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Exhibit 4.14
15 JUNE 2006
[OLSWANG LOGO] 00 Xxxx Xxxxxxx X x00 (0) 00 0000 0000 In alliance with Xxxxxxxxx Xxxxxxx XXX
Xxxxxx XX0X 0XX F x00 (0) 00 0000 0000
xxx.xxxxxxx.xxx DX 37972 Kingsway Regulated by the Law Society
MASTER NETWORK LEASE AND SALE AGREEMENT BETWEEN
(1) VIATEL HOLDING (BERMUDA) LIMITED
(2) VTL-TP (BERMUDA) LIMITED AND
(3) GLOBAL VOICE GROUP LIMITED
CONTENTS
CLAUSE PAGE
1 DEFINITIONS AND INTERPRETATION .................................................. 1
2 GRANT OF RIGHTS OVER VIATEL INFRASTRUCTURE ...................................... 10
3 GLOBAL VOICE RIGHTS OF ACCESS TO VIATEL SITES AND VIATEL TRANSFERRED ASSETS ..... 13
4 GLOBAL VOICE FIBRE TRANSFERS .................................................... 14
5 OPTIONS ......................................................................... 17
6 RIGHTS OF VIATEL IN VIATEL TRANSFERRED ASSETS ................................... 17
7 BENEFIT OF CUSTOMER CONTRACTS ................................................... 18
8 NETWORK OPERATIONAL AGREEMENT ................................................... 18
9 CONSIDERATION PAYMENTS AND PAYMENT PROCEDURES ................................... 18
10 NEW EQUIPMENT COMPANY ........................................................... 22
11 COMPLETION ...................................................................... 22
12 WARRANTIES ...................................................................... 23
13 LIMITATION OF LIABILITY ......................................................... 24
14 DURATION AND TERMINATION ........................................................ 24
15 ASSIGNMENT ...................................................................... 24
16 CONFIDENTIALITY ................................................................. 25
17 NON-SOLICITATION ................................................................ 26
18 FORCE MAJEURE ................................................................... 26
19 NOTICES ......................................................................... 27
20 SEVERANCE ....................................................................... 28
21 GENERAL ......................................................................... 29
22 GOVERNING LAW AND JURISDICTION .................................................. 30
SCHEDULE I
CUSTOMER CONTRACTS .............................................................. 32
SCHEDULE IIA
GERMAN NETWORK ASSETS ........................................................... 34
SCHEDULE IIB
GERMAN TRANSFERRED ASSETS ....................................................... 35
Part A: Network Segments ........................................................ 35
Part B: Duct and Fibre Allocations .............................................. 36
SCHEDULE IIIA
FRENCH NETWORK ASSETS ........................................................... 43
SCHEDULE IIIB
FRENCH TRANSFERRED ASSETS ....................................................... 45
Part 1 -- Ducts ................................................................. 45
Part 2 -- Fibres ................................................................ 46
SCHEDULE IVA
NBUK NETWORK ASSETS ............................................................. 49
SCHEDULE IVA
NBUK TRANSFERRED ASSETS ......................................................... 53
NETHERLANDS ..................................................................... 53
Part 1 -- Ducts and Subducts .................................................... 53
Part 2 -- Fibres ................................................................ 55
BELGIUM ......................................................................... 56
UK .............................................................................. 56
Part 1 -- Ducts and Sub-Ducts ................................................... 57
Part 2 -- Fibres ................................................................ 61
SCHEDULE V
VIATEL OPERATING COST CATEGORIES (INCL. DRAFT 2006 BUDGET FIGURES) .............. 65
SCHEDULE VI
PART I
VIATEL WARRANTIES ............................................................... 67
PART II ......................................................................... 71
LIMITATIONS ON VIATEL WARRANTIES ................................................ 71
PART III
GV WARRANTIES ................................................................... 74
PART IV
LIMITATIONS ON GV WARRANTIES .................................................... 77
SCHEDULE VII
VIATEL SITES .................................................................... 80
SCHEDULE VIII
GV TRANSFERRED ASSETS ........................................................... 86
Part I
Part II
Network Routes .................................................................. 88
For all routes the allocated fibres will be provided on one continuous
length along the route of each specified cable.
SCHEDULE IX
INFLATION INDEXATION MECHANISMS ................................................. 92
Part I
Clause 4.12: Maintenance Costs payable by Viatel ................................ 92
Part II
Inflation Indexation elsewhere in a Transaction Document
SCHEDULE X
PAYMENTS TO VIATEL .............................................................. 93
SCHEDULE XI
SCHEDULE XII
CURRENT GLOBAL VOICE ON-NET BUILDINGS ........................................... 1
SCHEDULE XIII
ITU SPECIFICATIONS FOR FIBRES ................................................... 4
SCHEDULE XIV
DEED OF COVENANT ................................................................ 2
1. DEFINITIONS ..................................................................... 1
2. TRANSFEREE'S COVENANTS .......................................................... 2
3. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000 .................................... 2
1. DEFINITIONS ..................................................................... 2
2. TRANSFEREE'S COVENANTS .......................................................... 3
3. CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000 .................................... 3
APPENDIX A
VIATEL NETWORK MAP .............................................................. 13
APPENDIX B
GLOBAL VOICE NETWORK MAP ........................................................ 14
THIS AGREEMENT is made the 15 day of June 2006
BETWEEN:
(1) VIATEL HOLDING (BERMUDA) LIMITED (registered in Bermuda under number
31325) whose registered office is at Cannons Court, 00 Xxxxxxxx Xxxxxx,
Xxxxxxxx XX 00, Xxxxxxx ("VIATEL");
(2) VTL-TP (BERMUDA) LIMITED (registered in Bermuda under number 31334) whose
registered office is at Cannons Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX00,
Xxxxxxx ("XXX-XX"); and
(3) GLOBAL VOICE GROUP LIMITED registered as a public limited liability
company in Singapore under number 199905625E whose registered
office/principal place of business is at 00 Xxxxxxx Xxxxx, #00-00 XXX
Xxxxx 0, Xxxxxxxxx 000000 ("GLOBAL VOICE").
INTRODUCTION
(A) Viatel's group companies own, lease and operate a telecommunications
network running through the UK, France, Belgium, The Netherlands and
Germany.
(B) VTL-TP has the right, granted to it by the various asset-owning entities
within Viatel's group, to use and exploit dark fibre and capacity over the
Viatel group's network.
(C) Global Voice owns, leases and operates metropolitan telecommunications
systems in and around major cities in Western Europe.
(D) Viatel wishes to have its group companies grant rights over certain assets
comprised in its network to Global Voice and Global Voice wishes to grant
to Viatel group companies rights over certain assets comprised in its
network, for which purpose the parties have agreed upon the following
associated transactions, terms and conditions.
IT IS AGREED AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (except where the context otherwise requires) the
following words shall have the following meanings:
"ARBITRATION AGREEMENT" the agreement with that title between all
parties to the Transaction Documents, in the
agreed terms;
"BUDGET" as defined in Clause 9.2.2;
"BUSINESS DAY" any day which is not a Saturday, a Sunday, or
a bank or public holiday in England;
1
"CLAIMING PARTY" as defined in Clause 18.2;
"COMPLETION" completion of this Agreement in accordance
with Clause 11;
"CONTRACT PAYMENTS" as defined in Clause 7.1;
"CUSTOMER CONTRACTS" the contracts in the name of a Viatel Group
Company and a customer of that company, as
listed in Schedule I including any or all
renewals, extensions or variations thereof;
"DATA ROOM" the physical and electronic data rooms made
available by Viatel for the use of Global
Voice and its representatives as described in
the 'Rules of Data Room' signed by Global
Voice on February 23, 2006;
"DEFAULTING PARTY" as defined in Clause 9.8;
"DISPUTE" as defined in Clause 22.1;
"EQUIPMENT COMPANY" as defined in Clause 10.1;
"FRANKFURT RING" the ducts, cables and/or fibres specified in
parts A and B of Schedule IIB;
"FRENCH NETWORK ASSETS" the ducts, cables and/or fibres and all
apparatus, equipment, colocation space,
points of presence or other facilities of
whatever nature located in or on, or related
to the operation of, those segments of the
Viatel Network in France, as described in
Schedule III A and as geographically
illustrated in the map included in Appendix
A;
"FRENCH OPTION" the Option and Transfer Agreement with
respect to France;
"FRENCH TRANSFERRED ASSETS" those French Network Assets described in
Schedule III B and more particularly set out
in the French Option;
"GERMAN NETWORK ASSETS" the ducts, cables and/or fibres and all
apparatus, equipment, colocation space,
points of presence or other facilities of
whatever nature located in or on, or related
to the operation of, those segments of the
Viatel Network in Germany, as described in
2
Schedule II A and as geographically
illustrated in the map included in Appendix
A;
"GERMAN ASSET LEASE" a lease agreement with respect to specific
German Network Assets (i) forming part of the
Frankfurt Ring and (ii) leased by VTL Telecom
GmbH from GasLINE;
"GERMAN OPTION" the Option and Transfer Agreement with
respect to Germany;
"GERMAN TRANSFERRED ASSETS" those German Network Assets described in
Schedule II B and more particularly set out
in the German Option excluding, for the
avoidance of any doubt, the assets the
subject of the GND Asset Transfer;
"GND ASSET TRANSFER" an agreement with respect to specific assets
forming part of the Viatel Network in
Germany, between (i) Viatel German Asset
GmbH, VTL, Inc and Viatel Circe Assets
Limited and (ii) Global Voice Networks AG, in
the agreed terms;
"GROUP COMPANY" a Viatel Group Company or a GV Group Company;
"Group Companies" shall be construed
accordingly;
"GV DISCLOSURE LETTER" the letter of the same date as this Agreement
from Global Voice to Viatel containing
disclosures against the GV Warranties;
"GV FIBRE TRANSFER agreement(s) with that title between (i) the
AGREEMENT" GV Group Companies and (ii) the Viatel Group
Companies specified in Clause 4.1, in the
agreed terms;
"GV GROUP" Global Voice, its holding company (if any)
and each subsidiary (whether direct or
indirect) of Global Voice;
"GV GROUP COMPANIES" the companies which are members of the GV
Group; "GV Group Company" shall be construed
accordingly;
"GV NETWORK" the network infrastructure in Germany, the
Netherlands and the UK in which GV Group
3
Companies have ownership rights and other
rights and interests comprising ducts and
optical fibre cables, and all facilities used
in connection with and buildings and
infrastructure used to house, support or
contain such equipment, together with all
related metropolitan networks serving certain
European cities and covering the route and
areas coloured orange on the network map
included in Appendix B;
"GV OFF-NET BUILDINGS" those buildings or premises to which Global
Voice will provide access for Viatel to the
GV Network, which are not listed in Schedule
XII;
"GV ON-NET BUILDINGS" those buildings and premises that are from
time to time directly connected to the GV
Network and which are listed in Schedule XII;
"GV TRANSFERRED ASSETS" the fibre assets agreed to be sold and
transferred to Viatel or any Viatel Group
Companies under this Agreement, including
those described in Clauses 4.1, 4.11 and
4.14;
"GV WARRANTIES" the warranties set out in Part III of
Schedule VI;
"IRU" an agreement with respect to the grant of
long-term rights in specific French Network
Assets, between (i) Viatel Operations S.A.
and (ii) the relevant GV Group Company in
France, in the agreed terms;
"LICENCE AGREEMENT(S)" the agreement(s) with that title (or local
equivalent) to be entered into by relevant
Viatel Group Companies and relevant GV Group
Companies, in respect of France, Germany and
NBUK, in the agreed terms;
"NBUK" the Netherlands, Belgium and the UK;
"NBUK NETWORK ASSETS" the ducts, cables and/or fibres and all
apparatus, equipment, colocation space,
points of presence or other facilities of
whatever nature located in or on, or related
to the operation of, those segments of the
Viatel Network in the NBUK, as described in
Schedule IV A and as geographically
illustrated
4
in the map included in Appendix A;
"NBUK ASSET LEASE(S)" agreement(s) in the agreed terms between,
separately, (i) VTL (UK) Limited, Viatel
Belgium NV, and Viatel Global Communications
BV/Viaphone NV and (ii) Global Voice Networks
Limited, the relevant GV Group Company in
France and Global Voice Networks BV, with
respect to leases of specific NBUK Network
Assets;
"NBUK OPTION(S)" Option and Transfer Agreement(s) with respect
to NBUK;
"NBUK TRANSFERRED ASSETS" those NBUK Network Assets described in
Schedule IV B and more particularly set out
in the NBUK Options;
"NETWORK LEASE(S)" all or any of the NBUK Asset Leases, the
German Asset Lease and the IRU;
"NETWORK OPERATIONAL the agreement with that title to be entered
AGREEMENT" into by Viatel with Global Voice in the
agreed terms;
"NEW EQUIPMENT" as defined in Clause 10.1;
"OPERATING CHARGES" as defined in Clause 9.2;
"OPERATING COSTS" the costs of the types itemised in Schedule V
incurred by members of the Viatel Group in
operating the French Network Assets, the
German Network Assets and the NBUK Network
Assets, excluding any incremental operating
costs exclusively incurred by or on behalf of
Viatel Group Companies (i) in connection with
the provision of Viatel Services or (ii)
relating to matters unconnected with the
Viatel Transferred Assets or to Viatel
Services;
"OPERATIONS COMMITTEE" the committee with that name established
under the Network Operational Agreement;
"OPTION AND TRANSFER agreement(s) with that title between the
AGREEMENT(S)" following Viatel Group Companies and GV Group
Companies:
Belgium: Viatel Belgium NV
0
Xxxxxx Xxxxx Xxxxxxxx XXXX/XX
Xxxxxx: Viatel Operations SA
GV Group Company in France
Germany: Viatel German Asset GmbH
VTL, Inc.
Global Voice Networks AG
European Fibre Networks Asset GmbH
European Fibre Networks "GND" GmbH
Netherlands: Viatel Global Communications BV
Global Voice Networks BV and
UK: VTL (UK) Limited
Global Voice Networks Limited
in the agreed terms;
"PEN 2" that part of the Viatel Network known by the
parties as 'PEN 2' and identified as such on
the network map in Appendix A;
"RECORDS" as defined in Clause 9.9;
"SHAREHOLDERS AGREEMENT" a shareholders agreement with respect to the
new company referred to in Clause 10.1, in
the agreed terms or as subsequently modified
by the parties;
"SITE LEASE AGREEMENT(S)" agreement(s) with respect to a Viatel Site
between (i) the Viatel Group Company
(designated by Viatel) in a European country
and (ii) the Global Voice Group Company
(designated by Global Voice) in that country,
to be entered into in a form, or
substantially the same form, which is in the
agreed terms;
"TERM" a period of whichever is the shorter of (a)
the last to expire of the term of each of the
individual agreements or instruments entered
into by the Viatel Group Companies and GV
Group Companies pursuant to Clauses 2.1 to
2.3 inclusive and (b) one hundred years from
the date of Completion;
6
"TRANSACTION DOCUMENTS" this Agreement, the Network Leases, the
Option and Transfer Agreements, the GND Asset
Transfer, the Network Operational Agreement,
the Licence Agreements and Site Lease
Agreements;
"VIATEL ASSETS" together, the French Network Assets, the
German Network Assets and the NBUK Network
Assets;
"VIATEL DISCLOSURE LETTER" the letter of the same date as this Agreement
from Viatel to Global Voice containing
disclosures against the Viatel Warranties;
"VIATEL GROUP" Viatel and each subsidiary (whether direct or
indirect) of Viatel;
"VIATEL GROUP COMPANIES" the companies which are members of the Viatel
Group; "Viatel Group Company" shall be
construed accordingly;
"VIATEL NETWORK" the network infrastructure in and between
Belgium, France, Germany, the Netherlands and
the UK in which Viatel Group Companies have
ownership rights and other rights and
interests comprising ducts, optical fibre
cables and submarine cables, and all
facilities and other equipment used in
connection with such infrastructure, and
buildings used to house, support or contain
such equipment, together with all related
metropolitan networks serving certain
European cities and covering the route and
areas included on the network map in Appendix
A;
"VIATEL RETAINED ASSETS" the Viatel Network excluding the Viatel
Transferred Assets;
"VIATEL SERVICES" telecommunication services provided by Viatel
Group Companies to their customers using
Viatel Retained Assets;
"VIATEL SHARED XXXXXXXX" means all splice xxxxxxxx, handholes and
other forms of enclosure now installed on the
Viatel Network that provide access to the
Viatel Transferred Assets;
"VIATEL SITES" premises occupied or used by Viatel at points
of presence, multi-optical repeater stations
and
7
regeneration sites on the Viatel Network as
more particularly described in Schedule VII;
"VIATEL TRANSFERRED ASSETS" collectively, the assets the subject of the
Network Leases and, as and from the times
when the options in each of the Option and
Transfer Agreements are duly and fully
exercised, the French Transferred Assets, the
German Transferred Assets and the NBUK
Transferred Assets;
"VIATEL WARRANTIES" the warranties set out in Part I of Schedule
VI;
"VTL-TP CAPACITY" rights to dark fibre and capacity in the
Viatel Network which VTL-TP has under
agreements with other Viatel Group Companies;
and
"WARRANTIES" the Viatel Warranties and the GV Warranties;
and
"WARRANTY CLAIM(S)" any claim by any party in respect of any of
the Warranties or any of the warranties in
the Network Leases or the Option and Transfer
Agreements.
1.2 In this Agreement (except where the context otherwise requires):
1.2.1 any reference to a recital, clause or schedule is to the relevant
recital, clause or schedule of or to this Agreement;
1.2.2 the clause headings are included for convenience only and shall not
affect the interpretation of this Agreement;
1.2.3 use of the singular includes the plural and vice versa;
1.2.4 use of any gender includes the other genders;
1.2.5 any reference to "persons" includes individuals, firms,
partnerships, companies, corporations, associations, organisations,
foundations and trusts (in each case whether or not having separate
legal personality);
1.2.6 a reference to "writing" does not include email;
1.2.7 the words "subsidiary" and "holding company" have the meanings
given to them by section 736 of the UK Companies Xxx 0000;
1.2.8 any reference to a person being an "associate" of another shall be
interpreted in accordance with section 435 of the Insolvency Xxx
0000, and a person shall be
8
regarded as "connected" or "associated" with any person which is an
associate of his and with any company of which any director is an
associate of his;
1.2.9 a reference to a statute or statutory provision is a reference to
that statute or statutory provision and to all orders, regulations,
instruments or other subordinate legislation made under the
relevant statute;
1.2.10 any reference in this Agreement to any statute, statutory
provision, subordinate legislation, code or guideline
("LEGISLATION") is a reference to such legislation as the same may
from time to time be amended, modified, extended, varied,
superseded, replaced, substituted or consolidated;
1.2.11 any phrase introduced by the terms "including", "include", "in
particular" or any similar expression shall be construed as
illustrative and shall not limit the sense of the words preceding
those terms;
1.2.12 the word "incremental", as used in the definition of "Operating
Costs", means exclusively caused by the relevant party (i) of its
own volition enhancing or adding to its network assets or (ii)
taking on a new customer after the date hereof or (iii) enhancing
or adding to the service of an existing customer as of the date
hereof;
1.2.13 the expression "in the agreed terms" means terms approved by the
parties and initialled by them on the date hereof for the purposes
of identification;
1.2.14 any reference in this Agreement to either party procuring any
action shall be construed as referring to that party procuring that
the relevant action be taken by its subsidiary or subsidiaries
which have the necessary rights and powers to discharge the
obligation; where so indicated in the text, such action shall be
through entry by the relevant subsidiary into an agreement or other
instrument valid and effective under the laws of the relevant
jurisdiction; and
1.2.15 references to "party" or "parties" herein shall, unless the context
expressly requires otherwise, be treated as referring only to
Viatel and Global Voice.
1.3 The schedules and recitals form part of this Agreement and shall have
effect as if set out in full in the body of this Agreement and any
references to this Agreement includes the schedules and recitals.
1.4 In the event of any ambiguity or conflict arising between the provisions
of Clause 2, 4 and 5 of this Agreement and the provisions in any schedule
or in any agreement or other instrument entered into by the parties to
implement such provisions, the provisions in such other agreement or
instrument shall prevail.
1.5 VTL-TP is a party to this Agreement only for the purposes referred to in
Clauses 2.5 and 9.2, and shall have no other rights or liabilities under
this Agreement.
9
2 GRANT OF RIGHTS OVER VIATEL INFRASTRUCTURE
2.1 With respect to NBUK, the relevant Viatel Company in each country shall
enter into the NBUK Asset Lease within five (5) Business Days of the date
hereof. Having at the date hereof already agreed all material points dealt
with in its provisions, the parties agree they will use their best
endeavours to finalise this document without delay and in any event within
such period.
2.2 With respect to France, Viatel Operations SA shall enter into the IRU
within three (5) Business Days of the date hereof. Having at the date
hereof already agreed all material points dealt with in its provisions,
the parties agree they will use their best endeavours to finalise this
document without delay and in any event within such period.
2.3 With respect to Germany, Viatel German Asset GmbH, VTL Telecom GmbH and
VTL, Inc shall enter into the German Asset Lease within five (5) Business
Days of the date hereof. Having at the date hereof already agreed all
material points dealt with in its provisions, the parties agree they will
use their best endeavours to finalise this document without delay and in
any event within such period.
2.4 With respect to Germany, and subject as provided in Clause 4.9, Viatel
German Asset GmbH and VTL, Inc shall also enter into the GND Asset
Transfer within five (5) Business Days of the date hereof. Having at the
date hereof already agreed all material points dealt with in its
provisions, the parties agree they will use their best endeavours to
finalise this document without delay and in any event within such period.
2.5 In support of the transactions referred to in Clauses 2.1 to 2.3
inclusive, and for the consideration referred to in Clause 9.1 and
specified in Schedule X, VTL-TP hereby relinquishes its rights in the
VTL-TP Capacity to the extent only necessary to enable Viatel to perform
its obligations under this Agreement.
2.6 Following Completion, it being acknowledged by both parties that in order
for the Viatel Group Companies to be able to perfect the rights, titles
and interests expressed to be granted or made available to, or conferred
on, GV Group Companies with respect to the Viatel Transferred Assets under
the Transaction Documents, the Viatel Group Companies would be obliged to
seek and obtain consents and agreements from other persons including
landowners, and that these consents and agreements have not so far been
fully identified or obtained, the parties will cooperate and exchange
opinions at their own expense with a view to identifying and understanding
any perceived defects and other problems with respect to the title and
other rights of Viatel Group Companies in and in relation to the Viatel
Transferred Assets. The parties will then try to agree ways of resolving
or overcoming such issues and an approach and terms for its implementation
and Viatel will use all reasonable endeavours to obtain and procure those
consents and agreements which the parties agree are material and
desirable.
10
Global Voice shall consult Viatel prior to communicating with any owner of
rights in or over land relevant to the Viatel Transferred Assets, with
respect to matters of the kind mentioned in this Clause 2.6.
For the avoidance of any doubt, as the 'Viatel Transferred Assets' do not
include those assets the subject of the GND Asset Transfer, the provisions
of this Clause 2.6 shall not apply to the GND Asset Transfer or its
subject matter.
2.7 Viatel hereby undertakes not knowingly to do any voluntary act or omission
with respect to any contract or other arrangement between a Viatel Group
Company and any other person which would result in premature termination
of rights granted under such contract or arrangement which rights relate
to or affect any proprietary interest of a GV Group Company (including any
leasehold interest) in any of the Viatel Transferred Assets.
2.8 With respect to any of the Viatel Transferred Assets which at the date
hereof are leased to a Viatel Group Company by any other person, to the
extent that such Viatel Group Company has at any time the right to renew
or extend the relevant third party lease and chooses to do so, Viatel
shall consult Global Voice in such connection and, if so requested by
Global Voice, use its reasonable endeavours to procure a similar renewal
or extension of the rights granted to the relevant GV Group Company under
this Agreement in respect of such assets. (The costs of obtaining such
renewal or extension, and of any necessary consents in such connection,
shall be shared by the parties in proportion to their respective interests
in the subject matter of such renewal or extension). In the event that
such Viatel Group Company shall choose not to extend or renew such third
party leases then Viatel will, if so requested by Global Voice, use its
reasonable endeavours to procure that the relevant GV Group Company be
granted a renewal or extension of its equivalent rights on as near as
practicable such terms as would have been available to the Viatel Group
Company concerned. Any and all costs and expenses of any such renewal or
extension shall be borne by Global Voice.
