1
Exhibit 2.8
PAGES WHERE CONFIDENTIAL TREATMENT HAS BEEN REQUESTED ARE STAMPED "CONFIDENTIAL
TREATMENT REQUESTED AND THE REDACTED MATERIAL HAS BEEN SEPARATELY FILED WITH THE
COMMISSION", AND THE CONFIDENTIAL PORTION HAS BEEN REDACTED AND REPLACED WITH
STARS (*****).
CONFIDENTIAL AND PROPRIETARY
CAPACITY LEASE AGREEMENT
BY AND BETWEEN
WORLDWIDE FIBER NETWORK SERVICES LTD.
and
WORLDWIDE FIBER NETWORK SERVICES, INC.
AND
GT GROUP TELECOM SERVICES CORP.
and
GT GROUP TELECOM SERVICES (USA) CORP.
DATED: May 24, 2000
EXECUTION COPY
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CONFIDENTIAL AND PROPRIETARY
TABLE OF CONTENTS
ARTICLE TITLE PAGE
1 Exhibits; Definitions 2
2 Lease 5
3 Payment 6
4 Acceptance Testing and Delivery 8
5 Lease Term 9
6 Interconnection; Local Access; Collocation 10
7 Maintenance and Repair 11
8 Use of the Capacity; Representations of Customer 11
9 Indemnification 12
10 Warranties; Limitation of Liability 13
11 Insurance 14
12 Notices 15
13 Confidentiality 16
14 Default 17
15 Termination 18
16 Force Majeure Events 18
17 Dispute Resolution 19
18 Assignment and Transfer Restrictions 20
19 Representations 20
20 General 21
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CONFIDENTIAL AND PROPRIETARY
CAPACITY LEASE AGREEMENT
THIS CAPACITY LEASE AGREEMENT (this "Agreement") is made and entered
into as of May 24, 2000 (the "Effective Date"), by and between Worldwide Fiber
Network Services Ltd., an Alberta corporation and Worldwide Fiber Network
Services, Inc., a Nevada corporation (collectively, "WFNS"), and GT Group
Telecom Services Corp., a company organized under the laws of Canada and GT
Group Telecom Services (USA) Corp., a Nevada corporation (collectively,
"Customer").
RECITALS
A. WFNS, either directly or indirectly, is the holder of rights in
(including without limitation indefeasible rights to use), has constructed or is
constructing a fiber optic communications network, including optronics and other
facilities (the "WFNS System"), which connects WFNS's points of presence in the
cities identified in Exhibit A and any other mutually agreeable points of
presence (the "Cities").
B. Customer desires to obtain from WFNS certain telecommunications
capacity along three (3) dedicated communications paths derived from specific
wavelengths in the WFNS System, with each such path connecting the Cities set
forth in Exhibit B (each dedicated communications path shall be referred to
herein as a "Circuit"), all on the terms and conditions set forth below.
C. Customer desires to obtain an option to lease from WFNS certain
additional telecommunications capacity along dedicated communications paths in
the WFNS System connecting certain of the Cities to be specified by the
Customer, on the terms and conditions set forth below.
D. Prior to the execution of this Agreement, WFNS and GT Group Telecom
Services Corp. have entered into a Capacity Lease and Dark Fiber Agreement dated
March 17, 2000, (the "Transaction Agreement") summarizing the business terms of
this Agreement, the IRU Agreement and the Dark Fiber Sale Agreement and setting
forth certain other agreements between WFNS and Customer.
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, WFNS and Customer hereby agree as
follows:
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CONFIDENTIAL AND PROPRIETARY
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: Cities
Exhibit B: Circuits
Exhibit B-1: Monthly Fees
Exhibit C: Service Level Agreement
Exhibit D: Agreed Upon V&H Miles
Exhibit E: Local Access
Exhibit F: Collocation Space
Exhibit G: Collocation License 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) "Additional Circuits" shall have the meaning set forth in
Section 2.4.
(c) "Affiliate" means, with respect to any Person, any other
Person, who directly or indirectly controls, is controlled by,
or is under common control with that Person. As used in this
definition, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether by way of
equity ownership, contract or otherwise.
(d) "Agreement" shall have the meaning set forth in the
introductory paragraph.
