Exhibit 10.40
RESELLER AGREEMENT
THIS AGREEMENT Dated For Reference the _____ day of April, 2000
BETWEEN:
360NETWORKS INC.
("360")
AND:
WORLDWIDE FIBER NETWORKS SERVICES LTD.
("Services")
AND:
WFI URBANLINK LTD.
("Urbanlink")
WHEREAS:
A. Urbanlink has agreed to grant to Services, or to such other 360
Subsidiaries as 360 may specify from time to time, IRU capacity purchase
agreements to acquire four OC-192s or the equivalent on each of the Strands, as
hereinafter defined.
B. 360, Services and Urbanlink have entered into this Agreement to record
their respective rights and obligations with respect to the capacity purchase
agreements and certain related rights and obligations.
IN CONSIDERATION of the mutual agreements in this Agreement and subject to the
terms and conditions specified in this Agreement, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
In this Agreement, including the recitals and the schedules, the following words
and expressions have the following meanings unless the context otherwise
requires:
"Affiliate" has the meaning ascribed thereto under the CANADA BUSINESS
CORPORATIONS ACT.
"Capacity Purchase Agreement" shall mean a Capacity Purchase Agreement in the
form attached as Schedule "C", with such amendments as may be agreed between
Services and Urbanlink, acting reasonably and in good faith.
"Capacity Service" means the service of providing the capacity pursuant to the
Capacity Purchase Agreements that are in effect from time to time.
"Co-Development Strands" shall have the meaning ascribed thereto in the
recitals.
"First Renewal Term" shall have the meaning provided in Section 6.2.
"Initial Term" shall have the meaning provided in Section 6.1.
"Person" means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture or
other entity or a foreign state or political subdivision thereof or any agency
of such state or subdivision.
"Phase I Strands" shall mean the Strands described in Schedule "A".
"Phase II Strands" shall mean the Strands described in Schedule "B" and any
strands acquired by Urbanlink pursuant to any co-development arrangements with
Services or its Affiliates.
"Renewal Terms" shall mean the First Renewal Term and the Second Renewal Term,
as applicable.
"Second Renewal Term" shall have the meaning provided in Section 6.2.
"Strands" shall mean the Phase I Strands and the Phase II Strands.
1.2 SCHEDULES
The following schedules are attached to and form part of this Agreement:
SCHEDULE TITLE
A Phase I Strands
B Phase II Strands
C Capacity Purchase Agreement
ARTICLE 2
CAPACITY PURCHASE AGREEMENTS
2.1 PHASE I STRANDS
On the execution of this document, Services and Urbanlink shall execute a
Capacity Purchase Agreement in the form attached as Schedule "C" or in such
other form as may be agreed between Services and Urbanlink, acting reasonably
and in good faith, in relation to the Phase I Strands.
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2.2 ADDITIONAL STRANDS
On the acquisition of any of the Phase II Strands by Urbanlink, Services (or
such other Subsidiary of 360 as 360 may designate from time to time by notice in
writing to Urbanlink) shall execute a Capacity Purchase Agreement in the form
attached as Schedule "C" or in such other form as may then be agreed between
Services (or such designated Subsidiary of 360) and Urbanlink, acting reasonably
and in good faith, in relation to such Phase II Strands.
2.3 CAPACITY
Unless otherwise agreed from time to time by 360 and Urbanlink, and except as
specifically provided below, for each of the Strands, the Capacity Purchase
Agreement shall be an IRU capacity agreement by which Services (or the
designated Subsidiary of 360) shall acquire from Urbanlink an IRU capacity
purchase agreement for four OC-192s or the equivalent on each such Strand, or
such greater capacity as may result from the replacement or upgrading of
telecommunications equipment, or the adding of telecommunications equipment, as
described in Section 3.3. For each of the Strands described in Schedule A as
being between Edmonton and Toronto, unless otherwise agreed from time to time by
360 and Urbanlink, the Capacity Purchase Agreement shall be an IRU capacity
agreement by which Services (or the designated Subsidiary of 360) shall acquire
from Urbanlink an IRU capacity agreement for eight OC-48s or the equivalent on
each such Strand, or such greater capacity as may result from the replacement or
upgrading of telecommunications equipment, or the adding of telecommunications
equipment, as described in Section 3.3.