For the purposes of this sub-clause 2.8, the words "leased", "leases" and
"lease" shall include rights under agreements between any Viatel Group
Company and other persons subject to definite duration and/or terminable
by the grantor, which give any Viatel Group Company rights and/or
interests in or over ducts or cables, and any rights to install and
maintain such ducts or cables on, under or over land.
2.9 Viatel agrees to grant or procure the grant by Viatel Group Companies to
Global Voice or any of its designated GV Group Companies of communications
capacity (determined by the cards and slots utilised by GV Group
Companies) over Viatel Retained Assets and the right to connect their
equipment to such Viatel Retained Assets through installing line cards in
Viatel's own transmission equipment on the following terms:
2.9.1 the installation and ongoing support work shall be carried out by
Viatel on behalf and for the cost (to be charged for the relevant
activities as specified below) of the relevant GV Group Company;
11
2.9.2 the relevant GV Group Company shall obtain and pay for all cards
and other equipment, racks and rack space, which it requires to
have installed or to use for such purpose; and
2.9.3 Viatel shall provide to GV Group Companies free of charge slots
(for installation of cards) in its transmission equipment up to the
limits specified below, namely:
EIs: maximum of 20 slots per city
DS3s: maximum of 5 slots per city
STMIs: maximum of 2 slots per city in Frankfurt, Dusseldorf,
Mannheim London and Paris; 8 per city in all other city
networks
STM16: maximum of 1 slot per city (as one long-distance circuit
or multiple short hops),
with additional chassis to be charged for by Viatel at cost plus
15% or procured separately by GV Group Companies.
For the avoidance of any doubt, one slot is required either to
originate or terminate a circuit.
2.9.4 For the above purposes:
(a) "city" means, unless otherwise stated, each and any of the
following:-
London Dusseldorf
Paris Mannheim
Amsterdam Frankfurt
Brussels Strasbourg
(b) costs of activities as referred to in Clause 2.9.1 shall be
determined as follows:
- Circuit-provisioning activity on Nortel transmission
equipment and support systems, at an hourly rate of
(Pound)45 per hour and capped at (Pound)2,000 per
circuit;
- 'Trouble-ticket' resolution related to GV circuits, at
an hourly rate of (Pound)45 per hour;
- Engineering time to design and implement new Nortel
chassis purchased by GV, at an hourly rate of (Pound)80
per hour and no more than (Pound)3,000 per chassis.
12
All of the above rates shall be subject to inflation-linked
increases as detailed in Schedule IX.
2.10 The Viatel Warranties shall apply to the Viatel Transferred Assets subject
as provided in the Viatel Disclosure Letter and to the qualifications,
limitations and exceptions in Part II of Schedule VI.
2.11 On Completion all risks in relation to the Viatel Transferred Assets shall
pass respectively to each of the GV Group Companies. As a consequence, and
for the avoidance of any doubt, in the event that at any time after
Completion any of the Viatel Transferred Assets shall be damaged or
destroyed (other than as a consequence of the negligence or default of
Viatel, its employees or agents), their repair or replacement shall be the
sole responsibility and at the cost of the GV Group Companies. Except in
any case where the damage or destruction has been caused by the negligence
or default of Viatel, its employees or agents, to the extent that any such
damaged Viatel Transferred Assets shall not be repaired by Global Voice,
the Warranties and obligations of Viatel and of other Viatel Group
Companies under the Transaction Documents shall be deemed modified and
qualified accordingly and to the extent that any destroyed Viatel
Transferred Assets shall not be replaced they shall be deemed excluded
therefrom.
In any case where the Viatel Transferred Assets are so damaged or
destroyed and in order to pursue its claims(s) as a consequence Global
Voice or any GV Group Company requires the assistance of Viatel or any
other Viatel Group Company in lending its name to any such claim(s) or
proceedings in pursuit thereof, on the request of Global Voice Viatel
shall lend its name (or procure the relevant Viatel Group Company lends
its name) and give all such reasonable assistance in such connection, all
at the cost and expense of Global Voice or the relevant other GV Group
Company.
In any case where the Viatel Transferred Assets and the Viatel Retained
Assets shall be damaged or destroyed as a consequence of the same incident
or series of incidents, the parties shall consult and cooperate and seek
agreement on the most cost-effective and efficient way of managing and
pursuing their claims against other persons with respect to such
incident(s).
3 GLOBAL VOICE RIGHTS OF ACCESS TO VIATEL SITES AND VIATEL TRANSFERRED
ASSETS
3.1 Global Voice and its relevant GV Group Companies shall have the right to
access and occupy space in the Viatel Sites (as such space is identified
in Schedule VII) upon the terms of the Site Lease Agreement for the
relevant country subject as follows:
3.1.1 each Site Lease Agreement shall confer a leasehold interest or
nearest equivalent under local applicable law, and be subject to
the requirements of local applicable law, landlords' consents
and/or requirements, and covenants or other obligations or
restrictions affecting Viatel or its relevant Group Company's
title;
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3.1.2 in the case of sites where Viatel has freehold or other full
ownership rights Viatel or the relevant Viatel Group Company in the
relevant country shall enter into a Site Lease Agreement on
Completion. In all other cases, prior to the execution of a Site
Lease Agreement, Viatel shall use reasonable endeavours and the
parties shall cooperate and give each other reasonable assistance
in order to obtain any consents or permits necessary to ensure that
entry into that Site Lease and granting Global Voice access to the
relevant Viatel Site will not put Viatel in breach of any
contractual or other obligation to a third party property owner or
otherwise;
3.1.3 Global Voice shall bear and agree to indemnify Viatel against any
costs or charges incurred or demanded for the grant of such
consents or permits, provided that Viatel shall have consulted with
Global Voice on any such amounts which exceed (euro)5,000.
3.1.4 pending obtaining such consents or permits and entry into a Site
Lease Agreement in any particular case, to the extent legally
permissible Viatel shall enter into a Licence Agreement, provided
such entry does not put Viatel in breach as mentioned above.
3.2 Without limitation to any of its rights and obligations under the Network
Operational Agreement, and subject to its compliance with the Access
Procedures as defined in the Network Operational Agreement, it is agreed
that Global Voice shall have access to, and the right to use up to
one-half of the space in, all Viatel Shared Xxxxxxxx as from the date of
Completion. In the event that one-half of such space is not available due
to existing use, the Operations Committee shall meet to determine the
allocation of equivalent alternative space.
3.3 All other obligations, terms and conditions applicable to Global Voice's
access to the Viatel Transferred Assets are set out in the Network
Operational Agreement.
4 GLOBAL VOICE FIBRE TRANSFERS
4.1 Subject as provided in Clause 4.2, Global Voice and/or relevant GV Group
Companies shall grant to VTL (UK) Limited in the UK, Viatel Global
Communications BV in the Netherlands and VTL Telecom GmbH in Germany title
to, or other equivalent of full ownership as is specified in the relevant
GV Fibre Transfer Agreements, five (5) fibre pairs in the respective
portion(s) of the GV Network detailed in Schedule VIII in accordance with
the delivery allocation and on the terms set out in Clause 4.4 as well as
the provisions of Clause 4.8.
4.2 In the case of the portions of the GV Network in the UK and described in
the GV Fibre Transfer Agreement applicable to the UK, the sale and
transfer of five (5) fibre pairs to VTL (UK) Limited shall be subject to
the particular arrangements and terms and conditions set out therein.
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4.3 The grants in Clause 4.1 shall be assured and perfected by the entry by
Global Voice, with each of the Viatel Group Companies specified in Clause
4.1, into the GV Fibre Transfer Agreements.
4.4 The delivery allocation referred to in Clause 4.1 is as follows:
4.4.1 those fibre pairs identified in the GV Fibre Transfer Agreements
for sale and transfer as of Completion, on Completion; and
4.4.2 the remaining fibre pairs, as so identified, on 2 January 2007.
4.5 On the date of signing of this Agreement, Global Voice shall deliver to
Viatel the GV Fibre Transfer Agreement for the UK duly executed by Global
Voice Networks Limited. Within five (5) Business Days of the date hereof
Global Voice shall procure delivery to Viatel of the other two (2) GV
Fibre Transfer Agreements(s) (for the Netherlands and Germany) duly
executed by the relevant GV Group Company. Having at the date hereof
already agreed all material points dealt with in their provisions (save in
respect of the Netherlands, which agreement will be in substantially the
same form as the GV Fibre Transfer Agreement for the UK), the parties
agree they will use their best endeavours to finalise these documents
without delay and in any event within such period.
4.6 On Completion or (in the case of the fibre pairs referred to in Clause
4.4.2) on delivery of fibre pairs to Viatel under the relevant GV Fibre
Transfer Agreements, property and risk in the five (5) fibre pairs
referred to in this Clause 4 shall pass to Viatel.
4.7 Global Voice hereby undertakes not knowingly to do or omit to do anything
that would adversely affect the rights and interests granted to Viatel
under the GV Fibre Transfer Agreement(s) in the period from the date of
this Agreement to 2 January 2007 and, in particular, not to grant to any
other person ownership or other rights or interests in the fibres so
allocated.
4.8 The GV Warranties in Part III of Schedule VI shall apply to the rights and
interests granted to Viatel under the GV Fibre Transfer Agreement(s)
subject as provided in the GV Disclosure Letter and to the qualifications,
limitations and exceptions in Part IV of that Schedule, save that the
period for notice of any Warranty Claim in respect of the fibres referred
to in Clause 4.4.2 shall run from 2 January 2007 to 31 July 2008 and
paragraph 3 of Part IV of Schedule VI shall be construed accordingly.
4.9 Following Completion, it being acknowledged by both parties that in order
for Global Voice to be able to perfect the rights, titles and interests
expressed to be granted or made available to, or conferred on, Viatel
under the Transaction Documents, Global Voice would be obliged to seek and
obtain consents and agreements from other persons including landowners,
and that these consents and agreements have not so far been fully
identified or obtained, the parties will cooperate and exchange opinions
at their own expense with a view to identifying and understanding any
perceived defects and other problems with respect to the title and other
rights of Global Voice and GV Group
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Companies in and over the GV Transferred Assets. The parties will then try
to agree ways of resolving or overcoming such issues and an approach and
terms for its implementation and Global Voice will use all reasonable
endeavours to obtain those consents and agreements which the parties agree
are material and desirable.
4.10 Global Voice hereby undertakes not knowingly to and shall procure that the
other GV Group Companies do not knowingly do any voluntary act or omission
with respect to any contract or other arrangement between a GV Group
Company and any other person which would result in premature termination
of rights granted under such contract or arrangement which rights relate
to or affect any proprietary interest of Viatel (including any leasehold
interest) in any of the GV Transferred Assets.
4.11 Global Voice shall procure the grant to VTL Telecom GmbH of indefeasible
rights of use in three dark fibre pairs comprised in the assets the
subject of the GND Asset Transfer, for the period(s) and in accordance
with the terms and conditions contained in the German Option and together
with rights to colocation and other operational space in points of
presence and other telecommunications facilities as provided for in the
German Option. Global Voice shall provide maintenance services with
respect to such fibre pairs using reasonable care and skill and in
accordance with good telecommunications industry practice and which
services shall be similar or equivalent to the GV Core Operational
Services as defined in the Network Operational Agreement PROVIDED THAT
such services shall be at Global Voice's cost and free of charge to Viatel
for a period of ten years from the date of provision in each case of such
fibre pairs to Viatel. Thereafter Viatel shall be obliged to pay its fair
pro rata proportion of Global Voice's relevant maintenance costs with
respect to such services, in default of which either party may terminate
on notice the provision of maintenance services with respect to the fibre
pairs in question.
4.12 Global Voice shall charge to the Viatel Group Companies and Viatel shall
procure that they pay to Global Voice, as from the date of execution and
delivery of the GV Fibre Transfer Agreements in each case, the pro rata
share of Global Voice's reasonable maintenance costs associated with the
GV Transferred Assets PROVIDED THAT the liability of the Viatel Group
Companies for such costs shall not together exceed in aggregate E70,000
in any calendar year. Such maximum shall be subject to inflation-linked
increases as detailed in Schedule IX.
4.13 Global Voice shall provide to or procure for Viatel Group Companies access
to GV On-Net Buildings at preferential pricing. For such purpose the
parties have agreed that, as of Completion (or as soon as is reasonably
practicable thereafter), Global Voice will provide to Viatel Group
Companies access to those GV On-Net Buildings listed in Schedule XII at
the respective costs specified in such schedule. Viatel and any of its
Group Companies shall also have the right, at any time, to request the
provision of access to GV Off-Net Buildings at cost plus 15%.
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All other rights, obligations, terms and conditions applicable to Viatel
Group Companies' access to the GV Transferred Assets are set out in the
Network Operational Agreement.
4.14 Global Voice shall on the request of Viatel at any time offer or procure
the offer by GV Group Companies to Viatel or any of Viatel's Group
Companies of (at Viatel's option) title to or a lease of a maximum two
further fibre pairs per city (the number requested to be determined by
Viatel at its discretion) for a period of ten (10) years less one (1) day
over those parts of the GV Network where, as at the date of Completion, GV
Group Companies have installed fibres. Such fibre pairs shall be at a
price representing the best price offered or sold to any person who or
which is not a GV Group Company during the 18 months prior to such offer
to Viatel being made and Global Voice shall thereafter maintain or procure
maintenance of its pricing as the best price so offered to any non-GV
Group Company at any time. All other terms applicable shall be in
accordance with the terms set out in the GV Fibre Transfer Agreements.
4.15 With respect to parts of the GV Network from time to time developed or
acquired by GV Group Companies after the date hereof, on the request of
any Viatel Group Company at any time Global Voice shall offer or procure
the offer by GV Group Companies to Viatel or any of the Viatel Group
Companies of (at Viatel's option) title to or a lease for a period of ten
(10) years less one (1) day of a maximum two further fibre pairs per city
(the number requested to be determined by Viatel at its discretion)
wherever Global Voice or any relevant GV Group Company shall have fibres
available for such purpose. Such offer shall be at the same price as is
mentioned in Clause 4.14.
4.16 Global Voice shall provide to Viatel at six-monthly intervals information
on any planned build-out of fibre (excluding customer-specific or
confidential build-outs) in any section of the GV Network and shall,
whenever requested by Viatel, confirm the availability of fibre pairs on
the GV Network and the applicable best pricing providing, if so required
by Viatel, appropriate documentary evidence to support such pricing.
4.17 Global Voice shall provide or procure through GV Group Companies access
for Viatel Group Companies with respect to fibre pairs sold or leased
pursuant to Clauses 4.15 and 4.16 upon Global Voice's standard terms and
conditions for access to land and buildings provided that GV Group
Companies shall be under no obligation to grant rights of access any
greater than those enjoyed by GV Group Companies themselves.
5 OPTIONS
Viatel and Global Voice shall each procure entry by the relevant (for each
country) Viatel Group Companies with the GV Group Companies into the
relevant Option and Transfer Agreements.
6 RIGHTS OF VIATEL IN VIATEL TRANSFERRED ASSETS
6.1 In the event that, with respect to a particular sub-duct or duct comprised
in the Viatel Transferred Assets and identified by reference to this
Clause in any of Schedules II B, III
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B or IV B, Global Voice or another GV Group Company shall decide to
install one or more cables in its last sub-duct or (if there shall be no
sub-ducts) duct available for installation of cables(s), Global Voice
shall or shall procure that before so doing it shall inform Viatel by
notice in writing and there shall be a period of not less than thirty (30)
days for discussion between the parties with a view to Viatel deciding
whether or not it would wish to have its own cable(s) installed in the
relevant sub-duct or duct.
6.2 In the event that, with respect to any particular duct comprised in the
Viatel Transferred Assets and identified by reference to this Clause in
any of Schedules II B, III B or IV B, which duct is the last duct
available for installation of cable(s), Global Voice or another GV Group
Company shall decide to install one or more sub-ducts in such duct, Global
Voice shall or shall procure that before so doing it shall inform Viatel
by notice in writing and there shall be a period of not less than thirty
(30) days for discussion between the parties with a view to Viatel
deciding whether or not it would wish to have its own sub-ducts installed
in the relevant duct and, where applicable, cables in those sub-ducts.
6.3 Where Viatel decides it does wish to install its own cable(s) and/or
sub-ducts pursuant to Clause(s) 6.1 and/or 6.2, it shall so inform Global
Voice as soon as practicable and, before Global Voice or another GV Group
Company installs its own cable and/or sub-ducts (as the case may be), the
parties shall in good faith and acting reasonably negotiate the terms of
an arrangement for such work and the allocation of costs and/or discuss
and agree the detailed procedures in the Operations Committee.
7 BENEFIT OF CUSTOMER CONTRACTS
7.1 In consideration of the payments specified in Schedule X and other good
and valuable consideration provided to Viatel hereunder, Viatel shall
remit or procure remittance to Global Voice of the receipts arising from
the Customer Contracts (excluding VAT) and after deduction of the cost
items as specified in Schedule I ("CONTRACT PAYMENTS"). For the avoidance
of doubt, the Customer Contracts will continue to be performed by the
Viatel Group Companies.
7.2 Viatel shall pay the Contract Payments to Global Voice monthly.
8 NETWORK OPERATIONAL AGREEMENT
At Completion the parties shall enter into the Network Operational
Agreement.
9 CONSIDERATION PAYMENTS AND PAYMENT PROCEDURES
9.1 In consideration of the rights granted and to be procured by Viatel under
Clauses 2, 5 and 7, on Completion Global Voice shall pay to the Viatel
Group Companies party to the Transaction Documents the aggregate amount of
E18.5 million in cash divided between the Viatel Group Companies listed
in Schedule X in the amounts set out therein.
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9.2 In consideration of Viatel's agreement to enter into the Network
Operational Agreement, the Site Lease Agreements and the Licence
Agreements and as from the expiry of a period of twelve (12) months from
the date of Completion, Global Voice shall pay to VTL-TP amounts
equivalent to one-half of the total Operating Costs ("OPERATING CHARGES")
subject as follows:
9.2.1 the Operating Charges shall be subject to an annual maximum of
(euro)4.1 million, which maximum shall itself be subject to
increase according to any cost increases imposed on Viatel through
inflation mechanisms in (i) contracts and (ii) other arrangements
with its suppliers;
9.2.2 the Operating Charges shall be paid monthly in advance in equal
instalments and shall be set according to a budget agreed in
writing for Viatel's total Operating Costs by the parties prior to
January in each year (the "BUDGET");
9.2.3 pending the parties' agreement on the Budget, Global Voice agrees
to pay, as a minimum in each twelve (12) month period commencing on
and from the first anniversary of the date of Completion, the
Operating Charges applicable to the previous twelve (12) month
period. In respect of the first twelve (12) month period for which
Global Voice is liable to pay Operating Charges, Global Voice shall
pay, in respect thereof, in twelve (12) equal (or as equal as may
be) monthly instalments, one-half of the total Operating Costs set
out in the Budget as agreed by the parties for that period or, in
the absence of such agreement, (euro)4.1 million;
9.2.4 there shall be a reconciliation of Operating Charges paid against
actual Operating Costs at or as soon as practicable after the end
of each half-year, with appropriate adjustment for cost increases
or decreases not included or anticipated in the Budget for that
year and appropriate balancing payments or credits then to be made
or provided by one party to the other as appropriate;
9.2.5 in the event the parties shall fail in any year to reach agreement
on the Budget, the matter shall be escalated to the Chief Financial
Officer of both parties and, if they shall be unable to resolve the
matter, to the Chief Executive Officer of each party; and
9.2.6 if those Officers shall also be unable to reach agreement, the
parties will attempt to settle it by mediation in accordance with
the CEDR Model Mediation Procedure which Procedure is deemed to be
incorporated by reference into this Clause. Unless otherwise agreed
by the parties, the mediator will be nominated by CEDR.
9.2.7 Where the parties cannot settle the matter by mediation, the matter
shall be referred by either party for determination to:
9.2.7.1 a person agreed by the parties; or
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9.2.7.2 in default of agreement within five (5) days of a notice
from either party to the other calling upon the other so
to agree, a person chosen on the application of either
party by the President for the time being of the
Institute of Chartered Accountants in England and Wales.
9.2.8 Such person:
9.2.8.1 shall act as an expert and not as an arbitrator;
9.2.8.2 shall decide on the procedure to be followed in the
determination (provided that, in any event, he shall
give all parties the full opportunity of making such
representations as they may reasonably require) and be
required to deliver his determination in writing to the
parties within four (4) weeks of this appointment.
9.2.9 In the absence of manifest error or fraud, the decision of such
expert shall be final and binding. The costs of such expert shall
be allocated for payment by either or both of the parties in the
expert's discretion. In default of determination by the expert on
costs these shall be borne equally by the parties. Each party shall
provide to the expert all information and documents reasonably
requested by him to aid his determination of the matter.
9.3 Within four (4) weeks following the end of each calendar quarter during
the Term, Viatel shall send to the relevant GV Group Company at the
address specified in Clause 19.2, or such other address notified to Viatel
for this purpose, a statement showing in reasonable detail the Operating
Costs incurred and paid by Viatel for the preceding calendar quarter.
9.4 In the event that, whether through a court judgment, settlement of legal
proceedings or agreement being reached by Viatel Operations S.A. with
relevant landowners and/or owners of the public domain, fees become,
and/or are deemed retrospectively to have been, payable and due for
payment by Viatel Operations S.A. for rights of way with respect to the
infrastructure constituting or supporting any of the French Network Assets
(including any fees that might be or become payable, with respect to the
French Transferred Assets, to any of Voies Navigable de France, Ville de
Paris and SAGEP or any related entity of any of those organisations as a
result of the legal proceedings existing at the date of this Agreement, to
which Viatel Operations SA is a party), Global Voice shall pay and
reimburse to Viatel, within thirty (30) days of the date of a duly
itemised invoice from Viatel, half such fees from time to time arising as
from the date of Completion subject to a maximum E1,276,000 per annum
PROVIDED THAT prior to any such settlement or agreement Viatel will, so
far as reasonably practicable, have consulted Global Voice with relevant
details of the proposal.
9.5 The parties shall use and continue to use all reasonable endeavours to
reduce the operational overheads relating both to the Viatel Transferred
Assets and the Viatel Retained Assets during the twelve (12) months
following Completion and, in particular, Viatel shall procure
implementation of all reasonable suggestions by Global Voice which
20
result in the reduction of overheads on the Viatel Transferred Assets,
provided that Viatel shall be under no obligation to procure any such
suggested action which it reasonably considers may adversely impact on the
provision of Viatel Services and/or increase the operating costs
associated with the rest of the Viatel Network, and provided further that
Global Voice will reimburse promptly on request to Viatel or as Viatel
directs such proportion of the costs Viatel reasonably incurs in
undertaking any such action as relates to the proportion of the overall
savings applicable to Global Voice.
9.6 Global Voice will be responsible for and discharge all costs and expenses
which are incurred by, or on behalf or at the request of, Global Voice in
connection with the Viatel Transferred Assets (excluding services forming
part of the Viatel Core Operational Services (as defined in the Network
Operational Agreement)) and/or the provision of services by Global Voice
including making any additional fibres operational and/or supporting
additional customer business, provided that where any such costs are not
directly incurred by Global Voice, such costs are at all times approved in
writing in advance by Global Voice.
9.7 All the consideration specified in and payable to the Viatel Group
Companies under this Agreement is net of all taxes, duties, levies and
withholdings of any nature wheresoever created or imposed and, without
limitation to the generality of the foregoing, Global Voice shall be
responsible and liable for all charges, commissions, stamp duties, sales
and transfer tax (including Value Added Tax) or their equivalent in any
relevant jurisdiction, which may arise or be levied on or as a result of
and/or in consequence of this Agreement and the Transaction Documents,
excepting the GV Fibre Transfer Agreements. As soon as practicable after
the date hereof and prior to Completion the parties shall agree upon
appropriate valuations of the Viatel Transferred Assets and of the GV
Transferred Assets to apply for the purposes of all such taxes, duties and
other levies. Global Voice shall procure that Value Added Tax payable by
any GV Group Company with respect or pursuant to any of the Transaction
Documents shall be paid by it promptly on presentation of the appropriate
tax invoice.
9.8 If either party (the "DEFAULTING PARTY") fails to pay by the due date any
amount payable by it under this Agreement, the other party shall be
entitled but not obliged to charge the Defaulting Party interest on the
overdue amount, payable by the Defaulting Party immediately on demand,
from the due date up to the date of actual payment, after as well as
before judgment, at the rate of 5 per cent per annum above the base rate
for the time being of Barclays Bank. Such interest shall accrue on a daily
basis and be compounded quarterly.