(e) "Capacity" means ***** telecommunications capacity along a
Circuit with a bandwidth level of ***** derived from a
specific wavelength and provided by WFNS under the terms of
this Agreement. The Capacity shall terminate at a fiber patch
panel owned by WFNS in the WFNS Facilities set forth at
Exhibit E or, where applicable, a fiber optic patch panel
owned by WFNS and placed in a rack or wall mount space
provided by Customer.
(f) "Circuit" shall have the meaning set forth in Recital B.
(g) "Completion Notice" shall have the meaning set forth in
Section 4.1.
(h) "Confidential Information" shall have the meaning set forth in
Section 13.1.
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(i) "Customer" shall have the meaning set forth in the
introductory paragraph.
(j) "Costs" means actual, direct costs paid or payable in
accordance with the established accounting procedures
generally used by WFNS and which WFNS 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 *****, and (ii) other direct costs and
out-of-pocket expenses on a pass-through basis (e.g.,
equipment, materials, supplies, contract services, etc.).
(k) "Dark Fiber Sale Agreement" means that certain Fiber Sale
Agreement entered into between GT Group Telecom Services Corp.
and certain Affiliates of WFNS more or less contemporaneously
herewith.
(l) "Delivery Date" shall have the meaning set forth in Section
4.1.
(m) "Dollars" or "$" means Canadian Dollars.
(n) "Effective Date" shall have the meaning set forth in the
introductory paragraph to this Agreement.
(o) "Cities" shall have the meaning set forth in Recital A.
(p) "First Circuit" means that certain Circuit designated as such
on Exhibit B, subject to Section 4.1.
(q) "Force Majeure Events" shall have the meaning set forth in
Article 16.
(r) "Initial Term" shall have the meaning set forth in Section
3.1.
(s) "Impositions" means all taxes, fees, levies, imposts, duties,
charges or withholdings of any nature (including, without
limitation, ad valorem, real property, gross receipts,
franchise, license, permit fees and any tax or charge levied
to support the Universal Service Fund contemplated by the
Telecommunications Act of 1996 or any state, provincial or
Canadian (federal) equivalent), together with any penalties,
fines or interest thereon arising out of the transactions
contemplated by this Agreement by any federal, state or local
government or other public taxing authority.
(t) "Interest Rate" means the lower of (i) the highest rate
permitted by law, or (ii) ***** per annum.
(u) "IRU Agreement" shall mean that certain IRU Agreement entered
into between GT Group Telecom Services (USA) Corp. and
Worldwide Fiber Networks, Inc. (an Affiliate of WFNS) more or
less contemporaneously herewith.
(v) "Lease" shall have the meaning set forth in Section 2.1.
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(w) "Lease Effective Date" shall have the meaning set forth in
Section 5.1.
(x) "Option Circuit" shall have the meaning set forth in Section
2.3.
(y) "Option Notice" shall have the meaning set forth in Section
2.3.
(z) "Party" means each of WFNS and Customer and "Parties" shall
mean WFNS and Customer.
(aa) "Permitted Assignee" shall have the meaning set forth in
Section 18.2.
(bb) "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.
(cc) "Renewal Term" shall have the meaning set forth in Section
3.1.
(dd) "Second Circuit" means that certain Circuit designated as such
on Exhibit B, subject to Section 4.1.
(ee) "Service Level Agreement" shall have the meaning set forth at
Section 4.1.
(ff) "Term" shall mean, collectively, the Initial Term and any
applicable Renewal Term.
(gg) "Third Circuit" means that certain Circuit to be designated by
Customer in accordance with Section 4.1.
(hh) "V&H Miles" means the agreed upon miles for all purposes
hereunder for each of the City pairs as set forth in detail on
Exhibit D.
(ii) "WFNS" shall have the meaning set forth in the introductory
paragraph.
(jj) "WFNS Account" means the following bank account of WFNS, which
may be modified or changed by WFNS in writing from time to
time:
Account Name: Worldwide Fiber Network Services, Inc.
Account Number: ▇▇▇▇▇▇▇▇
Bank Name: Bank of America
ABA No.: ▇▇▇▇▇▇▇▇▇
Reference: CASC Department
(kk) "WFNS System" shall have the meaning set forth in Recital A.
Certain other defined terms shall have the respective meanings ascribed
to them elsewhere in this Agreement.
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ARTICLE 2
LEASE
2.1 As of the Lease Effective Date for each Circuit, WFNS shall provide
to Customer, and Customer shall receive from WFNS, the exclusive right to use
the Capacity for such Circuit on the terms and conditions set forth in this
Agreement (the "Lease").
