tenant hereunder or under a Final Tenancy Agreement, including,
without limitation, payment of the leasing rates and all other amounts payable
by Strategic Anchor Tenant hereunder or thereunder, if Strategic Anchor Tenant
fails to make any payment by the date such payment is due and payable hereunder
or thereunder, such unpaid amount shall bear interest until paid at a rate equal
to the rate set forth in Section 5.3. In the event any amount or amounts due and
payable hereunder remain unpaid for a period of [*] days after written
notice thereof from HUBCO to Strategic Anchor Tenant and Strategic Anchor Tenant
Subsidiary, Strategic Anchor Tenant shall be in default hereunder or thereunder.
(b) With respect to all of its other obligations
hereunder or under a Final Tenancy Agreement, if Strategic Anchor Tenant fails
to perform a material nonpayment obligation or any representation or warranty
made by Strategic Anchor Tenant herein or therein shall prove to be untrue in
any material respect and, in each case, such breach shall continue for a period
of [*] days after HUBCO shall have given Strategic Anchor Tenant written
notice of such breach, Strategic Anchor Tenant shall be in default hereunder or
thereunder unless Strategic Anchor Tenant shall have cured such breach or such
breach is otherwise waived in writing by HUBCO within such [*] days;
provided, however, that where such breach cannot reasonably be cured within such
[*] period and is susceptible to cure, if Strategic Anchor Tenant shall
proceed promptly to cure the same and prosecute such cure with due diligence,
the time for curing such failure shall be extended for such period of time as
may be necessary to complete such cure, up to a maximum of [*].
(c) Strategic Anchor Tenant shall be in default
hereunder if (i) Strategic Anchor Tenant shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing; or (ii) an involuntary case or other proceeding shall be commenced
against Strategic Anchor Tenant seeking liquidation,
---------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
13
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or (iii) an order for relief shall be entered against
Strategic Anchor Tenant.
5.2 DEFAULT BY HUBCO.
(a) With respect to its obligation to complete the
construction, installation and satisfactory Acceptance Testing by the Scheduled
RFS Date for a particular Space pursuant to Article 8 herein, HUBCO shall be in
default under this Agreement, subject to delays because of Force Majeure, if (i)
the Date of Provisional Acceptance with respect to any Space has not occurred
within [*] days after the Scheduled RFS Date for such Space (a "Delivery
Default") or (ii) HUBCO has failed to execute an agreement for the acquisition
or lease of a Facility in a particular city within [*] months prior to the
Scheduled RFS Date for a Space (whether such Space is Raw Space or Conditioned
Space) in such city (an "Acquisition Default") and such failure continues for a
period of [*] days after Strategic Anchor Tenant shall have given HUBCO
written notice of such failure.
(b) With respect to HUBCO's other obligations
hereunder, or under a Final Tenancy Agreement in the event that HUBCO shall fail
to perform a material obligation or any representation or warranty made by HUBCO
herein shall prove to be untrue in any material respect and, in each case, such
breach shall continue for a period of [*] days after Strategic Anchor
Tenant shall have given HUBCO written notice of such breach, HUBCO shall be in
default hereunder or thereunder unless HUBCO shall have cured such breach or
such breach is otherwise waived in writing by Strategic Anchor Tenant within
such [*] days; PROVIDED HOWEVER, that where such breach cannot reasonably
be cured within such [*] period and is susceptible to cure, if HUBCO shall
proceed promptly to cure the same and prosecute such cure with due diligence,
the time for curing such breach shall be extended for such period of time as may
be necessary to complete such cure, up to a maximum of [*] days.
(c) HUBCO shall be in default hereunder if (i) HUBCO
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or shall consent
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or (ii) an involuntary case or other
proceeding shall be commenced against HUBCO seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or (iii) an order
for relief shall be entered against HUBCO.
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
14
5.3 DEFAULT RATE.
If Strategic Anchor Tenant fails to make any payment under
this Agreement when invoiced and due, such amount shall accrue interest from the
date such payment is due until it is paid, such interest to be payable along
with the amount due on the date the underlying payment is made, compounded
monthly at a rate per annum equal to the prime rate of interest published by The
Wall Street Journal plus [*] or, if lower, the highest percentage allowed
by New York or local law.
ARTICLE 6.
