EXHIBIT 4.20
CONFIDENTIAL AND PROPRIETARY
AMENDED AND RESTATED CAPACITY PURCHASE AGREEMENT
BY AND BETWEEN
360NETWORKS SERVICES LTD.
AND
WFI URBANLINK LTD.
DATED: September 29, 2000
TABLE OF CONTENTS
PAGE
ARTICLE 1 EXHIBITS; DEFINITIONS.................................................................................1
ARTICLE 2 IRU...................................................................................................3
ARTICLE 3 PAYMENT...............................................................................................4
ARTICLE 4 ACCEPTANCE TESTING AND DELIVERY.......................................................................5
ARTICLE 5 TERM..................................................................................................5
ARTICLE 6 INTERCONNECTION.......................................................................................6
ARTICLE 7 MAINTENANCE AND REPAIR................................................................................6
ARTICLE 8 USE OF THE CAPACITY...................................................................................7
ARTICLE 9 INDEMNIFICATION.......................................................................................7
ARTICLE 10 LIMITATION OF LIABILITY..............................................................................8
ARTICLE 11 INSURANCE............................................................................................9
ARTICLE 12 NOTICES.............................................................................................10
ARTICLE 13 CONFIDENTIALITY.....................................................................................11
ARTICLE 14 DEFAULT.............................................................................................12
ARTICLE 15 TERMINATION.........................................................................................12
ARTICLE 16 FORCE MAJEURE EVENTS................................................................................13
ARTICLE 17 DISPUTE RESOLUTION..................................................................................13
ARTICLE 18 ASSIGNMENT AND TRANSFER RESTRICTIONS................................................................14
ARTICLE 19 REPRESENTATIONS AND DISCLAIMER OF WARRANTIES........................................................15
ARTICLE 20 GENERAL.............................................................................................16
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AMENDED AND RESTATED CAPACITY PURCHASE AGREEMENT
THIS AMENDED AND RESTATED CAPACITY PURCHASE AGREEMENT (this "Agreement") is made
and entered into as of the 29th day of September 2000 (the "Effective Date"), by
and between 360networks services ltd., an Alberta corporation ("Customer"), and
WFI Urbanlink Ltd., an Alberta corporation ("Urbanlink").
RECITALS
A. Urbanlink, either directly or indirectly, is the holder of rights in, has
constructed or is constructing a fiber optic communications network, including
optronics and other facilities (the "Urbanlink System"), which connects the city
pairs identified in Exhibit A (the "Endpoints").
B. Customer and Urbanlink entered into a Capacity Purchase Agreement (the
"Capacity Purchase Agreement") to record their respective rights and obligations
relating to the provision by Urbanlink to Customer of certain telecommunications
capacity in the Urbanlink System.
C. Customer and Urbanlink wish to amend and restate the Capacity Purchase
Agreement in its entirety by executing this Agreement.
Accordingly, in consideration of the mutual promises set forth in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
EXHIBITS; DEFINITIONS
1.1 Exhibits. The following exhibits are attached hereto, incorporated
herein and made a part of this Agreement by this reference:
Exhibit A: Endpoints
Exhibit B: Service Level Agreement
1.2 Definitions. As used in this Agreement, the capitalized terms listed in
this Section 1.2 and derivatives thereof shall have the meanings
respectively ascribed to them in this Section 1.2.
(a) "Acceptance Date" shall have the meaning set forth in Section
4.2.
(b) "Affiliate" shall have the meaning ascribed to it in the
CANADA BUSINESS CORPORATION ACT, as amended.
(c) "Agreement" shall have the meaning set forth in the
introductory paragraph.
(d) "Capacity" means a linear dedicated telecommunications path
with a bandwidth level of such capacity as may be ordered from
time to time by the Customer under Section 2.1, between the
Endpoints described in such notice, which bandwidth shall be
derived from a specific wavelength and specific fibers, or
such greater capacity as may result from the replacement or
upgrading of telecommunications equipment.
(e) "Completion Notice" shall have the meaning set forth in
Section 4.1.
(f) "Confidential Information" shall have the meaning set forth in
Section 13.1.
(g) "Costs" means actual, direct costs paid or payable in
accordance with the established accounting procedures
generally used by Urbanlink and which Urbanlink utilizes in
billing third parties for reimbursable projects, including
without limitation the following: (i) internal labor costs,
including wages, salaries and benefits, and overhead allocable
to such labor costs equal to 15%, and (ii) other direct costs
and out-of-pocket expenses on a pass-through basis (e.g.,
equipment, materials, supplies, contract services, etc.).
(h) "Delivery Date" shall have the meaning set forth in Exhibit B.
(i) "Dollars" or "$"means U.S. Dollars.
(j) "Effective Date" shall have the meaning set forth in the
introductory paragraph to this Agreement.
(k) "Endpoints" shall have the meaning set forth in Recital A.
(l) "Force Majeure Events" shall have the meaning set forth in
Article 16.
(m) "Impositions" means all taxes, good and services taxes, sales
taxes, fees, levies, imposts, duties, charges or withholdings
of any nature (including, without limitation, ad valorem, real
property, gross receipts, franchise, license and permit fees),
together with any penalties, fines or interest thereon arising
out of the transactions contemplated by this Agreement by any
federal, provincial, state or local government or other public
taxing authority.