2.4 ELECTION TO ACCEPT REDUCED CAPACITY
By notice in writing to Urbanlink, Services (or the designated Subsidiary of
360) may elect to acquire less capacity than specified above; provided however
that Services (or such designated Subsidiary) shall not elect to acquire units
of capacity smaller than OC-48; and provided further that if Services (or such
designated Subsidiary) so elects, Services (or such designated Subsidiary) may
subsequently elect to acquire the balance of the capacity specified in Section
2.3. To the extent that a Capacity Purchase Agreement is for less than four
OC-192s, the amount per Strand per route kilometer specified in Section 5.1
shall be prorated accordingly. For greater clarity, Urbanlink shall have the
right to lease or IRU any remaining capacity to other customers.
ARTICLE 3
PROVISIONING AND EQUIPMENT
3.1 URBANLINK EQUIPMENT
During the term of any Capacity Purchase Agreement, Urbanlink shall install the
terminal equipment and take such additional actions as may be necessary from
time to time to light these Strands to which the Capacity Purchase Agreement
relates. The selection of the equipment shall be subject to the prior written
approval of Services, acting reasonably, and in good faith. Without limiting the
generality of the foregoing, it shall not be unreasonable for Services to
consider the compatibility of such equipment with the other equipment owned or
used by Services or other Subsidiaries of 360 in Canadian and other
jurisdictions.
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3.2 PROVISIONING
During the term of any Capacity Purchase Agreement:
(a) Services and any designated Subsidiaries of 360 shall provide
provisioning schedules to Urbanlink from time to time.
(b) Services and any designated Subsidiaries of 360 shall provide notice
in writing to Urbanlink within four days of receipt of a customer's
request to provision the Capacity Service and shall provide not less
than 30 days prior written notice before the effective date of the
provisioning of such Capacity Service to a customer.
(c) For greater clarity, the personnel effecting the purchasing and
installation of terminal equipment shall be employees of Urbanlink
or its contractors.
During the term of any Capacity Purchase Agreement, from time to time at the
request of 360, Urbanlink shall provide Urbanlink personnel to effect
provisioning and moves, adjustments and changes ("MAC") for Services customers
and any designated Subsidiaries of 360. For such services, Services (or the
designated Subsidiary of 360) shall pay to Urbanlink an amount equal to
Urbanlink's direct costs of providing such services plus a margin agreed to
between the parties.
3.3 EQUIPMENT UPGRADES
During the term of any Capacity Purchase Agreement, Services (or the designated
Subsidiary of 360) shall have the option to elect from time to time to increase
the capacity of all or any part of the Strands on the following terms:
(a) If Services desires that Urbanlink replace or upgrade its
telecommunications equipment, or add additional telecommunications
equipment, in order to increase the capacity available to Services
or the designated Subsidiary of 360, then Services (or the
designated Subsidiary of 360) shall provide notice in writing to
Urbanlink specifying its request in reasonable detail.
(b) Within 15 days thereafter, representatives of 360 and Urbanlink
shall meet to discuss such request, and shall negotiate reasonably
and in good faith to reach mutual agreement on terms acceptable to
both 360 and Urbanlink, acting reasonably, for payments and cost
recovery, such terms to be consistent with the reasonable needs and
requirements of Services, the designated Subsidiary of 360,
Urbanlink, and the customers of Services and any designated
Subsidiary of 360.
3.4 360 EQUIPMENT
For greater clarity, Services and any designated Subsidiaries of 360 may install
their own combiners, multiplexing equipment, racks and any other equipment that
is "exempt transmission apparatus" within the meaning of the TELECOMMUNICATIONS
ACT (Canada).