TERMINATION FOR DEFAULT
6.1 TERMINATION BY HUBCO.
(a) Upon any default by Strategic Anchor Tenant
(excluding any Opt Out Default), after notice thereof from HUBCO and the
expiration of any applicable cure period hereunder, HUBCO may (a) terminate this
Agreement in its entirety and/or (b) subject to the limitations of Article 7,
pursue the remedies specifically provided in this Agreement or otherwise
available at law or in equity against Strategic Anchor Tenant.
(b) If this Agreement is terminated by HUBCO pursuant
to this Article 6, Strategic Anchor Tenant shall pay, in addition to any other
damages payable pursuant to Section 6.3, the total of (i) the reasonable cost of
settling and paying claims arising out of the termination of Work under the
contracts and orders which are properly chargeable to the terminated portion of
this Agreement; and (ii) the reasonable costs of settlement including
accounting, legal, clerical and other expenses necessary for the preparation of
settlement claims and supporting data with respect to the terminated portion of
this Agreement and for termination and settlement of contracts thereunder,
together with reasonable storage, transportation and other costs incurred in
connection with the protection, preservation and disposition of property proper
to this Agreement.
6.2 TERMINATION BY STRATEGIC ANCHOR TENANT
(a) Upon any default by HUBCO (excluding any Delivery
Default or Acquisition Default), after notice thereof from Strategic Anchor
Tenant, Strategic Anchor Tenant may (a) terminate this Agreement in its
entirety, and/or (b) subject to the limitations of Article 7, pursue the
remedies specifically provided in this Agreement or otherwise available at law
or in equity.
(b) Upon any Delivery Default by HUBCO, Strategic
Anchor Tenant may terminate this Agreement solely with respect to the Space
which was not delivered prior to [*] days after the Scheduled RFS Date for
such Space subject to delays caused by Force Majeure. This Agreement shall
remain in full force and effect with respect to any other Space(s) remaining to
be delivered pursuant to this Agreement.
(c) Upon any Acquisition Default by HUBCO, Strategic
Anchor Tenant may terminate this Agreement by written notice to HUBCO within
[*] days after such Acquisition Default and
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*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
15
solely with respect to the Space which is the subject of the Acquisition
Default. If a portion of this Agreement is terminated pursuant to this Section,
the Agreement shall remain in full force and effect with respect to any other
Space(s) remaining to be delivered pursuant to this Agreement.
(d) If this Agreement is terminated by Strategic Anchor
Tenant as a result of a Delivery Default, HUBCO shall pay, in addition to any
other damages payable pursuant to Section 6.3 below, the reasonable costs of
settlement, including accounting, legal, clerical and other expenses necessary
for the preparation of settlement claims and supporting data with respect to the
terminated portion of this Agreement and for termination and settlement of
contracts thereunder, together with reasonable storage, transportation and other
costs incurred in connection with the protection, preservation and disposition
of property proper to this Agreement.
6.3 NO RELIEF.
Regardless of any termination of this Agreement as a result of
a default neither party shall be relieved from any liability for damages or
otherwise which may have been incurred by reason of any breach of this
Agreement.
ARTICLE 7.
LIMITATION OF LIABILITY
7.1 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE
CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OF ITS
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS (OR INVITEES OR ANY OTHER PERSON OR
ENTITY) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL
DAMAGES, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH, SUCH
PARTY'S FAILURE TO PERFORM ITS RESPECTIVE OBLIGATIONS OR BREACH OF ITS
RESPECTIVE REPRESENTATIONS HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSS OF
USE, PROFITS OR REVENUE, COST OF CAPITAL, COST OF REPLACEMENT SERVICES OR
RESTORATION (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY
INTERRUPTION OR DEGRADATION OF SERVICE OR OTHERWISE), OR CLAIMS OF CUSTOMERS, IN
EACH CASE WHETHER OCCASIONED BY ANY CONSTRUCTION, RECONSTRUCTION, RELOCATION,
REPAIR OR MAINTENANCE PERFORMED BY, OR FAILED TO BE PERFORMED BY, THE OTHER
PARTY OR ANY OTHER CAUSE WHATSOEVER, WHETHER ARISING UNDER CONTRACT OR TORT,
INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, ACTIVE, PASSIVE OR IMPUTED
NEGLIGENCE, OR STRICT LIABILITY, ALL CLAIMS WITH RESPECT TO WHICH SUCH SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARE HEREBY SPECIFICALLY
AND EXPRESSLY DISCLAIMED, EXCLUDED AND WAIVED.