9.9 Each party shall nominate a place of business at which it shall keep
separate, complete and accurate books of account and records of all its
costs and expenses which relate to or affect the provisions of Clauses
4.12, 7.1, 9.2, 9.4 and 9.6 of this Agreement ("RECORDS"). A party shall
nominate a place of business for the purpose of this Clause 9.9 by notice
given to the other party in accordance with Clause 19. Each party shall
procure that the other party's representatives have reasonable access to
its principal
21
place of business to inspect and audit the Records (with the right to make
copies and take excerpts) upon reasonable notice during normal business
hours during and up to three (3) years after issue of any relevant invoice
under or in respect of the Clauses referred to above. Any dispute as to
the Records or their contents shall be referred to and resolved by the
decision of a single independent chartered accountant whose decision shall
be final and binding and who shall be appointed by agreement between the
parties, such agreement not to be unreasonably withheld or delayed. In the
event of their failure to agree on such appointment the accountant shall
be appointed by the President for the time being of the Institute of
Chartered Accountants in England and Wales.
9.10 Subject as provided in Clause 9.7, all payments referred to in this
Agreement and in the Transaction Documents are stated exclusive of value
added tax and all other similar taxes and duties payable in respect of
such payments. References in this Clause 9.10 to "payments" include
non-cash consideration and expressions bearing the same meaning shall be
construed accordingly.
9.11 Viatel shall have the right, but not be obliged, at any time or times
without notice to Global Voice, to set off any liability of Global Voice
under Clause 9 to Viatel against any liability of Viatel under Clause 7
(in either case howsoever arising and whether any such liability is due
and payable or will become payable at a later date, actual or contingent,
liquidated or unliquidated and irrespective of the currency of its
denomination) and may for such purpose convert or exchange any currency.
Any exercise by Viatel of its rights under this clause shall be without
prejudice to any rights or remedies available to Viatel or Global Voice
under this Agreement or otherwise.
9.12 Save as provided in Clauses 7.1 and 9.11, all amounts due under this
Agreement shall be paid in full without any deduction or withholding other
than as required by law and neither party shall be entitled to assert any
credit, set-off, deduction, counterclaim or abatement of any nature
whatsoever against the other party in order to justify withholding payment
of any such amount in whole or in part.
10 NEW EQUIPMENT COMPANY
10.1 As soon as practicable after Completion, Global Voice and Viatel shall
form a company (the "EQUIPMENT COMPANY") for the sole purpose of acquiring
new equipment to replace existing equipment used over the Viatel Network
(the "NEW EQUIPMENT"), such New Equipment to be agreed between Global
Voice and Viatel upon incorporation of the Equipment Company and/or in
accordance with agreed applicable procedures set out in the Shareholders
Agreement. For the avoidance of any doubt, if the parties shall fail so to
agree, they shall each be free to procure New Equipment independently.
11 COMPLETION
11.1 Completion of this Agreement shall take place at the offices of Olswang,
00 Xxxx Xxxxxxx, Xxxxxx XX0X 0XX on the later of two (2) Business Days
following (a) this Agreement coming into full force and effect pursuant to
the Escrow Agreement between the parties
22
and their respective Solicitors dated the date hereof and (b) approval of
this Agreement by the Shareholders of Viatel. At such Completion:
11.1.1 The parties shall execute:
- the Network Operational Agreement;
- the Shareholders Agreement;
- such Licence Agreements and/or Site Leases which the parties
have identified do not require the consent of any other
person, and
11.1.2 The payments referred to in Clause 9.1 shall be made.
11.2 Contemporaneous with Completion in London, there shall be completion
meetings at the offices of Viatel's lawyers in Brussels, The Hague,
Frankfurt and Paris at which, subject to proper conclusion of all local
formalities and other legal requirements, the Network Leases, the Option
and Transfer Agreements, the GND Asset Transfer and the GV Fibre Transfer
Agreements in respect of Germany, the Netherlands and the UK will also be
completed.
11.3 In the event that Completion shall not have taken place by either 31 July
2006 or such later date as may be the subject of the last notice given by
Viatel to Global Voice under paragraph 5 of the Escrow Agreement referred
to in Clause 11.1, this Agreement shall lapse and be of no further force
and effect, though without prejudice to any accrued rights or liabilities
arising under this Agreement. Global Voice acknowledges that Viatel gives
no assurance, undertaking or warranty that approval as referred to in
Clause 11.1(b) will be obtained and Viatel shall have no liability in
respect of such approval not being forthcoming.
11.4 Each party undertakes to the other that, pending Completion, it will not
enter into any contractual or other arrangements or incur any liabilities
in anticipation of Completion or whose purpose or realisation is dependent
on Completion taking place. In the event this undertaking is breached by
either party, subject always to the provisions of Clause 13, the party in
breach shall have no claim against the other party for any costs, expenses
or other losses arising as a direct or indirect consequence.
12 WARRANTIES
12.1 Subject as provided in the Viatel Disclosure Letter or the GV Disclosure
Letter as appropriate, Viatel and Global Voice each respectively warrants
and represents to the other in the terms and subject to the limitations
set out in Schedule VI.
12.2 Except as expressly stated in this Agreement and the other Transaction
Documents, all warranties and conditions by either party (including
warranties and conditions as to fitness for purpose and description),
whether express or implied by statute, common law or otherwise are hereby
excluded to the extent permitted by law.
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13 LIMITATION OF LIABILITY
13.1 Nothing in this Agreement shall limit liability for death or personal
injury resulting from either party's negligence or for fraud.
13.2 Subject as provided in Parts II and IV of Schedule VI, the aggregate
liability of either party and its Group Companies in respect of any loss
or damage suffered by the other party and any of its Group Companies and
arising out of or in connection with this Agreement and any of the other
Transaction Documents, including Warranty Claims, and whether in contract,
tort (including negligence) or for breach of statutory duty or in any
other way, shall not exceed twenty million euros ((euro)20,000,000).
13.3 A party shall not be liable, in contract, tort (including negligence) or
for breach of statutory duty or in any other way under or pursuant to this
Agreement and the other Transaction Documents for:
13.3.1 in the case of Viatel, any failure or inability to obtain any
consent or agreement as referred to in Clause 2.6;
13.3.2 in the case of Global Voice, any failure or inability to obtain any
consent or agreement as referred to in Clause 4.9;
13.3.3 any loss arising from or in connection with loss of revenues,
profits, contracts or business or failure to realise anticipated
savings; or
13.3.4 any loss of goodwill or reputation; or
13.3.5 any indirect or consequential losses
suffered or incurred by the other party arising out of or in connection
with any matter under this Agreement.
14 DURATION AND TERMINATION
This Agreement shall come into force on the date of this Agreement and
shall continue until the end of the Term.
15 ASSIGNMENT
15.1 Except as provided in this Clause 15, no party shall without the prior
written consent (such consent not to be unreasonably withheld or delayed)
of the other party assign or transfer at law, sub-license or deal in any
other manner with this Agreement or any rights under this Agreement, or
sub-contract any or all of its obligations under this Agreement or purport
to do any of the same. Any purported assignment or other dealing in breach
of this Clause shall confer no rights on the purported assignee.
24
15.2 Notwithstanding Clause 15.1, either party shall be entitled, upon giving
notice to the other party, to assign its rights under this Agreement to
any Group Company, provided that the assignor shall procure that the
assignee shall assign those rights to a continuing Group Company
immediately prior to ceasing to be a Group Company of the original
assignor and shall give the other party prior written notice of this. Any
such assignment shall not relieve the assignor of any of its obligations
under this Agreement and shall be made on terms that the assignee
acknowledges that the other party may continue to deal exclusively with
the assignor in respect of all matters relating to this Agreement unless
and until the assignee notifies the other party that it is exercising its
rights as assignee.
15.3 For the avoidance of doubt, nothing in this Clause 15 shall restrict
either party's or its Group Company's right to assign, transfer,
sub-license, sub-lease or otherwise deal with any ducts, cables and/or
fibres under a Network Lease, the GV Fibre Transfer Agreement and the GND
Asset Transfer or restrict their rights to deal in the Viatel Transferred
Assets, or Viatel's rights to deal in the GV Transferred Assets, in
accordance with any provisions as to assignment (and other such dealings)
in any such agreement PROVIDED THAT where such agreements refer as a
condition of such right to the obligation on the assigning, transferring,
licensing or leasing party in question to procure the counter-party's
entry into a deed of covenant, such deed shall be in the form or
substantially in the form (adapted to fit the facts and circumstances) set
out in Schedule XIV. Any such assignment or other dealing shall not
relieve the assignor in each case of any of its obligations under the
relevant agreement and shall be made on terms that the assignee
acknowledges that the other party to this Agreement may continue to deal
exclusively with the assignor in respect of all matters relating thereto
unless and until the assignee notifies the other party that it is
exercising its rights as assignee.
15.4 For the avoidance of doubt, nothing in Clause 15.3 or in any deed of
covenant entered into pursuant to Clause 15.3 shall cause any change or
difference to the rights, obligations and arrangements between Viatel and
Global Voice under the Network Operational Agreement. In particular,
Global Voice shall remain responsible to Viatel under the Network
Operational Agreement for the costs of and charges for any services
provided by any Viatel Group Company for the benefit of any customer of
any GV Group Company who has entered into a deed of covenant as referred
to in Clause 15.3. Global Voice acknowledges that neither Viatel nor any
other Viatel Group Company shall be under any obligation to provide any
service under the Network Operational Agreement (or otherwise) direct to
any such GV Group customer.
16 CONFIDENTIALITY
16.1 Each party undertakes that it will not at any time hereafter use, divulge
or communicate to any person, except to its professional representatives
or advisers or as may be required by law or any legal or regulatory
authority, the terms and conditions of this Agreement or any confidential
information concerning the business or affairs of the other party or of
any member of the group of companies to which the other party belongs
which may have or may in the future come to its knowledge and each of the
parties shall use its reasonable
25
endeavours to prevent the publication or disclosure of any confidential
information concerning such matters. Any request or direction of any legal
or regulatory authority to disclose any such confidential information
shall, unless prevented by applicable law, be notified promptly before
compliance to the other party who shall be given reasonable opportunity to
resist. No party shall use any such confidential information except for
the performance of this Agreement.
16.2 The provisions of Clause 16.1 shall not apply to information which:
16.2.1 is or becomes generally available to the public otherwise than as a
direct or indirect result of disclosure by the receiving party or a
person employed or engaged by the receiving party contrary to their
respective obligations of confidentiality; or
16.2.2 is or was made available or becomes available to the receiving
party otherwise than pursuant to this Agreement and free of any
restrictions as to its use or disclosure.
16.3 No party shall make any announcement relating to this Agreement or its
subject matter without the prior written approval of the other parties
except as required by law or by any legal or regulatory authority.
17 NON-SOLICITATION
17.1 Global Voice hereby undertakes, for a period of three years commencing on
the date of Completion, not to employ or engage the services of, nor
solicit or attempt to entice away from Viatel, any senior person employed
by Viatel during the two years prior to the date of this Agreement.
17.2 Viatel hereby undertakes, for a period of three years commencing on the
date of Completion, not to employ or engage the services of, nor solicit
or attempt to entice away from Global Voice, any senior person employed by
Global Voice during the two years prior to the date of this Agreement.
18 FORCE MAJEURE
18.1 In this Agreement, "force majeure" shall mean any cause preventing either
party from performing any or all of its obligations under any of the
Transaction Documents which arises from or is attributable to change or
imposition of any law or any governmental order, rule, regulation or
direction, or nuclear or other accident of any kind, acts of God, war or
terrorist activity, riot, civil commotion, malicious damage, fire, flood
or storm.
18.2 If either party is prevented from performance of any of its obligations
under any of the Transaction Documents by force majeure, that party (the
"CLAIMING PARTY") shall as soon as reasonably possible and in any event
within one (1) Business Day after commencement of the force majeure serve
notice in writing on the other party specifying
26
the nature and extent of the circumstances giving rise to force majeure,
and shall subject to service of such notice have no liability in respect
of any delay in performance or any non-performance of any such obligation
save for any payment obligation which shall continue in full force and
effect (and the time for performance shall be extended accordingly) to the
extent that the delay or non-performance is due to force majeure.
19 NOTICES
19.1 Any notice given under this Agreement shall be in writing and shall be
served by hand delivering it or sending it by prepaid recorded or special
delivery post or prepaid international recorded airmail or fax to the
address and for the attention of the relevant party set out in Clause 19.2
(or as otherwise notified by that party hereunder). Any such notice shall
be deemed to have been received:
19.1.1 if hand delivered or sent by prepaid recorded or special delivery
post or prepaid international recorded airmail, at the time of
delivery;
19.1.2 in the case of fax, at the time of transmission.
Provided that if deemed receipt occurs before 9.00 a.m. on a Business Day
the notice shall be deemed to have been received at 9.00 a.m. on that day,
and if deemed receipt occurs after 5.00 p.m. on a Business Day, or on any
day which is not a Business Day, the notice shall be deemed to have been
received at 9.00 a.m. on the next Business Day. For the purpose of this
Clause, "Business Day" means any day which is not a Saturday, a Sunday or
a public holiday in the place at or to which the notice is left or sent
and references to any time shall be to local time of the recipient.
19.2 The addresses and fax numbers of the parties for the purposes of Clause
19.1 are:
VIATEL HOLDING (BERMUDA) LIMITED
Address: c/o VTL (UK) Limited, Xxxxxxx Xxxxx, Xxxx Xxxx,
Xxxxx, Xxxxxx XX00 0XX
For the attention of: Group General Counsel
Fax number: x00 (0) 0000 000 000
With a courtesy copy to Olswang, 00 Xxxx Xxxxxxx, Xxxxxx XX0X 0XX, for the
attention of Xxxxx Xxxx
VTL-TP (BERMUDA) LIMITED
Address: c/o VTL (UK) Limited, Xxxxxxx Xxxxx, Xxxx Xxxx,
Xxxxx, Xxxxxx XX00 0XX
For the attention of: Group General Counsel
27
Fax number: x00 (0) 0000 000 000
With a courtesy copy to Olswang, 00 Xxxx Xxxxxxx, Xxxxxx XX0X 0XX, for the
attention of Xxxxx Xxxx.
GLOBAL VOICE GROUP LIMITED
Address: 00 Xxxxxxx Xxxxx, 00-00 XXX Xxxxx 0,
Xxxxxxxxx 000000
For the attention of: Xxxxxxxxxxx Xxxxxxxxxxx
Fax number: x00 0000 0000
With a courtesy copy to Olswang, 00 Xxxx Xxxxxxx, Xxxxxx XX0X 0XX, for the
attention of Xxxxxxx Xxxxxx.
or such other address or fax number as may be notified in writing from
time to time by the relevant party to the other parties.
19.3 In proving such service it shall be sufficient to prove that the envelope
containing such notice was addressed to the address of the relevant party
set out in Clause 19.2 (or as otherwise notified by that party hereunder)
and delivered either to that address or into the custody of the postal
authorities as a prepaid recorded or special delivery or international
recorded airmail letter, or that the notice was transmitted by fax to the
fax number of the relevant party set out in Clause 19.2 (or as otherwise
notified by that party hereunder) and that the sender holds a transmission
report indicating uninterrupted transmission to the relevant party and in
the case of notice sent by fax to dispatch of the notice by prepaid post
as provided above on the same day of such transmission (or the next day if
notice is transmitted outside post office hours).
19.4 For the avoidance of doubt, the parties agree that the provisions of this
Clause shall not apply in relation to the service of any process in any
legal action or proceedings arising out of or in connection with this
Agreement or the legal relationships established by this Agreement.
19.5 For the avoidance of doubt, notice given under this Agreement shall not be
validly served if sent by email.
20 SEVERANCE
20.1 If any provision of this Agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable, such invalidity or unenforceability shall not affect the
other provisions of this Agreement which shall remain in full force and
effect.
28
20.2 If any provision of this Agreement is so found to be invalid or
unenforceable but would be valid or enforceable if some part of the
provision were deleted, the provision in question shall apply with such
modification(s) as may be necessary to make it valid.
20.3 The parties agree, in the circumstances referred to in Clause 20.1 and if
Clause 20.2 does not apply, to attempt in good faith to substitute for any
invalid or unenforceable provision a valid or enforceable provision which
achieves to the greatest extent possible the same effect as would have
been achieved by the invalid or unenforceable provision. The obligations
of the parties under any invalid or unenforceable provision of this
Agreement shall be suspended whilst an attempt at such substitution is
made.
21 GENERAL
21.1 Nothing in this Agreement is intended to or shall operate to create a
partnership between the parties or any of them, or to authorise any party
to act as agent for any other, and no party shall have authority to act in
the name or on behalf of or otherwise to bind any other in any way or to
hold itself out in its advertising or otherwise in any manner which would
indicate or imply any such relationship with the other unless expressly
provided otherwise in this Agreement.
21.2 No modification or variation of this Agreement (or any document entered
into pursuant to or in connection with this Agreement) shall be valid
unless it is in writing and signed by or on behalf of each of the parties
to this Agreement. For the avoidance of doubt, no modification or
variation of this Agreement shall be valid if made by email.
21.3 Unless expressly so agreed, no modification or variation of this Agreement
shall constitute or be construed as a general waiver of any provisions of
this Agreement, nor shall it affect any rights, obligations or liabilities
under this Agreement which have already accrued up to the date of such
modification or variation, and the rights and obligations of the parties
under this Agreement shall remain in full force and effect, except and
only to the extent that they are so modified or varied.
21.4 Except insofar as this Agreement expressly provides that a third party may
in his own right enforce a term of this Agreement, a person who is not a
party to this Agreement has no right under the Contracts (Rights of Third
Parties) Xxx 0000 to rely upon or enforce any term of this Agreement but
this does not affect any right or remedy of a third party which exists or
is available apart from that Act.
21.5 Subject as provided in Clause 2.6, each party shall use all reasonable
endeavours to execute or cause to be executed all such other documents and
do or cause to be done all such further acts and things consistent with
the terms of the Transaction Documents as the other party may from time to
time reasonably require in order to vest in and secure for the other party
the full benefit of the assets, rights and benefits to be transferred,
granted or made available to the other party under the Transaction
Documents and otherwise to give full effect to the terms of the
Transaction Documents.
29
21.6 In no event will any delay, failure or omission (in whole or in part) in
enforcing, exercising or pursuing any right, power, privilege, claim or
remedy conferred by or arising under this Agreement or by law, be deemed
to be or construed as a waiver of that or any other right, power,
privilege, claim or remedy in respect of the circumstances in question, or
operate so as to bar the enforcement of that, or any other right, power,
privilege, claim or remedy, in any other instance at any time or times
subsequently.
21.7 The rights and remedies provided by this Agreement are cumulative and
(unless otherwise provided in this Agreement) do not exclude any other
rights or remedies available in law.
21.8 This Agreement, the other Transaction Documents, the Escrow Agreement
referred to in Clause 11.1 and the various letters written by the parties
to each other dated the date hereof constitute the entire agreement and
understanding of the parties relating to the subject matter of the
Transaction Documents and supersede any previous agreement or
understanding between the parties (or any of them) in relation to such
subject matter.
21.9 Each of the parties acknowledges and agrees that in entering into the
Transaction Documents, it has not relied on any statement, representation,
warranty, understanding, undertaking, promise or assurance (whether
negligently or innocently made) of any person (whether party to any
Transaction Document or not) other than as expressly set out in the
Transaction Documents. Each party irrevocably and unconditionally waives
all claims, rights and remedies which but for this Clause it might
otherwise have had in relation to any of the foregoing.
21.10 No party shall be liable in negligence or other tort for any act or
omission which (individually or in combination with any other act or
omission) constitutes a breach of this Agreement. Subject as provided in
Clause 13, a party to this Agreement shall not be liable for any amount,
in damages or other compensation, for a breach of this Agreement which has
been compensated instead by a claim against a Group Company of that party
for damages or other compensation under or pursuant to another Transaction
Document or in respect of which proceedings upon such a claim have (at the
relevant time) already been issued.
21.11 Nothing in the Transaction Documents shall limit or exclude any liability
for fraud.
22 GOVERNING LAW AND JURISDICTION
22.1 The validity, construction and performance of this Agreement (and any
claim, dispute or matter arising under or in connection with it or its
enforceability) (a "DISPUTE") shall be governed by and construed in
accordance with the laws of England. Any Dispute shall be referred to and
finally resolved by arbitration pursuant to the Arbitration Agreement.
22.2 The parties shall enter into and execute the Arbitration Agreement within
three (3) Business Days of the date hereof or, in the event the GV Group
Companies in France
30
and Belgium are incorporated subsequently, within five (5) Business Days
of the last to occur of such incorporations.
22.3 The parties each irrevocably appoints the person specified in Clause 22.4
as its agent to receive on its behalf in England service of any
proceedings arising out of or in connection with the validity,
construction or performance of this Agreement or its enforceability. Such
service shall be deemed completed on delivery to such agent (whether or
not it is forwarded to and received by the other party). If for any reason
a party's agent ceases to be able to act as agent or no longer has an
address in England, that party shall immediately appoint a substitute
acceptable to the other party and deliver to that other party the new
agent's name, address and fax number.
22.4 The persons and their addresses and fax numbers appointed in Clause 22.3
are:
VIATEL HOLDING (BERMUDA) LIMITED
Address: Olswang, 00 Xxxx Xxxxxxx, Xxxxxx XX0X 0XX
For the attention of: Xxxxx Xxxx
Fax number: x00 (0) 00 0000 0000
GLOBAL VOICE GROUP LIMITED
Address: Xxxxxx Xxxxxxx solicitors, 00 Xxxxxxxxxxx
Xxxxxxxxx, Xxxxxx XX0X 0XX
For the attention of: Xxxxx Xxxxxxx
Fax number: x00 (0) 00 0000 0000
31
SCHEDULE I
CUSTOMER CONTRACTS
VIATEL - LIST OF EXISTING WHOLESALE CUSTOMERS - RECURRING REVENUES
MARCH
MONTHLY MONTHLY
Revenue COS
COUNTRY COMPANY CUSTOMER SERVICE CONTRACT LENGTH DETAIL GBP GBP
------- ----------- ---------------- --------------- ---------------- --------------------- ------- -------
Holland Viatel GCBV Infonet STM4 20 years Amsterdam-Dusseldorf 1703.9 762
Holland Viatel GCBV Infonet STM1 20 years Amsterdam-Dusseldorf 909.7 0
Holland Viatel GCBV Infonet STM4 20 years Amsterdam-London 1703.9 762
UK VCA Limited Verizon STM1 rental Monthly rollover Paris RDJ-St Denis 2527.0 0
UK VCA Limited Tyco Dark fibre Quarterly AOM Germany 23882.4 0
Germany VTL Telecom AT&T leased line Monthly rollover Frankfurt to Manheim 2290.0 1156.5
Germany VTL Telecom AT&T Colocation 10 years Sublease at Manheim 4681.0 0
Germany VTL Telecom Sellect One Circuits Monthly rollover London- frankfurt 136.1 0
Germany VTL Telecom Sellect One Circuits Monthly rollover Paris to Frankfurt 68.0 0
Germany VTL Telecom Sellect One Circuits Monthly rollover Paris to Xxxxxxxxx 00.0 0
Xxxxxxx XXX-XX Anycall Circuits Monthly rollover London- Amsterdam 666.7 0
Bermuda VTL-TP Fibrenet Circuits Monthly rollover Xxxxx - Xxx Xxxx 000.0 0
Xxxxxxx XXX-XX Fibrenet Circuits Monthly rollover london-newyork 1299.6 879.7
Bermuda VTL-TP Stellar STM1 Monthly rollover Amsterdam to new york 2381.1 0
Bermuda VTL-TP Thus STM4 Monthly rollover Londom-Amsterdam 2721.3
32
Bermuda VTL-TP Infonet KPN Tail 10 years Frankfurt-Amsterdam 2496.4 1500
Bermuda VTL-TP Infonet Dark fibre Monthly rollover dusseldorf-dusseldorf 693.1
Bermuda VTL-TP Infonet STM4 Monthly rollover Amsterdam to London 9626.7 4564
Bermuda VTL-TP Tyco France AOM 20 years France 19418.4 0
Bermuda VTL-TP Tyco Netherlands AOM 20 years Holland 6031.7 0
Bermuda VTL-TP Tyco Belgium AOM 20 years Belgium 2766.1 0
Bermuda VTL-TP Tyco UK AOM 20 years Uk 3893.4 0
Bermuda VTL-TP Globix AOM 5 years TBC 481.3 0
UK VTL UK AT&T Colo/Dark Fibre Monthly Rollover London-Frankfurt 4500.0 1578.3
UK VTL UK GTS Czech Circuit Monthly Rollover London-Frankfurt 122.5 0
France Viatel Ops Infonet Dark fibre pair Monthly rollover 170.08 0
France Viatel Ops Infonet Dark fibre pair 5 years 1360.64 0
France Viatel Ops Infonet Colocation 5 years 2079.00 0
L/month 99544.5 11202.5
MILLION EURO PER YEAR 1.7 0.2
33
SCHEDULE IIA
GERMAN NETWORK ASSETS
ROUTE
GERMANY SCHEMATIC - VIATEL 092786
XXX
XXXXXXX
Xxxxx - X0
X0 - X0
X0 to Xxxx xx X'Xxxxxx
Xxxxxxxxx (Xxxxxxxxxxxxx 00) to F1
F1 to Frankfurt (Kleyerstrasse 90)
M1 - Mannheim
Mannheim - M2
Frankfurt Build. Xxxxxxxxxxxx 00 to InterXion (19 Weismeullerstrasse)
Frankfurt Build. InterXion to F4. nth side of Kaiserleibrucke.
