Exhibit 4.23
COVENANT NOT TO XXX
This Covenant Not To Xxx (the "Covenant Not To Xxx") by and between I-Link, Inc.
("I-Link"), its officers, directors, agents, employees, subsidiaries, parent
entities, affiliates, and each of their respective officers, directors, agents,
and employees (the "Covenanting Parties") and Winter Harbor, LLC ("Winter
Harbor"), its officers, directors, agents, employees, parent entities, direct
and indirect shareholders and partners and each of their respective officers,
directors, agent and employees (the "Beneficiaries") is entered into and made
effective on this 1st day of March, 2001 (the "Effective Date").
WITNESSETH
WHEREAS, at the request of, and to the benefit of, I-Link, Winter Harbor is
relinquishing to a third party all of its ownership and dominion in its holdings
of debt and equity securities of I-Link; and
WHEREAS, as part of that transaction, the Covenanting Parties, including,
without limitation, I-Link, wish to finally resolve any and all matters between
themselves and the Beneficiaries, including, without limitation, binding
themselves not to commence any actions, claims or proceedings against the
Beneficiaries;
NOW THEREFORE, for good and valuable consideration, the sufficiency and receipt
of which are expressly covenanted to by the Covenanting Parties, it is hereby
agreed by the Covenanting Parties as follows:
1. Covenant Not To Xxx. I-Link covenants and agrees, and hereby undertakes to
have each of the Covenanting Parties undertake and agree, that from and
after the Effective Date, it and they will not, directly or indirectly,
initiate, file, commence or prosecute, or assist in the filing,
commencement or prosecution of, any action, claim or proceeding, whether
premised on facts either known or not known now, against any or all of the
Beneficiaries in any federal, state, local or foreign court, arbitral forum
or administrative agency. I-Link and the other Covenanting Parties agree
that under no conditions will it or any entity or person under its control,
directly or indirectly, initiate, file, commence or prosecute, or assist in
the initiation, filing, commencement or prosecution of any action, claim or
proceeding against any or all of the Beneficiaries. Except pursuant to an
order entered by a competent judicial authority, the Covenanting Parties
shall not render assistance of any kind, including, without limitation, the
provision of documents or information, to any person or entity who has or
is threatening to initiate, file, commence or prosecute any action, claim
or proceeding against any of the Beneficiaries.
2. Dismissal of Actions. In the event any action, claim or proceeding is
initiated, filed, commenced or prosecuted, directly or indirectly, by or on
behalf of any of the Covenanting Parties against any of the Beneficiaries
in any federal, state, local or foreign court, arbitral forum or
administrative agency, within two (2) days of the receipt of a written
notice sent to the offices of I-Link, the Covenanting Parties or the
designated agent set forth in Section 8 hereof shall execute and consent to
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the submission and/or filing of all documents, affidavits, stipulations or
other pleading or papers as may be necessary to effectuate a total and
complete dismissal, with prejudice or equivalent final and irrevocable
resolution, of any such action, claim or proceeding. The Covenanting
Parties shall bear all of the Beneficiaries' costs and attorney's fees
associated with the dismissal with prejudice or other final resolution of
any action, claim or proceeding subject to this Covenant Not To Xxx.
3. Covenant Not To Xxx Defense. The Covenanting Parties consent to the
interposition of this Covenant Not To Xxx as a full and complete defense
to, or an abatement of, and may be used as the basis for an injunction
against, any action, claim or proceeding initiated, filed, commenced or
prosecuted, directly or indirectly, against the Beneficiaries whatsoever.
4. Specific Performance. The Covenanting Parties acknowledge, confirm, and
agree that damages may be inadequate for a breach or a threatened breach of
this Covenant Not To Xxx and, in the event of a breach or threatened breach
hereof, the respective rights and obligations hereunder shall be
immediately enforceable by specific performance, injunction, or other
equitable remedy. The Covenanting Parties shall raise no equitable or legal
defense to any action to enforce specific performance of this Covenant Not
To Xxx, whether such action is by way of a legal or equitable proceeding.
Nothing contained in this Section 4 shall limit or affect any rights at law
or otherwise of the Beneficiaries for a breach or threatened breach of any
provision hereof, it being the intent of this provision to make clear that
the respective rights and obligations of the Beneficiaries shall be
enforceable in equity as well as at law or otherwise.
5. Binding Effect. This Covenant Not To Xxx shall be binding on the legal
representatives, heirs, successors, and assigns of each of the Covenanting
Parties and shall inure to the benefit of the successors and assigns of
each of the Beneficiaries.
6. Execution and Further Documents. This Covenant Not To Xxx xxx be executed
in any number of counterparts, each of which shall be deemed an original
and all of which shall be deemed for all purposes one agreement. Each of
the Covenanting Parties agrees to execute any further documents,
instruments, or other writing as the Beneficiaries, in their sole
discretion, deem are required to obtain the full benefit of the Covenant
Not To Xxx granted hereunder.
7. Choice of Law/Forum. This Covenant Not To Xxx, any performance under it,
and any disputes arising under it shall be governed exclusively by the law
of the State of New York, without giving effect to their conflict of laws
principles. The Covenanting Parties expressly consent to the exclusive
forum, jurisdiction, and venue of the Courts of the State of New York and
the United States District Court for the Southern District of New York in
any and all actions, disputes, or controversies arising out of or relating
to this Covenant Not To Xxx, including, without limitation, any proceeding
to seek injunctive relief to bar any action, claim or proceeding from
continuing.
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8. Power of Attorney. Each of the Covenanting Party grants to I-Link a limited
irrevocable power of attorney, coupled with an interest, sufficient to
permit I-Link to execute such documents, instruments or other writings as
are necessary and proper to give full force and effect to this Covenant Not
To Xxx.
Dated: March 1, 2001
/s/Xxxx X. Xxxxxxx
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By:
Title:
(on behalf of I-Link and the
other Covenanting Parties)
Accepted and Agreed to:
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Winter Harbor, LLC
By: First Media, L.P., its member
By: First Media Corporation, its General Partner
By: /s/Xxxxx X. Xxxxx, Xx.
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Xxxxx X. Xxxxx, Xx.
Secretary
(on behalf of Winter Harbor, LLC and
the other Beneficiaries)
Dated: March 1, 2001