7.2 HUBCO'S MAXIMUM AGGREGATE LIABILITY TO STRATEGIC ANCHOR
TENANT HEREUNDER, INCLUDING BUT NOT LIMITED TO MISTAKES, OMISSIONS,
INTERRUPTIONS, DELAYS OR ERRORS, OR OTHER DEFECTS, SHALL BE LIMITED TO A
PRORATED REFUND OF THE CHARGES PAID BY STRATEGIC ANCHOR TENANT FOR THE USE OF
THE SPACE HEREUNDER. THE EXTENSION OF SUCH A REFUND SHALL BE THE SOLE REMEDY OF
STRATEGIC ANCHOR TENANT AND THE SOLE LIABILITY OF HUBCO UNDER THIS AGREEMENT.
16
7.3 Strategic Anchor Tenant shall indemnify, protect, defend and
hold harmless HUBCO, its Affiliates, partners, members, employees, agents and
independent contractors from and against all costs, damages, claims, liabilities
and expenses (including reasonable attorneys' fees) (collectively, "Costs")
suffered by or claimed against HUBCO or any of its partners, directors,
shareholders, members, employees, agents or independent contractors, directly or
indirectly, to the extent arising out of: (a) Strategic Anchor Tenant's use and
occupancy of the Space, use of the common areas of a Facility or the Land or the
business with respect to each conducted therein, (b) the condition of the Space
or any occurrence or happening in the Space from a cause under the control of
Strategic Anchor Tenant, (c) any act or omission of Strategic Anchor Tenant or
any Invitee of Strategic Anchor Tenant, (d) any default by Strategic Anchor
Tenant in the observance or performance of any of the terms, covenants or
conditions of this Agreement on Strategic Anchor Tenant's part to be observed or
performed, including failure to surrender the Space upon the expiration or
earlier termination of the Term (as defined in the Leasing Term Sheet), or (e)
any entry by Strategic Anchor Tenant or any Invitee of Strategic Anchor Tenant
in the Space, applicable Facility or upon the Land prior to the Commencement
Date; provided, however, the foregoing obligation of Strategic Anchor Tenant
shall only apply to the extent the Costs are (i) not covered by insurance
carried or required to be carried by HUBCO pursuant to the applicable Final
Tenancy Agreement or otherwise and (ii) not the result of the gross negligence
or willful misconduct of HUBCO.
7.4 HUBCO shall indemnify, protect, defend and hold harmless
Strategic Anchor Tenant, its Affiliates, partners, directors, shareholders,
employees, agents and independent contractors from and against all Costs
suffered by or claimed against Strategic Anchor Tenant or any of its partners,
directors, shareholders, employees, agents and independent contractors, directly
or indirectly, to the extent arising from the negligence of HUBCO, its
contractors or employees, in connection with the construction, operation,
management, maintenance and repair of the common areas of the Facilities,
provided, however, the foregoing obligation of HUBCO shall only apply to the
extent the Costs are not covered by insurance carried or required to be carried
by Strategic Anchor Tenant pursuant to the applicable Final Tenancy Agreement or
otherwise and provided the same are not the result of the gross negligence or
willful misconduct of Strategic Anchor Tenant.
7.5 Strategic Anchor Tenant shall not have the right to offset or
deduct any amount allegedly owed to Strategic Anchor Tenant pursuant to any
claim against HUBCO from any rental fee or other sum payable to HUBCO. Strategic
Anchor Tenant's sole remedy for recovering upon such claim shall be to institute
an independent action against HUBCO.
7.6 GUARANTIES.
In consideration of the mutual promises and covenants herein
between the parties (i) HUBCO shall deliver to Strategic Anchor Tenant a
guaranty with respect to the obligations of each HUBCO subsidiary under this
Agreement and under each Final Tenancy Agreement (the "HUBCO Guaranty"); and
(ii) Strategic Anchor Tenant shall deliver to HUBCO a guaranty with respect to
the obligations of each Strategic Anchor Tenant Subsidiary under this Agreement
and under each Final Tenancy Agreement (the "Strategic Anchor Tenant Guaranty"
and, together with the HUBCO Guaranty, the "Guaranties"). The parties hereby
agree to negotiate and draft, in good faith and within the earlier of:
17
(i) [*] days after the execution of this Agreement or (ii) prior to the
execution of the first Final Tenancy Agreement, the Guaranties.
