Exhibit 99.1
EXECUTION COPY
COLLOCATION AGREEMENT
This COLLOCATION AGREEMENT ("AGREEMENT") dated as of 4 April 2001, with effect
from 19 February, 2001 is between FLAG ATLANTIC UK LIMITED ("FA-UK"), a company
organized under the laws of England and having its principal office at ▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, FLAG ATLANTIC FRANCE SARL ("FA-France"),
a company organized under the laws of France and having its principal office at
▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, and VERIZON GLOBAL SOLUTIONS
U.K. LTD., a corporation organized under the laws of England, and having its
principal office at Becket House ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and VERIZON GLOBAL SOLUTIONS FRANCE SAS, a corporation organized under
the laws of France, and having its principal office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ (FA-UK and FA-France are collectively referred to herein as "FLAG
Atlantic"; Verizon Global Solutions U.K. Ltd. and Verizon Global Solutions
France SAS are collectively referred to herein as VGSI; FLAG Atlantic and VGSI
are each a "Party" and collectively the "Parties").
RECITALS
WHEREAS, on 7 October 1999 NYNEX Long Distance d/b/a ▇▇▇▇ Atlantic Long
Distance Company ("BA") and FLAG Atlantic executed a capacity right of use
agreement ("CRUA") whereby BA would acquire certain capacity on the FLAG
Atlantic-1 submarine cable system (the "System") under construction by FLAG
Atlantic and/or its Affiliates;
WHEREAS, ▇▇▇▇ Atlantic Long Distance will assign its rights, duties and
obligations under the CRUA to VGSI as permitted in clause 13.1 of the CRUA;
WHEREAS, FA-UK and FA-France and/or their Affiliates own, lease or
otherwise control certain POPs which are suitable for the placement and
operation of telecommunications equipment; and
WHEREAS, VGSI and/or its Affiliates desire to access the POPs in one or
more locations for the purpose of placing therein VGSI Equipment on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which the Parties hereby
acknowledge, the Parties hereto agree as follows:
1. DEFINITIONS
1.1 The following terms shall have the meanings set forth in this
clause 1 when used in this Agreement, unless explicitly stated
to the contrary. Capitalized terms not otherwise defined herein
shall have the meaning set forth in the CRUA:
1.1.1 "Affiliate" shall mean any other entity that controls,
is controlled by or is under common control with an
entity.
1.1.2 "Collocation Fees" shall have the meaning set forth in
clause 4.1 hereto.
1.1.3 "Collocation Schedule" shall mean the portion of
Schedule 2 pertaining to an individual POP.
1.1.4 "Commencement Date" shall mean 19 February 2001 for the
London Hosting Centre and the date the Equipment Space
is made available to VGSI for the Paris POP.
1.1.5 "Equipment Space" shall mean that area of space to be
used for the installation of VGSI Equipment within any
POP identified on Schedule 2, to be determined as set
forth in clause 5.1.
1.1.6 "FLAG Atlantic Services" shall have the meaning set
forth in clause 11.1 hereof.
1.1.7 "Force Majeure Event" means fire, strike, embargo, any
requirement imposed by government regulation, civil or
military authorities, act of God or by the public enemy,
or other cause beyond a Party's reasonable control.
Default of any of FLAG Atlantic's subcontractors or
suppliers shall not constitute a Force Majeure Event
unless such default arises out of causes beyond the
reasonable control of both FLAG Atlantic and its
subcontractors or suppliers and without the fault or
negligence of either of them.
1.1.8 "License" shall have the meaning set forth in clause 2.1
hereof.
1.1.9 "Lien" shall mean any lien, mortgage, encumbrance,
pledge, lease, security interest or claim of any kind.
1.1.10 "Network Operations Centers" shall mean those FLAG
Atlantic operational centers assigned to the monitoring
and network management of the System.
1.1.11 "Other Equipment" shall mean any equipment or material
located at any POP other than VGSI Equipment.
