Exhibit 10.28
Exhibit 10.28 to Registration Statement on CONFIDENTIAL INFORMATION
Form S-4 of RSL Communications PLC OMITTED WHERE INDICATED
and RSL Communications, Ltd. BY "[*]" AND FILED
SEPARATELY WITH THE
COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 406
OF THE SECURITIES ACT OF
1933
TRANSITION SERVICES AGREEMENT
THIS TRANSITION SERVICES AGREEMENT (this "Agreement") is entered into this
8th day of May, 1996, by and among SPRINT TELECOMMUNICATIONS FRANCE INC. and
SPRINT INTERNATIONAL FRANCE S.A. (collectively, "Sprint") and RSL COM FRANCE
S.A., a French corporation ("RSL") (collectively, the "Parties").
WHEREAS, pursuant to an Asset Purchase Agreement, dated as of the date
hereof (the "Purchase Agreement"), by and between Sprint Telecommunications
France Inc. ("STF") and RSL, RSL has purchased from STF, and STF has sold to
RSL, certain assets related to the international direct distance dialing
business of STF in France (the "IDDD Business"); and
WHEREAS, in connection with the purchase and sale of the IDDD Business, STF
and certain of its affiliates, including Sprint International France S.A.
("SIF"), have agreed to provide to RSL certain transitional services, including
the services to be provided to RSL hereunder.
NOW, THEREFORE, in consideration of the mutual covenants herein expressed
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
CONSTRUCTION
Section 1.1. Gender, Headings, Etc. The definitions of terms defined herein
shall apply equally to both the singular and plural forms of the defined terms.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections and Exhibits shall be deemed to be
references to Articles and Sections of and Exhibits to this Agreement unless the
context shall otherwise require, and all references herein to "this Agreement"
shall refer to this Agreement and the Exhibits hereto. The headings of the
Articles and Sections are included for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. Unless the context shall otherwise require, any reference to any
agreement or other instrument or statute or regulation is to such agreement,
instrument, statute or regulation as amended and supplemented from time to time
(and, in the case of a statute or regulation, to any successor provision). Any
reference in this Agreement to a "day" or a number of "days" (without the
explicit qualification of "business") shall be interpreted as a reference to a
calendar day or number of calendar days. If any action or notice is to be taken
or given on or by a particular calendar day, and such calendar day is not a
business day, then such action or notice shall be deferred until, or may be
taken or given, on the next business day.
ARTICLE II
SHARED EMPLOYEES
Section 2.1. Sharing of Employees' Time. For a period of time (the
"Transition Period") commencing on the date hereof and ending on the earlier of
(i) December 31, 1996 and (ii) provided that Sprint shall have given all RSL at
least thirty (30) days advance written notice of the date of sale of the Data
Business (as hereinafter defined), ninety (90) days after the closing date of
sale of the Data Business. RSL and Sprint acknowledge that it will be necessary
for (i) certain employees of RSL to devote some reasonable portion of their time
to the management of Sprint's data, messaging services and card business
(collectively, the "Data Business"), and (ii) certain employees of Sprint to
devote some reasonable portion of their time to the management of the IDDD
Business (in either case, "Shared Employees"). RSL and Sprint agree that Shared
Employees shall only be made available for the functions listed on Exhibit A
hereto, which shall include training other employees to perform the functions
listed in such exhibit (collectively, the "Specified Functions"). RSL and Sprint
agree to make their respective Shared Employees available to perform the
Specified Functions, provided that each Party has the right to transfer and
replace any Shared Employee with their qualified personnel. Shared Employees
shall perform the Specified Functions only at the offices of the IDDD Business
or the Data Business located at 000 xxx Xxxxxx Xxxxxxx xx Xxxxxx, Xxxxxxx,
Xxxxxx. During the Transition Period, RSL and Sprint agree to use their
commercially reasonable efforts to establish reasonable procedures for sharing
the time of Shared Employees. For the first two months of the Transition Period,
no Party shall charge the other for any costs associated with the Shared
Employees. Thereafter until the end of the Transition Period, each Shared
Employee shall be required to record the amount of time, in increments of
one-half hour, that he spends working for the other Party. Within ten (10) days
after the end of each calendar quarter during the Transition Period, commencing
ten (10) days after the calendar quarter ending June 30, 1996, and within ten
(10) days after the end of the Transition Period, the RSL Country Manager for
the IDDD Business and the Sprint Country Manager for the Data Business shall
approve the time records of all Shared Employees for the prior calendar quarter
(or portion thereof) and shall calculate (i) the value of all time devoted by
Shared Employees of RSL to the Data Business during such period at the hourly
rates for such Shared Employees set forth on Exhibit A hereto (the "RSL Time"),
and (ii) the value of all time devoted by the Shared Employees of Sprint to the
IDDD Business during such period at the rates for such Shared Employees set
forth on Exhibit A hereto (the "Sprint Time"), and shall promptly notify RSL and
Sprint of the RSL Time and the Sprint Time for such period. If the RSL Time
exceeds the Sprint Time for any such period, RSL shall promptly invoice Sprint
for such difference, and if the Sprint Time exceeds the RSL Time for any such
period, Sprint shall promptly invoice RSL for such difference, and each such
invoice shall be paid within thirty (30) days of the receipt thereof. At the end
of the Transition Period, neither RSL nor Sprint is required to make available
the time of its Shared Employees or any other employees to the other Party and
all obligations and rights described in this Section 2.1 shall terminate.