2.2 WFNS represents and warrants that it possesses those certain rights
to the Capacity necessary for WFNS to deliver and lease the Capacity to
Customer. WFNS shall keep the Capacity free from all claims, liens,
encumbrances, rights or claims of any third party attributable to WFNS which
have a material adverse effect on the right of Customer to use the Capacity as
contemplated by this Agreement.
2.3 At any time during the period after the Lease Effective Date for
each of the First Circuit, Second Circuit and Third Circuit and prior to the
third anniversary of this Agreement, Customer may, at its option, elect to lease
from WFNS Capacity along an additional dedicated communications path connecting
certain designated Cities and any other cities to which WFNS may agree in
writing (the "Option Circuit") on the same terms and conditions and for the same
Term as the other Circuits leased pursuant to this Agreement. Customer shall
make such election by delivering to WFNS written notice (the "Option Notice")
specifying Customer's election to take the Option Circuit and the configuration
of the dedicated communications path for the Option Circuit. Except where
otherwise specifically provided, such Option Circuit shall be considered a
Circuit for the purposes of this Agreement.
2.4 At any time after the Lease Effective Date of the Option Circuit
and subject to availability, Customer may, at its option, elect to lease
Capacity from WFNS along additional dedicated communications paths connecting
certain of the Cities (the "Additional Circuits") at WFNS's then prevailing
market price for Additional Circuits, but in any event not to exceed the Monthly
Fees (based on DS-O V&H Miles for the primary path) and the Installation Fees
paid for the First Circuit leased pursuant to this Agreement, and otherwise on
the same terms and conditions as this Agreement. Subject to Force Majeure Events
and availability, WFNS shall use commercially reasonable efforts to deliver the
Capacity to Customer with respect to each Additional Circuit within ninety (90)
days of WFNS's acceptance of a delivery request for such Additional Circuit.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 3
PAYMENT
3.1 In consideration of the Lease hereunder by WFNS to Customer,
Customer agrees to pay to WFNS the monthly fees with respect to each Circuit as
set forth at Exhibit B-1 (the "Monthly Fees"). WFNS will invoice Customer in
advance on a monthly basis for the Monthly Fees. Customer shall pay such
invoices within thirty (30) days of receipt. The Monthly Fees are inclusive of
all operating and maintenance costs.
3.2 Customer shall pay WFNS an installation charge for each Circuit in
the amount of $***** (the "Installation Fee"), which Installation Fee shall be
due and payable on the Acceptance Date for such Circuit.
3.3 All payments made by Customer under this Agreement in excess of
$***** shall be made by wire transfer of immediately available funds to the WFNS
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 WFNS.
3.4 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
WFNS 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 WFNS, such amount shall
bear interest at the Interest Rate from the date when due until paid.
3.5 In addition to the amounts payable under Sections 3.1 and 3.2,
Customer shall be responsible to pay directly or reimburse WFNS, as requested by
WFNS, for all other sums, costs, fees and expenses that are required to be paid
under this Agreement. WFNS will invoice Customer for all sums, costs, fees and
expenses owed by Customer to WFNS, and Customer shall pay such invoices within
thirty (30) days of the invoice date, except for the Monthly Fees which shall be
paid in accordance with Section 3.1 and the Installation Fee which shall be paid
in accordance with Section 3.2.
3.6 All payments made by Customer under this Agreement shall be made
without any deduction or withholding for or on account of any Imposition, with
Customer being solely responsible to pay all such Impositions and hold WFNS
harmless for the payment of such Impositions. If Customer is required by law to
make any deduction or withholding from any payment due WFNS, then,
notwithstanding anything to the contrary contained in this Agreement, the gross
amount payable by Customer to WFNS 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 WFNS will not be less than what WFNS would
have received had no deduction or withholding been required; provided, however,
if WFNS and Customer mutually agree that WFNS is eligible for any reimbursement
of non-United States taxes or assessments levied, WFNS will refund to Customer
the reimbursement amount up to but no higher than any gross-up
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payment.
3.7 Customer's obligation to pay the Monthly Fees, the Installation Fee
and other amounts under this Agreement shall not be subject to any rights of
set-off, counterclaim, deduction, defense or other right which Customer may have
against WFNS or any other party.