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1.1.12 "Personnel" shall mean officers, employees, agents,
contractors, licensees, invitees and vendors of a person
or entity and its Affiliates.
1.1.13 "POP" shall mean a point of presence and in this
Agreement refers specifically to the collocation
facilities specified in clause 5.1.
1.1.14 "[*] Costs" shall mean all [*] costs payable by VGSI at
the relevant POP.
1.1.15 "Service Request" shall have the meaning set forth in
clause 6.3 hereof.
1.1.16 "Term" shall have the meaning set forth in clause 3.1
hereof.
1.1.17 "Underlying Lease" shall mean any underlying agreement
between FLAG Atlantic (or any Affiliate of FLAG
Atlantic) and the owner, lessor or licensor of the
property in which a POP is located.
1.1.18 "VGSI Equipment" shall mean VGSI-provided equipment, to
be installed, maintained and operated in the Equipment
Space, as generally described in Schedule 2.
1.1.19 "VGSI Specifications" shall mean detailed specifications
and instructions regarding the proper method of
installation, maintenance and/or operation of VGSI
Equipment.
2. LICENSE AND PERMISSIBLE USE
2.1 Subject to the terms and conditions contained herein, FLAG
Atlantic hereby grants to VGSI a license to install, operate,
repair, maintain and/or replace the VGSI Equipment in the
Equipment Space (the "License") for the purposes of connecting
to, deriving capacity from and otherwise utilizing the System
and/or the network of FLAG Atlantic or its affiliates or VGSI or
its Affiliates and/or the networks of other operators or service
providers. The License granted herein shall be interpreted for
all purposes as comprising two distinct sets of rights and
obligations:
(i) one License with respect to the Equipment Space located
in the United Kingdom, between Verizon Global Solutions
UK Ltd and FA-UK (?) Ltd and
(ii) one License with respect to the Equipment Space located
in France, between Verizon Global Solutions France SAS
and FA-France.
If the Parties deem it appropriate they shall restate this
License as two separate Licenses. FA-UK and FA-France each
hereby reserves all rights not specifically
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granted to VGSI, and agrees to use reasonable commercial efforts
to secure and maintain any authorizations, licenses, permits and
approvals required pursuant to any Underlying Lease or otherwise
required in connection with its performance of this Agreement (a
"Required Authorization"). Notwithstanding anything to the
contrary herein, if FA-UK or FA-France allows any Required
Authorization to lapse, or fails to timely secure a Required
Authorization, during the term hereof, VGSI may, at its own
reasonable expense, secure such Required Authorization, to the
extent of its interests in the Equipment Space and FLAG Atlantic
Services.
2.2 This document shall comprise a complete and binding agreement
between the respective Parties set forth in clause 2.1 above
with respect to each POP immediately upon delivery by FLAG
Atlantic or its Affiliate to VGSI of a Collocation Schedule
pertaining to the technical specifications and contact
information only for an individual POP which FLAG Atlantic or
its Affiliate owns, or in which FLAG Atlantic or its Affiliate
has a leasehold interest, or which FLAG Atlantic or its
Affiliate has a right to occupy. For the avoidance of doubt, the
Collocation Schedule shall not contain any commercial term that
will amend the terms of this Agreement except to the extent
permitted pursuant to clause 2.3. Each Collocation Schedule, and
any amendments thereto, shall incorporate the terms and
conditions of this Agreement, provided, however, that:
2.2.1 FA-UK and FA-France each represents and warrants that it
has sufficient right to grant the relevant License and
perform its obligations under this Agreement without
further formalities;
2.2.2 the Collocation Schedule shall set forth any conflicting
term or provision for the POP in question; and
2.2.3 in the event of any conflict or inconsistency between
this Agreement and the terms set forth in a Collocation
Schedule, the terms of the Collocation Schedule shall in
all cases prevail.