(n) "Interest Rate" means the lower of (i) the highest rate
permitted by law, or (ii) one and one-half percent (1.5%) per
month (equivalent to 19.56% per annum).
(o) "IRU" shall have the meaning set forth in Section 2.2.
(p) "IRU Effective Date" shall have the meaning set forth in
Section 5.1. (q) "O&M Fees" shall have the meaning set forth
at Section 7.2.
(r) "Party" means each of Urbanlink and Customer and "Parties"
shall mean Urbanlink and Customer.
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(s) "Permitted Assignee" shall have the meaning set forth in
Section 18.2.
(t) "Person" means any individual, corporation, partnership,
limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or
any other entity.
(u) "Purchase Price" shall have the meaning set forth at Section
3.1.
(v) "Service Level Agreement" shall have the meaning set forth at
Section 4.1.
(w) "Term" shall have the meaning set forth at Section 5.1.
(x) "Urbanlink Account" means the following bank account of
Urbanlink, which may be modified or changed by Urbanlink in
writing from time to time:
Account Name:
Account Number:
Bank Name:
Reference:
(y) "Underlying Rights" means, with respect to particular end
points, all licenses, leases, easements, rights-of-way, deeds,
franchises, permits, authorizations, consents and approvals
(including without limitation, any necessary local, provincial
federal or First Nations authorizations and environmental
permits) and other rights, titles, or interests as are
necessary for the construction, installation, operation,
maintenance or repair of the Urbanlink System between such end
points.
(z) "Urbanlink System" shall have the meaning set forth in Recital
A.
ARTICLE 2
IRU
2.1 From time to time, by notice in writing from Services to Urbanlink,
Services may order Capacity on the System in such units of capacity and
between such Endpoints as Services may determine, acting reasonably.
The notice shall specify the IRU Effective Date for such Capacity that
is desired by Services, and Urbanlink shall use commercially reasonable
efforts to provision the System to provide the Capacity by the
requested date. For greater clarity and the avoidance of doubt,
Services is not permitted to order Capacity that would, together with
other Capacity provided by Urbanlink to Services, exceed the capacity
that could reasonably be provided on the System at the time of the
order or with telecommunications equipment that would be available
prior to the requested IRU Effective Date.
2.2 For each order of Capacity under Section 2.1, as of the IRU Effective
Date, Urbanlink shall deliver and provide to Customer and Customer
shall receive from Urbanlink an
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exclusive and indefeasible right of use of the Capacity on the terms
and conditions set forth in the Agreement (the "IRU").
2.3 Urbanlink represents and warrants that it possesses those certain
rights to the Capacity necessary for Urbanlink to deliver the Capacity
to Customer. Urbanlink shall keep the Capacity free from all claims,
liens, encumbrances, rights or claims of any third party attributable
to Urbanlink which have a material adverse effect on the right of
Customer to use the Capacity as contemplated by this Agreement.
ARTICLE 3
PAYMENT
3.1 In consideration of the grant of the IRU hereunder by Urbanlink to
Customer, for each order of Capacity Customer agrees to pay to
Urbanlink on the applicable Acceptance Date a fee in an amount (the
"Specified Amount") as agreed between the Customer and Urbanlink per
capacity per route kilometer multiplied by the number of capacity route
kilometers (the "Purchase Price").
3.2 All payments made by Customer hereunder in excess of $100,000 shall be
made by wire transfer of immediately available funds to the Urbanlink
Account. Payments of all other amounts by Customer hereunder may be
made by wire transfer or by company check of immediately available
funds payable to Urbanlink.
3.3 If Customer fails to make any payment under this Agreement when due,
then, in addition to such sum and to any other rights and remedies that
Urbanlink may have, Customer shall pay interest on such unpaid amount
at the Interest Rate until such sum is paid in full and such interest
shall accrue both before and after judgment. Notwithstanding the
foregoing, no interest shall accrue on any payment that is disputed in
good faith by Customer while such dispute is pending. If such dispute
is later resolved in favor of Urbanlink, such amount shall bear
interest at the Interest Rate from the date when due until paid.
3.4 In addition to the amounts payable under Section 3.1, Customer shall be
responsible to pay directly or reimburse Urbanlink, as requested by
Urbanlink, for all other sums, costs, fees and expenses that are
required to be paid under this Agreement. Urbanlink will invoice
Customer for all sums, costs, fees and expenses, owed by Customer to
Urbanlink, and Customer shall pay such invoices within 30 days of the
invoice date, except for the Purchase Price which shall be paid in
accordance with Section 3.1.
3.5 All payments made by Customer under this Agreement shall be made
without any deduction or withholding for or on account of any
Imposition. If Customer is required by law to make any deduction or
withholding from any payment due Urbanlink, then, notwithstanding
anything to the contrary contained in this Agreement, the gross amount
payable by Customer to Urbanlink shall be increased so that after any
such deduction or withholding for such Impositions or any additional
deduction or withholding on account of any Imposition caused by such
additional gross-up payment, the net amount received
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by Urbanlink will not be less than what Urbanlink would have received
had no deduction or withholding been required.