Frankfurt Build. Kaiserleibrucke crossing
Frankfurt Build WSA Route
34
SCHEDULE IIB
GERMAN TRANSFERRED ASSETS
PART A: NETWORK SEGMENTS
SEGMENT TITLE* ASSET TYPE GRANT PERIOD
------------------------ ------- ----------- -------------------------------
PEN 2 Duct Fibre March 31/June 30, 2017 with
leased, option for extension to 2029
fibre
owned
Frankfurt Northern
Build (Frankfurt Ring) Owned Duct, Fibre unlimited**
Frankfurt Southern Build Duct Fibre 31 December 2010, duct lease
(Frankfurt Ring) leased, then renews annually unless
fibre terminated by either party,
owned landlord has early termination
rights.
Mannheim Build Owned Duct, Fibre unlimited**
* Subject to Clause 6 of the German Asset Lease.
**Subject to last paragraph of Clause 2.1 in the German Asset Lease.
35
PART B: DUCT AND FIBRE ALLOCATIONS
DUCT ALLOCATIONS
TOTAL NUMBER OF
DUCTS / SUBDUCTS
(NUMBER OF DUCTS / OPTION (CLAUSE 6.1 DUCT / SUBDUCT ALLOCATION RATIO
SUBDUCTS TO BE AND/OR 6.2 OF THE LEASED / OWNED FOR GV IN % OF
NETWORK SECTION ALLOCATED TO GV) MASTER AGREEMENT COMMENTS BY VIATEL OWNED ASSETS
------------------------ ------------------ --------------------- ---------------------- -------------- ----------------
PEN 2 NONE - DUCT LEASED FROM LEASED NONE
GASLINE
FRANKFURT SOUTHERN BUILD NONE - DUCT LEASE FROM WSA, LEASED NONE
FROM SPLICING
CHAMBER F2(1) TO X0(0)
XXXXXXXXX XXXXXXXX XXXXX
Xxxxxxx X00 to 2 Primary ducts, 4 Clause 6.1 and Clause IRU over 1 subduct Owned Primary Ducts:
Frankfurt POP4 Subducts (one of 6.2 granted to 50 %
which leased to Fibrenet. three Subducts: 50 %
Fibernet) subducts available.
(1 Primary Duct
and 2 Subducts)
----------------
(1) Chamber F2 located at Schwanheimerufer, where A5 crosses Schwanheimerufer.
(2) Chamber F3 located on the footpath along south bank of Main river where the
Kaiserleibrucke crosses the footpath.
(3) Chamber F1 located on Kleyerstrasse to the west of the Viatel POP at a point
where the A5 crosses Kleyerstrasse.
(4) Frankfurt POP located at Xxxxxxxxxx(xxxx)x 00, Xxxxxxxxx
00
TOTAL NUMBER OF
DUCTS / SUBDUCTS
(NUMBER OF DUCTS / OPTION (CLAUSE 6.1 DUCT / SUBDUCT ALLOCATION RATIO
SUBDUCTS TO BE AND/OR 6.2 OF THE LEASED / OWNED FOR GV IN % OF
NETWORK SECTION ALLOCATED TO GV) MASTER AGREEMENT COMMENTS BY VIATEL OWNED ASSETS
-------------------------- ------------------ --------------------- -------------------- -------------- ----------------
Frankfurt POP to 2 Primary ducts, 4 Clause 6.2 Three sub-ducts Owned Primary Ducts:
Interxion(5) Subducts (one of currently occupied. 50 %
which leased to Only one of the four Subducts: 25 %
Fibernet) sub-ducts is
(1 Primary Duct available for
and 1 Subduct) allocation.
Interxion to Chamber F4(6) 2 primary ducts, 4 Clause 6.1 Duct is not cabled Owned Primary Ducts:
subducts 50 %
(1 primary duct, 2 Subducts: 50 %
subducts)
Chamber F3 - Chamber F4 1 primary duct/ 4 - One sub-duct is Owned Subducts: 25 %
(Kaiserleibrucke subducts occupied by a third
crossing) (1 subduct) party, the other
carries the Viatel
cable.
---------------
(5) Interxion POP located at Xxxxxxxxxxxxxxxxx 00.
(6) Chamber F4 located at north side of Riederhofstrasse approximately 25 meters
west of the point where the A661 crosses Xxxxxxxxxxxxxxxx.
00
TOTAL NUMBER OF
DUCTS / SUBDUCTS
(NUMBER OF DUCTS / OPTION (CLAUSE 6.1 DUCT / SUBDUCT ALLOCATION RATIO
SUBDUCTS TO BE AND/OR 6.2 OF THE LEASED / OWNED FOR GV IN % OF
NETWORK SECTION ALLOCATED TO GV) MASTER AGREEMENT COMMENTS BY VIATEL OWNED ASSETS
------------------------- ------------------ --------------------- -------------------- -------------- ----------------
MANNHEIM BUILD
Chamber M1(7) to Mannheim 2 Primary Ducts - The second primary Owned Primary Ducts:
POP(8) (1 Primary Duct duct allocated to GV 50 %
also carries the GND
PEN 3 cable.
Mannheim POP to Chamber 2 Primary Ducts - The second primary Owned Primary Ducts:
M2(9) (1 Primary Duct duct allocated to GV 50 %
also carries the GND
PEN 3 cable.
-------------
(7) Location not entirely clear, to be confirmed by site survey. Location
believed to be south side of the B37 at a point immediately west of the
intersection of the B37 and Barlochweg.
(8) Mannheim POP located at Xxxx-Xxxxx-Xxxxxxx 00-00, Xxxxxxxxxx, D-68163
Mannheim.
(9) Location not entirely clear, to be confirmed by site survey. Location
believed to be on the north side of the A656 at a point east of the intersection
of the A656 and Lubenweg.
38
FIBRE ALLOCATIONS
TOTAL NUMBER OF
FIBRES
(NUMBER OF SPECIFIC FIBRES FIBRE OWNED ALLOCATION RATIO
FIBRES TO BE TO BE ALLOCATED / LEASED BY FOR GV IN % OF
NETWORK SECTION ALLOCATED TO GV) TO GV (TUBE NUMBER) COMMENTS VIATEL OWNED ASSETS
----------------------- ------------------ ------------------- ------------------ ----------- ----------------
PEN 2 GasLINE duct lease
Xxxxx - Xxxxxxxx 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Kapellen - Dusseldorf 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Dusseldorf - Xxxxx 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Xxxxx - Xxxx 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Xxxx - Xxxxxxxx 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Xxxxxxxx - Naurod 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Naurod - Chamber F1 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Frankfurt POP - Chamber 72(36) Fibres 25-36, Owned Cable: 50 %
F1 49-72 (Tubes 3, 5,
6)
Chamber F1 - Chamber 72(36) Fibres 25-36, Owned Cable: 50 %
M1(10) 49-72 (Tubes 3, 5,
6)
--------------
(10) Location not entirely clear, to be confirmed by site survey. Location
believed to be south side of the B37 at a point immediately west of the
intersection of the B37 and Barlochweg.
39
TOTAL NUMBER OF
FIBRES
(NUMBER OF SPECIFIC FIBRES FIBRE OWNED ALLOCATION RATIO
FIBRES TO BE TO BE ALLOCATED / LEASED BY FOR GV IN % OF
NETWORK SECTION ALLOCATED TO GV) TO GV (TUBE NUMBER) COMMENTS VIATEL OWNED ASSETS
----------------------- ------------------ ------------------- ------------------ ----------- ----------------
Chamber X0 - Xxxxxxx X0 See Mannheim Build
below
Chamber M2 - Xxxx 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
Xxxx - Xxxx de l'Europe 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
4-6)
FRANKFURT NORTHERN BUILD Owned
Chamber F1 - Frankfurt 72(36) Fibres 37-72(Tubes Owned Cable: 50 %
POP 4-6)
Frankfurt POP - 72(36) Fibres 49-60 (Tube 72f cable but only Owned Cable: 50 %
Interxion 5) - Terminated 24 spliced through
Fibres 25-36,
61-72 (Tubes 3, 6)
Interxion - no cable no cable Owned n/a
Chamber F4 (i.e.
Xxxxxxxxxxxxxxx)
Xxxxxxx X0 to Chamber F4 72(36) Fibres 37-72 Owned Cable: 50 %
(Tubes 4, 5 & 6)
FRANKFURT SOUTHERN BUILD WSA duct lease
40
TOTAL NUMBER OF
FIBRES
(NUMBER OF SPECIFIC FIBRES FIBRE OWNED ALLOCATION RATIO
FIBRES TO BE TO BE ALLOCATED / LEASED BY FOR GV IN % OF
NETWORK SECTION ALLOCATED TO GV) TO GV (TUBE NUMBER) COMMENTS VIATEL OWNED ASSETS
-------------------------- ------------------ ------------------- ---------------------------- ----------- ----------------
Xxxxxxx X0 - Xxxxxxx X0 72(36) Fibres 13-24 (Tube Except 150 meters temporary Owned Cable: 50 %
2), Fibres 49-72 section (below)
(Tubes 5, 6)
Temporary Section, 24(12) Fibres 13-24 (Tube To be replaced 2007, Owned Cable: 50 %
Offenbach - Schleuse 2) allocation to GV then to be
Offenbach, between increased to 36 fibres
07.PII.032.FN and
07.PII.033.FN
MANNHEIM BUILD
Chamber M1 - Mannheim 72(36) Fibres 25-36, See Duct Allocation table Owned Cable: 50 %
POP(11) (VTL Primary Duct) 49-72 (Tubes 3, 5, above.
6)
Chamber M1 - Mannheim 72(72) n/a See Duct Allocation table Owned Cable: 100 %
POP(12) (Second Primary above. The second primary
Duct allocated to GV) duct allocated to GV also
carries a cable
------------------
(11) Mannheim POP located at located at Xxxx-Xxxxx-Xxxxxxx 00-00, Xxxxxxxxxx,
D-68163 Mannheim.
(12) Mannheim POP located at located at Xxxx-Xxxxx-Xxxxxxx 00-00, Xxxxxxxxxx,
D-68163 Mannheim.
41
TOTAL NUMBER OF
FIBRES
(NUMBER OF SPECIFIC FIBRES FIBRE OWNED ALLOCATION RATIO
FIBRES TO BE TO BE ALLOCATED / LEASED BY FOR GV IN % OF
NETWORK SECTION ALLOCATED TO GV) TO GV (TUBE NUMBER) COMMENTS VIATEL OWNED ASSETS
----------------------- ------------------ ------------------- ---------------------------- ----------- ----------------
Mannheim POP - Chamber 72(36) Fibres 37-72(Tubes See Duct Allocation table Owned Cable: 50 %
M2(13) (VTL Primary Duct) 4-6) above.
Mannheim POP - Chamber 72(72) n/a See Duct Allocation table Owned Cable: 100 %
M2(14) (Second Primary above. The second primary
Duct allocated to GV) duct allocated to GV also
carries a cable
----------------
(13) Location not entirely clear, to be confirmed by site survey. Location
believed to be on the north side of the A656 at a point east of the intersection
of the A656 and Lubenweg.
(14) Location not entirely clear, to be confirmed by site survey. Location
believed to be on the north side of the A656 at a point east of the intersection
of the A656 and Xxxxxxxx.
00
XXXXXXXX XXXX
FRENCH NETWORK ASSETS
ROUTE
FRANCE SCHEMATIC - VIATEL 092782:
Leers Nord to Corbehem
Corbehem- Biaches
Biaches-Cayeux-Sur-Mer
Biaches - Janville (via Thourotte)
Janville- La Defense (via L'Isle Xxxx)
La Defense - 00 XXX
00 XXX - Xxxxxxxxxx (xxx Xxxxx & Azy)
Courcelles- Longeaux (via Conde sur Marne & Revigny)
Longeaux-Reichstett (via Troussey, Xxxxx & Xouxange)
Reichstett - Pont de L'Europe
Pont de 'Europe to Strasbourg
Strasbourg to Pont de L'Europe (direction Xxxx, Germany)
PARIS SCHEMATIC - VIATEL 092757:
35 RDJ - 00 XXX
00 XXX - 00 XXX
Xxxxx xx Xxxxxxxx to Rue Francique poulbot
Rue Francique poulbot to Rue Ambrouze Croizat (west s/o St. Denis)
Chamber (east side of St. Denis) to Porte d 'Aubervilliers
Porte d 'Aubervilliers to 35 RDJ
InterXion - splice (xxxxxx Xxxx) lateral 1
43
ROUTE
InterXion - splice (xxxxxx Xxxx) lateral 2
35 RDJ to SC Place Lachambaudie
Quai Penhard to SEMAPA tunnel-Tolbiac (within 35 RDJ to SC Place Lachambaudie
section)
Rue Xxxxxx to Rue de Xxxxx Xxxxx (within 35 RDJ to SC Place Lachambaudie
section)
44
SCHEDULE IIIB
FRENCH TRANSFERRED ASSETS
PART 1 -- DUCTS
TOTAL NUMBER OF DUCTS / SUBDUCTS OPTION
(NUMBER OF DUCTS / SUBDUCTS (CLAUSE 6.1 AND/OR 6.2
NETWORK SECTION TO BE ALLOCATED TO GV) OF MASTER AGREEMENT) COMMENTS
-------------------------- -------------------------------- ----------------------- -------------------
FRANCE
Corbehem-Biaches 2 Ducts (1 Duct) Clause 6.1.
Biaches-Cayeux-Sur-Mer 4 Ducts (2 Ducts) Clause 6.1 re both of
the GV allocated ducts.
Biaches - Janville (via 2 Ducts (1 Duct) Clause 6.1.
Thourotte)
Courcelles- Longeaux (via 2 Ducts (1 Duct) Clause 6.1.
Conde sur Marne & Revigny)
Longeaux-Reichstett (via 2 Ducts (1 duct) Clause 6.1.
Troussey, Xxxxx & Xouxange)
Pont de L'Europe to 2 Ducts (1 Duct) Clause 6.1 of the
Strasbourg Master Agreement.
PARIS - - No continuous spare
Ducts, see below
fibre allocations.
45
PART 2 -- FIBRES
TOTAL NUMBER OF FIBRES SPECIFIC FIBRES
(NUMBER OF FIBRES TO BE ALLOCATED
NETWORK SECTION TO BE ALLOCATED TO GV) TO GV (TUBE NUMBER) COMMENTS
-------------------------- -------------------------------- --------------------------- ------------------------
Corbehem - Biaches 72 (36) X 00-00 (0), X 00-00 (0), X
61-72 (6).
Biaches - Amiens 72 (36) X 00-00 (0), X 00-00 (0), X
61-72 (6).
Amiens -- Cayeux 72 (36) X 00-00 (0), X 00-00 (0), X
61-72 (6).
Xxxxxx - Thourette 72 (36) X 00-00 (0), X 00-00 (0), X
61-72 (6).
Thourette - L'Isle Xxxx 72 (36) X 00-00 (0), X 00-00 (0), X
61-72 (6).
L'Isle Xxxx - Xxxxx La
Defense 72 (36) X 00-00 (0), X 00-00 (0), X
61-72 (6).
Xxxxx 00 XXX -- Xxxxx La
Defense 72 (36) X 00-00 (0), X 00-00 (0), X Only F 13-24 (2) are
37-48 (4) spliced through between
192 (96) F 97-192 (9-16) 35 RDJ and La defense.
F 25-36 & F 37-48 can be
spliced through at Porte
de Villiers.
Xxxxx -- Xxxxx 00 XXX 00 (00) X 00-00 (0), X 00-00 (0), X
61-72 (6).
Azy -- Xxxxx 72 (36) X 00-00 (0), X 00-00 (0), X
49-60 (5).
Conde sur Marne -- Azy 72 (36) X 00-00 (0), X 00-00 (0), X
49-60 (5).
Revigny -- Conde sur Marne 72 (36) X 00-00 (0), X 00-00 (0), X
49-60 (5).
46
TOTAL NUMBER OF FIBRES SPECIFIC FIBRES
(NUMBER OF FIBRES TO BE ALLOCATED
NETWORK SECTION TO BE ALLOCATED TO GV) TO GV (TUBE NUMBER) COMMENTS
-------------------------- -------------------------------- --------------------------- ------------------------
Troussey -- Revigny 72 (36) X 00-00 (0), X 00-00 (0), X
49-60 (5).
Xxxxx -- Troussey 72 (36) X 00-00 (0), X 00-00 (0), X
49-60 (5).
Xouaxange -- Xxxxx 72 (36) X 00-00 (0), X 00-00 (0), X
49-60 (5).
Xouaxange - Strasbourg 72 (36) X 00-00 (0), X 00-00 (0), X Xxxxxxxx a section of
61-72 (6). Duct IRU from Neuf
Telecom.
Strasbourg -- Pont de l' 72(36) X 00-00 (0), X 00-00 (0), X Direction Xxxx, Germany
Europe 61-72 (6)
XXXXX
Xxxxx 00 RDJ -- Xxxxx 00
XXX 00 (00) F 25-36 (3), F 37-48 (4).
Paris 38 RDJ -- Xxxxx 00
XXX 000 (00) F 97-192 (tubes 00-00)
Xxxxx xx Xxxxxxxx - Xxx
Xxxxxxxx Xxxxxxx (west 144 (72) F 25-36 (3), 37-48 (4), F 25-36 (3), 37-48 (4)
s/o St. Denis) 49-60 (5). are spliced through to
35 RDJ.
F 109-120 (10), F 121-132
(11), F 133-144 (12).
Chamber (East side of St. 216 (108) F 25-36 (3), F37-48 (4), F
Denis) - 35 RDJ (via 133-216 (12, 13, 14, 15, 16,
Porte de Aubervilliers 17 & 18)
InterXion - Splice (Xxxxxx 72 (36) F 37-72 (4, 5 & 6) Not spliced to backbone.
Hugo) Lateral Duct under lease from
Interxion.
47
TOTAL NUMBER OF FIBRES SPECIFIC FIBRES
(NUMBER OF FIBRES TO BE ALLOCATED
NETWORK SECTION TO BE ALLOCATED TO GV) TO GV (TUBE NUMBER) COMMENTS
-------------------------------- -------------------------------- --------------------------- ------------------------
InterXion - Splice (Xxxxxx Xxxx) 72 (36) F 37-72 (4, 5 & 6) Not spliced to backbone.
Lateral
Duct under lease from Interxion.
35 RDJ to SC Place Lachambaudie 72 (36) F 37-72 (4, 5 & 6) Includes 2 Duct Leases from Colt
Telecom.
192 (96) F 97-192 (13-24)
48
SCHEDULE IVA
NBUK NETWORK ASSETS
NETHERLANDS
ROUTE
NETHERLANDS SCHEMATIC - VIATEL 092785
Zandvoort- Delfandlaan
Delfandlaan to SC-DUS-AMS-SP-012
SC-DUS-AMS-SP-012 to Leersum
Leersum to SC-DUS-AMS-SP-13
Elten to SC-DUS-AMS-SP-13
Doorn to SC-DUS-AMS-SP-13
SC-DUS-AMS-SP-012 - Doorn
World Trade Centre- Delfandlaan
Delfandlaan - World Trade Centre
Delfandlaan-Rotterdam
Rotterdam-Kalwijk
Rotterdam - Rosendaal
Rosendaal-Essen
Rosendaal - Netherlands / Belgium Border
00
XXXXXXX
XXXXX
XXXXXXX SCHEMATIC - VIATEL 092785
Netherlands / Belgium Border - Estampuis (via Antwerp & Gent)
Estampuis - Leers Nord
Backbone to Brussels Tollaan
Brussels Tollaan to Backbone
50
UK
ROUTE
UK SCHEMATIC - VIATEL 092783
Lowestoft beach chamber - Zandvoort
Lowestoft beach chamber - Lowestoft
Lowestoft - Telehouse North
Telehouse North- Egham
Egham-Windlesham
Windlesham - Polegate
Polegate-Polegate beach chamber
Polegate beach chamber-Cayeux-sur-Mer
DOCKLANDS SCHEMATIC - VIATEL 092743
Telehouse North - Butchers Road (North route)
Butchers Road-Telehouse North (South route)
Lower Lea Bridge (included in Butchers Road - Telehouse North (South
route)
Telehouse North-Jcn.DitchburnSt/Blackwall (via Telehouse East)
Xxxxx Wall- Limeharbour
6-7 Habour Exchange connection (Single Route)
8-9 Habour Exchange connection (lateral 1)
8-9 Habour Exchange connection (lateral 2)
Telecity Bonnington connection (lateral 1)
Telecity Bonnington connection (lateral 2)
00
XXXXX
Xxxxxx Hosting Centre (lateral 1)
London Hosting Centre (lateral 2)
Global Switch (Single Route)
Jcn.Millwal lInnDock/Xxxxx Wall to XX.Xxxxxxxxx Xxxx
XX.Xxxxxxxxx Xxxx to SC:O/S 47 Millharbour
SC:O/S 47 Millharbour to Xxxxx Wall
DitchburnSt/Xxxxxxxxx - SC: X00 Xxxxx
XxxxxxxxxXx/Xxxxxxxxx - Xxxxxxxxxxxxxx
XX00-Xxxxxxxxx Street (CONTAINED WITHIN TELEHOUSE NORTH - EGHAM
ABOVE)
Lindfield Street - A13 South (CONTAINED XXXXXX XXXXXXXXX XXXXX -
XXXXX XXXXX)
Xxxxxxxxx Xxxxx- XX: A 13 (CONTAINED WITHIN TELEHOUSE NORTH - EGHAM
ABOVE)
Great Eastern Street PC - SC27 (CONTAINED WITHIN TELEHOUSE NORTH -
EGHAM ABOVE)
Egham - Great Eastern Street PC (CONTAINED WITHIN TELEHOUSE NORTH -
EGHAM ABOVE)
PC (Great Eastern Street)-Xxxxxx Street
52
SCHEDULE IVA
NBUK TRANSFERRED ASSETS
NETHERLANDS
PART 1 - DUCTS AND SUBDUCTS
DUCT
TOTAL NUMBER OF OPTION LEASED /
DUCTS / SUBDUCTS (NUMBER OF (CLAUSE 6.1 OR OWNED
NETWORK DUCTS / SUBDUCTS TO BE 6.2 OF MASTER BY
SECTION ALLOCATED TO GV) AGREEMENT) COMMENTS VIATEL
------------------------ --------------------------- --------------- ------------------------ ----------
Zandvoort - Deflandlaan 4 ducts (2 ducts) Clause 6.1 Owned
(Amst)
Deflandlaan (Amsterdam) 4 ducts (2 ducts) Clause 6.1 Owned
- SC-12
SC-12 - Leersum 4 ducts (2) Clause 6.1 Owned
Leersum - SC-13 4 ducts (2 ducts) Clause 6.1 Owned
Elten - SC-13 4 ducts (2 ducts) Clause 6.1 Owned
Doorn - SC-13 4 ducts (2) Clause 6.1 Owned
SC-12 - Doorn 4 ducts (2 ducts) Clause 6.1 Owned
World Trade Centre - 4 ducts (2 ducts) Clause 6.1 Owned
Deflandlaan (Amsterdam)
Deflandlaan (Amsterdam) 4 ducts (2 duct) Clause 6.1 Owned
- World Trade Centre -
Deflandlaan (Amsterdam) 2 ducts (1 ducts) Clause 6.1 Originallly 4 ducts, 2 Owned
- Rotterdam ducts sold, 2 available.