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ARTICLE III
LEASED SPACE
Section 3.1. Office Space. Pursuant to a Provisional Sub-Lease, dated as of
the date hereof (the "Provisional Sub-Lease"), between RSL and SIF, RSL has
agreed to sublease from SIF a portion of the office space used in connection
with the IDDD Business and the Data Business at the offices of Sprint located on
the 1st floor of the building located at 000 xxx Xxxxxx Xxxxxxx xx Xxxxxx,
Xxxxxxx, Xxxxxx (the "Office Space"). As soon as practical after the dates
hereof, Sprint shall separate and pay for the reasonable out-of-pocket costs to
separate the office space used by the IDDD Business from the office space used
by the Data Business on the 1st floor of the building at such address. Such
separation shall consist of the construction of a wall separating the office
space used by the IDDD Business from the office space used by the Data Business.
Such wall shall be located at a place agreed to by the Parties (which, unless
the Parties otherwise agree, shall be located so that each of the IDDD Business
and the Data Business shall have the use of approximately fifty percent (50%) of
the usable office space now under lease by Sprint on the 1st floor of the
building at such address), shall be of substantially the same quality as the
existing walls within such office space and shall enable both the IDDD Business
and the Data Business to have reasonable access to all of the utilities and
other services now available to such office space as a whole, and shall
otherwise conform in all material respects to applicable building codes, the
requirements of the landlord and such other requirements as the Parties may
reasonably determine to be appropriate. Prior to the separation of such office
space, RSL and Sprint agree to share such office space in accordance with such
reasonable procedures for sharing such office space as the Parties shall
establish. Upon the expiration of the Provisional Sub-Lease, Sprint shall,
unless otherwise requested in writing by RSL at least thirty (30) days prior to
the expiration of the Provisional Sub-Lease, promptly remove and pay the
reasonable, out-of-pocket costs to remove the wall which was constructed to
separate the office space of the IDDD Business from the office space of Data
Business and to restore the affected area to its condition as of the date
hereof.
Section 3.2. Equipment Space. RSL and Sprint acknowledge that certain
equipment used in connection with both the IDDD Business and the Data Business
is currently housed in space leased to Sprint on the ground floor of the
building located at 000 xxx Xxxxxx Xxxxxxx xx Xxxxxx, Xxxxxxx, Xxxxxx (the
"Equipment Space"). Until the expiration of the Transition Period, Sprint agrees
to give RSL access to the Equipment Space for the purpose of conducting the IDDD
Business, and Sprint and RSL agree to share the Equipment Space during such
period in accordance with such reasonable procedures for sharing the Equipment
Space as the Parties shall establish. As promptly as practical after the date
hereof, Sprint shall remove from the Equipment Space four (4) cabinets located
adjacent to the switches for the IDDD Business.
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Section 3.3 Ascension to Space. (a) The Parties acknowledge and agree that
(i) it is their intention that as soon as practicable following the date hereof,
RSL is to ascend to SIF's leasehold interest in the Office Space and the
Equipment Space in such manner and upon such terms as RSL may agree upon with
the landlord and (ii) RSL desires to occupy all of the space currently leased by
SIF at 000 xxx Xxxxxx Xxxxxxx xx Xxxxxx, Xxxxxxx, Xxxxxx for the purpose of
operating the IDDD Business no later than the end of the Transition Period.
Sprint hereby agrees to cooperate with RSL and the landlord and use all
commercially reasonable efforts to effect the foregoing. In recognition of the
foregoing, Sprint covenants and agrees not to offer any direct or indirect
interest in the Office Space or the Equipment Space to the buyer or any
potential buyer of the Data Business.