ARTICLE 4
ACCEPTANCE TESTING AND DELIVERY
4.1 When Urbanlink has determined that the Capacity is operating
substantially in conformity with the applicable service levels set
forth in Exhibit B (the "Service Level Agreement"), Urbanlink shall
promptly provide Customer written notice of the same (a "Completion
Notice"). Each Completion Notice shall set forth the date upon which
Urbanlink will commence delivery of the Capacity to Customer provided
that all payments due under this Agreement have been paid in full.
4.2 Within ten (10) days of receipt of a Completion Notice, Customer shall
provide Urbanlink a written notice accepting or rejecting the Capacity,
specifying in reasonable detail, if rejected, the defect or failure in
the Capacity. If Customer fails to notify Urbanlink of its acceptance
or rejection of the Completion Notice within ten (10) days following
Customer's receipt of the same, Customer shall be deemed to have
accepted such Capacity. Any use of Capacity by Customer other than for
testing purposes shall be deemed to constitute acceptance of the
Capacity. The date of such notice of acceptance or deemed acceptance of
the Capacity shall be the "Acceptance Date". In the event of any
good-faith rejection by Customer, Urbanlink shall take such action as
reasonably necessary, and as expeditiously as practicable, to correct
or cure such defect or failure. Customer shall in no event be entitled
to commence use of the Capacity until after Urbanlink has received
payment in full.
4.3 Provided Urbanlink first obtains Customer's written consent, which
consent may not be unreasonably withheld or delayed, Urbanlink may
substitute, change or reconfigure the telecommunications equipment and
facilities used in providing the Capacity as long as the quality and
type of Capacity is not impaired or changed. In such event, the Parties
shall work together in good faith to minimize any disruption of service
in connection with such substitution, change or reconfiguration.
ARTICLE 5
TERM
5.1 The IRU shall become effective on the first day when both the
Acceptance Date has occurred, and Urbanlink has received payment in
full of the Purchase Price (the "IRU Effective Date") and the IRU shall
extend until the expiry of the Underlying Rights in respect of that
part of the Urbanlink System that contains the specific fibres on which
the Capacity is being provided by Urbanlink under the terms of this
Agreement (the "Term"); provided that if the Underlying Rights for the
routes described on Exhibit A expire on different dates, the Term shall
expire on the expiry on the last of such Underlying Rights to expire;
and provided further that if the Underlying Rights expire for some
routes described on Exhibit "A" prior to the expiry of the Term, the
IRU shall then expire and terminate for such route and the rights of
the Customer to use the Capacity in respect of such route shall cease.
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5.2 At the expiration or other termination of this Agreement, the IRU shall
immediately terminate, and all rights of Customer to use the Capacity
shall cease. The expiration or termination of this Agreement shall not
relieve Customer from any liabilities arising prior to such
termination.
5.3 If at any time Customer, in its absolute discretion, determines not to
retain the IRU, Customer shall have the right to abandon the IRU by
written notice to Urbanlink. In the case of such abandonment, this
Agreement shall terminate and Customer shall not be entitled to a
refund of any of the consideration paid. Upon such termination, all
fees, costs and other expenses with respect to this Agreement shall be
immediately due and payable to Urbanlink by Customer.
ARTICLE 6
INTERCONNECTION
6.1 To the extent technically feasible, as determined by Urbanlink and the
Customer acting reasonably and in good faith, Urbanlink shall permit
Customer to interconnect its communications system with the Capacity
within Urbanlink's facilities or structures at the Endpoints or at such
other location as may be agreed from time to time, acting reasonably.
Urbanlink shall perform all work with respect to such interconnection
as it relates to the Urbanlink System or any other facilities,
equipment or structures of Urbanlink or its Affiliates. Customer shall
pay Urbanlink for its Costs to perform such work plus a management fee
equal to fifteen percent (15%) of such Costs within thirty (30) days of
receiving an invoice therefor. Nothing contained in this Agreement
shall obligate Customer to obtain or facilitate the provisioning of
local access with respect to the Capacity.
ARTICLE 7
MAINTENANCE AND REPAIR
7.1 From and after the IRU Effective Date, Urbanlink shall maintain the
Capacity in good working order and in accordance with industry
standards.
7.2 In consideration of the maintenance services, Customer shall pay
Urbanlink the operations and maintenance fees (the "O&M Fees") with
respect to the city pairs listed below (subject to adjustment as
provided in Section 7.3) equal to a monthly amount determined by the
Customer and Urbanlink, acting reasonably, each year as being a
reasonable allocation of the costs of Urbanlink to operate, repair and
maintain the Urbanlink System.
7.3 The O&M Fee shall be increased annually, beginning with the first
anniversary of the Effective Date, by the increase, if any, in the
Consumer Price Index - Canada - All Items ("CPI") published by
Statistics Canada for the twelve (12) month period ending three months
prior to such anniversary of the effective date. In the event that
Statistics Canada no longer publishes the CPI, Customer and Urbanlink
shall together, acting reasonably and in good faith, designate the
statistical index they consider most appropriate for
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adjustments to a fee and, from the date the CPI ceased to be published,
such index shall be used to make adjustments in a fee under this
provision.