Rotterdam - Roosendaal 5 ducts (2 ducts) Clause 6.1 5 ducts of which one Owned
extra duct obtained form
Versatel.
53
DUCT
TOTAL NUMBER OF OPTION LEASED /
DUCTS / SUBDUCTS (NUMBER OF (CLAUSE 6.1 OR OWNED
NETWORK DUCTS / SUBDUCTS TO BE 6.2 OF MASTER BY
SECTION ALLOCATED TO GV) AGREEMENT) COMMENTS VIATEL
------------------------ --------------------------- --------------- ------------------------ ----------
Rotterdam - Katwijk 6 ducts (3 ducts) Clause 6.1 No xxxxxxxx on this duct Owned
section, not cabled
Roosendaal - Essen 4 ducts (2 ducts) Clause 6.1 Owned
regarding both
GV Ducts
Roosendaal - 2 sub ducts (1 sub duct) Clause 6.1 Owned
Netherlands border
54
PART 2 - FIBRES
TOTAL
NUMBER OF SPECIFIC
FIBRES FIBRES TO
(NUMBER BE FIBRE
OF FIBRES ALLOCATED LEASED
PEN - TO BE TO GV / OWNED
NETWORK BUILD ALLOCATED (TUBE BY
SECTION SPEC TO GV) NUMBER) COMMENTS VIATEL
------------------- ----------------- ----------- ------------------- ---------- -------------
Zandvoort - Netherlands PEN 1 48 (24) F 25-36 (3), F Owned
Xxxxxxxxxxx (Xxxx) 00-00 (0).
Xxxxxxxxxxx Xxxxxxxxxxx PEN 2 72 (36) F 37-48 (4), F Owned
(Amsterdam) 49-60 (5), X 00-00
- XX-00 (0).
XX-00 - Xxxxxxx Xxxxxxxxxxx PEN 2 48 (24) F 49-60 (5), F Owned
61-72 (6).
Leersum - SC-13 Netherlands PEN 2 48 (24) F 49-60 (5), F Owned
61-72 (6).
Elten - SC-13 Netherlands PEN 2 72 (36) F 37-48 (4), F Owned
49-60 (5), F 61-72
(6).
Doorn - SC-13 Netherlands PEN 2 24 (12) F 37-48 (4). Owned
SC-12 - Doorn Netherlands PEN 2 24 (12) F 37-48 (4). Owned
World Trade Centre Netherlands 48 (24) F 25-36 (3), F Owned
- Xxxxxxxxxxx 00-00 (0).
(Xxxxxxxxx)
Xxxxxxxxxxx Xxxxxxxxxxx 48 (24) F 25-36 (3), F Owned
(Amsterdam) - World 37-48 (4).
Trade Centre -
Deflandlaan Netherlands PEN 1 72 (36) F 37-48 (4), F Owned
(Amsterdam) 00-00 (0), X 00-00
- Xxxxxxxxx (0).
Xxxxxxxxx - Xxxxxxxxxxx PEN 1 72 (36) F 37-48 (4), F Owned
Xxxxxxxxxx 00-00 (0), X 00-00
(0).
Xxxxxxxxx - Xxxxx Xxxxxxxxxxx PEN 1 72 (36) F 37-48 (4), F Owned
49-60 (5), F 61-72
(6).
Essen - Rosendaal Netherlands PEN 1 72 (36) F 37-48 (4), F Owned
49-60 (5), F
61-72 (6).
55
BELGIUM
TOTAL
NUMBER OF
FIBRES
(NUMBER SPECIFIC OPTION FIBRE
OF FIBRES FIBRES TO BE (CLAUSE 6.1 OR 6.2 LEASED
TO BE ALLOCATED OF OWNED
NETWORK ALLOCATED TO GV (TUBE MASTER BY
SECTION TO GV) NUMBER) AGREEMENT) COMMENTS VIATEL
-------------------- ------------- -------------------- ------------------ ---------------------- --------
Roosendaal - Antwerp 72 (36) F 37-48 (4), F 49-60 N/A Owned
(5), F 61-72 (6).
Antwerp - Brussels 72 (36) F 37-48 (4), F 49-60 N/A Leased Duct containing Owned
Tollaan (5), F 61-72 (6). VTL fibre leased to
VTL under 20 year IRU.
Brussels Xxxxxxx - 00 (00) X 00-00 (0), X 49-60 N/A Leased Duct containing Owned
Gent (5), F 61-72 (6). VTL fibre leased to
VTL under 20 year IRU.
Gent - Estampuis 72 (36) F 37-48 (4), F 49-60 N/A Owned
(5), F 61-72 (6).
UK
56
PART 1 - DUCTS AND SUB-DUCTS
TOTAL NUMBER
OF DUCTS /
SUBDUCTS
(NUMBER OF OPTION DUCT /
DUCTS / (CLAUSE 6.1 SUBDUCT
SUBDUCTS TO BE AND/OR 6.2 OF LEASED /
NETWORK ALLOCATED TO MASTER OWNED BY
SECTION GV) AGREEMENT) COMMENTS VIATEL
--------------------------- ----------------------- ---------------------- ------------------------- -----------
UK
Lowestoft beach chamber - 1 Duct / 4 Subducts (2 Clause 6.1. Owned
Lowestoft Subducts)
Lowestoft - Telehouse 1 Duct / 4 Subducts (2 Clause 6.1. Owned
North Subducts)
Telehouse North - Egham 1 Duct / 4 Subducts (2 Clause 6.1 3 of the Subducts are Owned
Subducts) occupied. 2 Subducts
allocated to GV.
VTL retains the right to
use the stretches of its
cables in the allocated
Subduct.
Egham - Windlesham 2 Ducts / 4 Subducts (1 Clauses 6.1 and 6.2. Owned
Duct / 2 Subducts)
Polegate - Polegate beach 1 Duct / 4 Subducts (2 Clause 6.1. Owned
chamber Subducts)
DOCKLANDS
57
TOTAL NUMBER
OF DUCTS /
SUBDUCTS
(NUMBER OF OPTION DUCT /
DUCTS / (CLAUSE 6.1 SUBDUCT
SUBDUCTS TO BE AND/OR 6.2 OF LEASED /
NETWORK ALLOCATED TO MASTER OWNED BY
SECTION GV) AGREEMENT) COMMENTS VIATEL
--------------------------- ----------------------- ---------------------- ------------------------- -----------
Telehouse North - 2 Ducts / 4 Subducts (1 Clauses 6.1 and 6.2. GV allocated empty Owned
Butchers Road (North route) Duct / 2 Subducts) Subduct and Subduct
carrying the 72 fibre
cable.
Butchers Road - Telehouse 4 Ducts / 4 Subducts (2 Clauses 6.1 and 6.2 GV allocated empty Owned
North (South route) Ducts / 2 Subducts) Subduct and Subduct
carrying the 72 fibre
cable.
Lower Lea Bridge (included 4 Ducts (2 Ducts) Clause 6.1 Ducts leased from BT. Leased
in Butchers Road - GV allocated empty Duct
Telehouse North (South and Duct carrying the 72
route)) fibre cable.
Xxxxx Wall - Limeharbour 4 Ducts / 4 Subducts (2 Clauses 6.1 and 6.2. Owned
Ducts / 2 Subducts)
8-9 Harbour Exchange 4 Ducts / 4 Subducts (2 Clauses 6.1 and 6.2. Owned
connection (lateral 1) Ducts / 2 Subducts)
8-9 Harbour Exchange 4 Ducts / 4 Subducts (2 Clauses 6.1 and 6.2. Owned
connection (lateral 2) Ducts / 2 Subducts)
58
TOTAL NUMBER
OF DUCTS /
SUBDUCTS
(NUMBER OF OPTION DUCT /
DUCTS / (CLAUSE 6.1 SUBDUCT
SUBDUCTS TO BE AND/OR 6.2 OF LEASED /
NETWORK ALLOCATED TO MASTER OWNED BY
SECTION GV) AGREEMENT) COMMENTS VIATEL
--------------------------- ----------------------- ---------------------- ------------------------- -----------
XX00 - Xxxxxxxxx Xxxxxx 1 Duct / 4 Subducts (2 Clause 6.1. 3 of the Subducts are Owned
(Contained within Subducts) occupied. 2 Subducts
Telehouse North - Egham allocated to GV.
above)
VTL retains the right to
use the stretches of its
cables in the allocated
Subduct.
Lindfield Street - A13 1 Duct / 4 Subducts (2 Clause 6.1. 3 of the Subducts are Owned
South (Contained within Subducts) occupied. 2 Subducts
Telehouse North - Egham allocated to GV.
above)
VTL retains the right to
use the stretches of its
cables in the allocated
Subduct.
Telehouse North- SC: A 13 1 Duct / 4 Subducts (2 Clause 6.1. 3 of the Subducts are Owned
(Contained within Subducts) occupied. 2 subducts
Telehouse North - Egham allocated to GV.
above)
VTL retains the right to
use the stretches of its
cables in the allocated
Subduct.
59
TOTAL NUMBER
OF DUCTS /
SUBDUCTS
(NUMBER OF OPTION DUCT /
DUCTS / (CLAUSE 6.1 SUBDUCT
SUBDUCTS TO BE AND/OR 6.2 OF LEASED /
NETWORK ALLOCATED TO MASTER OWNED BY
SECTION GV) AGREEMENT) COMMENTS VIATEL
--------------------------- ----------------------- ---------------------- ------------------------- -----------
Great Eastern Street PC - 1 Duct / 4 Subducts (2 Clause 6.1 3 of the Subducts are Owned
SC27 (Contained within Subducts) occupied. 2 Subducts
Telehouse North - Egham allocated to GV.
above)
VTL retains the right to
use the stretches of its
cables in the allocated
Subduct.
Egham - Great Eastern 1 Duct / 4 Subducts (2 Clause 6.1. 3 of the Subducts are Owned
Street PC (Contained Subducts) occupied. 2 Subducts
within Telehouse North - allocated to GV.
Egham above)
VTL retains the right to
use the stretches of its
cables in the allocated
Subduct.
PC (Great Eastern 2 Ducts / 2 Subducts (1 Clauses 6.1 and 6.2 of Owned
Street)-Xxxxxx Street Duct / 1 Subduct) the Master Agreement.
60
PART 2 - FIBRES
TOTAL NUMBER
OF FIBRES SPECIFIC FIBRES
(NUMBER OF TO BE FIBRE
FIBRES TO BE ALLOCATED TO LEASED/
NETWORK ALLOCATED TO GV (TUBE OWNED BY
SECTION GV) NUMBER) COMMENTS VIATEL
--------------------------- ------------ --------------------------- -------------------------- ---------
UK
Zandvoort - Lowestoft 48 (24) F 25-36 (3), F 37-48 (4). Owned.
beach Chamber
Lowestoft beach chamber to 48 (24) F 25-36 (3), F 37-48 (4). Owned.
Lowestoft-
Lowestoft - Pakenham 72 (36) X 00-00 (0), X 00-00 (0), X Owned
61-72 (6).
Pakenham - Snowhill 72 (36) X 00-00 (0), X 00-00 (0), X Owned
61-72 (6).
Snowhill - Telehouse North 72 (36) X 00-00 (0), X 00-00 (0), X Owned
61-72 (6).
Telehouse North - Egham 96 (48) X 00-00 (0), X 00-00 (0), X Owned
73-84 (7), F 85-96 (8)
Egham - Xxxxx Pottage 72 (36) X 00-00 (0), X 00-00 (0), X Includes a section of Duct Owned
61-72 (6). leased from NTL.
Xxxxx Pottage - Polegate 72 (36) X 00-00 (0), X 00-00 (0), X Includes a section of Duct Owned
61-72 (6). leased from NTL.
Polegate - Polegate beach 48 (24) F 25-36 (3), F 37-48 (4). Owned
chamber
61
TOTAL NUMBER
OF FIBRES SPECIFIC FIBRES
(NUMBER OF TO BE FIBRE
FIBRES TO BE ALLOCATED TO LEASED/
NETWORK ALLOCATED TO GV (TUBE OWNED BY
SECTION GV) NUMBER) COMMENTS VIATEL
--------------------------- ------------ --------------------------- -------------------------- ---------
Polegate beach chamber - 48 (24) F 25-36 (3), F 37-48 (4). Owned
Cayeaux sur Mer
DOCKLANDS
O/S Telehouse North - 12 (3) F 10-12 (share 1). 6 fibres of the 12 fibre Owned
Butchers Road (North route) cable are allocated to NTL.
72 (36) F 37-72 (4, 5, & 6).
144 (72) F 73-144 (7, 8, 9, 10, 11 & 72 and 144 fibre cables
12). are broken / not
continuous.
O/S Telehouse North - 72 (36) F 37-72 (4, 5, & 6). 72 and 144 fibre cables Owned
Butchers Road (South route) are broken / not
continuous.
144 (72) F 73-144 (7, 8, 9, 10, 11 & Includes a section of Duct
12). lease from BT on the Lower
Lea Bridge.
Telehouse North - 144 (72) F 37-48 (4), F 49-60 (5), F Includes sections of Owned
Telehouse East 61-72 (6). Subduct leased from
F 109-120 (10), F 000-000 Xxxxxxxx.
(11), F 133-144 (12).
Telehouse East - 24 (12) F 85-96 (8). Includes sections of Owned
7 Harbour Exchange Subduct leased from
Fibreway.
7 Harbour Exchange - 12 (6) F 7-12 (1/2 of tube 1) Owned
8/9 Harbour Exchange
62
TOTAL NUMBER
OF FIBRES SPECIFIC FIBRES
(NUMBER OF TO BE FIBRE
FIBRES TO BE ALLOCATED TO LEASED/
NETWORK ALLOCATED TO GV (TUBE OWNED BY
SECTION GV) NUMBER) COMMENTS VIATEL
--------------------------- ------------ --------------------------- -------------------------- ---------
Telehouse East 36 (18) F 49-60 (5), F121-126 (1/2 Includes sections of Owned
- 8/9 of tube 11). Subduct leased from
Harbour Exchange Fibreway.
Telehouse East - 48 (24) F 37-48 (4), 109-120 (10). Includes sections of Owned
Subduct leased from
London Hosting Centre Fibreway.
8/9 Harbour Exchange - 24 (12) F 25-36 (3). Includes sections of Owned
London Hosting Centre Subduct leased from
Fibreway
London Hosting Centre - 48 (24) F 25-36 (3), F 61-72 (6). Includes sections of Owned
Telecity Bonnington Subduct leased from
Fibreway
Terminated on FC
connectors at Telecity
Bonnington.
London Hosting Centre - 12 (6) F 19-24 (1/2 half of tube Includes sections of Owned
Global Switch 2). Subduct leased from
Fibreway
Telecity Bonnington - 48 (24) F 13-24 (2), F 37-48 (4). Includes sections of Owned
Telehouse North Subduct leased from
Fibreway
Terminated on FC
connectors at Telecity
Bonnington.
Global Switch - 24 (12) F 13-24 (2). Owned
Telehouse North
63
TOTAL NUMBER
OF FIBRES SPECIFIC FIBRES
(NUMBER OF TO BE FIBRE
FIBRES TO BE ALLOCATED TO LEASED/
NETWORK ALLOCATED TO GV (TUBE OWNED BY
SECTION GV) NUMBER) COMMENTS VIATEL
--------------------------- ------------ --------------------------- -------------------------- ---------
Telehouse East 36 (18) F 61-72 (6), F 139-144 Includes sections of Owned
Telehouse North (share 12). Subduct leased from
Fibreway
Telehouse North 72 (36) F 181-192 (16), 193-204 Includes sections of Owned
Telehouse North (17), F 205-216 (18). Subduct leased from
Fibreway
SC27 - InterXion, Brick 48 (24) F 25-36 (3), F 37-48 (4). Owned
Lane
InterXion, Brick Lane - L3 48 (24) F 25-36 (3), F 37-48 (4). Owned
Xxxxxx Xxxxxx
00
SCHEDULE V
VIATEL OPERATING COST CATEGORIES (INCL. DRAFT 2006 BUDGET FIGURES)
NETWORK COSTS 2006 SCHEDULE XI
(Pound) Sterling Belgium France Germany Netherlands UK (NW) Sub-tot
PROPERTY
Network Property Cleaning 2,947 0 0 0 14,050 16,997
Network Property Maintenance 5,133 9,446 2,699 6,000 5,500 28,778
Network Property Service Charge 9,227 44,572 20,628 41,921 45,127 161,475
Network Property Taxes 7,437 14,672 0 2,690 109,671 134,471
Network Property Rent 160,716 362,038 333,214 266,091 311,312 1,433,369
Network Property Security and Site mtce 0 0 0 0 68,961 68,961
Network Utilities Electricty 43,411 100,421 100,138 78,897 103,950 426,816
Network Utilities Gas 0 15,000 0 0 17,037 32,037
Rights of Way 0 1,772,234 15,931 63,181 308,655 2,160,002
------- --------- ------- ----------- --------- ---------
TOTAL PROPERTY COSTS 228,870 2,318,383 472,610 458,780 984,263 4,462,906
======= ========= ======= =========== ========= =========
REPAIRS & MAINTENANCE
1st Line Equipment Maintenance 0 85,388 0 0 109,704 195,091
Infrastructure Maintenance 136,922 588,879 342,507 157,172 105,251 1,330,731
Other Maintenance (sub-sea cables) 0 139,450 0 0 148,762 288,212
Hardware Maintenance 0 0 0 0 15,000 15,000
Lifts & Shifts 62,486 14,715 16,776 91,761 11,880 197,618
------- --------- ------- ----------- --------- ---------
TOTAL R&M COST 199,408 828,432 359,283 248,933 390,597 2,026,653
======= ========= ======= =========== ========= =========
OTHER
Fixed communications 0 45,600 0 0 0 45,600
Mobile communications 0 24,000 0 0 0 24,000
--------- ---------
TOTAL 0 69,600 0 0 0 69,600
======= ========= ======= =========== ========= =========
STAFF COSTS
65
Salaries 93,544 175,155 52,626 94,705 409,450 825,480
Travel 20,000 20,000
------- --------- ------- ----------- --------- ---------
TOTAL 93,544 175,155 52,626 94,705 429,450 845,480
======= ========= ======= =========== ========= =========
TOTAL 521,822 3,391,570 884,519 802,418 1,804,309 7,404,638 (Pound) TOTAL COSTS
======= ========= ======= =========== ========= =========
GV
COSTS Half
(Pound) 3,702,319 inc ROW France
Half Euro 5,331,340 inc ROW France
4,055,331 exc ROW France
107,072 French ROW/month
66
SCHEDULE VI
PART I
VIATEL WARRANTIES
The following warranties are subject to the qualifications and limitations in
Part II of this Schedule. For the avoidance of any doubt none of these
warranties applies to the GND Asset Transfer or the subject-matter thereof.
1.1 INFORMATION SUPPLIED
All factual information with regard to the Viatel Group contained in this
Agreement and all matters contained in the Data Room and all other written
information relating to the Viatel Network given by Viatel or Viatel's
Solicitors to Global Voice or Global Voice's Solicitors is true and
accurate in every material respect and there is no fact or matter relating
to the Viatel Network which has not been disclosed or made available in
the Data Room (or by separate provision of documents requested by Global
Voice) which renders any such matters or information materially untrue or
misleading.
1.2 CAPACITY
Viatel and each Viatel Group Company have full power and authority and
have taken all necessary corporate action to enable each of them
effectively to enter into and perform this Agreement and the other
Transaction Documents; this Agreement, when executed, will constitute
valid, binding and enforceable obligations on Viatel and/or the relevant
Viatel Group Company in accordance with their respective terms. Neither
Viatel nor any Viatel Group Company requires the consent, approval or
authority of any other person to enter into or perform its obligations
under this Agreement and its entry into and performance of this Agreement
or any of the other Transaction Documents will not constitute a material
breach or material default under any contractual, governmental or public
obligation binding upon it, and it is not engaged in any litigation or
arbitration proceedings which might have an effect upon its capacity or
ability to perform its obligations under this Agreement and no such legal
or arbitration proceedings have been threatened against it.
1.3 TITLE TO THE ASSETS
Subject as provided in this Agreement, Viatel and its Group Companies have
good and marketable title to all of the Viatel Transferred Assets. The
Viatel Transferred Assets are free from any charge, lien or other
encumbrance, or any obligation to pay any outstanding sums in respect of
them. Except as provided in this Agreement, no person other than a Viatel
Group Company has or claims any rights in relation to the Viatel
Transferred Assets or any of them and the Viatel Transferred Assets are
not subject to or potentially
67
subject to any floating charge or guarantee given by a Viatel Group
Company or by any person or company connected with a Viatel Group Company.
1.4 THE CUSTOMER CONTRACTS
1.4.1 None of the Customer Contracts is ultra xxxxx the Viatel Group Company
which is the relevant contracting party.
1.4.2 All the Customer Contracts are in full force and effect and have been duly
complied with and nothing has occurred whereby any of them is or could be
subject to early termination or which has given or may give rise to any
claim under any of them by any party to any of them.
1.4.3 The execution and delivery of this Agreement and the fulfilment and
performance of and compliance with the terms of this Agreement do not and
will not:
1.4.3.1 conflict with, violate or result in a breach of the terms,
provisions or conditions of any of the Customer Contracts or any
law, undertaking to or judgment, order, injunction or decree of
any court;
1.4.3.2 relieve any person of any contractual or other obligation under
any of the Customer Contracts or entitle any person to terminate
any such obligation;
1.4.3.3 result in any party to any of the Customer Contracts ceasing to
deal or substantially reducing the existing level of his dealings
with Viatel and Viatel is not aware of any intention on the part
of any such customer to cease so to deal or so to reduce the
existing level of such dealings.
1.5 HEALTH & SAFETY
1.5.1 To Viatel's best knowledge and belief, no works, repairs, construction,
remedial action or expenditure is or may be required in relation to all
applicable legislation concerning health and safety matters and all and
any regulations or orders made or issued under any such legislation and
any relevant codes or practice, guidance notes and the like with respect
to such matters issued by government agencies ("HEALTH AND SAFETY
LEGISLATION") in order to use, operate or maintain the Viatel Transferred
Assets.
1.5.2 At no time has Viatel had knowledge of and/or received any notice, claim
or other communication alleging any contravention of or actual or
potential liability under Health and Safety Legislation with respect to
the Viatel Transferred Assets.
1.6 LITIGATION
No Viatel Group Company nor any person for whose acts or omissions it may
be vicariously liable is engaged in or subject to any civil, criminal or
arbitration proceedings in relation to the Viatel Transferred Assets or
any of them, and there are no such proceedings pending or threatened by or
against Viatel or any such person. There are no
68
judgments outstanding against Viatel or any Viatel Group Company which
affect or might affect any of the Viatel Transferred Assets.
1.7 SOLVENCY OF VIATEL
1.7.1 No order has been made or petition presented, meeting convened or
resolution passed for the winding up of Viatel nor has any receiver been
appointed or any distress, execution or other process been levied in
respect of the Viatel Transferred Assets or any of them.
1.7.2 No composition in satisfaction of the debts of Viatel or scheme of
arrangement of its affairs or compromise or arrangement between it and
either or both of its creditors or members or any class of either or both
of its creditors or members has been proposed, sanctioned or approved.
1.7.3 No distress, distraint, charging order, garnishee order, execution or
other process has been levied or applied for in respect of the whole or
any part of the Viatel Transferred Assets.
1.7.4 No event has occurred causing, or which upon intervention or notice by any
third party may cause, any floating charge (or equivalent in any
jurisdiction) created by Viatel to crystallise over the Viatel Transferred
Assets or any of them or any charge created by it to become enforceable
over the Viatel Transferred Assets or any of them nor has any such
crystallisation occurred nor is such enforcement in process.
1.8 COMPLIANCE
1.8.1 To Viatel's best knowledge and belief, all legislation and all orders,
provisions, directions and conditions in relation to the Viatel
Transferred Assets have been duly complied with in all respects.
1.8.2 All necessary licences, consents, permits, agreements, arrangements and
authorities (public and private) have been obtained to enable Viatel and
relevant Viatel Group Companies to use, occupy, operate and maintain
effectively the Viatel Transferred Assets and the Viatel Sites in the
manner in which they are now used, occupied, operated and maintained and
all such licences, consents, permits, agreements, arrangements and
authorities are valid and subsisting and Viatel knows of no reason why any
of them should be suspended, cancelled or revoked.