3.8 Notwithstanding anything contained in this Agreement to the
contrary, in the event WFNS is unable to deliver to Customer the primary path of
any cross section or portion of a Circuit because the WFNS System is not yet
ready for commercial service during the Initial Term along such cross section,
the Parties shall in good faith work together to either (a) procure Capacity
from a third party along such cross section or (b) configure the Circuit without
such cross section. If the Parties decide to procure such Capacity from a third
party, the Parties shall mutually select the third-party provider and WFNS shall
be responsible for the costs (whether paid by WFNS or Customer) of any Capacity
so procured, provided WFNS's obligation shall not exceed the lowest available
costs for comparable Capacity from any third-party provider, and further
provided that if the cost of such alternative Capacity is less than $***** per
DS-O V&H Mile, Customer shall receive a credit equal to the difference between
such cost and $***** per DS-O V&H Mile. If the Parties decide to configure the
Circuit without such cross section and the cross section is along the primary
path, Customer shall receive a credit for such cross section based on the rate
of $***** per DS-O V&H Mile.
3.9 Notwithstanding anything contained in this Agreement to the
contrary, that percentage of the Monthly Fees and Installation Fees in respect
of the portion (based on V&H Miles for the primary path) of a Circuit located in
Canada shall be paid to Worldwide Fiber Network Services Ltd. by GT Group
Telecom Services Corp., and the balance in respect of the portion of a Circuit
located in the United States shall be paid to Worldwide Fiber Network Services,
Inc. by GT Group Telecom Services (USA) Corp. Exhibit B sets forth the
allocation of V&H Miles between the United States and Canada with respect to the
First Circuit and Second Circuit.
3.10 GT Group Telecom Services Corp. hereby absolutely and
unconditionally guarantees, as principal and not as surety, the payment by GT
Group Telecom Services (USA) Corp. (and its respective successors and permitted
assigns) of each and all of its financial obligations and liabilities to
Worldwide Fiber Network Services, Inc. under this Agreement, as the same may be
amended, changed, replaced, settled, compromised or otherwise modified from time
to time, and irrespective of any bankruptcy or insolvency of GT Group Telecom
Services (USA) Corp. or any successor or permitted assignee.
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ARTICLE 4
ACCEPTANCE TESTING AND DELIVERY
4.1 WFNS shall commence installation of the Capacity for Customer with
respect to each Circuit upon acceptance of a written delivery request with
respect to such Circuit. Customer requests the First and Second Circuits as set
out in Exhibit B. WFNS shall, within ten (10) days of the Effective Date, accept
or otherwise respond to such request. Customer shall so request the Third
Circuit prior to July 1, 2000, specifying the configuration of such Circuit.
WFNS shall use commercially reasonable efforts to deliver the Capacity to
Customer with respect to each Circuit within 60 days of WFNS's acceptance of a
delivery request for such Circuit. Subject to the Force Majeure Events and
except as set forth on Exhibit D, in the event the Acceptance Date with respect
to a Circuit has not occurred within 67 days of WFNS's acceptance of a delivery
request for such Circuit (the "Delivery Date"), Customer's sole remedy shall be
a one-time credit against the Monthly Fee with respect to such Circuit as set
forth in Exhibit C. When WFNS has determined that the Capacity with respect to
each Circuit is operating substantially in conformity with the applicable
service levels set forth in Exhibit C (the "Service Level Agreement"), WFNS
shall promptly provide Customer written notice of the same (a "Completion
Notice"). Each Completion Notice shall set forth the date upon which WFNS will
commence delivery of the Capacity with respect to such Circuit and specify the
wavelength from which such Capacity is derived.
4.2 Within ten (10) days of receipt of a Completion Notice, Customer
shall provide WFNS 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 WFNS 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, WFNS 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 with respect to each Circuit until after WFNS has received payment in
full of all payments due under this Agreement, including without limitation the
Installation Fee with respect to such Circuit.
4.3 Notwithstanding anything to the contrary contained in this
Agreement, WFNS may procure and deliver any portion of the Capacity from third
parties (whether under a lease, sublease or otherwise) in lieu of constructing
and installing the WFNS System; provided, any such portion of the Capacity shall
connect the applicable Cities as set forth on Exhibit B and shall operate in
accordance with the requirements of Section 4.1 above. Subject to the prior
consent of Customer, which consent shall not be unreasonably withheld or
delayed, WFNS may also 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. Notwithstanding
anything to the contrary contained in this Agreement, Customer shall have no
right to object to or otherwise participate in the configuration of the WFNS
System or telecommunications capacity derived therefrom.