ARTICLE 8.
ACCEPTANCE AND TESTING
8.1 OVERVIEW.
Acceptance testing shall be conducted for each Space
("Acceptance Testing") pursuant to the provisions of this Article 8.
Notwithstanding the foregoing, no Acceptance Testing shall be conducted on a
Space delivered as Raw Space. A Space delivered as Raw Space shall be deemed
Ready for Provisional Acceptance upon its delivery.
8.2 ACCEPTANCE TESTING.
(a) Acceptance Testing shall be performed by HUBCO or a
HUBCO Subsidiary in accordance with Acceptance Testing specifications (the
"Acceptance Testing Specifications") and criteria for accepting Space
("Acceptance Criteria") to be established by HUBCO in consultation with
Strategic Anchor Tenant. The parties hereby agree to negotiate, draft and
establish, in good faith and within [*] days of the execution of this
Agreement, the Acceptance Testing Specifications and Acceptance Criteria. The
Acceptance Testing Specifications and Acceptance Criteria may be amended from
time to time with the approval of Strategic Anchor Tenant, which approval shall
not be unreasonably withheld, conditioned or delayed.
(b) Strategic Anchor Tenant and its designated
representatives may observe, at their own expense, HUBCO's tests and review the
test results. Strategic Anchor Tenant may request HUBCO to conduct and/or may
itself conduct any additional tests to demonstrate compliance with the
provisions of this Agreement and the Acceptance Criteria, PROVIDED such
additional tests are conducted in a manner designed to minimize any interference
with, or delay in, HUBCO's construction thereof or completion of HUBCO's
Acceptance Testing. If such additional tests do demonstrate that the provisions
of this Agreement (including the Acceptance Criteria) have been complied with,
then Strategic Anchor Tenant shall be responsible for paying the costs of such
additional tests, and any delay beyond HUBCO's schedule for completion of its
tests caused by such process shall be a Force Majeure. If, however, such
additional tests demonstrate that the provisions of this Agreement or the
Acceptance Criteria have not been complied with, then it shall be HUBCO's
responsibility to pay the costs of such additional tests, and any delay caused
by such process shall not be a Force Majeure.
(c) Strategic Anchor Tenant shall not unreasonably
withhold, condition or delay its issuance of a Certificate of Provisional
Acceptance.
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*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
18
(d) HUBCO agrees that the Date of Provisional
Acceptance of each Space will occur by the Scheduled RFS Date for such Space.
8.3 NOTICE OF ACCEPTANCE OR REJECTION.
(a) Within [*] days after receipt by Strategic
Anchor Tenant of a Commissioning Report, Strategic Anchor Tenant must provide to
HUBCO one of the following:
(i) issuance of a Certificate of Provisional
Acceptance; or
(ii) notice of rejection of the Space in its existing
condition and a written explanation of its reasons for
rejection which rejection shall only be based upon Strategic
Anchor Tenant's reasonable determination that the Space has
Deficiencies.
If Strategic Anchor Tenant fails to respond with such notification
within [*] days, then the Date of Provisional Acceptance of the
Space shall be deemed to be the date occurring [*] days after such
Commissioning Report was received by Strategic Anchor Tenant.
(b) On receipt of a notice from Strategic Anchor Tenant
pursuant to Section 8.3(a)(ii) above, HUBCO shall be entitled within [*]
business days after receipt thereof to address any disputes and explain any
discrepancies to Strategic Anchor Tenant. Unless Strategic Anchor Tenant, for
good cause, rejects such explanation, it shall issue a new notice pursuant to
Section 8.3(a) above, which shall be deemed to have been issued on the date of
the original notice.