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ARTICLE 4
CO-LOCATION FACILITIES AND INTERCONNECTIONS
4.1 CO-LOCATION FACILITIES FOR SERVICES
During the term of any Capacity Purchase Agreement, from time to time at the
request of Services, Urbanlink shall grant to Services (or the designated
Subsidiary of 360) the right to co-locate the telecommunications equipment of
360 or any of the Subsidiaries of 360 or the customers of any of them on
premises owned or leased by Urbanlink, pursuant to the terms of a Co-Location
Agreement having terms to be agreed between 360 and Urbanlink, acting reasonably
and in good faith. The fees to be charged for such co-location facility shall be
the fair market value of the provision of such co-location services, as
determined by agreement between 360 and Urbanlink, acting reasonably.
4.2 CO-LOCATION FACILITIES FOR URBANLINK
During the term of any Capacity Purchase Agreement, from time to time at the
request of Urbanlink, Services shall grant, or 360 shall cause the relevant 360
Subsidiary to grant to Urbanlink the right to co-locate Urbanlink's
telecommunications equipment on premises owned or leased by 360, pursuant to the
terms of a Co-Location Agreement having terms to be agreed between 360 and
Urbanlink, acting reasonably and in good faith. The fees to be charged for such
co-location facility shall be the fair market value of the provision of such
co-location services, as determined by agreement between 360 and Urbanlink,
acting reasonably.
ARTICLE 5
PAYMENT
5.1 CAPACITY PURCHASE PRICE
For each Capacity Purchase Agreement and subject to adjustment as provided in
Section 2.4, Services (or the designated Subsidiary of 360) shall pay to
Urbanlink an amount (the "Specified Amount") agreed to between the parties per
Strand per route kilometer multiplied by the number of strand route kilometers,
payable in five equal instalments (for greater clarity, each instalment being
20% of such amount), the first instalment payable on the commencement of the
provision of capacity under the Capacity Purchase Agreement, and the remaining
payments to be paid on the first, second, third and fourth anniversary of the
date of commencement of the provision of capacity under the Capacity Purchase
Agreement.
ARTICLE 6
TERM AND TERMINATION
6.1 TERM
The term of this Agreement will commence on the date of this Agreement and will
continue for 5 years (the "Initial Term").
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6.2 RENEWAL TERMS
360 shall have the right to renew this Reseller Agreement for two Renewal Terms
of five years each, on the following terms:
(a) By notice in writing to Urbanlink given on or before the expiry of
the Initial Term, 360 may elect to renew this Agreement for an
additional term of five years commencing on the expiry of the
Initial Term (the "First Renewal Term") on all the terms contained
in this Agreement except for the payment amount per Strand per route
kilometer specified in Section 5.1.
(b) By notice in writing to Urbanlink given on or before the expiry of
the First Renewal Term, 360 may elect to renew this Agreement for an
additional term of five years commencing on the expiry of the First
Renewal Term (the "Second Renewal Term") on all the terms contained
in this Agreement except for the payment amount per Strand per route
kilometer specified in Section 5.1.
(c) The payment amount per Strand per route kilometer during a Renewal
Term shall be the fair market value per Strand per route kilometer
for the rights granted under this Reseller Agreement on the date of
commencement of the Renewal Term, as determined by agreement between
360 and Services or, failing agreement within three months after the
commencement of the Renewal Term, as determined by arbitration
pursuant to Section 7.1 of this Agreement.
6.3 SURVIVAL OF TERMS
Sections 3.1 to 5.1, 6.3, 7.1 to 7.18, the Capacity Purchase Agreements that are
executed during the Initial Term or any Renewal Term, and such other provisions
as may reasonably be expected to remain in force will survive the expiration or
termination of this Agreement and will remain in full force and effect following
such expiration or termination. The expiration or termination of this Agreement
will not affect the rights of any party to make a claim for damages arising from
a breach of any provision of this Agreement which occurred prior to such
expiration or termination.