7.4 Customer shall have no right to physically access in any manner the
Urbanlink System or any components thereof.
ARTICLE 8
USE OF THE CAPACITY
8.1 Customer represents, warrants and covenants that it will use the
Capacity in compliance with and subject to all applicable government
codes, ordinances, laws, rules and regulations and will require its
customers that purchase telecommunication services, circuits or
capacity from the Customer or its Affiliates do the same. Customer
shall not use its systems in a way that interferes in any way with or
adversely affects the use of the Urbanlink System or any other Person
using the Urbanlink System or Capacity thereon. The parties acknowledge
that the Urbanlink System includes or will include other customers and
participants, including without limitation, other owners and users of
telecommunication systems.
8.2 Notwithstanding anything to the contrary contained herein, Customer
shall secure, prior to the IRU Effective Date, and maintain in full
force and effect during the Term, any and all necessary consents,
franchises or similar approvals from all governmental and other
authorities which are necessary or required to be obtained by Customer
for Urbanlink to grant the IRU to Customer and for the use and
operation of the Capacity by Customer.
8.3 Subject to Article 18, Urbanlink shall have no right to sell, lease,
transfer or use the Capacity or any portion thereof.
8.4 Customer and Urbanlink each agree to cooperate with and support the
other in complying with any requirements applicable to their respective
rights and obligations hereunder. Customer and Urbanlink shall promptly
notify each other of any matters pertaining to, or the occurrence (or
impending occurrence) of, any event which would be reasonably likely to
give rise to any damage or impending damage to or loss of the Urbanlink
System or Capacity that are known to such Party.
ARTICLE 9
INDEMNIFICATION
9.1 Subject to the provisions of Articles 10 and 19, Urbanlink hereby
agrees to indemnify, defend, protect and hold harmless Customer, its
Affiliates and their employees, officers and directors, from and
against, and assumes liability for:
(a) All suits, actions, damages or claims of any character (i)
brought against Customer or its Affiliates because of any
injuries or damage received or sustained by any persons or
property which in whole or in part arise on account of the
acts or negligent omissions of Urbanlink in the performance of
construction or maintenance of the Urbanlink System or the
provision of the Capacity or the performance of its
obligations under this Agreement; and (ii) brought against
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Customer or its Affiliates under the workers compensation
laws, except to the extent caused by the negligence or wilful
misconduct of the parties indemnified hereunder.
9.2 Subject to the provisions of Article 10, Customer hereby agrees to
indemnify, defend, protect and hold harmless Urbanlink, and its
employees, officers and directors, from and against, and assumes
liability for:
(a) All suits, actions, damages or claims of any character (i)
brought against Urbanlink or its Affiliates because of any
injuries or damage received or sustained by any persons or
property which in whole or in part arise on account of the
acts or negligent omissions of Customer in the performance of
its obligations under this Agreement; (ii) brought against
Urbanlink or its Affiliates under workers compensation laws,
except to the extent caused by the negligence or wilful
misconduct of the parties indemnified hereunder; and (iii)
brought against Urbanlink or its Affiliates because of any
damage arising out of or resulting from Customer's use of the
Capacity and conduct of its business, including the content of
any video, voice or data carried by Customer or its customers
through or using the Capacity.
9.3 Nothing contained herein shall operate as a limitation on the right of
either Party hereto to bring an action for damages against any third
party, including indirect, special or consequential damages, based on
any acts or negligent omissions of such third party as such acts or
omissions may affect the construction, operation or use of the Capacity
or the Urbanlink System; provided, however, that each Party hereto
shall assign such rights or claims, execute such documents and do
whatever else may be reasonably necessary to enable the other Party to
pursue any such action against such third party.
ARTICLE 10
LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT
TO THE EXTENT CAUSED BY ITS WILFUL MISCONDUCT, NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT,
PUNITIVE OR CONSEQUENTIAL COSTS, LIABILITIES OR DAMAGES, WHETHER
FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH, SUCH PARTY'S
PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE
RELATED TO THIS AGREEMENT.
10.2 Notwithstanding anything contained in this Agreement to the contrary,
the Parties acknowledge and agree that on and after the Acceptance
Date, Customer's sole rights and remedies with respect to any defect in
or failure of the Capacity to perform in accordance with the Service
Level Agreement shall be limited to the remedies set forth in the
Service Level Agreement.
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10.3 The Parties expressly agree that no claim for losses or damages
whatsoever in connection with this Agreement shall be made more than
two years after the date that the event giving rise to such claim is
known or reasonably should have been known to the Party making such
claim.
ARTICLE 11
INSURANCE
11.1 Throughout the term of the IRU, each Party shall procure and maintain
in force, at its own expense:
(a) General Liability insurance with a minimum limit of
$5,000,000, including coverage for contractual liability,
non-owned auto liability, Owner's & Contractor's protective
liability and products and completed operations liability.
Such policy shall be written on an occurrence basis and shall
contain a cross liability or severability of interest clause;
(b) Workers' Compensation insurance covering all employees engaged
in the work in accordance with the statutory requirements of
the county, state, province or territory or other governmental
body having jurisdiction over such employees.