(b) The Parties acknowledge and agree that if prior to the end of the
Transition Period RSL enters into an agreement with the landlord to lease from
it directly all of the space at 000 xxx Xxxxxx Xxxxxxx xx Xxxxxx, Xxxxxxx,
Xxxxxx currently leased by SIF, (i) the Provisional Sub-Lease and the provisions
of Sections 3.1 and 3.2 hereof shall terminate and be of no further force and
effect and (ii) the Parties shall make such arrangements and enter into such
documentation as is necessary to provide Sprint and any buyer of the Data
Business use of and access to the Office Space and the Equipment Space for the
remainder of the Transition Period for the purpose of operating the Data
Business, such access and usage to be on the same basis that RSL is afforded the
same hereunder and under the Provisional Sub-Lease.
(c) In the event that RSL is unable to secure from the landlord a direct
leasehold interest in the Office Space and the Equipment Space on commercially
reasonable terms, Sprint agrees to negotiate in good faith with RSL and the
landlord to make commercially reasonable alternate arrangements which will allow
RSL to continue to occupy and use the Office Space and the Equipment Space on
the same basis as contemplated under Section 3.3(a), including by means of an
extension of the Provisional Sub-Lease beyond the Transition Period.
(d) At the time that the Data Business is sold, Sprint shall execute such
instruments and other documents as are reasonably necessary to vest in RSL all
of Sprint's right, title and interest in and to all leasehold improvements and
other similar assets attendant to the Office Space and the Equipment Space and,
at the time that the Data Business vacates the Office Space and the Equipment
Space, Sprint shall cause such assets to remain undisturbed at such location.
Section 3.4. Prorations. Sprint and RSL shall prorate the expenses set
forth in Exhibit B hereto in an equitable and reasonable manner that reflects
each Party's proportionate use of the goods and services that give rise to such
expenses.
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ARTICLE IV
SHARED EQUIPMENT
Section 4.1. Shared Equipment. RSL and Sprint acknowledge that the
equipment listed on Exhibit C hereto (the "Shared Equipment") is currently used
in connection with both the IDDD Business and the Data Business and has not been
transferred to RSL under the terms of the Purchase Agreement. Until the
expiration of the Transition Period, Sprint agrees to give RSL access to the
Shared Equipment for the purpose of conducting the IDDD Business, and Sprint and
RSL agree to share the Shared Equipment during such period in accordance with
such reasonable procedures for sharing the Shared Equipment as the Parties shall
establish. At the expiration of the Transition Period, Sprint shall have the
option (i) to remove all or any items of the Shared Equipment from the premises
at its cost and to replace at its cost any such removed Shared Equipment with
other equipment which shall have the same purpose and function in the IDDD
Business and shall be of substantially the same quality as the Shared Equipment
removed by Sprint and shall meet such other specifications as RSL and Sprint
shall reasonably agree upon on or before the date of sale of the Data Business,
and/or (ii) to transfer to RSL all right, title and interest of Sprint in all or
any items of the Shared Equipment which is on the premises and has not been
removed by Sprint and all items of replacement equipment, provided that at the
end of the Transition Period, RSL shall be vested with good and valid title,
free and clear of all liens, charges and other encumbrances, in and to the
Shared Equipment or replacement equipment, which together with any Shared
Equipment transferred to RSL, is substantially equivalent in function, purpose
and quality to the Shared Equipment. Sprint shall exercise such option in
writing not later than the date of sale of the Data Business. Any removal and
replacement of Shared Equipment shall be completed by Sprint prior to the
expiration of the Transition Period and shall be completed in such a manner that
RSL will be able to provide IDDD services to its customers without interruption.
ARTICLE V
CONFIDENTIALITY
Section 5.1. Confidentiality. Except as otherwise provided herein, Sprint
and RSL each agree that all information communicated to it by the other, whether
before or after the date hereof in connection with the matters provided herein
(the "Confidential Information"), shall be and was received in strict confidence
and shall be used only for purposes of this Agreement, and that no such
Confidential Information, including without limitation, the provisions of this
Agreement, shall be disclosed by the recipient Party, its agents, contractors or
employees without the prior written consent of the other Party, which consent
shall not be unreasonably withheld or delayed, except as may be necessary by
reason of legal, accounting or regulatory requirements beyond the reasonable
control of the recipient Party and except for such disclosures by the Parties as
may be necessary in order for any Party to perform its obligations hereunder.
Either Party may disclose Confidential Information to its agents, contractors,
financing sources,
5
investors or employees who have a need to know such information, but in such
circumstances the disclosing Party shall be completely liable for the acts of
its agents, contractors, financing sources, investors and employees and, prior
to giving any such agent, contractor, financing source, investor or employee
access to Confidential Information, the recipient Party shall advise such agent,
contractor, financing source, investor or employee of its obligation to preserve
the confidentiality of the Confidential Information. Notwithstanding the
foregoing, the restrictions and obligations of this Section 5.1 shall not apply
to any information which the recipient Party can establish to have (i) become
publicly available without breach of this Agreement, (ii) been independently
developed by the recipient Party outside the scope of this Agreement without
reference to Confidential Information received hereunder, or (iii) been
rightfully obtained by the recipient Party from third parties which are not
obligated to protect its confidentiality. The provisions of this Section 5.1
shall survive the expiration or termination of this Agreement for any reason.