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ARTICLE 5
LEASE TERM
5.1 The Lease with respect to each Circuit shall become effective on
the first day when both the Acceptance Date has occurred and WFNS has received
payment in full of the Installation Fee (the "Lease Effective Date"), and shall
extend for a period of thirty-six (36) months (the "Initial Term"), unless
extended in accordance with Section 5.3; provided however that if Customer fails
to provide WFNS a written delivery request for the Third Circuit on or before
July 1, 2000, the Lease Effective Date, only for purposes of Customer's
obligation to pay Monthly Fees for such Third Circuit shall be September 11,
2000 for such Third Circuit.
5.2 At the expiration of the Term with respect to each Circuit or other
termination of this Agreement, the Lease shall immediately terminate, and all
rights of Customer to use the Capacity with respect to such Circuit shall cease.
The expiration of the Term or termination of this Agreement shall not relieve
Customer from any liabilities arising prior to such termination. In the event
Customer terminates the Lease of any Circuit prior to the end of the Initial
Term, Customer shall, upon such termination, pay WFNS any and all of the
remaining Monthly Fees payable with respect to the Initial Term.
5.3 At the end of the Initial Term for each Circuit, Customer may
elect, at its option, to extend the Lease for an additional seventeen (17) years
(the "Renewal Term"). Customer shall provide WFNS with a minimum of three (3)
months prior written notice of its intent to exercise such option. In the event
Customer terminates the Lease of any Circuit during, but prior to the expiration
of, the Renewal Term, Customer shall, upon such termination, pay WFNS any and
all Monthly Fees accrued to the date of the termination.
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ARTICLE 6
INTERCONNECTION; LOCAL ACCESS; COLLOCATION
6.1 WFNS shall provide local access interconnections from certain WFNS
facilities to certain Customer facilities and in the circumstances set forth in
Exhibit E. WFNS shall bear the responsibility and cost for all such
interconnection work in such circumstances. Customer shall ensure timely access
to Customer's personnel and Customer's facilities to facilitate the provisioning
of local access with respect to the interconnections. To the extent such
interconnections require the cooperation or assistance of a third party,
Customer shall cooperate and assist WFNS in coordinating with such third party.
Customer shall bear the cost of any necessary payments to such third parties for
such interconnection work. With respect to those facilities and in the
circumstances set forth on Exhibit E, WFNS shall use commercially reasonable
efforts to provide to Customer, for redundancy purposes, a separate cable for
local access as generally set forth in Exhibit E; however, where procurement or
installation of such separate cable cannot be accomplished without incurring
more than nominal costs, WFNS shall provide Customer a separate circuit within
the same cable for such local access. In the event that WFNS declines to perform
any interconnection work that is required to be performed by WFNS under this
Section 6.1, Customer may perform, or cause to be performed, such
interconnection work and WFNS shall pay Customer for all Costs associated
therewith. Notwithstanding the foregoing, where such interconnection work
affects or could affect the WFNS System, in any manner, WFNS shall, in its sole
and absolute discretion, perform, cause to perform and/or supervise the
performance of such work.
6.2 For all interconnections at facilities not listed on Exhibit E and
for facilities listed on Exhibit E and not meeting the conditions to WFNS's
obligation to perform listed thereon, WFNS shall (except as may be otherwise
agreed to in writing by Parties) perform the interconnection work and Customer
shall pay WFNS for all Costs associated therewith, together with a management
fee equal to ***** of such Costs. In the event that WFNS declines to perform any
interconnection work as provided for under this Section 6.2, Customer may
perform, or cause to be performed, such interconnection work at its cost and
expense; provided, however, that if such interconnection work was work agreed by
the Parties in writing to be performed at WFNS's cost, WFNS shall pay Customer
for all Costs associated therewith. Notwithstanding the foregoing, where such
interconnection work affects or could affect the WFNS System, in any manner,
WFNS shall, in its sole and absolute discretion, perform, cause to perform
and/or supervise the performance of such work.
6.3 As soon as space in each facility becomes available, WFNS will
provide Customer, at Customer's option, during the Term with use of at least
that certain amount of space in those WFNS facilities as delineated on Exhibit
F. Customer's occupancy of such space in those WFNS facilities delineated on
Exhibit F shall be governed by the terms and conditions of WFNS's standard form
collocation agreement set forth at Exhibit G. The first ***** protected
power/cabinet racks in such locations occupied hereunder or under the IRU
Agreement or the Dark Fiber Sale Agreement will be at the rate of $***** per
month per rack and any rack occupied in addition thereto at such locations will
be at WFNS's then current market rate. Customer must elect to take such space
within six (6) months of WFNS communicating to Customer of space availability,
otherwise such space would be subject to availability and at WFNS's then current
rate.