(c) Employers' Liability insurance with a minimum limit of
$5,000,000, covering all employees engaged in the work;
(d) Automobile liability insurance with a minimum limit of
$5,000,000, covering all motor vehicles owned, operated and/or
licensed (including owned, leased, or hired units);
(e) "All Risks" Property insurance on a replacement cost basis,
for damage to the system and associated property, with
deductibles and limits in such amounts as would from time to
time be carried by a prudent owner considering the property
insured; and
(f) any other insurance coverages specifically required of such
Party pursuant to right-of-way agreements with railroads or
other third parties.
(g) Both parties shall require any contractors engaged in
construction or maintenance of the system to maintain
insurance in accordance with the provisions of this Article
11.1.
11.2 Both parties expressly acknowledge that a Party shall be deemed to be
in compliance with the provisions of this Article if it maintains a
self-insurance program providing for a retention of up to $1,000,000.
Unless otherwise agreed, Customer's and Urbanlink's insurance policies
shall be obtained and maintained with companies rated "A" or better by
BEST'S KEY RATING GUIDE and each Party shall provide the other with an
insurance certificate confirming compliance with this requirement for
each policy providing such required coverage.
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11.3 If either Party fails to obtain the required insurance or fails to
obtain the required certificates from any contractor and a claim is
made or suffered, such Party shall indemnify and hold harmless the
other Party from any and all claims for which the required insurance
would have provided coverage. Further, in the event of any such failure
which continues after seven (7) days' written notice thereof by the
other Party, such other Party may, but shall not be obligated to,
obtain such insurance and will have the right to be reimbursed for the
cost of such insurance by the Party failing to obtain such insurance.
11.4 In the event coverage is denied or reimbursement of a properly
presented claim is disputed by the carrier for insurance provided
above, the Party carrying such coverage shall make good-faith efforts
to pursue such claim with its carrier.
11.5 Each party shall upon request from the other provide evidence of the
insurances which it is obligated to maintain under clause 11.1. All
insurance policies shall contain a provision that coverage cannot be
cancelled or materially reduced until the insurer has provided at least
30 days written notice to the non-insuring party.
11.6 Each party shall require all policies related to this contract be
amended to include the other party as an additional named insured and
shall require insurers to amend all such policies to include a waiver
of subrogation in favor of the other party.
ARTICLE 12
NOTICES
12.1 All notices and other communications required or permitted under this
Agreement shall be in writing and shall be given by hand delivery
(including by means of a professional messenger service or overnight
mail) addressed as follows:
If to Customer:
360networks services ltd.
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxxxxxxx XxXxxxxxx
If to Urbanlink:
WFI Urbanlink Ltd.
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxx Xxxxxxx
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Any such notice or other communication shall be deemed to be effective
when actually received or refused. Either Party may by similar notice
given change the address to which future notices or other
communications shall be sent.
ARTICLE 13
CONFIDENTIALITY
13.1 This Agreement and all materials, maps, and other documents which are
marked confidential and disclosed by one Party to the other in
fulfilling the provisions and intent of this Agreement, are and shall
be confidential (the "Confidential Information"). Neither Party shall
divulge or otherwise disclose the Confidential Information to any third
party without the prior written consent of the other Party, except that
either Party may make disclosure to those required for the
implementation or performance of this Agreement, auditors, attorneys,
financial advisors, lenders and prospective lenders, funding partners
and prospective funding partners, provided that in each case the
permitted recipient agrees in writing to be bound by the
confidentiality provisions set forth in this section. In addition,
either Party may make disclosure as required by a court order or as
otherwise required by law or in any legal or arbitration proceeding
relating to this Agreement. If either Party is required by law or by
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process to disclose the Confidential
Information, it will provide the other Party with prompt prior written
notice of such request or requirement so that such Party may seek an
appropriate protective order and/or waive compliance with this Section.
The Party whose consent to disclose information is requested shall
respond to such request, in writing, within five (5) working days of
the request by either authorizing the disclosure or advising of its
election to seek a protective order, or if such Party fails to respond
within the prescribed period the disclosure shall be deemed approved.
13.2 Nothing herein shall be construed as granting any right or license
under any copyrights, inventions, or patents now or hereafter owned or
controlled by Urbanlink.
13.3 Upon termination of this Agreement for any reason or upon request of
Urbanlink, Customer shall return all Confidential Information, together
with any copies of same, to Customer. The requirements of
confidentiality set forth herein shall survive the return of such
Confidential Information.
13.4 Customer shall not, without first obtaining the written consent of
Urbanlink, use any trademark or trade name of Urbanlink or refer to the
subject matter of this Agreement or Urbanlink in any promotional
activity or otherwise, nor disclose to others any specific information
about the subject matter of this Agreement. Neither Party shall issue
any publication or press release relating directly or indirectly to
this Agreement without the prior written consent of both Parties.
13.5 The provisions of this Article shall survive expiration or other
termination of this Agreement.
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ARTICLE 14
DEFAULT
14.1 A default shall be deemed to have occurred under this Agreement if:
(a) in the case of a failure to pay any amount when due under this
Agreement, a Party fails to pay such amount within ten (10)
days after notice specifying such breach, or
(b) in the case of any other material breach of this Agreement, a
Party fails to cure such material breach within thirty (30)
days after notice specifying such breach, provided that if the
breach is of a nature that cannot be cured within thirty (30)
days, a default shall not have occurred so long as the
breaching Party has commenced to cure within said time period
and thereafter diligently pursues such cure to completion.