ARTICLE VI
TERM AND TERMINATION
Section 6.1. Term of Agreement. This Agreement shall commence on the date
hereof and terminate (i) on December 31, 1996, (ii) upon a termination of this
Agreement pursuant to Section 6.2, 6.3 or 9.12, or (iii) upon the written
agreement of the Parties.
Section 6.2. Termination of Cause. In the event that any Party hereto
materially breaches any of its duties or obligations hereunder or is the
breaching Party under the Purchase Agreement, any Purchaser Ancillary Document
or Seller Ancillary Document (as each such term is defined in the Purchase
Agreement) or any other instrument or agreement executed and delivered by it in
connection with the transactions contemplated by the Purchase Agreement, as
applicable, which breach shall not be substantially cured within ten (10) days
after written notice is given to the breaching party specifying the breach, then
(a) Sprint, in the event that RSL is the breaching party, or (b) RSL, in the
event that Sprint, Sprint Communications Company L.P. or Global One
Communications (as defined in the Purchase Agreement) (each a "Sprint Party") is
the breaching party, may, by giving written notice thereof to the other,
terminate this Agreement as of a date specified in such notice of termination,
which date shall be not earlier than ten (10) days after the date of such
notice.
Section 6.3. Termination for Bankruptcy. In the event that either RSL or a
Sprint Party (a) is unable to pay its debts generally as they become due or is
declared bankrupt or insolvent, (b) is the subject of any proceedings relating
to its liquidation, insolvency or for the appointment of a receiver or similar
officer for it which results in the entry of an order for relief or such
adjudication or appointment is not dismissed, discharged or bonded within a
reasonable period of time thereafter, (c) makes an assignment for the benefit of
all or substantially all of its creditors, or (d) enters into an agreement for
the composition, extension or readjustment of all or
6
substantially all of its obligations, then (i) Sprint, in the case of any such
event affecting RSL, and (ii) RSL, in the case of any such event affecting a
Sprint Party, may, by giving written notice thereof to the other, terminate this
Agreement as of a date specified in the notice of termination, which date shall
be no earlier than ten (10) days after the date of such notice.
Section 6.4. Effect of Termination. Except as otherwise provided herein, in
the event of termination of this Agreement, all rights and obligations of the
Parties hereunder shall terminate as of the effective date of such termination,
except that (i) such termination shall not constitute a waiver of any rights
that a Party may have by reason of a breach of this Agreement and (ii) the
provisions of Articles V and VIII and this Section 6.4 shall continue in full
force and effect.
ARTICLE VII
DISCLAIMER
Section 7.1. DISCLAIMER. EXCEPT AS OTHERWISE PROVIDED IN THE PURCHASE
AGREEMENT OR THE LETTER AGREEMENT, DATED AS OF EVEN DATE HEREOF, AMONG THE
PARTIES, SPRINT MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
CONCERNING THE SERVICES OR FACILITIES PROVIDED HEREUNDER, INCLUDING ANY IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OTHERWISE.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Indemnification Obligations of Sprint. From and after the date
hereof, Sprint shall indemnify and hold harmless RSL and its subsidiaries and
affiliates, each of their respective officers, directors, employees, agents and
representatives and each of the heirs, executors, successors and assigns of any
of the foregoing (collectively, the "RSL Indemnified Parties") from, against and
in respect of any and all claims, liabilities, obligations, losses, costs,
expenses, penalties, fines and other judgments (at equity or at law) and damages
whenever arising or incurred (including, without limitation, amounts paid in
settlement, costs of investigation and reasonable attorneys' fees and expenses)
arising out of or relating to:
(a) Any breach of any covenant, agreement or undertaking made by Sprint in
this Agreement or in the performance of its obligations hereunder; or
7
(b) Any fraud, willful misconduct, bad faith or any intentional breach of
any representation, warranty, covenant, agreement or undertaking made by Sprint
in this Agreement or in the performance of its obligations hereunder.
The claims, liabilities, obligations, losses, costs, expenses, penalties, fines
and damages of the RSL Indemnified Parties described in this Section 8.1 as to
which the RSL Indemnified Parties are entitled to indemnification are
hereinafter collectively referred to as "RSL Losses."