ARTICLE 7
GENERAL
7.1 ARBITRATION
All disputes arising out of or in connection with this contract, or in respect
of any defined legal relationship associated therewith or derived therefrom,
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.
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7.2 GOVERNING LAW AND ATTORNMENT
This Agreement will be governed by and construed in accordance with the
substantive laws of British Columbia and the federal laws of Canada applicable
in British Columbia, without regard to the conflict of law rules of British
Columbia. Subject to Section 7.1, the parties irrevocably submit to and accept
generally and unconditionally the exclusive jurisdiction of the courts and
appellate courts of British Columbia with respect to any legal action or
proceeding which may be brought at any time relating in any way to this
Agreement. Each of the parties irrevocably waives any objection it may now or in
the future have to the venue of any such action or proceeding, and any claim it
may now or in the future have that any such action or proceeding has been
brought in an inconvenient forum.
7.3 TIME OF THE ESSENCE OF THE AGREEMENT
Unless otherwise specifically provided in this Agreement, time will be of the
essence of this Agreement and of the transactions contemplated by this
Agreement.
7.4 REMEDIES NOT EXCLUSIVE
The remedies provided to the parties under this Agreement are cumulative and not
exclusive to each other, and any such remedy will not be deemed or construed to
affect any right which any of the parties is entitled to seek at law, in equity
or by statute.
7.5 NOTICES
Any notice, direction, request or other communication required or contemplated
by any provision of this Agreement will be given in writing and will be given by
delivering or faxing or emailing the same to the parties as follows:
(a) To 360 or Services at:
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxxxxxxx XxXxxxxxx
Fax No.: (604) 681-099
Email: xxxxxxxxx.xxxxxxxxx@xxxxxxx.xxx
(b) To Urbanlink at:
Xxxxx 0000, 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
Attention: Xxxx Xxxxxx
Fax No.: (000) 000-0000
Email: xxxx.xxxxxx@xxxxxxx.xxx
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Any such notice, direction, request or other communication will be deemed to
have been given or made on the date on which it was delivered or, in the case of
fax or email, on the next business day after receipt of transmission. Any party
may change its fax number or address for service or email address from time to
time by written notice in accordance with this section.
7.6 ASSIGNMENT
(a) This Agreement is not assignable by Urbanlink in whole or in part
without the prior written consent of 360, such consent not to be
unreasonably delayed. This Agreement is not assignable by 360 or
Services without the prior written consent of Urbanlink, such
consent not to be unreasonably delayed. Any attempt by any party to
assign any of the rights or to delegate any of the duties or
obligations of this Agreement without such prior written consent is
void.
(b) Notwithstanding the foregoing, the interests of any party may be
assigned by such party to an Affiliate, provided that such Affiliate
delivers to the other parties a written undertaking to be bound by
the provisions of this Agreement in all respects and to the same
extent as the assignor is bound and provided further that the
assignor will continue to be bound by all the obligations hereunder
as if such assignment had not occurred and shall perform such
obligations to the extent that such Affiliate fails to do so.
(c) Notwithstanding the foregoing, the interests of a party under this
Agreement (including, without limitation, in the case of Urbanlink,
the right to receive any and all amounts payable to Urbanlink under
this Agreement) may be assigned by such party by way of collateral
security to a lender without the consent of the other parties,
provided however that any such lender agrees in writing that:
(i) the rights and interest of the lender are subject to the
rights and interests of the parties other than the assignor
under this Agreement;
(ii) prior to realizing on such collateral security it will provide
notice to the other parties giving them the opportunity to
cure the default; and
(iii) should such security be realized with the result that the
title or interest of the assignor, as the case may be, is
vested in an assignee, acquirer or other successor in title or
interest (including the lender if such is the case)
("Successor"), then the lender will cause such Successor to
enter into a written agreement with the other parties to be
bound by the provisions of this Agreement in all respects and
to the same extent as the assignor was bound and this from the
date the title or interest is transferred and provided further
that the assignor will continue to be bound by all the
obligations under this Agreement as if such transfer of title
or interest had not occurred and will perform such obligations
to the extent that the Successor fails to do so.