(c) In case of rejection, and if the explanation by
HUBCO pursuant to Section 8.3(b) above is not accepted, for good cause, by
Strategic Anchor Tenant, HUBCO shall within [*] business days after notice
from Strategic Anchor Tenant deliver a proposed corrective action plan
(including estimates of the time required for resolution) and shall promptly
carry out the necessary corrective actions and effect the necessary tests to
establish that the corrective action satisfies the Acceptance Criteria
("Retesting"). After receipt by Strategic Anchor Tenant of the new Commissioning
Report describing the corrective action and the results of Retesting, Strategic
Anchor Tenant will be granted a new period of [*] days to analyze the new
Commissioning Report according to the provisions of Section 8.3(a) and any new
notice by Strategic Anchor Tenant shall apply from the date Strategic Anchor
Tenant receives such new Commissioning Report.
8.4 PROVISIONAL ACCEPTANCE.
(a) The Certificate of Provisional Acceptance may have
annexed to it a list of any items agreed to be completed under the Construction
Agreement which are still outstanding and are to be corrected by HUBCO (such
list a "Punch List").
(b) HUBCO shall, as soon as reasonably practicable,
correct, at its sole cost and expense (such costs and expenses to be included in
Total Project Costs), such Deficiencies and complete
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*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
19
the Work indicated so as to comply in all material respects with the
requirements of this Agreement, PROVIDED Strategic Anchor Tenant allows HUBCO
the necessary access to the Space as HUBCO needs to correct such Deficiencies
and complete the Work. HUBCO shall give Strategic Anchor Tenant reasonable
notice of its requirement for such access.
ARTICLE 9.
MISCELLANEOUS
9.1 SURVIVAL.
The representations and warranties and covenants of each of
the parties contained in this Agreement shall survive until the execution and
delivery of the last Final Tenancy Agreement.
9.2 SUCCESSORS AND PERMITTED ASSIGNS; ASSIGNMENT.
(a) The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, and to the extent applicable heirs, executors,
administrators and legal representatives.
(b) Except as provided in Section 9.2(c), Strategic
Anchor Tenant shall not, without the prior consent of HUBCO, assign this
Agreement or its rights under any Final Tenancy Agreement (any such actions or
similar actions a "Transfer"). HUBCO's consent to a Transfer shall not be
unreasonably withheld. In no event, however, shall HUBCO be required to consent
to a Transfer to a Competitor. Any Transfer made without HUBCO's prior consent
shall, at HUBCO's option, be null, void and of no effect, and shall at HUBCO's
option, constitute a default under this Agreement and the applicable Final
Tenancy Agreement. HUBCO's consent to any Transfer shall not be construed (i) as
a waiver or release of Strategic Anchor Tenant's liability for the performance
of any obligation to be performed under this Agreement or the applicable Final
Tenancy Agreement, or (ii) as relieving Strategic Anchor Tenant from the
obligation of obtaining HUBCO's prior consent to any subsequent Transfer.
(c) Notwithstanding Section 9.2(b), Strategic Anchor
Tenant shall have the right at any time, and from time to time, with the consent
of HUBCO (which shall not be unreasonably withheld or delayed), to collaterally
assign to a financial institution or similar entity the leasehold interest and
estate created in a Space by way of a collateral assignment of lease and to
collaterally assign its rights under this Agreement.
9.3 NOTICES.
All notices, requests and other communications hereunder shall
be deemed to have been duly delivered, given or made to or upon any party hereto
if in writing and delivered by hand against receipt, or by certified or
registered mail, postage prepaid, return receipt requested, or to a courier who
guarantees next business day delivery or sent by telecopy (with confirmation),
to such party at its address set forth below or to such other address as such
party may at any time, or from time to time, direct by notice given in
accordance with this Section 9.3.
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if to HUBCO:
HUBCO S.A.
--------------------------------------------
--------------------------------------------
Fax:
----------------------------------------
Attention:
----------------------------------
if to Strategic Anchor Tenant:
Carrier1 International S.A.
Xxxxxxxxxxxxxx 00
XX-0000 Xxxxxx, Xxxxxxxxxxx
Fax: 000-000-000-0000
Attention: Xxxxx Xxxxxxx
The date of delivery of any such notice, request or other communication shall be
the earlier of (i) the date of actual receipt or (ii) three business days after
such notice, request or other communication is sent if sent by certified or
registered mail, (iii) if sent by courier who guarantees next business day
delivery the business day next following the day such notice, request or other
communication is actually delivered to the courier or (iv) the day actually
telecopied.