Section 8.2. Indemnification Obligations of Purchaser. From and after the
date hereof, RSL shall indemnify and hold harmless Sprint and its subsidiaries
and affiliates, each of their respective officers, directors, employees, agents
and representatives and each of the heirs, executors, successors and assigns of
any of the foregoing (collectively, the "Sprint Indemnified Parties") from,
against and in respect of any and all claims, liabilities, obligations, losses,
costs, expenses, penalties, fines and other judgments (at equity or at law) and
damages whenever arising or incurred (including, without limitation, amounts
paid in settlement, costs of investigation and reasonable attorneys' fees and
expenses) arising out of or relating to:
(a) Any breach of any covenant, agreement or undertaking made by RSL in
this Agreement or in the performance of its obligations hereunder; or
(b) Any fraud, willful misconduct, bad faith or any intentional breach of
any covenant, agreement or undertaking made by RSL in this Agreement or in the
performance of its obligations hereunder.
The claims, liabilities obligations, losses, costs, expenses, penalties, fines
and damages of the Sprint Indemnified Parties described in this Section 8.2 as
to which the Sprint Indemnified Parties are entitled to indemnification are
hereinafter collectively referred to as "Sprint Losses."
Section 8.3. Indemnification Procedure.
(a) Promptly after receipt by an RSL Indemnified Party or a Sprint
Indemnified Party (hereinafter collectively referred to as an "Indemnified
Party") of notice by a third party of any complaint or the commencement of any
action or proceeding with respect to which indemnification is being or may be
sought hereunder, such Indemnified Party shall notify RSL or Sprint, whichever
is the appropriate indemnifying Party hereunder (the "Indemnifying Party"), of
such complaint or of the commencement of such action or proceeding; provided,
however, that the failure to so notify the Indemnifying Party shall not relieve
the Indemnifying Party from liability for such claim arising otherwise than
under this Agreement and such failure to so notify the Indemnifying Party shall
relieve the Indemnifying Party from liability which the Indemnifying Party may
have hereunder with respect to such claim if, but only if, and only to the
extent that, such failure to notify the Indemnifying Party results in the
forfeiture by the Indemnifying Party of rights and defenses otherwise available
to the Indemnifying Party with respect to such claim. The Indemnifying Party
shall have the right, upon written notice to the
8
Indemnified Party, to assume the defense of such action or proceeding, including
the employment of counsel reasonably satisfactory to the Indemnified Party and
the payment of the fees and disbursements of such counsel. In the event,
however, that the Indemnifying Party declines or fails to assume the defense of
the action or proceeding or to employ counsel reasonably satisfactory to the
Indemnified Party, in either case in a timely manner, then such Indemnified
Party may employ counsel to represent or defend it in any such action or
proceeding and the Indemnifying Party shall pay the reasonable fees and
disbursements of such counsel as incurred; provided, however, that the
Indemnifying Party shall not be required to pay the reasonable fees and
disbursements of more than one counsel for all Indemnified Parties in any
jurisdiction in any single action or proceeding. In any action or proceeding
with respect to which indemnification is being sought hereunder, the Indemnified
Party or the Indemnifying Party, whichever is not assuming the defense of such
action, shall have the right to participate in such litigation and to retain its
own counsel at such Party's own expense. The Indemnifying Party or the
Indemnified Party, as the case may be, shall at all times use reasonable efforts
to keep the Indemnifying Party or the Indemnified Party, as the case may be,
reasonably apprised of the status of the defense of any action the defense of
which they are maintaining and to cooperate in good faith with each other with
respect to the defense of any such action.
(b) No Indemnified Party may settle or compromise any claim or consent to
the entry of any judgment with respect to which indemnification is being sought
hereunder without the prior written consent of the Indemnifying Party, unless
such settlement, compromise or consent includes an unconditional release of the
Indemnifying Party from all liability arising out of such claim. An Indemnifying
Party may not, without the prior written consent of the Indemnified Party,
settle or compromise any claim or consent to the entry of any judgment with
respect to which indemnification is being sought hereunder unless such
settlement, compromise or consent includes an unconditional release of the
Indemnified Party from all liability arising out of such claim and does not
contain any equitable order, judgment or term which in any manner affects,
restrains or interferes with the business of the Indemnified Party or any of the
Indemnified Party's respective affiliates.
(c) In the event an Indemnified Party shall claim a right to payment
pursuant to this Agreement, such Indemnified Party shall send written notice of
such claim to the appropriate Indemnifying Party. Such notice shall specify the
basis for such claim. As promptly as possible after the Indemnified Party has
given such notice, such Indemnified Party and the appropriate Indemnifying Party
shall establish the merits and amount of such claim (by mutual agreement,
litigation, arbitration or otherwise) and, within five business days of the
final determination of the merits and amount of such claim, the Indemnifying
Party shall deliver to the Indemnified Party immediately available funds in an
amount equal to such claim as determined hereunder.