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7.7 FORCE MAJEURE
The failure or delay of any party to this Agreement to perform any obligation
under this Agreement solely by reason of acts of God, acts of civil or military
authority, civil disturbance, war, strikes or other labour disputes or
disturbances, fire, transportation contingencies, shortage of facilities, fuel,
energy, labour or materials, or laws, regulations, acts or orders of any
governmental agency or official, other catastrophes, or any other circumstance
beyond its reasonable control ("Force Majeure") will be deemed not to be a
breach of this Agreement so long as the party so prevented from complying with
this Agreement has not contributed to such Force Majeure, has used reasonable
efforts to avoid such Force Majeure or to ameliorate its effects, and continues
to take all actions within its power to comply as fully as possible with the
terms of this Agreement. In the event of any such Force Majeure, performance of
the obligations will be deferred until the Force Majeure ceases. This section
will not apply to excuse a failure to make any payment when due.
7.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document. All of these counterparts
will for all purposes constitute one agreement, binding on the parties,
notwithstanding that all parties are not signatories to the same counterpart. A
fax transcribed copy or photocopy of this Agreement executed by a party in
counterpart or otherwise will constitute a properly executed, delivered and
binding agreement or counterpart of the executing party.
7.9 WAIVER
No failure or delay on the part of any party in exercising any power or right
under this Agreement will operate as a waiver of such power or right. No single
or partial exercise of any right or power under this Agreement will preclude any
further or other exercise of such right or power. No modification or waiver of
any provision of this Agreement and no consent to any departure by any party
from any provision of this Agreement will be effective until the same is in
writing. Any such waiver or consent will be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on any party in any circumstances will entitle such party to any other or
further notice or demand in similar or other circumstances.
7.10 FURTHER ASSURANCES
Each of the parties will promptly execute and deliver to the other at the cost
of the other such further documents and assurances and take such further actions
as the other may from time to time request in order to more effectively carry
out the intent and purpose of this Agreement and to establish and protect the
rights, interests and remedies intended to be created in favour of the other.
7.11 ENTIRE AGREEMENT
This Agreement and any other documents and agreements to be delivered pursuant
to this Agreement supersede all previous invitations, proposals, letters,
correspondence, negotiations,
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promises, agreements, covenants, conditions, representations and warranties with
respect to the subject matter of this Agreement. There is no representation,
warranty, collateral term or condition or collateral agreement affecting this
Agreement, other than as expressed in writing in this Agreement. No trade terms
or trade usages are to be incorporated by reference implicitly or otherwise into
this Agreement, unless expressly referred to in this Agreement.
7.12 AMENDMENTS
No change or modification of this Agreement will be valid unless it is in
writing and signed by each party to
this Agreement.
7.13 INVALIDITY OF PARTICULAR PROVISION
If any provision of this Agreement or any part of any provision (in this section
called the "Offending Provision") is declared or becomes unenforceable, invalid
or illegal for any reason whatsoever including, without limiting the generality
of the foregoing, a decision by any competent courts, legislation, statutes,
bylaws or regulations or any other requirements having the force of law, then
the remainder of this Agreement will remain in full force and effect as if this
Agreement had been executed without the Offending Provision.
7.14 CURRENCY
Unless otherwise specified all sums of money expressed in this Agreement are in
the lawful money of Canada.
7.15 NUMBER AND GENDER
Unless the context of this Agreement otherwise requires, to the extent necessary
so that each clause will be given the most reasonable interpretation, the
singular number will include the plural and vice versa, the verb will be
construed as agreeing with the word so substituted, words importing the
masculine gender will include the feminine and neuter genders, words importing
persons will include firms and corporations and words importing firms and
corporations will include individuals.
7.16 HEADINGS AND CAPTIONS
The headings and captions of sections and paragraphs contained in this Agreement
are all inserted for convenience of reference only and are not to be considered
when interpreting this Agreement.