9.4 AMENDMENTS AND WAIVERS.
(a) Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed, in
the case of an amendment, by each party to this Agreement, or in the case of a
waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
9.5 GOVERNING LAW; SEVERABILITY.
THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF NEW YORK, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR
PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT
TO THE LAW OF ANOTHER JURISDICTION. If any provision of this Agreement or its
application to any Person or circumstance is held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such
provision to other Persons or circumstances is not affected and such provision
shall be enforced to the greatest extent permitted by law.
9.6 ARBITRATION.
The parties agree that any dispute arising out of or in
connection with this Agreement or the transactions contemplated hereby shall be
submitted to arbitration. The parties shall negotiate in good faith and use all
reasonable efforts to agree upon a resolution of any dispute after receipt of
written notice of such dispute from another party. If the parties in dispute
cannot agree on an amicable settlement within
21
sixty (60) days from written submission of the matter by one party to another,
the matter shall be submitted to arbitration. The party invoking arbitration
shall select one arbitrator, the other party shall appoint one arbitrator, and
the two arbitrators so appointed shall select a third arbitrator. In the event
such arbitrators cannot agree upon a third arbitrator, a third arbitrator shall
be selected in accordance with the rules as then in effect of the American
Arbitration Association. The decision of two of the three arbitrators so
appointed as to the validity of any claim shall be conclusive and binding upon
the parties in dispute. Any such arbitration shall be held in New York, New York
under the international rules as then in effect of the American Arbitration
Association; provided that the arbitrators shall not have the powers of AMIABLE
COMPOSITEURS or EX AEQUO ET XXXX. Notwithstanding Section 9.5, any arbitration
provided for hereunder and this Section 9.6 shall be governed by Title 9
(Arbitration) of the United States Code. The parties hereto intend that this
Agreement and any interpretation, construction or enforcement hereof by the
arbitrators will be governed by the specific terms of this Agreement. The
official language of any such arbitration will be English. Each party to any
such arbitration shall pay its own expenses; provided that the fees, costs and
expenses of the third arbitrator shall be borne equally by the party invoking
arbitration, on the one hand, and the other party in dispute, on the other hand.
9.7 EXPENSES.
All expenses incurred by any party hereto in connection with
the negotiation, preparation and consummation of this Agreement and the
transactions contemplated hereby shall be borne by such party except as
otherwise expressly provided in any provision of this Agreement.
9.8 COUNTERPARTS; EFFECTIVENESS.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signature
thereto and hereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
9.9 HEADINGS.
The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
9.10 ENTIRE AGREEMENT.
This Agreement, the Exhibits attached (or to be attached)
hereto and the agreements, documents and instruments contemplated hereby,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and supersede all prior agreements and understandings, whether
oral or written, between or among any of the parties hereto with respect to the
subject matter hereof.
9.11 INTERPRETATION.
In any dispute concerning the construction or interpretation
of any provision of this Agreement or any ambiguity thereof, there shall be no
presumption that the Agreement or any provision hereof be construed against the
party who drafted this Agreement.
22
9.12 FURTHER ASSURANCES.
In connection with this Agreement and the transactions
contemplated hereby, each party shall execute and deliver any additional
documents and instruments and perform any additional acts that may be necessary
or appropriate to effectuate and perform the provisions of this Agreement and
such transactions.
9.13 NO THIRD PARTY BENEFICIARIES.
This Agreement does not provide and is not intended to provide
any third party (including but not limited to customers of HUBCO or Strategic
Anchor Tenant) with any remedy, claim, liability, reimbursement, cause of
action, or any other right.
9.14 FORCE MAJEURE.
(a) Neither party hereto shall be responsible for any
loss, damage, delay or failure of performance resulting directly or indirectly
from any cause which is beyond its reasonable control and which prevents such
party from performing any material obligation ("Force Majeure"), including but
not limited to: acts of God or of the public enemy; acts or failures to act of
any governmental authority, including without limitation any delay in obtaining,
or failure to obtain, any permits or other governmental authorizations, unless
resulting from any bad faith, gross negligence or willful misconduct of such
party; war or warlike operations, civil war or commotion, mobilizations or
military call-up, and acts of similar nature; revolution, rebellions, sabotage,
and insurrections or riots; fires, floods, epidemics quarantine restrictions;
strikes, and other labor actions; freight embargoes; unworkable weather; acts or
omissions of transporters; or damage caused by other construction activity such
as building of roads and railroads; PROVIDED that the following shall not, in
and of themselves, constitute Force Majeure: (i) a loss by HUBCO or any
subcontractor of employees (other than by reason of Force Majeure), (ii) strikes
and other labor actions involving HUBCO's or any subcontractor's own work force
not part of a general strike, (iii) the unavailability of any raw materials or
components, unless such raw materials or components are generally unavailable in
the marketplace or are unavailable by reason of Force Majeure.