2.3 The terms of this Agreement relating to any POP in France or the
UK shall be modified (or the terms shall be deemed modified) if,
and to the extent, necessary to comply with local law or public
policy or to ensure enforceability under French or English law
or regulations, if and as applicable. The Parties shall
translate such terms into French, if necessary, provided,
however, that the English version shall prevail unless French
law requires otherwise.
2.4 FLAG Atlantic shall deliver to VGSI a Collocation Schedule
substantially in the form of and containing the information set
forth in Schedule 2 hereto. Upon delivery pursuant to clause 19,
such Collocation Schedule shall be deemed to be part of Schedule
2.
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2.5 VGSI shall be permitted to sublicense the License to its own
customers, provided that each such customer agrees to comply
with the terms and conditions relating to such Equipment Space
set forth in this Agreement and in the relevant Collocation
Schedule.
2.6 VGSI acknowledges that VGSI has been granted the License to
occupy the Equipment Space solely for the purposes set forth
herein, and that VGSI shall not use the Equipment Space, or
allow access thereto or use thereof, except in conformity with
the terms of the License and of this Agreement. Without limiting
the generality of the foregoing, VGSI shall not interfere and
shall ensure that its Personnel and Personnel of the permitted
users of the Equipment Space shall not interfere with any Other
Equipment. FLAG Atlantic shall not interfere, and shall ensure
that its Personnel and Personnel of the permitted users of the
POP shall not interfere, with any VGSI Equipment, except in the
event of an emergency.
2.7 VGSI will have the right, subject to approval of the relevant
landlord, to install at its own cost its own permanent -48V DC
power plant with sufficient batteries to handle a minimum of 4
hours of reserve for all VGSI Equipment in each POP. VGSI will
work with both FLAG Atlantic and the relevant landlord to obtain
the approvals (including with respect to the applicable
floor-loading limits) required for the structural and building
issues associated with the installation of the power plant(s)
referred to in this clause 2.7. The intent is to migrate from
FLAG Atlantic provided ▇▇▇▇▇▇▇ or equivalent Remote Power Units
("RPU") towards a dedicated VGSI owned and operated -48V DC
power plant.
3. TERM OF LICENSE
3.1 The term (the "Term") of the License for the London Hosting
Centre shall commence on 19 February 2001 and shall terminate on
[*]. The Term of the License for the Paris POP shall commence on
the date the Equipment Space in the Paris POP is made available
to VGSI and shall terminate on the [*].
3.2 Notwithstanding clause 3.1 above, VGSI shall be able to
terminate this Agreement at any time after [*] by giving FLAG
Atlantic 60 days' notice in writing.
4. COLLOCATION FEES AND OTHER CHARGES
VGSI shall pay to FLAG Atlantic the following charges starting from the
Commencement Date for each of the POPs:
4.1 COLLOCATION FEES - The collocation fees ("Collocation Fees")
shall be VGSI's pro-rata share of the actual, documented costs
incurred by FLAG Atlantic to provide Equipment Space plus a [*]
▇▇▇▇-up. VGSI's pro-rata share shall be calculated as
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the ratio of VGSI's Equipment Space to the total usable space in
each POP. In London, the total usable space at the date of this
Agreement is [*] square meters; in the Paris POP the total
usable space is [*] square meters. Collocation Fees include [*],
(as shown in Schedule 1 and described in clause 4.2 below) and
[*] Fees ("[*] Fees"). The [*] Fees shall include all [*] Costs
(i.e., the cost of [*] by VGSI and VGSI's [*] share ([*] share
based on VGSI's share of the [*]) of [*] Costs) and other costs
identified (for budgetary purposes only) in Schedule 1 plus a
[*] ▇▇▇▇-up. [*] Fees shall be payable quarterly in arrears
against invoices.
4.2 [*] FEES. VGSI shall pay the [*] of US$[*] per square meter for
VGSI's Equipment Space in the London Hosting Centre and US$[*]
per square meter for VGSI's Equipment Space in the Paris POP.