(c) either of the following occur (i) a Party makes a general
assignment for the benefit of its creditors, files a voluntary
petition in bankruptcy or any petition or answer seeking,
consenting to, or acquiescing in reorganization, arrangement,
adjustment, composition, liquidation, dissolution or similar
relief; or (ii) an involuntary petition in bankruptcy, other
insolvency protection against either Party is filed and not
dismissed within one hundred twenty days (120) days.
14.2 If the default consists of a failure of Customer to pay to Urbanlink
any part of the Purchase Price, Urbanlink may terminate any and all of
its obligations under this Agreement, and apply any and all amounts
previously paid by Customer hereunder toward the payment of any other
amounts then or thereafter payable by Customer under this Agreement or
suspend the provisioning of the Capacity hereunder. In the event of any
other default under this Agreement the non-defaulting Party may avail
itself of one or more of the following remedies: (a) take such actions
as it determines, in its sole discretion, to correct the default; and
(b) pursue any legal remedies it may have under applicable law or
principles of equity, including specific performance.
14.3 A waiver by either Party at any time of any of its rights as to
anything herein contained shall not be deemed to be a waiver of any
breach of covenant or other matter subsequently occurring.
14.4 Notwithstanding anything contained in this Agreement to the contrary,
Customer's sole and exclusive remedy for any failure by Urbanlink to
deliver the Capacity in accordance with this Agreement shall be limited
to those contained in the Service Level Agreement.
ARTICLE 15
TERMINATION
15.1 This Agreement shall automatically terminate on the expiration or
termination of the Term, or earlier as provided in this Agreement. Upon
the expiration of the Term or other termination of this Agreement, the
IRU shall immediately terminate and all rights of Customer to use the
Capacity shall cease, all such rights shall revert to Urbanlink, and
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Urbanlink shall owe Customer no further duties, obligations or
consideration. Termination of this Agreement shall not affect the
rights or obligations of either Party that have arisen before the date
of termination or expiration.
ARTICLE 16
FORCE MAJEURE EVENTS
16.1 Neither Party shall be in default under this Agreement if and to the
extent that any failure or delay in such Party's performance of one or
more of its obligations hereunder is caused by any of the following
conditions, and such Party's performance of such obligation or
obligations shall be excused and extended for and during the period of
any such delay: act of God; fire; flood; fiber, cable, equipment or
other material or component failures, shortages or unavailability or
other delay in delivery not resulting from the responsible Party's
failure to timely place orders therefor; lack of or delay in
transportation; construction or permitting delays; government codes,
ordinances, laws, rules, regulations or restrictions; war or civil
disorder; strikes or other labor disputes; failure of a third party to
grant or recognize a required property, right of way or license right;
or any other cause beyond the reasonable control of such Party
(collectively, "Force Majeure Events"). The Party claiming relief under
this Article shall notify the other in writing of the existence of the
event relied on and the cessation or termination of said event, and the
Party claiming relief shall exercise reasonable commercial efforts to
minimize the time of any such delay.
ARTICLE 17
DISPUTE RESOLUTION
17.1 Application. The Parties will attempt to resolve any dispute arising
out of this Agreement promptly through discussions at the operational
level. In the event a resolution is not achieved, the disputing Party
shall provide the other Party with written notice of the same and the
Parties shall attempt to resolve such dispute between senior executives
who have the authority to settle such dispute. If the Parties fail to
resolve such dispute within thirty (30) days of the non-disputing
Party's receipt of the written notice, either Party may seek
arbitration as set forth below.
17.2 Arbitration. All disputes arising out of or in connection with this
Agreement, or in respect of any defined legal relationship associated
therewith or derived therefrom (including, without limitation, any
claim, controversy or dispute, whether sounding in contract, statute,
tort, fraud, misrepresentation or other legal theory, related directly
or indirectly to this Agreement, and whenever brought and whether
between the parties to this Agreement or between one of the parties to
this Agreement and the employees, agents or affiliated businesses of
the other Party), shall be referred to and finally resolved by
arbitration under the Rules of the British Columbia International
Commercial Arbitration Centre. The appointing authorities shall be the
British Columbia International Commercial Arbitration Centre. The case
shall be administered by the British Columbia International Commercial
Arbitration Centre in accordance with its "Procedures for Cases Under
the BCICAC Rules". The place of arbitration shall be Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx. The number of arbitrators shall be one.
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17.3 Discovery. There shall be no discovery other than the exchange of
information that is provided to the arbitrator by the parties. Each
Party shall bear its own costs and attorneys' fees, and the parties
shall share equally the fees and expenses of the arbitrator. The
arbitrator's decision and award shall be final and binding, and
judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
17.4 Enforcement. If any Party files a judicial or administrative action
asserting claims subject to arbitration as prescribed herein, and
another Party successfully stays such action or compels arbitration of
said claims, the Party filing said action shall pay the other Party's
costs and expenses incurred in seeking such stay or compelling
arbitration, including reasonable attorneys' fees.