7.17 ACKNOWLEDGEMENT OF RECEIPT
Each of the parties acknowledges receiving an executed copy of this Agreement.
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7.18 ENUREMENT
Subject to the restrictions on transfer contained in this Agreement, this
Agreement will enure to the benefit of and be binding on the parties and their
respective heirs, executors, administrators, successors and assigns.
[THE NEXT PAGE IS THE EXECUTION PAGE.]
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date
stated on the first page.
360NETWORKS INC. WORLDWIDE FIBER NETWORKS
SERVICES LTD.
Per: Per:
------------------------------------ ------------------------------------
Signature Signature
WFI URBANLINK LTD.
Per:
------------------------------------
Signature
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SCHEDULE "A"
PHASE I STRANDS
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MILE DUCT TUBE STRAND STRAND
SEGMENTS POINTS ROW KILOMETER COLOUR COLOUR NUMBER TYPE
------------------------------------------------------------------------------------------------------------------
FROM CALGARY TO XXXXXXX XX 1,443 Orange Xxxxx 41-42 SMF-28
FROM CP TRACKS AT CAMBIE ST. CP 1,032 Orange Xxxxx 41-42 SMF-28
VANCOUVER TO CALGARY
FROM 000 XXXXXXXXXX XXX. TO CP 3 Orange Xxxxx 41-42 SMF-28
CP TRACKS AT CAMBIE ST.
OAK STREET BRIDGE TO 301 CN 11 Orange Xxxxx 00-00 XXX-00
XXXXXXXXXX, XXXXXXXXX
XX BORDER TO VICTORIA TO OAK CN 84 Orange Xxxxx 00-00 XXX-00
XXXXXX XXXXXX
XXXXXXXX XX TRACKS TO CN 11 Orange Xxxxx 41-42 SMF-28
EDMONTON BRETTVILLE JUNCTION
EDMONTON BRETVILLE JUNCTION CN 1,958 Orange Xxxxx 41-42 SMF-28
TO THUNDER BAY
THUNDER BAY TO TORONTO CN 1,402 Orange Xxxxx 00-00 XXX-00
XXXXXXX TO BROCKVILLE
Union Station to Parliament 333.8 to TTR 00 Xxxxxx Xxxx 000-000 Xxxx
Xx.(Xxxxxxxx) 332.8
Parliament St to Scarborough 332.8 to CN 23 Orange Rose 121-122 Leaf
(Kingston) 7.24
Scarborough to Xxxxxxxxx 325.56 to CN 299 Orange Rose 121-122 Leaf
Jct. (Kingston) 311.4
Xxxxxxxxx Jct. To Brockville 311.4 to CN Orange Rose 121-122 Leaf
(Kingston) 125.7
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MILE DUCT TUBE STRAND STRAND
SEGMENTS POINTS ROW KILOMETER COLOUR COLOUR NUMBER TYPE
------------------------------------------------------------------------------------------------------------------
BROCKVILLE TO XXXXX FALLS 27.8 to StL&H 45 Orange Rose 121-122 Leaf
0.0
XXXXX FALLS TO OTTAWA (VIA)
STATION
Xxxxx Falls to Alexander 34.5 to StL&H 0.2 Orange Rose 121-122 Leaf
St.(Smiths Falls) 34.38
Alexander St. to CN Radio 34.38 to CN 1 Orange Rose 121-122 Leaf
Site (Smiths Falls) 34.05
CN Radio Site to Richmond 34.05 to VIA 34 Orange Rose 121-122 Leaf
(Smiths Falls) 13.0
Richmond to Federal (Smiths 13.0 to 0.0 CN 21 Orange Rose 121-122 Leaf
Falls)