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6.4 WFNS acknowledges that in certain circumstances it may be
beneficial to WFNS to have Customer perform for WFNS certain local access
interconnection work as WFNS's contractor. In such circumstances, WFNS may
contact Customer to perform such work and if Customer desires to perform such
work, WFNS shall pay Customer for all Costs associated therewith, together with
a management fee equal to ***** of such Costs.
ARTICLE 7
MAINTENANCE AND REPAIR
7.1 During the Term, the Capacity shall be maintained in good working
order and in accordance with industry standards.
7.2 Customer shall have no right to physically access in any manner the
WFNS System or any components thereof.
ARTICLE 8
USE OF THE CAPACITY; REPRESENTATIONS OF CUSTOMER
8.1 Customer represents, warrants and covenants during the Term that
(a) 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 telecommunications services, circuits or capacity from
Customer or its affiliates do the same, (b) it shall not use its systems in a
way that interferes in any way with or adversely affects the use of the WFNS
System or any other Person using the WFNS System or capacity thereon, (c) during
the Term, no less than ***** of Customer's use of the Capacity on that portion
of any Circuit located in the United States shall constitute interstate or
international transmissions, and (d) it shall secure with respect to each
Circuit, and maintain in full force and effect during the Term of such Circuit,
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 WFNS to lease the Capacity to Customer and for the use,
resale and operation of the Capacity by Customer, as applicable from time to
time. Customer acknowledges that the WFNS System includes or will include other
participants, including without limitation WFNS and other owners and users of
telecommunications systems and additional telecommunication capacity.
8.2 Customer and WFNS each agree to cooperate with and support the
other in complying with any requirements applicable to their respective rights
and obligations hereunder. Customer and WFNS 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 WFNS System or any capacity or services thereon that
are known to such Party.
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ARTICLE 9
INDEMNIFICATION
9.1 Subject to the provisions of Article 10, WFNS hereby agrees to
indemnify, defend, protect and hold harmless Customer and its employees,
officers and directors, from and against, and assumes liability for all suits,
actions, damages or claims of any character (a) 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 negligent
acts or omissions of WFNS in the performance of construction or maintenance of
the WFNS System; and (b) brought against Customer or its Affiliates under the
workers compensation laws, except to the extent caused by the negligence or
willful misconduct of the parties indemnified hereunder.
9.2 Subject to the provisions of Articles 10, Customer hereby agrees to
indemnify, defend, protect and hold harmless WFNS, and its employees, officers
and directors, from and against, and assumes liability for all suits, actions,
damages or claims of any character (a) brought against WFNS 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 negligent acts or
omissions of Customer in the performance of its obligations under this
Agreement; (b) brought against WFNS or its Affiliates under the workers
compensation laws, except to the extent caused by the negligence or willful
misconduct of the parties indemnified hereunder; (c) brought against WFNS or its
Affiliates because of any damage arising out of or resulting from Customer's use
of the Capacity, including without limitation the content of any video, voice or
data carried by Customer or its customers through or using the Capacity; and (d)
brought against WFNS or its Affiliates by a party and arising out of, caused by,
related to or based upon a contractual or other relationship between such
claiming party and the Customer as it relates to the Capacity or this Agreement,
except to the extent caused by the willful misconduct or gross negligence of
WFNS.
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 WFNS 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.
9.4 Notwithstanding the foregoing provisions of this Article 9, to the
extent WFNS is required under the terms and provisions of any easement,
right-of-way, lease or indefeasible right of use agreement relating to the
provisioning of the Capacity hereunder ("Use Agreements"), to indemnify the
grantor or provider thereof from and against any and all claims, demands, suits,
judgments, liabilities, losses or expenses arising out of or related to such Use
Agreements, regardless of the cause, Customer hereby releases, and waives any
claims against, such grantor or provider from the same, regardless of whether
such claims, suits, judgments, liabilities, losses or expenses arise from the
sole or partial negligence, willful misconduct or other action or inaction, of
such grantor or provider or its employees, servants, agents, contractors,
subcontractors or other Persons using the property covered by such Use
Agreements.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 10
WARRANTIES; LIMITATION OF LIABILITY
10.1 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 late
delivery of the Capacity 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.