Section 8.4. Claims Period. Except as provided in this Section 8.4, no
claim for indemnification under this Agreement may be asserted by an Indemnified
Party after the expiration of the appropriate claims period (the "Claims
Period") which shall commence on the date hereof and shall terminate two (2)
years after the date hereof. No Indemnified Party shall be
9
entitled to make any claim for indemnification hereunder after the appropriate
Claims Period; provided, however, that if prior to the close of business on the
last day of the Claims Period, an Indemnifying Party shall have been properly
notified of a claim for indemnity hereunder and such claim shall not have been
finally resolved or disposed of at such date, the basis of such claim shall
continue to survive with respect to such claim and shall remain a basis for
indemnity hereunder with respect to such claim until such claim is finally
resolved or disposed of in accordance with the terms hereof.
Section 8.5. Maximum Liability. Notwithstanding anything in this Agreement
to the contrary, the maximum aggregate liability of Sprint for RSL Losses and of
RSL for Sprint Losses shall not exceed [*].
Section 8.6. Jurisdiction and Forum.
(a) By the execution and delivery of this Agreement, each Party irrevocably
designates and appoints each of the parties set forth under its name below as
its authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement that may be instituted in any state
or federal court in New York, New York.
Sprint:
Sprint Telecommunications France Inc.
Sprint International France S.A.
c/o Sprint Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxx Xxxx
Xxxxxxxx, Xxxxxx 00000 U.S.A.
Attn.: X. Xxxxxxx Xxxxxx, Esq.
RSL:
RSL Com France S.A.
c/o RSL Communications, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx Xxxxxx
In addition, each Party agrees that service of process upon the
above-designated individuals shall be deemed in every respect effective service
of process upon such Party in any such suit or proceeding. Each Party further
agrees to take any and all action reasonably requested by a Party, including the
execution and filing of any and all such documents and
[*] CONFIDENTIAL PORTIONS OMITTED WHERE INDICATED AND FILED SEPARATELY WITH
THE COMMISSION
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instruments, as may be necessary to continue such designation and appointment of
the above-designated individuals in full force and effect so long as this
Agreement shall be in effect. The foregoing shall not limit the rights of any
Party to serve process in any other matter permitted by law.
(b) To the extent that any Party has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, each Party
hereby irrevocably waives such immunity in respect of its obligations with
respect to this Agreement.
(c) The Parties hereto hereby agree that the appropriate forum and venue
for any disputes between any of the parties hereto arising out of this Agreement
shall be any state or federal court in New York, New York and each of the
Parties hereto hereby submits to the personal jurisdiction of any such court.
The foregoing shall not limit the rights of any Party to obtain execution of
judgment in any other jurisdiction. The Parties further agree, to the extent
permitted by law, that a final and unappealable judgment against any of them in
any action or proceeding contemplated above shall be conclusive and may be
enforced in any other jurisdiction within or outside the United States by suit
on the judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and amount of such judgment.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices. All notices, requests, demands and other
communications to be given or delivered under or by reason of the provisions of
this Agreement shall be given in the manner provided in the Purchase Agreement
and to the addresses provided in Exhibit D hereto.
Section 9.2. Assignment; Subcontracting. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the Parties
hereto and their respective successors and permitted assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any Party hereto without the prior written consent of the other
Party; provided that Sprint may subcontract or assign to any affiliate its
obligations and rights hereunder provided in each case that Sprint shall remain
responsible for assuring that the subcontractor's or assignee's performance
conforms to the requirements hereof.
Section 9.3. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be deemed
restated to reflect the original intention of the Parties as nearly as possible
in accordance with applicable law, and, if capable of substantial performance,
the
11
remaining provisions of this Agreement shall be enforced as if this Agreement
was entered into without the invalid provision.
Section 9.4. Attorneys' Fees. In the event attorneys' fees or other
out-of-pocket costs are incurred to secure performance of any of the obligations
herein provided for, or to establish damages for the breach thereof, or to
obtain any other appropriate relief, whether by way of prosecution or defense,
the prevailing Party shall be entitled to recover reasonable attorneys' fees and
out-of-pocket costs incurred therein.
Section 9.5. Counterparts. This Agreement may be executed in one or more
counterparts all of which taken together will constitute one and the same
instrument.
Section 9.6. Relationship of Parties. Sprint, in furnishing services to RSL
hereunder, is acting only as an independent contractor. Nothing set forth in
this Agreement shall be construed to create the relationship of principal and
agent between Sprint and RSL. Sprint shall have no authority, express or
implied, to enter into contracts on behalf of RSL. Neither Party shall act or
attempt to act to represent itself, directly or by implication, as an agent of
another Party or in any manner assume or create, or attempt to assume or create,
an obligation of or in the name of, the other Party.