1.9 NETWORK
1.9.1 The ducts included in the Viatel Transferred Assets were, as at the date
of their respective installation, of a type which is commonly used within
the telecommunications fixed line infrastructure industry and which are
suitable for the blowing or pulling of a Lucent G.655 fibre optic cable
comprising at least 72 fibre optic strands.
69
1.9.2 The fibre strands included in the Viatel Transferred Assets conformed, as
at the date of their respective installation, to the ITU recommended
specifications and other technical specifications as are set out in
Schedule XIII.
1.9.3 No other warranty is given by Viatel with respect to the condition and/or
functionality of the Viatel Transferred Assets.
70
PART II
LIMITATIONS ON VIATEL WARRANTIES
1. FINANCIAL LIMITS
1.1 Viatel shall not be liable in respect of any Warranty Claim unless it has
a liability in respect of that Warranty Claim in excess of (euro)50,000
(fifty thousand), excluding any liability for costs and interest.
1.2 Viatel shall not be liable in respect of any Warranty Claim unless it and
each other Viatel Group Company have an aggregate liability in respect of
all Warranty Claims in excess of (euro)150,000 (one hundred and fifty
thousand), excluding any liability for costs and interest, and in such
circumstances its aggregate liability shall be limited to the amount of
the excess over (euro)100,000 (one hundred thousand).
1.3 For the purposes of this paragraph, a Warranty Claim which is based on
more than one event or circumstance, each of which would separately give
rise to a Warranty Claim, shall be treated as a separate Warranty Claim,
as the case may be, in respect of each event or circumstance.
1.4 In any case or cases where a Warranty Claim is brought against any Viatel
Group Company party to any of the Network Leases, Option and Transfer
Agreements and/or IRU the aggregate liability of such company for all such
Warranty Claims shall not exceed the following amount in each case (being
the consideration payable to such company and specified in Schedule X):
VTL (UK) Limited UK (euro) 435,312
Viatel Operations SA France (euro) 472,603
Viatel Global Communications BV Holland (euro) 311,438
Viatel Belgium NV Belgium (euro) 83,578
VTL Telecom Gmbh Germany (euro) 512,645
Viatel German Asset Gmbh Germany (euro) 615,980
VTL Inc US (euro) 68,443
Viatel Circe Assets Limited UK (euro) 1,217,000
Viatel Holding (Bermuda) Ltd Bermuda (euro)14,783,001
1.5 The aggregate liability of Viatel for all Warranty Claims arising in
relation to or affecting either Viatel Transferred Assets or the Viatel
Group Company disposing of Viatel Transferred Assets in each country shall
not exceed the following amount in each case (including the amounts
referred to in paragraph 1.4 above):
71
Belgium (euro) 784,428
France (euro) 3,052,018
Germany (euro) 8,365,920
The Netherlands (euro) 1,245,902
UK (euro) 3,097,974
1.6 The aggregate liability of Viatel for all Warranty Claims shall not exceed
(euro)20,000,000 (twenty million).
2. NOTICES
If Global Voice or any GV Group Company becomes aware of any matter which
gives or might give rise to a Warranty Claim, taking no account of
paragraph 1 for these purposes, Global Voice shall give written notice to
Viatel as soon as reasonably practicable, and in any event on or before
the date falling fifteen (15) Business Days after the date on which it
becomes aware of that matter, specifying the matter in reasonable detail,
the Viatel Warranties which have or which are likely to have been breached
and its best estimate of the amount of the Warranty Claim or likely
Warranty Claim.
3. TIME LIMITS
3.1 Viatel shall not be liable in respect of any Warranty Claim unless notice
of that Warranty Claim, given in accordance with paragraph 2, is received
by it on or before the date eighteen (18) months after the date of
Completion or, in the case of the French Option, the German Option and the
NBUK Option, on or before the date eighteen (18) months after the Option
Trigger Date.
3.2 Viatel shall not be liable in respect of any Warranty Claim if, on or
before the date falling sixty (60) Business Days after the date on which
notice of that Warranty Claim is received by Viatel, Viatel has remedied
the relevant breach in all material respects or prevented Global Voice
from suffering any material loss in respect of the subject matter of that
Warranty Claim or caused any loss so suffered by Viatel to be made good in
all material respects. Global Voice shall comply with all reasonable
requests made by Viatel during that period for the purposes of so
remedying any such breach or preventing any such loss.
3.3 Viatel shall not be liable in respect of any Warranty Claim (if not
previously satisfied, settled or withdrawn) unless legal proceedings have
been validly issued and served on Viatel on or before the date falling one
hundred and twenty (120) Business Days after the date on which notice of
that Warranty Claim was served under paragraph 2.
72
4. EXCLUSION OF LIABILITY: GENERAL
4.1 Viatel shall not be liable in respect of any Warranty Claim to the extent
that the matter giving rise to the Warranty Claim is disclosed in the
Viatel Disclosure Letter or in any of the documents attached to the
Disclosure Letter or was on display in the Data Room as listed in the
index of Data Room documents attached to the Viatel Disclosure Letter.
4.2 Viatel shall not be liable in respect of a Warranty Claim to the extent
that the matter giving rise to the Warranty Claim results from:
4.2.1 any act or omission before Completion carried out by or omitted at
the request of or with the approval or acquiescence of Global Voice
or any other member of the GV Group; or
4.2.2 any act or omission on or after Completion carried out or omitted by
or on behalf of Global Voice or any other member of the GV Group; or
4.2.3 any breach by any GV Group Company of any of its obligations under
any of the Transaction Documents; or
4.2.4 any act, event, occurrence or omission after the date of this
Agreement compelled by law, or the enactment, amendment or change in
interpretation after that date, of any statute, regulation or
practice of any governmental, regulatory or other body.
73
PART III
GV WARRANTIES
1. INFORMATION SUPPLIED
All factual information with regard to the GV Group contained in this
Agreement and all other written information relating to the GV Group and
the GV Transferred Assets given by Global Voice or Global Voice's
Solicitors and other lawyers to Viatel or Viatel's Solicitors and their
other lawyers is true and accurate in every material respect and there is
no fact or matter relating to the GV Group or the GV Transferred Assets
which has not been disclosed or made available to Viatel or its Solicitors
and other lawyers which renders any such matters or information materially
untrue or misleading.
1.1 CAPACITY OF GLOBAL VOICE
Global Voice and each GV Group Company have full power and authority and
have taken all necessary corporate action, held all necessary meetings and
obtained all necessary approvals, including shareholder approval, to
enable each of them effectively to enter into and perform this Agreement
and the other Transaction Documents and this Agreement, when executed,
will constitute valid, binding and enforceable obligations on Global Voice
and/or the relevant GV Group Company in accordance with their respective
terms. Neither Global Voice nor any GV Group Company requires the consent,
approval or authority of any other person to enter into or perform their
obligations under this Agreement and their entry into and performance of
this Agreement will not constitute a material breach or material default
under any contractual, governmental or public obligation binding upon
them, and none of them is engaged in any litigation or arbitration
proceedings which might have an effect upon its capacity or ability to
perform its obligations under this Agreement and no such legal or
arbitration proceedings have been threatened against any of them.
1.2 TITLE TO THE ASSETS
Subject as provided in this Agreement, Global Voice and/or other relevant
GV Group Company have good and marketable title to all of the GV
Transferred Assets. The GV Transferred Assets are and on their transfer to
Viatel will be free from any charge, lien or other encumbrance, or any
obligation to pay any outstanding sums in respect of them. No person other
than a GV Group Company has or claims any rights in relation to the GV
Transferred Assets or any of them or the proceeds of any sale of the GV
Transferred Assets or any of them and the GV Transferred Assets are not
subject to or potentially subject to any floating charge or guarantee
given by a GV Group Company or by any person or company connected with a
GV Group Company.
74
1.3 HEALTH & SAFETY
1.3.1 To Global Voice's best knowledge and belief, no works, repairs,
construction, remedial action or expenditure is or may be required
in relation to all applicable legislation concerning health and
safety matters and all and any regulations or orders made or issued
under any such legislation and any relevant codes or practice,
guidance notes and the like with respect to such matters issued by
government agencies ("HEALTH AND SAFETY LEGISLATION") in order to
use, operate or maintain the GV Transferred Assets.
1.3.2 At no time has Global Voice had knowledge of and/or received any
notice, claim or other communication alleging any contravention of
or actual or potential liability under Health and Safety Legislation
with respect to the GV Transferred Assets.
1.4 LITIGATION
No GV Group Company nor any person for whose acts or omissions it may be
vicariously liable is engaged in or subject to any civil, criminal or
arbitration proceedings in relation to the GV Transferred Assets or any of
them, and there are no such proceedings pending or threatened by or
against Global Voice or any such person. There are no judgments
outstanding against Global Voice or any GV Group Company which affect or
might affect any of the GV Transferred Assets.
1.5 SOLVENCY OF GLOBAL VOICE
1.5.1 No order has been made or petition presented, meeting convened or
resolution passed for the winding up of Global Voice nor has any
receiver been appointed or any distress, execution or other process
been levied in respect of the GV Transferred Assets or any of them.
1.5.2 No composition in satisfaction of the debts of Global Voice or
scheme of arrangement of its affairs or compromise or arrangement
between it and either or both of its creditors or members or any
class of either or both of its creditors or members has been
proposed, sanctioned or approved.
1.5.3 No distress, distraint, charging order, garnishee order, execution
or other process has been levied or applied for in respect of the
whole or any part of the GV Transferred Assets.
1.5.4 No event has occurred causing, or which upon intervention or notice
by any third party may cause, any floating charge (or equivalent in
any jurisdiction) created by Global Voice to crystallise over the GV
Transferred Assets or any of them or any charge created by it to
become enforceable over the GV Transferred Assets or any of them nor
has any such crystallisation occurred nor is such enforcement in
process.
75
1.6 COMPLIANCE
1.6.1 To Global Voice's best knowledge and belief, all legislation and all
orders, provisions, directions and conditions in relation to the GV
Transferred Assets have been duly complied with in all respects.
1.6.2 All necessary licences, consents, permits, agreements, arrangements
and authorities (public and private) have been obtained to enable
Global Voice and relevant GV Group Companies to use, operate and
maintain effectively the GV Transferred Assets in the manner in
which they are now used, operated and maintained and all such
licences, consents, permits, agreements, arrangements and
authorities are valid and subsisting and Global Voice knows of no
reason why any of them should be suspended, cancelled or revoked.
1.7 NETWORK
1.7.1 Global Voice hereby warrants and undertakes to Viatel that the fibre
strands that are included in any of the GV Transferred Assets
conformed, and/or, as appropriate, shall conform as at the date of
their respective installation, to the ITU recommended technical
specifications for dark fibre as are set out in Schedule VIII.
1.7.2 No other warranty or undertaking is given by Global Voice with
respect to the condition and/or functionality of the GV Transferred
Assets.
76
PART IV
LIMITATIONS ON GV WARRANTIES
1. FINANCIAL LIMITS
1.1 Global Voice shall not be liable in respect of any Warranty Claim unless
it has a liability in respect of that Warranty Claim in excess of
(euro)50,000 (fifty thousand), excluding any liability for costs and
interest.
1.2 Global Voice shall not be liable in respect of any Warranty Claim unless
it has an aggregate liability in respect of all Warranty Claims in excess
of (euro)150,000 (one hundred and fifty thousand), excluding any liability
for costs and interest, and in such circumstances its aggregate liability
shall be limited to the amount of the excess over (euro)100,000 (one
hundred thousand).
1.3 For the purposes of this paragraph, a Warranty Claim which is based on
more than one event or circumstance, each of which would separately give
rise to a Warranty Claim, shall be treated as a separate Warranty Claim,
as the case may be, in respect of each event or circumstance.
1.4 In any case or cases where a Warranty Claim is brought against any GV
Group Company party to any Network Lease, Option and Transfer Agreement,
and/or IRU and GV Fibre Transfer Agreement, the aggregate liability of
such company for all such Warranty Claims shall not exceed the following
amount in each case:
Global Voice Networks Limited UK: (euro) 223,898
Global Voice Networks BV Holland: (euro)6,353,438
Global Voice Networks AG Germany: (euro)6,922,663
1.5 The aggregate liability of Global Voice for all Warranty Claims shall not
exceed (euro)20,000,000 (twenty million).
2. NOTICES
If Viatel or any Viatel Group Company becomes aware of any matter which
gives or might give rise to a Warranty Claim, taking no account of
paragraph 1 for these purposes, Viatel shall give written notice to Global
Voice as soon as reasonably practicable, and in any event on or before the
date falling fifteen (15) Business Days after the date on which it becomes
aware of that matter, specifying the matter in reasonable detail, the GV
Warranties which have or which are likely to have been breached and its
best estimate of the amount of the Warranty Claim or likely Warranty
Claim.
77
3. TIME LIMITS
3.1 Global Voice shall not be liable in respect of any Warranty Claim unless
notice of that Warranty Claim, given in accordance with paragraph 2, is
received by it on or before the date 18 months after the date of
Completion or, in the case of the French Option, the German Option and the
NBUK Option, on or before the date 18 months after the Option Trigger
Date.
3.2 Global Voice shall not be liable in respect of any Warranty Claim if, on
or before the date falling sixty (60) Business Days after the date on
which notice of that Warranty Claim is received by Global Voice, Global
Voice has remedied the relevant breach in all material respects or
prevented the relevant Viatel Group Company from suffering any material
loss in respect of the subject matter of that Warranty Claim or caused any
loss so suffered by the relevant Viatel Group Company to be made good in
all material respects. Global Voice shall comply with all reasonable
requests made by Viatel during that period for the purposes of so
remedying any such breach or preventing any such loss.
3.3 Global Voice shall not be liable in respect of any Warranty Claim (if not
previously satisfied, settled or withdrawn) unless legal proceedings have
been validly issued and served on Global Voice on or before the date
falling one hundred and twenty (120) Business Days after the date on which
notice of that Warranty Claim was served under paragraph 2.
4. EXCLUSION OF LIABILITY: GENERAL
4.1 Global Voice shall not be liable in respect of any Warranty Claim to
the extent that the matter giving rise to the Warranty Claim is
disclosed in the GV Disclosure Letter or in any of the documents
attached to the Disclosure Letter or was on display in the Data Room
as listed in the index of Data Room documents attached to the GV
Disclosure Letter.
4.2 Global Voice shall not be liable in respect of a Warranty Claim to the
extent that the matter giving rise to the Warranty Claim results from:
4.2.1 any act or omission before Completion carried out or omitted at the
request of or with the approval or acquiescence of Viatel or any
other member of the Viatel Group; or
4.2.2 any act or omission on or after Completion carried out or omitted by
or on behalf of Viatel or any other member of the Viatel Group; or
78
4.2.3 any breach by a Viatel Group Company of any of its obligations under
any of the Transaction Documents; or
4.2.4 any act, event, occurrence or omission after the date of this
Agreement compelled by law, or from the enactment, amendment or
change in the interpretation after that date, of any statute,
regulation or practice of any governmental, regulatory or other
body.
79
SCHEDULE VII
VIATEL SITES
BELGIUM
Viatel Basis upon
Site which the Viatel
Hand Floor allocation Network
Marked Plan Viatel to Schematic ODF Viatel AC
Drawing Drawing Global Space Drawing Access Access DC UPS
Ref Number Name Share Number point Controlled Generator Power Power
-------- ---------- --------- -------------- ----------- --------- ---------- --------- ----- -----
1 VIATEL ANTOING 50/50 share VIATEL- Yes Yes Yes Yes No
-089792 available 092785
space / M&E
capacity
2 VIATEL ANTWERP 50/50 share VIATEL- Yes Yes Yes Yes No
-089793 BELIEWE available 092785
G space / M&E
(ALASKA) capacity
3 VIATEL ANTWERP 50/50 share VIATEL- No Yes No No No
-102282 VOSVELD available 092785
20 space / M&E
capacity
4 VIATEL ANTWERP 50/50 share VIATEL- Yes Yes Yes Yes No
-089794 WOMMEL available 092785
GEN space / M&E
capacity
5 VIATEL BRUSSEL 50/50 share VIATEL- Yes Yes Yes Yes Yes
-090541 S TOLL- available 092785
LAAN space / M&E
capacity
6 VIATEL ESSEN 50/50 share VIATEL- Yes Yes Yes Yes No
-091549 (BELGIU available 092785
M) space / M&E
capacity
7 VIATEL ESTAMPU 50/50 share VIATEL- Yes Yes Yes Yes No
-091550 IS available 092785
space / M&E
capacity
8 VIATEL GENT 50/50 share VIATEL- Yes Yes Yes Yes No
-092195 (MERELB available 092785
EKE) space / M&E
capacity
80
FRANCE
Viatel Basis upon
Site which the Viatel
Hand Floor allocation Network
Marked Plan Viatel to Schematic ODF Viatel AC
Drawing Drawing Global Space Drawing Access Access DC UPS
Ref Number Name Share Number point Controlled Generator Power Power
-------- ---------- --------- -------------- ----------- --------- ---------- --------- ----- -----
10 VIATEL AMIENS 50/50 share VIATEL- Yes Yes Yes Yes No
-089787 (PARC available 092782
D'ACTIVIT space / M&E
IES) capacity
11 VIATEL AZY-SUR- 50/50 share VIATEL- Yes Yes Yes Yes No
-089841 MARNE available 092782
(NOGENT space / M&E
L'XXXXX capacity
D)
12 VIATEL BIACHES 50/50 share VIATEL- Yes Yes Yes Yes No
-089846 (PERONN available 092782
& 7 E) #1&2 space / M&E
(2x adjacent capacity
container)
13 VIATEL CAYEUX- 50/50 share VIATEL- Yes Yes Yes Yes Yes
-090542 SUR-MER available space / 092782
M&E
capacity
14 VIATEL CONDE- 50/50 share VIATEL- Yes Yes Yes Yes No
-090546 SUR- available 092782
MARNE space / M&E
capacity
15 VIATEL COURRIE 50/50 share VIATEL- Yes Yes Yes Yes No
-090549 RES available 092782
space / M&E
capacity
16 VIATEL L'ISLE 50/50 share VIATEL- Yes Yes Yes Yes No
-092202 XXXX available 092782
(MOURS) space / M&E
(A16) capacity
17 VIATEL XXXXX 50/50 share VIATEL- Yes Yes Yes Yes No
-092211 available 092782
space / M&E
capacity
18 VIATEL XXXXX 50/50 share VIATEL- Yes Yes Yes Yes No
-092216 RUE available 092782
JAURES space / M&E
capacity
19 VIATEL PARIS 35 50/50 share VIATEL- Via 3rd Yes Yes Yes Yes
-102124 RUE DES available 092782 floor
JEUNEUR space / M&E
S - 2ND capacity
FLR
(BASTILLE)
81
Viatel Basis upon
Site which the Viatel
Hand Floor allocation Network
Marked Plan Viatel to Schematic ODF Viatel AC
Drawing Drawing Global Space Drawing Access Access DC UPS
Ref Number Name Share Number point Controlled Generator Power Power
-------- ---------- --------- -------------- ----------- --------- ---------- --------- ----- -----
20 VIATEL PARIS 35 50/50 share VIATEL- Yes Yes Yes Yes Yes
-092719 RUE DES available 092782
JEUNEUR space / M&E
S - 3RD capacity
FLR
(BASTILL
E)
21 VIATEL PARIS 38 ODF Access + VIATEL- Yes NO Yes No Yes
-092720 RUE DES 1 rack space 092782
JEUNEUR only
S - 4TH
FLR
22 VIATEL PARIS LA 50/50 share VIATEL- Yes Yes Yes Yes Yes
-092721 DEFENSE available 092782
(COURBE space / M&E
VOIE) capacity
23 VIATEL REVIGNY- 50/50 share VIATEL- Yes Yes Yes Yes No
-092745 SUR- available 092782
ORNAIN space / M&E
(CONTRIS capacity
SON)
24 VIATEL STRASBO 50/50 share VIATEL- Yes Yes Yes Yes No
-092767 URG available 092782
space / M&E
capacity
25 VIATEL XXXXXXX 50/50 share VIATEL- Yes Yes Yes Yes No
-092770 TE available 092782
space / M&E
capacity
26 VIATEL TROUSSEY 50/50 share VIATEL- Yes Yes Yes Yes No
-092775 available 092782
(VILLOROY space / M&E
SUR capacity
XXXXXXX)
00 VIATEL XOUAXA 50/50 share VIATEL- Yes Yes Yes Yes No
-092784 NGE available 092782
(HESSE) space / M&E
capacity
82
GERMANY
Viatel Basis upon
Site which the Viatel
Hand Floor allocation Network
Marked Plan Viatel to Schematic ODF Viatel AC
Drawing Drawing Global Space Drawing Access Access DC UPS
Ref Number Name Share Number point Controlled Generator Power Power
-------- ---------- --------- -------------- ----------- --------- ---------- --------- ----- -----
28 VIATEL XXXX 50/50 share VIATEL- Yes Yes No Yes No
-089844 VERBUN available 092786
GEMEINDE space / M&E
HAGENBA capacity
CH
29 VIATEL XXXXXXXX 50/50 share VIATEL- Yes Yes No Yes No
-090800 available 092786
space / M&E
capacity
30 VIATEL DUSSELD 50/50 share VIATEL- Yes Yes Yes Yes No
-091547 ORF available 092786
HALLE space / M&E
CONNECT capacity
APARK 35
XXXXXX
(POP)
31 VIATEL ELTEN 50/50 share VIATEL- Yes Yes No Yes No
-091548 available 092786
space / M&E
capacity
33 VIATEL FRANKFU 50/50 share VIATEL- Yes NO Yes Yes Yes
-092192 RT 90 available 092786
KLEYERS space / M&E
TRASSE capacity
34 VIATEL XXXXXXX 50/50 share VIATEL- Yes Yes No Yes No
-092197 A available 092786
(XXXXXXX space / M&E
EN) capacity
35 VIATEL LINZ 50/50 share VIATEL- Yes Yes No Yes No
-092201 available 092786
space / M&E
capacity
36 VIATEL MANNHEIM 50/50 share VIATEL- Yes Yes No Yes No
-092208 available 092786
space / M&E
capacity
37 VIATEL NAUROD 50/50 share VIATEL- Yes Yes No Yes No
-092217 available 092786
space / M&E
capacity
38 VIATEL PORZ 50/50 share VIATEL- Yes Yes No Yes No
-092732 available 092786
space / M&E
capacity
83
NETHERLANDS
Viatel Basis upon
Site which the Viatel
Hand Floor allocation Network
Marked Plan Viatel to Schematic ODF Viatel AC
Drawing Drawing Global Space Drawing Access Access DC UPS
Ref Number Name Share Number point Controlled Generator Power Power
-------- ---------- --------- -------------- ----------- --------- ---------- --------- ----- -----
39 VIATEL AMSTERD approx 95% VIATEL- No Yes Yes No Yes
-089788 AM space & M&E 092785
HALFWEG capacity to
GV
40 VIATEL AMSTERD 50/50 share VIATEL- Yes Yes Yes Yes Yes
-089789 AM available 092785
SCHIPLUI space / X&X
XXXXXXX xxxxxxxx
(XXXXXXX
XXXXX)
00 VIATEL DOORN 50/50 share VIATEL- Yes Yes Yes Yes No
-090801 available 092785
space / M&E
capacity
42 VIATEL LEERSUM 50/50 share VIATEL- Yes Yes Yes Yes No
-092200 available 092785
space / M&E
capacity
43 VIATEL ROTTERD 50/50 share VIATEL- Yes Yes Yes Yes No
-092747 AM available 092785
XXXXXX space / M&E
PLESMAN capacity
WEG
(SOERWE
G 5B)
44 VIATEL ZANDVO 50/50 share VIATEL- Yes Yes Yes Yes No
-092793 ORT available 092785
space / M&E
capacity
59 VIATEL AMSTERD 50/50 share VIATEL- Yes Yes Landlord Yes No
-089790 AM available 092785
WORLD space / M&E
TRADE CENTER capacity
84
UK
Viatel Basis upon
Site which the Viatel
Hand Floor allocation Network
Marked Plan Viatel to Schematic ODF Viatel AC
Drawing Drawing Global Space Drawing Access Access DC UPS
Ref Number Name Share Number point Controlled Generator Power Power
-------- ---------- --------- -------------- ----------- --------- ---------- --------- ----- -----
45 VIATEL EGHAM 4 Rack space VIATEL- Yes Yes Yes Yes Yes
-092780 INBUCON 600x600mm 092785
HOUSE powered
footprint
53 VIATEL LONDON 6 Rack space VIATEL- Yes NO Yes Yes Yes
-092205 TELEHOU 600x600mm 092783
SE NORTH powered
footprint
54 VIATEL LOWEST 50/50 share VIATEL- Yes Yes Yes Yes No
-092206 OFT available 092783
space / M&E
capacity
55 VIATEL PAKENHAM 50/50 share VIATEL- Yes Yes Yes Yes No
-092718 available 092783
space / M&E
capacity
56 VIATEL XXXXX 50/50 share VIATEL- Yes Yes Yes Yes No
-092724 POTTAGE available 092783
space / M&E
capacity
57 VIATEL POLEGATE 50/50 share VIATEL- Yes Yes Yes Yes No
-092729 available 092783
space / M&E
capacity
58 VIATEL SNOW 50/50 share VIATEL- Yes Yes Yes Yes No
-092758 HILL available 092783
space / M&E
capacity
85
SCHEDULE VIII
GV TRANSFERRED ASSETS
PART I
TECHNICAL SPECIFICATIONS FOR CABLES
NON-ZERO DISPERSION FIBER AND SINGLE MODE FIBER ITU-T G.652D (AW)
SPECIFICATION OF G.652 FIBRES (ALLWAVE)
CHARACTERISTIC SPECIFICATION
-------------- -------------
1. Attenuation coefficient ? (maximum) dB/km SEE NOTE 1 BELOW= 0.35 dB/Km at
in the 1300 nm range (+30nm, -15nm) 1310nm(Maximum Average)
2. Attenuation coefficient ? (maximum) dB/km Not specified for this wavelength range
in the 1550-1600 nm range
3. Attenuation coefficient ? (maximum) dB/km SEE NOTE 1 BELOW
at 1550 nm = 0.23 dB/Km
(Maximum Average)
4. Attenuation coefficient ? (maximum) dB/km Not specified for this wavelength range.
in the 1525 to 1620 nm range
5. Chromatic Dispersion Parameter ps/nm km = 3.5 ps/xx.xx
(maximum) in the 1300mm range (+30mm, - 15mm)
in the 1300 nm range (+30nm, -15nm)
6. Chromatic Dispersion Parameters = 19.5 ps/xx.Xx
1530 - 1565 nm (maximum) ps/nm km Over the wavelength range 1525 - 1575 nm.