10.2 NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY,
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.
10.3. EXCEPT AS SET FORTH IN THE SERVICE LEVEL AGREEMENT, WFNS MAKES NO
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CAPACITY, THE WFNS 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 WFNS TO CUSTOMER WITH RESPECT
TO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL,
STATUTORY, EXPRESS OR IMPLIED.
10.4. The Parties expressly agree that no claim for losses or damages
whatsoever in connection with this Agreement shall be made more than two (2)
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.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 11
INSURANCE
11.1 Following the Acceptance Date, and throughout the Term of each
Circuit, each Party shall procure and maintain in force, at its own expense:
(a) not less than $5,000,000 combined single limit liability
insurance, on an occurrence basis, for personal injury, bodily injury and
property damage, including, without limitation, injury or damage arising from
the operation of unlicensed vehicles or equipment and liability for completed
operations;
(b) workers' compensation insurance in amounts required by
applicable law and employers' liability insurance with a limit of at least
$1,000,000 per occurrence; and
(c) automobile liability insurance covering death or injury to any
person or persons, or damage to property arising from the operation of licensed
vehicles or equipment, with limits of not less than $5,000,000 per occurrence.
11.2 Unless otherwise agreed, the Parties 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 Customer and WFNS hereby mutually waive their respective rights of
recovery against each other and the officers, directors, shareholders, partners,
joint venturers, employees, agents, customers, invitees, or business visitors of
either Party, for any loss arising from any cause covered or that would be
covered by fire, extended coverage, All Risks or other insurance required to be
carried under this Agreement or now or hereafter existing for the benefit of the
respective Party. Customer and WFNS will cause from time to time their
respective insurers to issue appropriate waiver of subrogation rights
endorsements to all property insurance policies carried in connection with their
respective property.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 12
NOTICES
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) or facsimile
addressed as follows:
To Customer: GT Group Telecom Services Corp.
▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Executive Vice President, Carrier Services
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
GT Group Telecom Services (USA) Corp.
▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Executive Vice President, Carrier Services
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to WFNS: Worldwide Fiber Network Services, Inc.
Worldwide Fiber Network Services Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President, Carrier Services
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Worldwide Fiber Network Services Ltd.
Worldwide Fiber Network Services, Inc.
1510, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 13
CONFIDENTIALITY
13.1 This Agreement and all materials, data, 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 is advised of the confidentiality provisions set
forth in this Section 13.1. In addition, either Party may make disclosure in
performance of one's (or its Affiliates) obligations as a public company or if
required or requested by law, administrative or regulatory order, judicial
decreee, legal process, interrogatories, requests for information or documents
in legal proceedings, subpoena, civil investigative demand, or other similar
process, subject to the following items: (a) the disclosing Party shall disclose
only the Confidential Information which is legally required based upon advice of
independent legal counsel; (b) the disclosing Party will notify the other Party,
when reasonable possible, of any such disclosure; (c) the non-disclosing Party
will then have the right, at its sole expense, to bring proceedings in its name
to enjoin such disclosure; and (d) the disclosing Party will, at the request of
the non-disclosing Party and at the non-disclosing Party's expense, take
reasonable steps to cooperate with the non-disclosing Party in such proceedings.
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 a Party.
13.3 Upon termination of this Agreement for any reason or upon request
of a Party, each Party shall return all Confidential Information, together with
any copies of same, to the other Party. The requirements of confidentiality set
forth herein shall survive the return of such Confidential Information.
13.4 Neither Party shall, without first obtaining the written consent
of the other Party, use any trademark or trade name of such other Party or refer
to the subject matter of this Agreement or such other Party 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 first
notifying the other Party of the same and attempting to mutually agree on the
content of such publication or press release. If no agreement as to the content
is reached, each Party may issue separate press releases.
13.5 The provisions of this Article shall survive expiration or other
termination of this Agreement.
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CONFIDENTIAL AND PROPRIETARY
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, or
(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, or
(d) a default or an event of default occurs (after any applicable
notice and/or grace period) under either the Dark Fiber Sale Agreement or the
IRU Agreement.
14.2 In the event of any 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/or (b) pursue any legal remedies it may have under applicable law
or principles of equity, including specific performance. Without limiting the
foregoing, if the default consists of a failure of Customer to pay to WFNS any
part of the Monthly Fees, WFNS 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.