(b) If any such Force Majeure causes an increase in the
time or costs required for performance of any of its duties or obligations,
HUBCO shall be entitled to an equitable extension of time for completion of the
performance of its obligations and an equitable adjustment in the annual rental
charges to be paid pursuant to Section 3.3 above and the applicable Final
Tenancy Agreement.
(c) Each party shall inform the other party promptly
with written notification, and in all cases within fourteen (14) days of
discovery and knowledge, of any occurrence covered under this Section 9.14 and
shall use its reasonable efforts to minimize such additional delays. In the case
of a notification by HUBCO, HUBCO shall promptly provide an estimate of the
anticipated time required to complete the Work.
(d) Within thirty (30) days after receipt of such a
notice from either party, the other party may provide a written response.
(e) Every forty-five (45) days during the period of
Force Majeure, the parties shall meet and review the circumstances surrounding
the Force Majeure, including, without limitation, the anticipated date of
recommencing the Work.
(f) Force Majeure shall not excuse the late payment of
money.
23
9.15 REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS.
(a) Each party represents and warrants that:
(i) it is duly organized and validly existing under
the laws of the jurisdiction of its organization and has the
corporate power and authority and the legal right to own and
operate its property, to lease the property it operates and to
conduct the business in which it is currently engaged;
(ii) it has the corporate power and authority and the
legal right to execute and deliver, and to perform its
obligations under, this Agreement, and has taken all necessary
corporate action to authorize its execution, delivery and
performance of this Agreement;
(iii) this Agreement constitutes a legally valid and
binding obligation of such party enforceable in accordance
with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the enforcement of
creditors' rights generally, general equitable principles and
an implied covenant of good faith and fair dealing;
(iv) the execution, delivery and performance of this
Agreement will not violate any provision of any law, rule or
regulation or any lease, agreement or instrument applicable to
such party or to which any of its property is subject and will
not result in or require the creation or imposition of any
lien on any of the properties or revenues of such party
pursuant to any law, rule or regulation or any lease,
agreement or instrument applicable to such party or to which
any of its property is subject; and
(v) except for applicable permits, no consent or
authorization of, filing with, or other act by or in respect
of, any arbitrator or governmental authority and no consent of
any other person (including, without limitation, any
stockholder or creditor of such party) is required in
connection with the execution, delivery, performance, validity
or enforceability of this Agreement, except in each case those
that have been made or obtained.
24
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement as of the date first set forth above.
HUBCO S.A.
By: /s/ THOR XXXX XXXXXXX
----------------------------------------
Name: THOR XXXX XXXXXXX
------------------------------------
Title: CEO
-----------------------------------
CARRIER1 INTERNATIONAL S.A.
By: /s/ STIG JOHANSSON
-----------------------------------------
Name: STIG JOHANSSON
-----------------------------------
Title: CHAIRMAN OF THE BOARD
----------------------------------
By: /s/ XXXXXX XXXXX
-----------------------------------------
Name: XXXXXX XXXXX
-----------------------------------
Title: DIRECTOR
----------------------------------
25
EXHIBIT A
ROLLOUT SCHEDULE
[*]
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
EXHIBIT B
SPECIFICATIONS FOR RAW SPACE
[*]
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
2
EXHIBIT C
OUTLINE OF SHARED SERVICES
[*]
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
3
EXHIBIT D
LEASING TERM SHEET
THIS LEASING TERM SHEET IS SUBJECT TO CONTRACT AND FINAL
APPROVAL BY THE BOARD OF DIRECTORS OF HUBCO.
1. Rent: As per the Agreement.
The Rent payable to HUBCO is intended to be a net
rent, net of all additional costs and expenses.