Section 9.7. Approvals and Similar Actions. Where agreement, approval,
acceptance, consent or similar action by either Party hereto is required by any
provision of this Agreement, such action shall not be unreasonably delayed or
withheld.
Section 9.8. Modification: Waiver. This Agreement may be modified only by a
written instrument duly executed by or on behalf of each Party hereto. No delay
or omission by either Party hereto to exercise any right or power hereunder
shall impair such right or power or be construed to be a waiver thereof. A
waiver by either of the Parties hereto of any of the obligations to be performed
by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach thereof or of any other obligation herein contained.
Section 9.9. Remedies. Each Party agrees that the remedies provided in
Articles VI and VIII shall constitute the sole and exclusive remedies of a Party
against another Party for monetary damages arising from any breach of any
covenant, agreement or undertaking of such other Party in this Agreement.
Nothing in this Section 9.9 shall prevent a Party hereto from seeking and
obtaining equitable relief, including but not limited to, injunctive relief and
specific performance.
Section 9.10. No Third Party Beneficiaries. The Parties agree that this
Agreement is for the sole benefit of the Parties hereto and is not intended to
confer any rights or benefits on any third party, including any employee of
either Party hereto, and that there are no third party beneficiaries to this
Agreement or any part or specific provision of this Agreement.
12
Section 9.11 Governing Law; Integration; Amendment.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York without
reference to New York's choice of law rules. This Agreement supersedes all
negotiations, agreements and understandings among the Parties or any of
their affiliates and constitutes the entire agreement among the Parties
hereto with respect to the subject matter hereof; provided, however, that
nothing herein shall affect any other written agreements or understandings
entered into by the Parties or any of their affiliates contemporaneously
with the execution and delivery of this Agreement, all of which shall
remain in full force and effect.
(b) This Agreement may be amended by the Parties hereto at any time.
Without limiting the foregoing, this Agreement may not be amended, modified
or supplemented except by written agreement executed by each of the Parties
hereto.
Section 9.12 Force Majeure. If either Party to this Agreement shall be
prevented, hindered or delayed in the performance or observance of any of its
obligations hereunder by reason by any circumstances beyond its reasonable
control, and such delay could not have been prevented by reasonable precautions
and cannot reasonably be circumvented by the Party through the use of alternate
sources, work-around plans, or other means (a "Force Majeure"), then such Party
shall be excused from any other further performance or observance of the
obligations so affected for so long as such circumstances prevail and such Party
continues to use its best efforts to recommence performance or observance
whenever and to whatever extent possible without delay. Any Party so delayed in
its performance shall immediately notify the other and shall describe at a
reasonable level of detail the circumstances causing such delay. Notwithstanding
the foregoing, should a Party be unable to perform any of its obligations
hereunder for a period of more than thirty (30) consecutive days by reason of a
Force Majeure, the other Party, at its option, shall have the right to terminate
this Agreement in whole or solely with respect to the section hereof under which
the non-performing Party has been unable to perform its obligations, in which
case the provision so terminated shall have no further force or effect and this
Agreement shall remain in effect as to all other provisions.
13
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective officers.
SPRINT TELECOMMUNICATIONS FRANCE INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx, Vice President
By: /s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx, Attorney-in-Fact
SPRINT INTERNATIONAL FRANCE S.A.
By: /s/ Xxx X'Xxxxx
-------------------------------
Xxx X'Xxxxx, President
By: /s/ Xxxxxx Xxxxx
-------------------------------
Xxxxxx Xxxxx, Attorney-in-Fact
RSL COM FRANCE S.A.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Xxxxxxx Xxxxxxxx, President
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx, Attorney-in-Fact
14
EXHIBIT A
SPECIFIED FUNCTIONS
Either RSL or Sprint may utilize Shared Employees for the following
functions at the following hourly rates:
Function Hourly Rate (U.S. $)
-------- --------------------
Executive management (country manager) [*]
Finance (country controller) [*]
Customer service [*]
Senior technical operations management (operations manager) [*]
Technical operations support (on-site and field engineering) [*]
Program management [*]
Sales representative [*]
Administrative assistance [*]
Receptionist [*]
[*] CONFIDENTIAL PORTIONS OMITTED WHERE INDICATED AND FILED SEPARATELY WITH
THE COMMISSION
A-1
EXHIBIT B
See the attached list entitled "France Prorations."