These charges are for recovery of FLAG Atlantic's [*] (including
[*] costs) allocable to the VGSI Equipment Space. [*] fees shall
be payable in advance against invoice.
VGSI is not required to prepay any [*] costs included in FLAG
Atlantic's estimated costs budget. However, if FLAG actually
incurs [*] costs, VGSI will pay its pro-rata share of those [*]
costs, based on FLAG Atlantic's invoice.
4.3 The schedule of [*] assumes VGSI's use of the Equipment Space
for a term of no less than [*].
5. VGSI EQUIPMENT SPACE
5.1 [*] SPACE.
5.1.1 VGSI shall [*] be allocated space ("[*] Space") as
follows:
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FACILITY SPACE
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London Hosting Centre [*]m2 in the 6th floor, [*]m2 [*] on
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ the 6th floor, and [*]m2 on the 7th
Mill Harbour floor.
London
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Paris POP [*]m2 in room 8, [*]m2 in an
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ alternative room
Croizat
St Denis
Paris
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5.1.2 VGSI shall receive [*]m2 of [*] Space at the Paris POP
by 3 April 2001. FLAG Atlantic shall make commercially
reasonable efforts to make available to VGSI the [*]
[*]m2 ("[*] Space"), as space [*] at the Paris POP by 1
June 2001. If FLAG Atlantic is unable to procure [*]
space to VGSI pursuant to this clause, VGSI will accept
[*] space of the same size.
5.1.3 The charges ([*] fees and [*] Fees) for the [*] Space in
the Paris POP shall be prorated with reference to the
amount of space actually available to VGSI starting on
the Commencement Date for the Paris POP until the [*]
Space is made available. On delivery of the [*] Space,
VGSI will pay the balance of the [*] Fees and shall
begin paying the [*] Fees for the [*] Space.
5.2 ADDITIONAL SPACE. VGSI shall have [*] Space in each of the
London Hosting Centre and the Paris POP (the "[*] Space"), to be
paid as follows:
5.2.1 LONDON HOSTING CENTRE. The charge for [*] Space per
square meter shall be [*] plus [*] Fees. The Term of the
[*] Space for the London Hosting Centre shall expire on
expiration of the Term for the [*] Space for the London
Hosting Centre.
5.2.2 PARIS POP. The charge for the [*] Space per square meter
shall be [*] plus [*] Fees. The Term of the [*] Space
for the Paris POP shall expire on expiration of the Term
for the [*] Space for the Paris POP.
5.2.3 All additional fit out costs incurred by FLAG Atlantic
and agreed with VGSI in advance in providing [*] Space
will be borne by VGSI and paid in advance.
5.2.4 VGSI is not required to pre-pay contingency costs
estimated in the FLAG Atlantic budget for the [*] Space.
However, should FLAG Atlantic incur justifiable
contingency costs in providing the [*] Space, VGSI shall
pay [*] based on FLAG Atlantic's documented invoice.
VGSI's [*] shall be based on VGSI's [*] in the London
Hosting Centre and the Paris POP.
6. ACCESS TO POPS; INSTALLATION AND MAINTENANCE OF EQUIPMENT
6.1 FLAG Atlantic acknowledges that VGSI and its duly authorized and
qualified Personnel and the duly authorized and qualified
Personnel of its permitted users of the Equipment Space shall
have access, for the purposes of this Agreement, to the
Equipment Space twenty-four (24) hours per day, seven days a
week and to all data and information available to FLAG Atlantic
relating to the performance of its obligations under this
Agreement, such as maintenance logs. Access to the
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Equipment Space by VGSI shall be contingent upon the observance
of FLAG Atlantic's safety, security and access procedures which
shall be promulgated in accordance with the best industry
practices and provided to VGSI in paper format (by notice
pursuant to clause 19) and in electronic copy (by e-mail, to
such address as VGSI may specify from time to time). Such
security and access procedures shall set out methods of
procedure for work performed in each POP. Access to POPs for
maintenance activities by VGSI and its authorized contractors
will be unescorted, provided, however, that VGSI shall provide
reasonable advance notice to the Network Operation Center prior
to arrival and notify the relevant Network Operations Center
upon arrival. VGSI's contractors installing VGSI Equipment and
visitors will be escorted by VGSI or by FLAG Atlantic as
appropriate. The cost of escort by FLAG Atlantic shall be borne
by VGSI. The Parties agree that only suitably qualified staff
shall be permitted to work on equipment in the POPs.