Additional Rent shall be included, as described
below. Rent is due and payable beginning on the
Commencement Date for each Space. Notwithstanding the
foregoing, provided that Strategic Anchor Tenant
occupies no more than [*] of the Space,
Strategic Anchor Tenant shall receive (i) a discount
of [*] on the Rent for the first [*] after
the Commencement Date and (ii) a discount of [*]
on the Rent for the [*] after the Commencement
Date.
Rent excludes VAT which is payable by Strategic
Anchor Tenant. Additional Rent will include VAT and
any penalties imposed if Strategic Anchor Tenant's
activities do not allow HUBCO to recover VAT.
2. Premises: Tenant's pro rata share of the Facility shall be
equal to the total rentable area of the Space
divided by the total rentable area (excluding
common areas) of the Facility. Total rentable area of
the Facility will include exterior, interior or roof
areas used for generator pads, HVAC equipment and
other equipment. So long as it is contiguous, the
location of the Space within the Facility shall be in
HUBCO's sole discretion.
3. Lease Start: Commencement Date
4. Term: [*]
5. Renewals: Tenant shall have [*] options to renew with [*]
prior written notice. The rent per square foot for
any such renewal period shall be equal to [*] of
the average rent per square foot paid by other
tenants in such facility for comparable size space
with features comparable to Raw Space.
6. Termination: Tenant shall waive any termination rights granted by
local law (e.g. triennial rights).
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
4
7. Expenses: [*]
8. Utilities: Utility charges for Raw Space shall be (i)
billed directly by the utility provider (ii)
sub-metered, or (iii) allocated on a pro rata basis
by leased area, as applicable. Charges for Shared
Services shall be determined at a later date.
9. Escalations: [*]
10. Payments: Quarterly in advance, including Additional
Rent, paid by direct deposit, without the need for
notice. After the [*] following the due date,
late penalties will apply.
11. Security: For Raw Space, the security deposit shall
be, at the option of Strategic Anchor Tenant, either
(i) a pledge to HUBCO of a number of HUBCO common
shares equal to [*] rent divided by the
Subscription Price (as defined in the Shareholders
Agreement) for such shares or (ii) cash or a letter
of credit equal to [*] Rent, in each case plus
Additional Rent payable upon signature of lease. For
Conditioned Space: To be determined. If Luxembourg
law does not permit HUBCO to effectively benefit from
a pledge of its owns shares, the parties will attempt
to pledge the same number of HUBCO shares to the
other Shareholders, pro rata, so that the other
Shareholders receive the same economic benefit as a
pledge of HUBCO shares directly to HUBCO.
12. Major Repairs: Any major repairs shall be amortized at the
Variable Rate over the longer of the useful life
of the repair or the remaining years of the
Term. [*]
13. Alterations: With HUBCO's consent, not to be unreasonably
withheld. At end of the Term, at HUBCO's option,
the Space shall (i) be restored to its original
state, at the expense of Tenant, or (ii) remain in
its altered state without reimbursement or
compensation to Tenant.
14. Final Tenancy
Agreement: Standard tenancy agreement as modified to conform
to terms herein, the Agreement and the local law of
the jurisdiction where the Facility is located.
15. Assignment: As provided for in the Agreement. Strategic Anchor
Tenant may sublease all or a portion of the Space.
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
5
16. Liability of
HUBCO
Subsidiary: The liability of HUBCO Subsidiary shall be the same
as the liability of HUBCO provided for in the
Agreement, except that it shall be limited in scope
to the applicable Facility for which HUBCO Subsidiary
is the landlord.
17. Holdover Rent: The greater of: [*] of Rent or the fair market
rent for the Space with other standard holdover
provisions.
18. Arbitration: As provided in the Agreement.
19. Insurance: [*]
20. Commissions: [*]
21. Environmental: [*]
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED
SEPARATELY WITH THE COMMISSION.
6
EXHIBIT E1
GRANDFATHERED PROPERTIES
[*]
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
7
EXHIBIT E2
CITIES FOR GRANDFATHERED PROPERTIES
[*]
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
8
EXHIBIT F
CALCULATION OF VARIABLE RATE
[*]
----------------------
*: THE CONFIDENTIAL PORTION HAS BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT AND THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY
WITH THE COMMISSION.
9