Federal to Union Station 6.0 to 0.9 CN 10 Orange Rose 121-122 Leaf
(Beachburg)
BORDER TO TORONTO
U.S. Border to Fort Erie 0.6 to 1.0 CN 1 Orange Rose 121-122 Leaf
(Stamford)
Fort Erie to Port Xxxxxxxx 1.0 to CN 36 Orange Rose 121-122 Leaf
(Stamford) 23.14
Port Xxxxxxxx to Merriton 1.27 to 7.9 CN 11 Orange Rose 121-122 Leaf
(Thorld Spur)
Merriton to Xxxxxxxx 9.5 to CN 55 Orange Rose 121-122 Leaf
(Grimsby) 43.66
Xxxxxxxx to Canpa (Oakville) 39.3 to 8.5 CN 50 Orange Rose 121-122 Leaf
Canpa to Windsor St. 8.5 to 0.5 CN 13 Orange Rose 121-122 Leaf
(Oakville)
OTTAWA TO QUEBEC BORDER
Union Station to Hawthorne 76.5 to CN 6 Temp Rose 121-122 Leaf
Diamond (Alexandria) 2.72
Hawthorne Diamond to 72.72 to CN 0.4 Rose 121-122 Leaf
Hawthorne (Alexandria) 72.5
Hawthorne to Quebec Border 72.5 to VIA 97 Rose 121-122 Leaf
(Alexandria) 12.5
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MILE DUCT TUBE STRAND STRAND
SEGMENTS POINTS ROW KILOMETER COLOUR COLOUR NUMBER TYPE
------------------------------------------------------------------------------------------------------------------
QUEBEC BORDER TO TASCHEREAU
Quebec Border to Coteau 12.5 to 0.0 VIA 20.11 Orange Rose 121 - 122 Leaf
Jct.(Alexandria)
Coteau Jct. To Dorion 38.0 to CN 22.04 Orange Rose 121 - 122 Leaf
(Kingston) 24.3
Dorion to Dorval (Kingston) 24.3 to CN 22.53 Orange Rose 121 - 122 Leaf
10.3
Dorval to Taschereau Yard 11.6 to 9.0 CN 4.18 Orange Rose 121 - 122 Leaf
(Montreal)
MONTREAL CENTRAL TO QUEBEC 1.28 to 1.5 CN 259.79 Orange Rose 121-122 Leaf
CITY
US BORDER TO CAMBRIDGE
US Border to Collage Ave 226.30 to CN/StL&H 2 Orange Rose 121-122 Leaf
225.21
Collage Avenue to Hyde Park 111.8 to StL&H 174 Orange Rose 000-000 Xxxx
Xxxx 3.9
Hyde Park Road to London 3.9 to 0.0 StL&H 6 Orange Rose 121-122 Leaf
London to Airport Road 114.6 to StL&H 8 Orange Rose 121-122 Leaf
109.48
Airport Road to Cambridge 109.48 to StL&H 84 Orange Rose 121-122 Leaf
57.2
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SCHEDULE "B"
PHASE II STRANDS
------------------------------------------------------------------------------------------------------------------
MILE DUCT TUBE STRAND STRAND
SEGMENTS POINTS ROW KILOMETER COLOUR COLOUR NUMBER TYPE
------------------------------------------------------------------------------------------------------------------
CAMBRIDGE TO HALWEST
Cambridge South Junction 0.8 to 11.2 StL&H 17 Orange Rose 121-122 Leaf
(Waterloo)
South Junction to Kitchener 3.5 to 0 GEX 6 Orange Rose 121-122 Leaf
(Huron Park)
Kitchener to Silver (Guelph) 63.05 to 29.98 GEX 53 Orange Rose 121-122 Leaf
Silver to Halwest (Halton) 24.16 to 11.13 CN 21 Orange Rose 121-122 Leaf
TAXCHEREAU TO MONTREAL
STATION
Taschereau Yard to Jct. W/ N/A CN 1.22 Orange Rose 121-122 SMF-28
St. Laurent Sub.