6.2 The VGSI Equipment shall be installed, maintained and repaired
only by (i) VGSI or VGSI's employees or contractors, or (ii)
FLAG Atlantic, upon VGSI's request and subject to acceptance by
FLAG Atlantic pursuant to clause 6.3 or 6.4 hereof. However, any
installation of cable other than cable affecting solely VGSI
Equipment at the POP by or on behalf of VGSI shall be under the
direct supervision of FLAG Atlantic.
6.3 If VGSI desires FLAG Atlantic to provide services to VGSI
Equipment, such as installation, first line maintenance, shifts
and changes, FLAG Atlantic will perform such services, if
commercially feasible, upon the acceptance by FLAG Atlantic of a
request to FLAG Atlantic (the "Service Request") which shall
specify (i) the nature of the requested service, (ii) the
requested time-period within which the service is to be
performed, (iii) a list of tools and/or supplies necessary to
perform the service, and (iv) the appropriate VGSI
Specifications. If FLAG Atlantic accepts the Service Request,
FLAG Atlantic warrants that it will provide the service in a
professional and workmanlike manner and in accordance with the
VGSI Specifications set forth in the Service Request. With
respect to the Service Request, VGSI shall pay to FLAG Atlantic
(w) a pro-rata portion of any documented applicable third party
standing charges, plus (x) all documented costs for materials
and supplies purchased by FLAG Atlantic for the sole purpose of
performing the service, plus (y) all applicable labor charges
for personnel involved in providing the service, which shall be
based on FLAG Atlantic's cost, plus (z) a [*]% margin. VGSI
shall, at its cost, provide such training to FLAG Atlantic's
maintenance personnel as is necessary to perform the Service
Request.
6.4 A VGSI Service Request for the installation by FLAG Atlantic of
the VGSI Equipment shall also include (i) VGSI's proposed
installation schedule, (ii) identification of all VGSI Equipment
to be installed, and (iii) the space, power,
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environmental and other requirements for the VGSI Equipment.
FLAG Atlantic may request the submission of further information
required for the performance of such installation services.
6.5 VGSI shall, prior to any installation, submit suitable
documentation to FLAG Atlantic evidencing that the VGSI
Equipment meets appropriate industry specifications and safety
requirements.
7. RELOCATION OF POPS
7.1 Subject to clause 7.3, upon notice to VGSI delivered as soon as
reasonably practicable (where reasonably practicable, no less
than 18 months), FLAG Atlantic may relocate either of the POPs
and/or all or any portion of the Equipment Space. If FLAG
Atlantic relocates a POP, VGSI will be [*]. Upon receiving its
rebate, VGSI has the option of [*]. Alternatively, VGSI may [*]
with FLAG Atlantic, subject to [*]. Notwithstanding the above,
if VGSI [*] with FLAG Atlantic, VGSI will pay [*] costs incurred
by FLAG Atlantic to relocate equipment and [*].
7.2 FLAG Atlantic agrees that in specifying the time-scale for any
relocation of the VGSI Equipment, FLAG Atlantic shall, where
reasonably practicable, consult with VGSI about any relocation
of the VGSI Equipment and use all reasonable endeavors to
specify a time-scale that causes minimum disruption to the
operation of the VGSI Equipment.