1565 - 1620 nm (maximum) ps/nm km
7. Dispersion Slope (maximum) ps/nm(2) km = 0.093 ps/nm(2).km
(Zero dispersion 1312 +/- 12nm)
8. Polarization mode dispersion (PMD) Better than 0,5 ps/?km
(cabled fibre) (maximum) at 1550 mm ps/?km
9. Cut-off-wave-length ?cc (maximum) nm = 1270nm
86
BEHAVIOUR UNDER TENSILE STRESS, BENDING STRESS AND TEMPERATURE FLUCTUATION
CHARACTERISTIC: SPECIFICATION:
--------------- --------------
Attenuation change? Proof test strain
and fibre stretch under tensile stress at specified force (During fibre manufacture > or = 1.0% )
under tensile stress at specified force
Attenuation change? SEE NOTE 2 BELOW
under bending stress Level of ?? at commencement and completion of test
1-60 degrees C to + 85 degrees C shall be unchanged.
Attenuation change? SEE NOTE 2 BELOW
1-60 degrees C to+85 degrees C +/- 0.09dB between -10 degrees C and + 30 degrees C
(2kM cable length)
Measuring wavelength: 1550 nm.
DIMENSIONS OF THE OPTICAL FIBRES USED FOR CABLES.
DIMENSIONS: SPECIFICATION:
----------- --------------
Sheath Diameter
Individual value mu m 125
Permissible deviation mu m +/- 2 mu m
Roundness of sheath, = 2 %
maximum deviation
Concentricity between field and sheath,
maximum deviation = 0.8 mu m
Individual value, maximum mu m = 0.4 mu m (> 5000 Fibre Km)
Average value, maximum mu m
Diameter of optical fibre,
external coating,
including color layer
Rated value mu m 250 +/- 15 mu m
This is the average value of all optical fibers in the cable.
NOTE 1: Parameters are for cabled fibre and constitute the performance, which
the completed cable shall achieve.
NOTE 2: Tests conducted on a completed cable.
87
NOTE 3: Tests methods following same standards as per G.655 fiber optic cable
(IEC-793, TIA/EIA-455, ITU-T G.650, Bellcore GR-20)
PART II
NETWORK XXXXXX
00
XXX XXXXXXXXXXX
CABLE ID Cable
AMSTERDAM Ribbon No. of splices length in
NETWORK Composition reservation: Fibers: Comments: necessary: km:
------- ----------- ------------ ------- --------- ---------- ---
XXX-000 000 00/00 XX/XX % 31 361-370 4.8
AMS-003 432 AW 4 37-46 4.47
XXX-000 000 00/00 XX/XX % 31 361-370 25.19
AMS-005 432 AW 12 133-142 Cable was cut, all available 2 14.12
Ribbons on temp cable are
stumped
XXX-000 000 00/00 XX/XX % 29 337-346 4.75
XXX-000 000 00/00 XX/XX % 26 301-310 20.96
XXX-000 000 00/00 XX/XX % 27 313-322 17.37
AMS-004:D001 216 AW 8 85-94 Not spliced on BB 2 1.39
AMS-004:D002 216 AW 2 13-22 Not spliced on BB 2 3.54
SUM: 96.59
CABLE ID
RETTERDAM Ribbon No. of splices Cable
NETWORK Composition reservation: Fibers: Comments: necessary: length:
------- ----------- ------------ ------- --------- -------------- -------
RTD-001 432 50/50 TW/AW % 23 265-274 12.85
RTD-002 432 50/50 TW/AW % 23 265-274 Cable is not spliced through 7
RTD-002 216 AW 5 49-58 Cable is not spliced through 5 17.95
RTD-003 216 AW 4 37-46 Cable is not spliced through 2 2.41
SUM: 33.21
CABLE ID
UTRECHET Ribbon No. of splices Cable
NETWORK Composition reservation: Fibers: Comments: necessary: length:
------- ----------- ------------ ------- --------- -------------- --------
UTR-001 216 AW 1 1-10 Cable is not brought into POP 2 7.98
UTR-002 432 AW 4 37-46 7.93
UTR-003 216 AW 4 37-46 34.77
UTR-004 432 TW/AW 50/50 % 19 217-226 7.93
UTR-002:D001 216 AW 3 25-34 Cable is not spliced through 3 2.60
UTR-003:D001 432 AW 3 25-34 Cable is not spliced through 2 2.58
SUM: 63.786
89
DUSSELDORF
BACKBONECABLE-
NUMBER LENGTH RIBBON FIBER-NUMBER
------ ------ ------ ------------
DUS-2 22995 m 18 205-214
DUS-3 3810 m 18 205-214
DUS-5 1674 m 18 205-214
DUS-7abc 4544 m 18 205-214
DUS-8a 1950 m 18 205-214
DUS-8b 960 m 18 205-214
DUS-9 10332 m 18 205-214
DUS-10 11673 m 18 205-214
DUS-12 2114m 18 205-214
FRANKFURT
BACKBONECABLE-
NUMBER LENGTH RIBBON FIBER-NUMBER
------ ------ ------ ------------
FRA-2 1547 m 35 409-418
FRA-4 3361 m 34 397 - 406
FRA-5 13205 m 34 397 - 406
FRA-6 12685 m 00 000-000
XXX-0 0000 m 8/9 95-104
FRA-7.1 1566 m 33 385 - 394
FRA-7.2 3779 m 00 000-000
XXX-0 0000 m 15 171 -180
FRA-10 22394 m 15 000 -000
XXX-00 0000 m 00 000-000
XXX-00 0000 m 00 000-000
XXX-00 0000 m 00 000-000
XXX-00 0000 m 00 000 -000
XXX-00 0000 m 13 145-154
FRA-19 445 m 11 121 -130
FRA-30 26543 m 18 205-214
90
HAMBURG
BACKBONECABLE-
NUMBER LENGTH RIBBON FIBER-NUMBER
------ ------ ------ ------------
HAM-1.1 8529 m 18 205-214
HAM-2 8966 m 18 205-214
HAM-3 3698 m 18 205-214
HAM-4.1 1864 m 18 205-214
HAM-5 2154 m 18 205-214
HAM-6 4930 m 18 205-214
HAM-7 20303 m 18 205-214
HAM-8 1049 m 18 205-214
For all routes the allocated fibres will be provided on one continuous length
along the route of each specified cable.
91
SCHEDULE IX
INFLATION INDEXATION MECHANISMS
PART I
CLAUSE 4.12: MAINTENANCE COSTS PAYABLE BY VIATEL
1. With respect to Clause 4.12, the maximum amount chargeable with respect to
Global Voice's maintenance costs in respect of each calendar year shall be
increased by the percentage increase for inflation calculated in
accordance with paragraph 2.
2. The percentage increase shall be calculated by comparing the CSPI or the
equivalent index in the relevant jurisdiction last published in the three
(3) month period preceding the expiry of the twelve (12) month period
preceding commencement of the Adjustment Period with the CSPI published in
the corresponding month in the Adjustment Period and expressing the
difference as a percentage of the first published CSPI. Any percentage
increase shall be calculated to two (2) decimal places and may be rounded
up if the calculation results in a value of 0.05 or more or rounded down
if below this value. If this calculation results in a negative value, the
percentage adjustment shall be treated as zero for the purposes of this
indexation mechanism.
PART II
INFLATION INDEXATION ELSEWHERE IN A TRANSACTION DOCUMENT
1. This paragraph applies when a specific inflation indexation mechanism for
maintenance costs or charges is stipulated elsewhere in a Transaction
Document. Where this is the case, the inflation indexation mechanism in
that Transaction Document shall apply instead of the mechanism specified
in this Schedule IX as if that mechanism were incorporated into this
Schedule together with such interpretative provisions set out in the
Transaction Document in question as may be necessary to interpret that
mechanism.
92
SCHEDULE X
PAYMENTS TO VIATEL
(ALL FIGURES IN EUROS)
VTL (UK) LIMITED UK 435,312
VIATEL OPERATIONS SA FRANCE 472,603
VIATEL GLOBAL COMMUNICATIONS BV HOLLAND 311,438
VIATEL BELGIUM NV BELGIUM 83,578
VTL TELECOM GMBH GERMANY 512,645
VIATEL GERMAN ASSET GMBH GERMANY 615,980
VTL INC US 68,443
VTL-TP (BERMUDA) LIMITED BERMUDA 13,333,000
VIATEL CIRCE ASSETS LIMITED UK 1,217,000
VIATEL HOLDING (BERMUDA) LTD BERMUDA 1,450,001
TOTAL 18,500,000
93
SCHEDULE XI
INTENTIONALLY LEFT BLANK
94
SCHEDULE XII
CURRENT GLOBAL VOICE ON-NET BUILDINGS
1. Building (Site and Location):
MONTHLY
RECURRING
CHARGE COMPANY
PER PATCH NAME BUILDING ADDRESS POST CODE TYPE CITY
--------- ---------------------- -------- --------------------------- --------- ------------------ ----------
No InterXion Cessnalaan 1-33 1119 NJ Neutral Colocation Amsterdam
No Redbus GYROSCOOPWEG 2E-2F 1042ab Neutral Colocation Amsterdam
No InterXion XXXXXXXXXXXX 00 0000 XX Neutral Colocation Amsterdam
No NIKHEF KRUISLAAN 409 1098 SJ Neutral Colocation Amsterdam
Yes TeleCity KRUISLAAN 411 1098 SJ Neutral Colocation Amsterdam
Yes TELECITY XXXXXXXXXXXXXXX 00 0000 XX Neutral Colocation Amsterdam
No Viatel Xxxxxxxxx, Xxxxxxxxxxxx 0 0000 XX Xxxxxxxxx
No Interxion 29 IN DER XXXXXX 40599 Neutral Colocation Dusseldorf
No Viatel 35 IN DER XXXXXX 40599 POP Dusseldorf
Yes IX XXXXXX 00 Xxxxxxxxxxxxx 00000 Neutral Colocation Xxxxxxxxxx
Xx Xxxxx 00 XX XXXXXXXXX 00000 Neutral Colocation Dusseldorf
Yes GLOBAL SWITCH 110 Eschborner Landstrasse 60489 Neutral Colocation Frankfurt
MONTHLY
RECURRING
CHARGE COMPANY
PER PATCH NAME BUILDING ADDRESS POST CODE TYPE CITY
--------- ---------------------- -------- --------------------------- --------- ------------------ ----------
Yes Telecity 310 GUTLEUTSTRASSE 60327 Neutral Colocation Frankfurt
No Interxion 302 Xxxxxxx Xxxxxxxxxxx 00000 Neutral Colocation Frankfurt
No Interxion 304 Xxxxxxx Xxxxxxxxxxx 00000 Neutral Colocation Frankfurt
Yes Telehaus Xxxxxxxxxxxxx 00 XXXXXXXXXXXXX 60326 Neutral Colocation Xxxxxxxxx
Xx XXXXXX 00 XXXXXXXXXXXXX 00000 Neutral Colocation Frankfurt
No Telia 55 REBSTOCKERSTRASSE 55 60326 Competitive Carrier Frankfurt
Yes Xxxxx 0 00 XXXXXXXXXXXXX XXXXXXX 00000 Competitive Carrier Frankfurt
No Itenos 25-31 REBSTOCKERSTRASSE 25 60326 Neutral Colocation Frankfurt
No Interxion 21-23 Weissmullerstrasse 60314 Neutral Colocation Frankfurt
Yes IXEUROPE 7-9 XXXXXXXXXXXXX 00000 Neutral Colocation Frankfurt
No NT TELCOTRUST WENDENSTRASSE 375-379 20537 Neutral Colocation Hamburg
No VERSATEL NEDERLAND BV 62 Xxxxxxxxxxxx 00 0000 XX Xxxxxxxxxxx Xxxxxxx Xxxxxxxxx
POP
XXX Xxxxxx 0-0 XXXXXXX XXXXXXXX XXXXXX X00 0XX Neutral Colocation London
2
MONTHLY
RECURRING
CHARGE COMPANY
PER PATCH NAME BUILDING ADDRESS POST CODE TYPE CITY
--------- ---------------------- -------- --------------------------- --------- ------------------ ----------
XXX Xxxxxxxx 0-0 XXXXXXX XXXXXXXX X00 0XX Neutral Colocation London
SQUARE
2. Cost of Access
A monthly recurring charge (MRC) will be applied to 8 sites (not including
London), in line with GV based costs at each location. London charges will be
applied if applicable when the network is made operational. 150 Euro MRC will be
applied per patch. 5 patches required (10 fibre strands) per data centre.
Resulting MRC that Viatel will be invoiced is 6000 Euro per Month (8 data
centres x (euro) 150 x 5 patches).
3
SCHEDULE XIII
ITU SPECIFICATIONS FOR FIBRES
The dark fibre strands comprised within the Viatel Network, as at the date of
their respective installation, conformed to ITU-T recommended technical
specifications for dark fibre as follows:
(a) G.652 - (i) 72 fibres within the 144 fibre strand composite cable, 24
fibres within the 48 fibre strand composite cable, 36 fibres within the 72
fibre strand composite cable and 72 fibres within a 216 fibre strand
composite cable (the balance of fibres within each such composite cable
being G.655) as such composite cables are installed within the UK
Docklands Ring (the Docklands Ring comprising those elements of network as
are detailed in Appendix A ; (ii) the entire 192 fibre strand cable
between Pont Tolbiac and La Defense, Paris, France; and (iii) a stretch of
approximately 150 metres at Lock Offenbach on the fibre within the leased
duct of WSA in Frankfurt (which is a temporary fibre installation, it
being the intention of Viatel to replace the same with a permanent fibre
installation of cable meeting the G.655 specification once the local river
authority have completed ongoing construction works (which are currently
anticipated to complete in early 2007));
(b) G.654 for submarine and beach joint transition cables; and
(c) G.655 for the remainder of the terrestrial segments of the Network.
No warranty or guarantee is given as to the condition of and/or functionality of
the fibres comprised within the Network other than as expressly set out in
Schedule VI.
4
SCHEDULE XIV
DEED OF COVENANT
VIATEL
DEED OF COVENANT
(1) [TRANSFEROR - TO BE SPECIFIED]
(2) [TRANSFEREE - TO BE SPECIFIED]
(3) [VIATEL GROUP COMPANY - TO BE SPECIFIED]
2
DATED:
PARTIES:
(1) [RELEVANT GLOBAL VOICE GROUP COMPANY] [under number - ] whose [registered
office/principal place of business] is at [ - ] ("TRANSFEROR"); and
(2) [ ] (Company Registration Number [_____________________])
whose registered office is at [ ] ("TRANSFEREE")
(3) [RELEVANT VIATEL GROUP COMPANY] [under number - ] whose [registered
office/principal place of business] is at [ - ]("VIATEL").
RECITALS
(A) The Transferor has agreed to assign, transfer, lease, licence the use of
or otherwise create rights or interests in certain assets and associated
agreements to and in favour of the Transferee.
(B) The Transferee acknowledges that such assets are located in premises or
facilities owned or leased by Viatel and Viatel may have
telecommunications infrastructure and equipment located in such facilities
or premises.
(C) The Transferor is required to ensure that the Transferee shall enter into
a deed of covenant with the Transferor and Viatel and the Transferee has
agreed to enter into this Deed accordingly.
OPERATIVE PROVISIONS:
1. DEFINITIONS
1.1 In this Deed, the definitions in the Schedules to this Deed shall apply,
and in addition to the following words and expressions shall have the
meaning set opposite:
"ASSETS" the physical assets listed in Schedule One to
this Deed;
"BUSINESS DAY" all days excluding Saturdays and Sundays and
any day on which either the London Stock
Exchange is closed for the transaction of
business;
"MASTER AGREEMENT" the agreement with the title Master Network
Lease and Sale Agreement made between Viatel
Holding (Bermuda) Limited, VTL-TP (Bermuda)
Limited and Global Voice Group
Limited and dated 15 June 2006;
"NETWORK OPERATIONAL AGREEMENT" the agreement with that title made between
Viatel Holding (Bermuda) Limited and Global
Voice Group Limited and dated 15 June 2006;
"SUBJECT AGREEMENT" [INSERT TITLE OF RELEVANT SUBJECT AGREEMENT];
"VIATEL NETWORK" the meaning in the Master Agreement; and
"VIATEL SITE(S)" premises occupied or used by Viatel Group
Companies (as defined in the Master Agreement)
on the Viatel Network.
1.2 References in this Deed to the Transferor and Viatel shall include their
respective successors in title.
2. TRANSFEREE'S COVENANTS
The Transferee covenants and undertakes with the Transferor and Viatel
that it shall:
2.1 observe and perform the covenants, undertakings and obligations expressed
to be observed and performed on the part of the Transferor in the Subject
Agreement;
2.2 observe and perform all standard access rules and procedures stipulated by
Viatel and/or applicable to Viatel Sites and to which the Transferor
wishes to grant the Transferee rights of access;
2.3 observe and perform the Covenants contained in Schedule Two to this Deed;
2.4 comply with the Interconnection and Access Procedures contained in
Schedule Three to this Deed;
2.5 not dispose of the Assets or any part to any person, firm or company
("THIRD PARTY") without first ensuring that such third party has executed
a deed directly with the Transferor and Viatel containing an obligation on
such third party's part to observe and perform the covenants and comply
with the procedures set out in the Schedules this Deed.
3. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless otherwise expressly stated, nothing in this Deed shall create or
confer any rights or other benefits pursuant to the Contracts (Rights of
Third Parties) Xxx 0000 in favour of any person other than the parties to
this Deed.
DELIVERED as a Deed on the date stated above.
SIGNED as a DEED by )
[NAME OF TRANSFEREE] acting by two/a )
director[s] [and its secretary] )
Director
Director/Secretary
SCHEDULE ONE
[ASSETS]
SCHEDULE TWO
COVENANTS
The Transferee covenants with the parties as follows:
1. To keep its equipment and/or infrastructure which is situated on any land
or property of any other(s) or other person(s) ("LANDOWNER") having
rights, at any given time, in any part of the land on which the Viatel
Network is located (all of which shall, for the purposes of this Schedule
Two, be together referred to as the "TRANSFEREE'S COMMUNICATIONS
INFRASTRUCTURE") in good and substantial repair and condition it being
agreed that the provisions of this paragraph 1 shall not apply to the
Transferee to the extent that either one of the parties to this Deed is
responsible for maintaining any of the Transferor 's Communications
Infrastructure.
2. In the course of carrying out any works on any Landowner's land or
property in respect of the installation, alteration or maintenance of any
of the Transferee's Communications Infrastructure, to use all reasonable
endeavours to avoid any physical damage to any part of the Landowner's
land or property and, in the event that any damage is so caused, the
Transferee shall as soon as is practicable after such damage has occurred
carry out or cause to be carried out at its own expense any such repair
works as are necessary so that the Landowner's land or property so damaged
is restored to the condition it was in prior to such damage occurring.
3. Not to do anything which is or may become a nuisance or annoyance to any
party to this Deed, any Landowner or any owner or occupier of neighbouring
or adjoining property, or which may cause damage to the land or property
of any Landowner or to any neighbouring or adjoining property including
damage attributable to the neglect, default or carelessness of Transferee
and/or its employees, agents, visitors, sub-tenants, contractors or
licensees.
4. To observe and comply with the provisions and requirements of all
legislation (including, but without limitation, any and all health and
safety legislation) whether public or local directly affecting the
Transferee's Communications Infrastructure and/or the Viatel Network or
the use of the same, including without limitation planning and
telecommunications legislation, and not to do or omit anything affecting
the land or property of any Landowner which is in breach of such
legislation but to do and provide everything required to be done or
required by such legislation and to indemnify Viatel against all
proceedings, penalties, costs or claims in respect of any acts or
omissions in breach of such legislation.
5. That if the Transferee receives notice of any order or proposal under any
legislation, to give notice thereof to Viatel immediately and, insofar it
relates to the Transferee's Communications Infrastructure, if so
reasonably required by Viatel, to make or join with
Viatel in making such objections or representations in respect of any
order or proposal as Viatel may reasonably require and to comply at its
own cost with any notice or order relating to Viatel under any such
legislation.
6. That if Viatel is required by any governmental or public authority,
Landowner or other person having the authority so to require, to relocate
any segment of the Viatel Network in which is located any Transferee's
Communications Infrastructure, to give Viatel all such assistance as
Viatel may reasonably require in connection with such relocation works.
7. Not to use the Transferee's Communications Infrastructure or any part
thereof nor to permit the same to be used for any illegal or immoral
purposes nor shall it permit or suffer to be done in or upon the
Transferee's Communications Infrastructure anything which in the
reasonable opinion of Viatel and/or any Landowner may or might become a
danger or nuisance to Viatel and/or any Landowner, their licensees,
tenants or the occupiers of any adjoining or neighbouring property or to
the general public and, at its own expense, it shall take all reasonable
precautions as may be necessary for the avoidance thereof.
8. Not to do or permit to be done during the carrying out of any
interconnection or other works in connection with the Transferee's
Communications Infrastructure anything which may cause any interference
with or obstruct or which may cause delay to traffic on any road forming
part of any land or property of any Landowner or any injury or damage to
any other property of the Landowner.
SCHEDULE THREE
INTERCONNECTION AND ACCESS PROCEDURES
A GENERAL
1. Each party undertakes that in exercising any right to interconnect their
respective Networks at a Point of Interconnection, and/or to access, as
applicable, the Viatel Xxxxxxxx for the purpose of inspecting, maintaining
and/or installing or making alterations to their respective Networks (as
such rights of access are detailed in the Deed), it shall comply with
these Joint Interconnection and Access Procedures.
2. For the purposes of these Joint Interconnection and Access Procedures, the
following words shall have the following meanings:
"Allocated Fibres" shall mean those fibres allocated by
Global Voice to Transferee;
"Business Hours" means the hours from 9am to 5pm (local
time) on any Business Day;
"Chamber" means a Viatel cable chamber and
"Xxxxxxxx" shall be construed
accordingly;
"Emergency Interconnection Works" means all interconnection works which
are unscheduled and which are required
solely to restore the provision of
service on the relevant party's Network;
"Interconnection MOP" means a method of procedure with respect
to any proposed interconnection works,
in accordance with the pro-forma MOP set
out in Schedule Five, providing full
details as to how the works are to be
carried out;
"Network" means, as the context shall require,
either a telecommunications network
owned and operated by the Transferee or
the Viatel Network;
"ODF" means an optical distribution frame; and
"Point of Interconnection" means any physical point (being an ODF,
fibre splice or other access point)
where it is technically feasible to
connect the Viatel Network and the
Transferee's Communications
Infrastructure so as to enable data and
other traffic to pass between the two
Networks; and "Points of
Interconnection" shall be construed
accordingly.