France Prorations
EXHIBIT B
Item (000FF) Monthly Fee Sprint RSL
Monthly Fee Monthly Fee
1 Office Lease (1st Floor) [*] [*] [*]
2 Electricity [*] [*] [*]
3 Cleaning [*] [*] [*]
4 Alarm [*] [*] [*]
5 Personal Computer Maintenance [*] [*] [*]
6 France Telecom Telephone Service [*] [*] [*]
7 Flowers [*] [*] [*]
8 Water [*] [*] [*]
Total [*] [*] [*]
Item 1 Sprint and RSL will divide the monthly lease amount in half.*
Item 2 This is an estimation based upon historical data. Sprint and RSL will
equally divide the monthly utility invoice.
Item 3 Sprint and RSL will divide the monthly cleaning fee in half.
Item 4 Sprint and RSL will divide the monthly alarm fee in half.
Item 5 Sprint and RSL will divide the monthly personal computer maintenance fee
in half.
Item 6 Sprint and RSL will pay the monthly fee in half and reconcile the usage
fee based upon personnel extension data.
Item 7 Sprint and RSL will divide the monthly flower fee in half.
Item 8 Sprint and RSL will divide the monthly water fee in half.
* RSL will pay its share of the monthly lease payments pursuant to the terms
of the Provisional Sub-Lease between RSL and SIF.
[*] CONFIDENTIAL PORTIONS OMITTED WHERE INDICATED AND FILED SEPARATELY WITH
THE COMMISSION
5/7/96 Page 1
EXHIBIT C
See the attached list of Shared Equipment.
C-1
France Shared Assets
France Shared Assets:
Item Description Quantity Location Notes:
1 PABX 1 Office
1.a Analog Phones 25 Office
1.b Digital Phones 25 Office
2 Telephone Number: 1 Office
3 3COM, Linkbuilder 12P 1 Office Server
3.a SMC, Hub Tiger 6P 1 Office Server
3.b HP, Sauvegarde 1 Office Server
3.c HP, Vectra 1 Office Server
3.d IBM, PS2 Model 3/286 1 Office Server
4 Distribution Frame 1 Computer Room
5 Power Distribution 1 Computer Room
6 Battery Back-up 1 Computer Room
7 Generator 1 Computer Room
8 Air Conditioning 1 Computer Room
General Definitions:
1 PABX: This piece of equipment is utilized by office personnel for voice
communications.
2 Telephone Number: Main access line for incoming calls.
3 Server: This piece of equipment is utilized to support the local
interconnection of all the personal computers and with the Global network
for accounting, billing and file sharing.
4 Distribution Frame: This piece of equipment is utilized to terminate PTT
connections and cross-connect to voice and data equipment.
5 Power Distribution: This piece of equipment is utilized to dispense the
correct power to the appropriate piece of voice and data equipment.
6 Battery Back-up: This piece of equipment is utilized to filter all power to
voice and data equipment as well as provide continue power if commercial
power is loss until the generator is engaged.
7 Generator: This piece of equipment is utilized to provide emergency power
to the voice and data equipment in case of extended commercial power
outages.
8 Air Conditioning: This piece of equipment is utilized to provide climate
control air to voice and data equipment.
Page 1
France Shared Assets
France Shared Assets:
Current Percent of Utilization of voice versus data:
Voice Data
1 PABX: 30% 70%
2 Telephone Number: 30% 70%
3 Server: 50% 60%
4 Distribution Frame: 5% 95%
5 Power Distribution: 10% 90%
6 Battery Back-up: 4% 96%
7 Generator: 10% 90%
8 Air Conditioning: 25% 75%
Current Net Book Value as of 3/31/96: (000 (US$)
1 PABX: 22.8 Without Telephones
2 Telephone Number: N/A
3 Server: 0.5
4 Distribution Frame: See Note Items 4-7 are combined on Sprint Books at $528
5 Power Distribution: See Note Items 4-7 are combined on Sprint Books at $528
6 Battery Back-up See Note Items 4-7 are combined on Sprint Books at $528
7 Generator: See Note Items 4-7 are combined on Sprint Books at $528
8 Air Conditioning: See Note Items 4-7 are combined on Sprint Books at $528
Page 2
EXHIBIT D
ADDRESSES FOR NOTICES
To RSL:
RSL Com France S.A.
c/o RSL Communications Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxxxx & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
To Sprint:
Sprint Telecommunications France Inc.
Sprint International France S.A.
c/o Sprint Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxx 00000
Telecopy No.: (000) 000-0000
Attn.: X. Xxxxxxx Xxxxxx, Esq.
with a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
U.S.A.
Attn.: Xxxx X. Xxxxxx, Xx., Esq.
Telecopy No.: (000) 000-0000
D-1
or to such other representative or at such other address of a Party as such
Party hereto may furnish to the other Parties in writing.
D-2