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.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 15
TERMINATION
This Agreement shall automatically terminate on the expiration or
termination of the Term of all Circuits, or earlier as provided in this
Agreement. Upon the expiration of the Term of a Circuit or other termination of
this Agreement, the Lease of such Circuit shall immediately terminate and all
rights of Customer to use the Capacity respecting such Circuit shall cease, all
such rights shall revert to WFNS, and WFNS 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
Except for Customer's obligation to pay the Monthly Fees and the
Installation Fee with respect to each Circuit, 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; permitting delays provided such delay is not
resulting from the responsible Party's failure to timely prosecute the same;
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. Without
limiting the foregoing, a failure, shortage, unavailability or other delay in
delivery of the fiber, cable, equipment or component shall not preclude Customer
from receiving a credit in accordance with the Service Level Agreement.
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CONFIDENTIAL AND PROPRIETARY
ARTICLE 17
DISPUTE RESOLUTION
17.1 Negotiation. 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 officers who have the authority
to settle such dispute. All negotiations conducted by such officer shall be
confidential and shall be treated as compromise and settlement negotiations. 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 initiate
legal proceedings, subject to Section 17.2, to resolve such dispute.
17.2 Arbitration. Any dispute with respect to the subject matter of
this Agreement, 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
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇. There shall be three arbitrators. The
arbitrators shall be individuals with experience in the telecommunications
industry and, in particular, with experience in the purchase and sale of
telecommunications capacity. The arbitrators' 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.
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CONFIDENTIAL AND PROPRIETARY
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 WFNS's consent, which
consent may be given or withheld in WFNS's sole discretion. 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, assign, exchange, lease or otherwise transfer all or any portion of
the Capacity.
18.2 Subject to Section 18.1, Customer may assign this Agreement in
whole, but not in part, to a Permitted Assignee. As used herein, 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 Nothing contained in this Article 18 shall be deemed or construed
to prohibit WFNS from assigning or otherwise transferring this Agreement in
whole or in part.
18.4 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
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; and (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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CONFIDENTIAL AND PROPRIETARY
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 domestic laws of the Province of British Columbia,
without giving effect to its principles of conflicts of laws.
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 WFNS 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 is entered into pursuant to that
certain Capacity Lease and Dark Fiber Agreement, dated March 17, 2000. Other
than Section 9 of that
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CONFIDENTIAL AND PROPRIETARY
certain Nondisclosure Agreement, dated March 17, 2000, entered into between GT
Group Telecom Services Corp. and 360networks inc., the IRU Agreement and the
Dark Fiber Sale Agreement, this Agreement constitutes the entire and final
agreement and understanding between the Parties with respect to the subject
matter hereof and supersedes, replaces and cancels all prior agreements relating
to the subject matter hereof, including, without limitation the Transaction
Agreement, all of which are of no further force or effect. All exhibits and
attachments 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
or attachment 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 ▇▇▇▇▇▇
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
WFNS 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 WFNS, 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 Attorneys' 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 attorneys' 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 WFNS (or its Affiliates) utilized in connection
with the provision of Capacity to Customer.
20.12 Condition. The validity and efficacy of this Agreement is
conditioned upon the execution and delivery of the Dark Fiber Agreement and the
IRU Agreement.
20.13 Performance. For all purposes hereunder (a) Worldwide Fiber
Network Services, Inc. shall perform WFNS's obligations under this Agreement in
the United States, and Worldwide Fiber Network Services Ltd. shall perform
WFNS's obligations under this
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CONFIDENTIAL AND PROPRIETARY
Agreement in Canada, and (b) subject to Section 3.10, GT Group Telecom Services
(USA) Corp. shall perform Customer's obligations under this Agreement in the
United States, and GT Group Telecom Services Corp. shall perform Customer's
obligations under this Agreement in Canada.
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CONFIDENTIAL AND PROPRIETARY
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: ____________________________________________________
WORLDWIDE FIBER NETWORK SERVICES, INC.
By: ____________________________________________________
Name: ____________________________________________________
Title: ____________________________________________________
GT GROUP TELECOM SERVICES CORP.
By: ____________________________________________________
Name: ____________________________________________________
Title: ____________________________________________________
GT GROUP TELECOM SERVICES (USA) CORP.
By: ____________________________________________________
Name: ____________________________________________________
Title: ____________________________________________________
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