ARTICLE 18
ASSIGNMENT AND TRANSFER RESTRICTIONS
18.1 Except as provided in Section 18.2, Customer may not transfer or assign
all or any part of its interest under this Agreement, or delegate any
duties, burdens, or obligations arising hereunder, without Urbanlink's
consent, which consent shall not be unreasonably withheld or delayed. A
transfer or assignment in violation of this Article 18 shall constitute
a material breach of this Agreement. If any such consent is given,
Customer nevertheless shall remain fully and primarily liable for all
obligations under this Agreement. Notwithstanding anything to the
contrary contained in this Article 18, Customer may sell or lease any
telecommunications circuits, capacity or other services comprising the
Capacity to third parties.
18.2 Customer may assign this Agreement in whole, but not in part, to a
Permitted Assignee. As used in this Section 18.2, the term "Permitted
Assignee" shall mean (a) any Affiliate of Customer, (b) any Person that
purchases all or substantially all of the assets of Customer, or any
other Person formed by or surviving the merger or consolidation of
Customer and any other person or (c) any institutional lender to whom
this Agreement is assigned as collateral security for any indebtedness
of Customer or any Affiliate of Customer, provided that such collateral
assignment is subject to the terms of this Agreement. Upon any
assignment to a Permitted Assignee, the assignor shall remain
responsible for performance under this Agreement. Any Permitted
Assignee pursuant to subparagraph (a) or (b) above shall expressly
assume all obligations and liabilities with respect to the Agreement
which arise after the effective date of assignment or transfer, prior
to or upon the effectiveness of such assignment and, in the case of an
assignment as provided in subparagraph (c) of this Section 18.2, in the
event the institutional lender exercises its rights with respect to
this Agreement it shall expressly assume all obligations and
liabilities with respect to the Agreement which arise thereafter.
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18.3 Except as provided in Section 18.4, Urbanlink may not transfer or
assign all or any part of its interest under this Agreement, or
delegate any duties, burdens, or obligations arising hereunder, without
Customer's consent, which consent shall not be unreasonably withheld or
delayed. A transfer or assignment in violation of this Article 18 shall
constitute a material breach of this Agreement. If any such consent is
given, Urbanlink nevertheless shall remain fully and primarily liable
for all obligations under this Agreement.
18.4 Urbanlink may assign this Agreement in whole, but not in part, to a
Permitted Assignee. As used in this Section 18.4, the term "Permitted
Assignee" shall mean (a) any Affiliate of Customer, (b) any Person that
purchases all or substantially all of the assets of Urbanlink, or any
other Person formed by or surviving the merger or consolidation of
Urbanlink and any other person or (c) any institutional lender to whom
this Agreement is assigned as collateral security for any indebtedness
Urbanlink or any Affiliate of Urbanlink, provided that such collateral
assignment is subject to the terms of this Agreement. Upon any
assignment to a Permitted Assignee, the assignor shall remain
responsible for performance under this Agreement. Any Permitted
Assignee pursuant to subparagraph (a) or (b) above shall expressly
assume all obligations and liabilities with respect to the Agreement
which arise after the effective date of assignment or transfer, prior
to or upon the effectiveness of such assignment and, in the case of an
assignment as provided in subparagraph (c) of this Section 18.4, in the
event the institutional lender exercises its rights with respect to
this Agreement it shall expressly assume all obligations and
liabilities with respect to the Agreement which arise thereafter.
18.5 This Agreement and each of the Parties' rights and obligations under
this Agreement shall be binding upon and shall inure to the benefit of
the Parties, hereto and each of their respective permitted successors
and assigns.
ARTICLE 19
REPRESENTATIONS AND DISCLAIMER OF WARRANTIES
19.1 By execution of this Agreement, each Party represents and warrants to
the other:
(a) That the representing Party has full right and authority to
enter into and perform this Agreement in accordance with the
terms hereof and thereof, and that by entering into or
performing this Agreement, the representing Party is not in
violation of its charter or bylaws, or any law, regulation or
agreement by which it is bound or to which it is subject;
(b) That the execution, delivery and performance of this Agreement
by such Party has been duly authorized by all requisite
corporate action, that the signatories for such Party hereto
are authorized to sign this Agreement, and that the joinder or
consent of any other Party, including a court or trustee or
referee, is not necessary to make valid and effective the
execution, delivery and performance of this Agreement by such
Party.
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19.2 EXCEPT AS SET FORTH IN THE SERVICE LEVEL AGREEMENT, Urbanlink MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CAPACITY, THE
URBANLINK SYSTEM, OR ANY WORK PERFORMED UNDER THIS AGREEMENT INCLUDING
ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED. THE WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE
ONLY WARRANTIES MADE BY URBANLINK TO CUSTOMER WITH RESPECT TO THIS
AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR
ORAL, STATUTORY, EXPRESS OR IMPLIED.
ARTICLE 20
GENERAL
20.1 Binding Effect. This Agreement and each of the Parties' respective
rights and obligations under this Agreement, shall be binding on and
shall inure to the benefit of the Parties hereto and each of their
respective permitted successors and assigns.