3. Notwithstanding the provisions set out in these Joint Interconnection and
Access Procedures, where the Viatel Network comprises leased or licensed
assets, namely where the asset is used and enjoyed by Viatel and/or any of
its group companies subject to a lease, licence or other agreement with a
third party, alternative interconnection and access arrangements shall
apply. Viatel can make no commitment that any interconnection or access
arrangements will be possible given the nature of such assets.
B. ACCESS
1. All access by Transferee to any site owned by or leased to Viatel or to a
Viatel Facility shall be subject to, respectively, such arrangements as
are included in the agreement between Transferor and Transferee.
2. Access by either party to any Chamber on the Network of the other party
and/or, in the case of Viatel, to any Transferee facility, shall be
subject to the provisions of these Joint Interconnection and Access
Procedures.
3. Each party reserves the right to be present and supervise any access by
the other to any Chamber on its Network. Any such supervision shall not
relieve the party being granted access to a Chamber from its obligation to
comply in full with these Joint Interconnection and Access Procedures.
C. INTERCONNECTION WORKS - GENERAL
1. Each party shall take all necessary precautions (including any required by
applicable health and safety legislation) to protect the other party's
property (and/or that of a third party) from any physical damage during
the course of any interconnection works.
2. In the event of any damage being caused to the other party's property
(and/or that of a third party) in carrying out any such works as
contemplated by these Joint Interconnection and Access Procedures, whether
to fibre, duct, equipment or to other items, the working party shall make
good, at its own cost, any such damage so caused.
D FIBRE INTERCONNECTION AT AN ODF
1. Other than in the case of Emergency Works, no less than 2 Business Days'
notice shall be given of any proposed interconnection at any ODF on the
Network of the other party, such notice to be accompanied by an
Interconnection MOP specific to the proposed works. Upon receipt of such
notice, the Interconnection MOP procedure set out in Section F shall
apply.
2. The requirement set out in Section D(1) shall not apply in the case of
Emergency Works, provided however that as much notice as is reasonably
possible in the circumstances shall be given (which notice may,
notwithstanding the provisions of Clause [ ] be verbal and/or email notice
for these purposes) to the network operations centre ("NOC") of the other
party. Such notice shall provide as much detail as to the nature of the
required works as is reasonably practicable in the circumstances. No
Emergency Works shall be undertaken without the verbal approval being
given by the relevant NOC. Each party shall procure that their respective
NOCs respond as expeditiously as possible in the circumstances.
3. The party carrying out the interconnection works shall be entitled to make
its Point of Interconnection at the (customer facing) ports for its
Allocated Fibres (or any part thereof) on the opposite side of the ODF to
that of the other party.
4. The party carrying out the interconnection works shall be responsible for
the cost of any internal patch cabling (including the provision of
suitable connectors) required to provide an interconnect with the other
party's ODF, including, where the fibres have not been connected by the
other party to its side of the ODF, the costs of any required pigtails or
other patch cords required to do so.
5. Connectors shall all be of the type SC-UPC other than where, in the
applicable fibre specification, that specification states otherwise.
6. In accessing the ODF, whether for the purposes of implementing a Point of
Interconnection or otherwise, the party carrying out the interconnection
works shall comply with the applicable access procedures of the other for
the site in which such ODF is located, such access procedures in any event
to be reasonable and of a nature standard within the telecommunications
industry. In the case of a Viatel ODF, such access shall be made, in the
case of a Viatel Site, in accordance with the Viatel Site Access
Procedures and in the case of a Viatel Facility, in accordance with the
Viatel Facility Access Procedures.
E FIBRE INTERCONNECT/CIVIL WORKS AT A CHAMBER
1. Subject to Section E(2) below, each party shall be responsible for
performing (at its own cost) all excavation, digging and construction
works (together "CIVIL WORKS"), as well as all cabling, splicing and/or
testing works required in order to implement a Point of Interconnection
between its own Network and that of Viatel. Any such works shall, without
prejudice to and notwithstanding the terms and conditions set out in this
Schedule, be carried out in accordance with standard industry practice for
such works and with due regard to the nature of the particular Chamber in
question and in accordance with the practice of a competent provider of
such services.
2. All Civil Works to be carried out within a Chamber shall be carried out
either by and/or under the direct supervision of the owner of such
Chamber, any reasonable costs
associated with such works and/or supervision which are incurred by that
owner being reimbursed to it in accordance with the provisions of Section
H.
3. Subject to Sections E(5) and F below, the party proposing to carry out any
such Civil Works at or within the Chamber of the other shall provide to
the other an Interconnection MOP in all cases where such works: (i)
include any duct and/or fibre interconnection works (including any related
cabling, splicing and/or testing works) at a Chamber; or (ii) will
necessitate the opening of any Chamber for the purpose of installing new
fibre optic cable. Upon receipt of such Interconnection MOP, the
Interconnection MOP procedure set out in Section F shall apply.
4. The Interconnection MOP having been agreed by the parties in accordance
with Section F, at least 15 Business Days' notice (or such a shorter
period as is agreed by the parties) must be given of any intention to
understate the relevant Civil Works.
5. The notice requirements set out above shall not apply in the case of
Emergency Works provided however that as much notice as is reasonably
practicable in the circumstances shall be given to the other party, (which
notice may, notwithstanding the provisions of Clause [ ]) be verbal and/or
e-mail notice for these purposes) to the NOC of the other party. Such
notice shall provide as much detail as to the nature of the required works
as is reasonably practicable in the circumstances. No Emergency Works
shall be undertaken without the verbal approval being given by the
relevant NOC. Each party shall procure that their respective NOCs respond
as expeditiously as possible in the circumstances. Approval shall only be
given in relation to access to the relevant Chamber: access to the splice
closures (and any related work thereon) within such Chamber being only
available to the owner of such Chamber.
F INTERCONNECTION MOP PROCEDURE
1. Upon receipt of the Interconnection MOP, the receiving party may require,
acting reasonably, that all or any part of the planned works should not be
carried out where it believes that such works will constitute a breach of
health and safety legislation and/or where any such works might breach any
obligations owed to a Landowner or adversely impact the services,
equipment and/or network of itself and/or of any third party. In such an
event, the two parties shall use all reasonable endeavours to agree a new
method of working which accommodates and addresses the technical
requirements and concerns of both. In default of an agreement as to a
revised method of working, the matter will be referred to the CHIEF
TECHNICAL OFFICER for Viatel and equivalent for Transferee.
2. In the event that the party on whom the Interconnection MOP has been
served has not within: (i) 2 Business Days, in the case of fibre
interconnection at an ODF; or (ii) 5 Business Days, in the case of Civil
Works at a Chamber, notified the other party that it will require changes
to the Interconnection MOP, then the Interconnection MOP shall be deemed
approved.
3. Approval of the MOP, whether deemed or otherwise, shall not in any way
operate so as to limit the submitting party's liability under the terms
and conditions of this Deed and it shall be the submitting party's
responsibility to comply fully with such terms and conditions at all
times.
G COMPLETION PROCEDURE
Following completion of any works as contemplated by this Deed, the party
carrying out any such works shall provide, at its own cost, the other with
appropriate documentation sufficient to allow that other to comply, on a
timely basis, with any obligations it may have (if any) under the Xxx
Xxxxx xxx Xxxxxx Xxxxx Xxx 0000 (or any similar or analogous legislation
in any other country in which such works may be carried out) in relation
to the works carried out upon or in relation to its Network.
H COSTS
Where the provisions of this Schedule state that costs of one party are to
be borne by the other party, reference to costs shall be deemed to mean
the reasonable costs incurred (the party having incurred such costs having
used reasonably endeavours to minimise the same) plus an administrative
charge of 15% (exclusive of VAT).
GE 1
GV
DEED OF COVENANT
(1) [TRANSFEROR - TO BE SPECIFIED]
(2) [TRANSFEREE- TO BE SPECIFIED]
(3) [GLOBAL VOICE GROUP COMPANY- TO BE SPECIFIED]
DATED:
PARTIES:
(1) [RELEVANT VIATEL GROUP COMPANY] [under number - ] whose [registered
office/principal place of business] is at [-] ("TRANSFEROR"); and
(2) [ ] (Company Registration Number [_____________________])
whose registered office is at [ ] ("TRANSFEREE")
(3) [RELEVANT GLOBAL VOICE GROUP COMPANY] [under number - ] whose [registered
office/principal place of business] is at [-]("GV").
RECITALS
(A) The Transferor has agreed to assign, transfer lease, licence the use of or
otherwise create rights or interests in certain assets and associated
agreements to and in favour of the Transferee.
(B) The Transferee acknowledges that such assets are located in premises or
facilities owned or leased by GV and GV may have telecommunications
infrastructure and equipment located in such facilities or premises.
(C) The Transferor is required to ensure that the Transferee shall enter into
a deed of covenant with the Transferor and GV and the Transferee has
agreed to enter into this Deed accordingly.
OPERATIVE PROVISIONS:
1. DEFINITIONS
1.1 In this Deed, the definitions in the Schedules to this Deed shall apply,
and in addition the following words and expressions shall have the meaning
set opposite:
"ASSETS" the physical assets listed in Schedule
One to this Deed;
"BUSINESS DAY" all days excluding Saturdays and Sundays
and any day on which either the London
Stock Exchange is closed for the
transaction of business;
"GV NETWORK" the meaning in the Master Agreement; and
"GV SITE(s)" premises occupied or used by GV Group
Companies being the GV Off-Net Buildings
and the GV-On-Net Buildings (as defined
in the
Master Agreement);
"MASTER AGREEMENT" the agreement with the title Master
Network Lease and Sale Agreement made
between Viatel Holding (Bermuda)
Limited, VTL-TP (Bermuda) Limited and
Global Voice Group Limited and dated 15
June 2006;
"NETWORK OPERATIONAL AGREEMENT" the agreement with that title made
between Viatel Holding (Bermuda) Limited
and Global Voice Group Limited and dated
15 June 2006;
"SUBJECT AGREEMENT" [INSERT TITLE OF RELEVANT SUBJECT
AGREEMENT];
1.2 References in this Deed to the Transferor and GV shall include their
respective successors in title.
2. TRANSFEREE'S COVENANTS
The Transferee covenants and undertakes with the Transferor and GV that it
shall:
2.1 observe and perform the covenants, undertakings and obligations expressed
to be observed and performed on the part of the Transferor in the Subject
Agreement;
2.2 observe and perform all standard access rules and procedures stipulated by
GV and/or applicable to GV Sites and to which the Transferor wishes to
grant the Transferee rights of access;
2.3 observe and perform the Covenants contained in Schedule Two to this Deed;
2.4 comply with the Interconnection and Access Procedures contained in
Schedule Three to this Deed;
2.5 not dispose of the Assets or any part to any person, firm or company
("THIRD PARTY") without first ensuring that such third party has executed
a deed directly with the Transferor and GV containing an obligation on
such third party's part to observe and perform the covenants and comply
with the procedures set out in the Schedules this Deed.
3. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
Unless otherwise expressly stated, nothing in this Deed shall create or
confer any rights or other benefits pursuant to the Contracts (Rights of
Third Parties) Xxx 0000 in favour of any person other than the parties to
this Deed.
DELIVERED as a Deed on the date stated above.
SIGNED as a DEED by )
[NAME OF TRANSFEREE] acting by two/a )
director[s] [and its secretary] )
Director
Director/Secretary
SCHEDULE ONE
[ASSETS]
SCHEDULE TWO
COVENANTS
The Transferee covenants with the parties as follows:
1. To keep its equipment and/or infrastructure which is situated on any land
or property of any other(s) or other person(s) ("LANDOWNER") having
rights, at any given time, in any part of the land on which the GV Network
is located (all of which shall, for the purposes of this Schedule Two, be
together referred to as the "TRANSFEREE'S COMMUNICATIONS INFRASTRUCTURE")
in good and substantial repair and condition it being agreed that the
provisions of this paragraph 1 shall not apply to the Transferee to the
extent that either one of the parties to this Deed is responsible for
maintaining any of the Transferor 's Communications Infrastructure.
2. In the course of carrying out any works on any Landowner's land or
property in respect of the installation, alteration or maintenance of any
of the Transferee's Communications Infrastructure, to use all reasonable
endeavours to avoid any physical damage to any part of the Landowner's
land or property and, in the event that any damage is so caused, the
Transferee shall as soon as is practicable after such damage has occurred
carry out or cause to be carried out at its own expense any such repair
works as are necessary so that the Landowner's land or property so damaged
is restored to the condition it was in prior to such damage occurring.
3. Not to do anything which is or may become a nuisance or annoyance to any
party to this Deed, any Landowner or any owner or occupier of neighbouring
or adjoining property, or which may cause damage to the land or property
of any Landowner or to any neighbouring or adjoining property including
damage attributable to the neglect, default or carelessness of Transferee
and/or its employees, agents, visitors, sub-tenants, contractors or
licensees.
4. To observe and comply with the provisions and requirements of all
legislation (including, but without limitation, any and all health and
safety legislation) whether public or local directly affecting the
Transferee's Communications Infrastructure and/or the GV Network or the
use of the same, including without limitation planning and
telecommunications legislation, and not to do or omit anything affecting
the land or property of any Landowner which is in breach of such
legislation but to do and provide everything required to be done or
required by such legislation and to indemnify GV against all proceedings,
penalties, costs or claims in respect of any acts or omissions in breach
of such legislation.
5. That if the Transferee receives notice of any order or proposal under any
legislation, to give notice thereof to GV immediately and, insofar it
relates to the Transferee's Communications Infrastructure, if so
reasonably required by GV, to make or join with GV
in making such objections or representations in respect of any order or
proposal as GV may reasonably require and to comply at its own cost with
any notice or order relating to GV under any such legislation.
6. That if GV is required by any governmental or public authority, Landowner
or other person having the authority so to require, to relocate any
segment of the GV Network in which is located any Transferee's
Communications Infrastructure, to give GV all such assistance as GV may
reasonably require in connection with such relocation works.
7. Not to use the Transferee's Communications Infrastructure or any part
thereof nor to permit the same to be used for any illegal or immoral
purposes nor shall it permit or suffer to be done in or upon the
Transferee's Communications Infrastructure anything which in the
reasonable opinion of GV and/or any Landowner may or might become a danger
or nuisance to GV and/or any Landowner, their licensees, tenants or the
occupiers of any adjoining or neighbouring property or to the general
public and, at its own expense, it shall take all reasonable precautions
as may be necessary for the avoidance thereof.
8. Not to do or permit to be done during the carrying out of any
interconnection or other works in connection with the Transferee's
Communications Infrastructure anything which may cause any interference
with or obstruct or which may cause delay to traffic on any road forming
part of any land or property of any Landowner or any injury or damage to
any other property of the Landowner.
SCHEDULE THREE
INTERCONNECTION AND ACCESS PROCEDURES
A GENERAL
1. Each party undertakes that in exercising any right to interconnect their
respective Networks at a Point of Interconnection, and/or to access, as
applicable, the XX Xxxxxxxx for the purpose of inspecting, maintaining
and/or installing or making alterations to their respective Networks (as
such rights of access are detailed in the Deed), it shall comply with
these Joint Interconnection and Access Procedures.
2. For the purposes of these Joint Interconnection and Access Procedures, the
following words shall have the following meanings:
"Allocated Fibres" shall mean those fibres allocated by
Global Voice to Transferee;
"Business Hours" means the hours from 9am to 5pm (local
time) on any Business Day;
"Chamber" means a GV cable chamber and "Xxxxxxxx"
shall be construed accordingly;
"Emergency Interconnection Works" means all interconnection works which
are unscheduled and which are required
solely to restore the provision of
service on the relevant party's Network;
"Interconnection MOP" means a method of procedure with respect
to any proposed interconnection works,
in accordance with the pro-forma MOP set
out in Schedule Five, providing full
details as to how the works are to be
carried out;
"Network" means, as the context shall require,
either a telecommunications network
owned and operated by the Transferee or
the GV Network;
"ODF" means an optical distribution frame; and
"Point of Interconnection" means any physical point (being an ODF,
fibre splice or other access point)
where it is technically feasible to
connect the GV Network and the
Transferee's Communications
Infrastructure so as to enable data and
other traffic to pass between the two
Networks; and "Points of
Interconnection" shall be construed
accordingly.
3. Notwithstanding the provisions set out in these Joint Interconnection and
Access Procedures, where the GV Network comprises leased or licensed
assets, namely where the asset is used and enjoyed by GV and/or any of its
group companies subject to a lease, licence or other agreement with a
third party, alternative interconnection and access arrangements shall
apply. GV can make no commitment that any interconnection or access
arrangements will be possible given the nature of such assets.
B. ACCESS
4. All access by Transferee to any site owned by or leased to GV or to a GV
Facility shall be subject to, respectively, such arrangements as are
included in the agreement between Transferor and Transferee.
5. Access by either party to any Chamber on the Network of the other party
and/or, in the case of GV, to any [Transferee facility], shall be subject
to the provisions of these Joint Interconnection and Access Procedures.
6. Each party reserves the right to be present and supervise any access by
the other to any Chamber on its Network. Any such supervision shall not
relieve the party being granted access to a Chamber from its obligation to
comply in full with these Joint Interconnection and Access Procedures.
C. INTERCONNECTION WORKS -- GENERAL
3. Each party shall take all necessary precautions (including any required by
applicable health and safety legislation) to protect the other party's
property (and/or that of a third party) from any physical damage during
the course of any interconnection works.
4. In the event of any damage being caused to the other party's property
(and/or that of a third party) in carrying out any such works as
contemplated by these Joint Interconnection and Access Procedures, whether
to fibre, duct, equipment or to other items, the working party shall make
good, at its own cost, any such damage so caused.
D FIBRE INTERCONNECTION AT AN ODF
1. Other than in the case of Emergency Works, no less than 2 Business Days'
notice shall be given of any proposed interconnection at any ODF on the
Network of the other party, such notice to be accompanied by an
Interconnection MOP specific to the proposed works. Upon receipt of such
notice, the Interconnection MOP procedure set out in Section F shall
apply.
2. The requirement set out in Section D(1) shall not apply in the case of
Emergency Works, provided however that as much notice as is reasonably
possible in the circumstances shall be given (which notice may,
notwithstanding the provisions of Clause [ ] be verbal and/or email notice
for these purposes) to the network operations centre ("NOC") of the other
party. Such notice shall provide as much detail as to the nature of the
required works as is reasonably practicable in the circumstances. No
Emergency Works shall be undertaken without the verbal approval being
given by the relevant NOC. Each party shall procure that their respective
NOCs respond as expeditiously as possible in the circumstances.
3. The party carrying out the interconnection works shall be entitled to make
its Point of Interconnection at the (customer facing) ports for its
Allocated Fibres (or any part thereof) on the opposite side of the ODF to
that of the other party.
4. The party carrying out the interconnection works shall be responsible for
the cost of any internal patch cabling (including the provision of
suitable connectors) required to provide an interconnect with the other
party's ODF, including, where the fibres have not been connected by the
other party to its side of the ODF, the costs of any required pigtails or
other patch cords required to do so.
5. Connectors shall all be of the type SC-UPC other than where, in the
applicable fibre specification, that specification states otherwise.
6. In accessing the ODF, whether for the purposes of implementing a Point of
Interconnection or otherwise, the party carrying out the interconnection
works shall comply with the applicable access procedures of the other for
the site in which such ODF is located, such access procedures in any event
to be reasonable and of a nature standard within the telecommunications
industry. In the case of a GV ODF, such access shall be made, in the case
of a GV Site, in accordance with the GV Site Access Procedures and in the
case of a GV Facility, in accordance with the GV Facility Access
Procedures.
E FIBRE INTERCONNECT/CIVIL WORKS AT A CHAMBER
1. Subject to Section E(2) below, each party shall be responsible for
performing (at its own cost) all excavation, digging and construction
works (together "CIVIL WORKS"), as well as all cabling, splicing and/or
testing works required in order to implement a Point of Interconnection
between its own Network and that of GV. Any such works shall, without
prejudice to and notwithstanding the terms and conditions set out in this
Schedule, be carried out in accordance with standard industry practice for
such works and with due
regard to the nature of the particular Chamber in question and in
accordance with the practice of a competent provider of such services.
2. All Civil Works to be carried out within a Chamber shall be carried out
either by and/or under the direct supervision of the owner of such
Chamber, any reasonable costs associated with such works and/or
supervision which are incurred by that owner being reimbursed to it in
accordance with the provisions of Section H.
3. Subject to Sections E(5) and F below, the party proposing to carry out any
such Civil Works at or within the Chamber of the other shall provide to
the other an Interconnection MOP in all cases where such works: (i)
include any duct and/or fibre interconnection works (including any related
cabling, splicing and/or testing works) at a Chamber; or (ii) will
necessitate the opening of any Chamber for the purpose of installing new
fibre optic cable. Upon receipt of such Interconnection MOP, the
Interconnection MOP procedure set out in Section F shall apply.
4. The Interconnection MOP having been agreed by the parties in accordance
with Section F, at least 15 Business Days' notice (or such a shorter
period as is agreed by the parties) must be given of any intention to
understate the relevant Civil Works.
5. The notice requirements set out above shall not apply in the case of
Emergency Works provided however that as much notice as is reasonably
practicable in the circumstances shall be given to the other party, (which
notice may, notwithstanding the provisions of Clause [ ]) be verbal and/or
e-mail notice for these purposes) to the NOC of the other party. Such
notice shall provide as much detail as to the nature of the required works
as is reasonably practicable in the circumstances. No Emergency Works
shall be undertaken without the verbal approval being given by the
relevant NOC. Each party shall procure that their respective NOCs respond
as expeditiously as possible in the circumstances. Approval shall only be
given in relation to access to the relevant Chamber: access to the splice
closures (and any related work thereon) within such Chamber being only
available to the owner of such Chamber.
F INTERCONNECTION MOP PROCEDURE
1. Upon receipt of the Interconnection MOP, the receiving party may require,
acting reasonably, that all or any part of the planned works should not be
carried out where it believes that such works will constitute a breach of
health and safety legislation and/or where any such works might breach any
obligations owed to a Landowner or adversely impact the services,
equipment and/or network of itself and/or of any third party. In such an
event, the two parties shall use all reasonable endeavours to agree a new
method of working which accommodates and addresses the technical
requirements and concerns of both. In default of an agreement as to a
revised method of working, the matter will be referred to the CHIEF
TECHNICAL OFFICER for GV and for Transferee.
2. In the event that the party on whom the Interconnection MOP has been
served has not within: (i) 2 Business Days, in the case of fibre
interconnection at an ODF; or (ii) 5
Business Days, in the case of Civil Works at a Chamber, notified the other
party that it will require changes to the Interconnection MOP, then the
Interconnection MOP shall be deemed approved.
3. Approval of the MOP, whether deemed or otherwise, shall not in any way
operate so as to limit the submitting party's liability under the terms
and conditions of this Deed and it shall be the submitting party's
responsibility to comply fully with such terms and conditions at all
times.
G COMPLETION PROCEDURE
Following completion of any works as contemplated by this Deed, the party
carrying out any such works shall provide, at its own cost, the other with
appropriate documentation sufficient to allow that other to comply, on a
timely basis, with any obligations it may have (if any) under the Xxx
Xxxxx xxx Xxxxxx Xxxxx Xxx 0000 (or any similar or analogous legislation
in any other country in which such works may be carried out) in relation
to the works carried out upon or in relation to its Network.
H COSTS
Where the provisions of this Schedule state that costs of one party are to
be borne by the other party, reference to costs shall be deemed to mean
the reasonable costs incurred (the party having incurred such costs having
used reasonably endeavours to minimise the same) plus an administrative
charge of 15% (exclusive of VAT).
APPENDIX A
VIATEL NETWORK MAP
APPENDIX B
GLOBAL VOICE NETWORK MAP
SIGNED by )
a duly authorised signatory of ) /s/ Xxxx Xxxxx
VIATEL HOLDING (BERMUDA) LIMITED )
SIGNED by )
a duly authorised signatory of ) /s/ Xxxx Xxxxx
VTL - TP (BERMUDA) LIMITED )
SIGNED by )
a duly authorised signatory of ) /s/ Xxxxxx X'Xxxxx
GLOBAL VOICE GROUP LIMITED )