Taschereau Yard to Jonction 146.2 to 141.6 CN 7.40 Orange Rose 121-122 SMF-28
de L'Est (St. Laurent)
Jonction de L'Est to Central 6.0 to 0.8 CN 8.37 Orange Rose 121-122 SMF-28
Station (Deux-Montagnes)
MONTREAL TO US BORDER 2 strands
QUEBEC CITY TO HALIFAX 2 strands
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XXXXXXXX "X"
XXXXXXXX PURCHASE AGREEMENT
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SCHEDULE "C"
TO RESELLER AGREEMENT
CONFIDENTIAL AND PROPRIETARY
CAPACITY PURCHASE AGREEMENT
BY AND BETWEEN
WORLDWIDE FIBER NETWORK SERVICES LTD.
AND
WFI URBANLINK LTD.
DATED: -
TABLE OF CONTENTS
Page
----
ARTICLE 1 EXHIBITS; DEFINITIONS................................................1
ARTICLE 2 IRU..................................................................3
ARTICLE 3 PAYMENT..............................................................3
ARTICLE 4 ACCEPTANCE TESTING AND DELIVERY......................................4
ARTICLE 5 TERM.................................................................5
ARTICLE 6 INTERCONNECTION......................................................5
ARTICLE 7 MAINTENANCE AND REPAIR...............................................6
ARTICLE 8 USE OF THE CAPACITY 6
ARTICLE 9 INDEMNIFICATION......................................................7
ARTICLE 10 LIMITATION OF LIABILITY.............................................8
ARTICLE 11 INSURANCE...........................................................8
ARTICLE 12 NOTICES............................................................10
ARTICLE 13 CONFIDENTIALITY....................................................10
ARTICLE 14 DEFAULT............................................................11
ARTICLE 15 TERMINATION........................................................12
ARTICLE 16 FORCE MAJEURE EVENTS...............................................12
ARTICLE 17 DISPUTE RESOLUTION.................................................13
ARTICLE 18 ASSIGNMENT AND TRANSFER RESTRICTIONS...............................13
ARTICLE 19 REPRESENTATIONS AND DISCLAIMER OF WARRANTIES.......................15
ARTICLE 20 GENERAL............................................................15
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CAPACITY PURCHASE AGREEMENT
THIS CAPACITY PURCHASE AGREEMENT (this "Agreement") is made and entered into as
of - (the "Effective Date"), by and between Worldwide Fiber Network 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 desires to obtain from Urbanlink certain telecommunications
capacity in the Urbanlink System on the terms and conditions set forth below.
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/protected] dedicated telecommunications
path with a bandwidth level of o between the Endpoints, provided by
Urbanlink under the terms of this Agreement, which bandwidth shall
be derived from a specific wavelength and specific fibers.
(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 2.1.
(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.
(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.
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(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 As of the IRU Effective Date, Urbanlink shall deliver and provide to
Customer and Customer shall receive from Urbanlink an exclusive and
indefeasible right of use of the Capacity on the terms and conditions set
forth in the Agreement (the "IRU").
2.2 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, Customer agrees to pay to Urbanlink a fee in the amount of $o
(the "Purchase Price"). 20% of the Purchase Price is due and payable on
each of (i) the date of the commencement of the provision of Capacity
under this Agreement, (ii) the first anniversary of the date of the
commencement of the provision of Capacity under this Agreement, (iii) the
second anniversary of the commencement of the provision of Capacity under
date of this Agreement, (iv) the third anniversary of the date of the
commencement of the provision of Capacity under this Agreement, and (v)
the fourth anniversary of the date of the commencement of the provision of
Capacity under this Agreement.
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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 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
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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.
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
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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 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.
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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
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
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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.
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
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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.
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.
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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:
Worldwide Fiber Network 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: Xxxxxxx Xxxxxx
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
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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.
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.
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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 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.
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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.
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,
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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.
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.
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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.
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
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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.
(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
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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 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.
[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.
WORLDWIDE FIBER NETWORK SERVICES LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WFI URBANLINK LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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XXXXXXX X
Xxxxxxxx Xxxxxxxxx
Xxxx Pairs/Endpoints Endpoint Addresses Agreed Upon Mileage Purchase Price
EXHIBIT B
Service Level Agreement
As agreed to from time to time between Urbanlink and the Customer.