20.2 Waiver. The failure of either Party hereto to enforce any of the
provisions of this Agreement, or the waiver thereof in any instance,
shall not be construed as a general waiver or relinquishment on its
part of any such provision, but the same shall nevertheless be and
remain in full force and effect.
20.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of British Columbia and the
federal law of Canada applicable therein, without giving effect to its
principles of conflicts of laws. Subject to Article 17, any litigation
based hereon, or arising out of or in connection with a default by
either Party in the performance of its obligations hereunder, shall be
brought and maintained exclusively in the courts of the Province of
British Columbia, in Vancouver, British Columbia, and each Party hereby
irrevocably submits to the jurisdiction of such courts for the purpose
of any such litigation and irrevocably agrees to be bound by any
judgment rendered thereby in connection with such litigation.
20.4 Rules of Construction. The captions or headings in this Agreement are
strictly for convenience and shall not be considered in interpreting
this Agreement or as amplifying or limiting any of its content. Words
in this Agreement which import the singular connotation shall be
interpreted as plural, and words which import the plural connotation
shall be interpreted as singular, as the identity of the parties or
objects referred to may require.
(a) Unless expressly defined herein, words having well known
technical or trade meanings shall be so construed. All listing
of items shall not be taken to be exclusive, but shall include
other items, whether similar or dissimilar to those listed, as
the context reasonably requires.
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(b) Except as set forth to the contrary herein, any right or
remedy of Customer or Urbanlink shall be cumulative and
without prejudice to any other right or remedy, whether
contained herein or not.
(c) Nothing in this Agreement is intended to provide any legal
rights to anyone not an executing party of this Agreement.
(d) This Agreement has been fully negotiated between and jointly
drafted by the Parties.
(e) All actions, activities, consents, approvals and other
undertakings of the Parties shall be performed in a reasonable
and timely manner, it being expressly acknowledged and
understood that time is of the essence in the performance of
obligations required to be performed by a date expressly
specified herein. Except as specifically set forth herein, for
the purpose of this Agreement the standards and practices of
performance within the telecommunications industry in the
relevant market shall be the measure of a Party's performance.
20.5 Entire Agreement. This Agreement constitutes the entire and final
agreement and understanding between the Parties with respect to the
subject matter hereof and supersedes all prior agreements relating to
the subject matter hereof, which are of no further force or effect. The
Exhibits and Attachment referred to herein are integral parts hereof
and are hereby made a part of this Agreement. To the extent that any of
the provisions of any Exhibit hereto are inconsistent with the express
terms of this Agreement, the terms of this Agreement shall prevail.
This Agreement may only be modified or supplemented by an instrument in
writing executed by each Party and delivered to the Party relying on
the writing.
20.6 No Personal Liability. Each action or claim against any Party arising
under or relating to this Agreement shall be made only against such
Party as a corporation, and any liability relating thereto shall be
enforceable only against the corporate assets of such Party. No Party
shall seek to xxxxxx the corporate veil or otherwise seek to impose any
liability relating to, or arising from, this Agreement against any
shareholder, employee, officer or director of the other Party. Each of
such persons is an intended beneficiary of the mutual promises set
forth in this Article and shall be entitled to enforce the obligations
of this Article.
20.7 Relationship of the Parties. The relationship between Customer and
Urbanlink shall not be that of partners, agents, or joint venturers for
one another, and nothing contained in this Agreement shall be deemed to
constitute a partnership or agency agreement between them for any
purposes, including, but not limited to federal income tax purposes.
Customer and Urbanlink, in performing any of their obligations
hereunder, shall be independent contractors or independent parties and
shall discharge their contractual obligations at their own risk
subject, however, to the terms and conditions hereof.
20.8 Severability. If any term, covenant or condition contained herein is,
to any extent, held invalid or unenforceable in any respect under the
laws governing this Agreement, the
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remainder of this Agreement shall not be affected thereby, and each
term, covenant or condition of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
20.9 Legal Fees. If either Party commences an action against the other Party
arising out of or related to this Agreement, the prevailing Party in
such litigation shall be entitled to reasonable legal fees and costs in
addition to such other relief as may be awarded.
20.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the
same instrument.
20.11 Title to Equipment; Infrastructure. This Agreement shall not in any way
convey title or any interest in the infrastructure, systems, equipment,
facilities or other property of Urbanlink (or its Affiliates) utilized
in connection with the provision of Capacity to Customer.
20.12 Amended and Restated Agreement. This Agreement is an amended and
restated version of the original Capacity Purchase Agreement dated as
of April 17, 2000 and made between the undersigned parties. The parties
acknowledge and agree that the original Capacity Purchase Agreement is
superseded by the terms of this Amended and Restated Capacity Purchase
Agreement, with effect to the greatest extent possible as if this
Amended and Restated Capacity Purchase Agreement had been executed and
had taken effect as of April 17, 2000.
[THE NEXT PAGE IS THE EXECUTION PAGE.]
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In confirmation of their consent and agreement to the terms and conditions
contained in this Agreement and intending to be legally bound hereby, the
parties have executed this Agreement as of the date first above written.
360NETWORKS SERVICES LTD.
By: Signed___________________________
Name: _______________________________
Title: ______________________________
WFI URBANLINK LTD.
By: Signed___________________________
Name: _______________________________
Title: ______________________________
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