7.3 FLAG Atlantic may relocate any of the POPs as a result of an
eminent domain or similar proceeding or if required by
circumstances beyond FLAG Atlantic's reasonable control.
8. OWNERSHIP OF EQUIPMENT
The VGSI Equipment shall be and remain the sole property of VGSI. Each
Party shall take reasonable precautions for the security of the VGSI
Equipment. In addition, any supplies or materials purchased by FLAG
Atlantic at VGSI's expense in accordance with the terms of the License
shall be the sole property of VGSI.
9. WITHOLDING; TAXES
9.1 WITHHOLDING. All amounts payable by VGSI pursuant hereto shall
be paid in full in U.S. dollars by wire transfer, free and clear
of all bank or transfer charges to such account(s) as FLAG
Atlantic may by notice to VGSI designate without reduction for
any deduction or withholding for or on account of any tax, duty
or other charge of whatever nature imposed by any taxing
authority in lieu of a direct tax on FLAG Atlantic in connection
with its income. If VGSI is required by law to
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make any deduction or withholding from any payment hereunder,
VGSI shall pay such additional amount to FLAG Atlantic so that
after such deduction or withholding the net amount received by
FLAG Atlantic shall be not less than the amount FLAG Atlantic
would have received had such deduction or withholding not been
required. VGSI shall make the required deduction or withholding,
shall pay the amount so deducted or withheld to the relevant
governmental authority and shall promptly provide FLAG Atlantic
with evidence of such payment.
9.2 TAXES. Save as the context requires or as otherwise stated
herein all references to payments made in this Agreement are
references to such payments exclusive of all applicable sales
and use taxes, gross turnover taxes, value added taxes, or other
similar turnover or sales based taxes, excise taxes, duties and
levies chargeable under applicable law in respect of the supply
for which the payment is or is deemed to be consideration. Where
applicable, such taxes shall be added to the invoice and shall
be paid to FLAG Atlantic at the same time as the relevant
invoice is settled in accordance with clause 12. FLAG Atlantic
shall be solely responsible for payment of taxes on its income
and, except as provided in clause 9.1, for withholding taxes,
including, but not limited to, social security and payroll taxes
for its employees. VGSI shall be solely responsible for payment
of taxes on its income, and for withholding taxes, including,
but not limited to, social security and payroll taxes for its
employees. Neither Party shall have any liability for such taxes
which are to be borne by the other Party. Each Party shall
indemnify the other Parties and their respective Affiliates for
all claims, losses, penalties, interest, attorney's fees, and
costs and expenses, including litigation costs, arising from any
failure to make timely payment of such taxes, duties, and fees
such Party is required to pay under this Agreement. Each Party
shall co-operate in any effort by any other Party to contest
application or payment or to seek refunds of any such taxes,
duties, and levies.
9.3 VAT. Subject to clause 9.1, in the event that value added tax in
the UK or France is considered to be applicable, FLAG Atlantic
shall notify VGSI to this effect prior to the issuance of the
relevant VAT invoice and both Parties shall work together in
good faith to restructure the arrangements to reduce the impact
of VAT on VGSI, where legally possible, but such that there is
no adverse cashflow impact for FLAG Atlantic. Notwithstanding
these discussions, invoices (excluding the VAT) shall be issued
and be payable in accordance with clause 12.
9.4 LICENSE USE TAX. VGSI shall be responsible for all taxes
appropriately assessed and directly attributable to VGSI's use
of the License.
10. ALTERATIONS TO POPS
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10.1 VGSI shall not make any additions or alterations to the POPs
unless approved in advance by FLAG Atlantic in writing.
Notwithstanding the above, VGSI will have the right to install
VGSI Equipment in the Equipment Space.
10.2 Any additions or alterations made pursuant to clause 10.1 hereof
shall be at VGSI's sole expense and risk.
11. SERVICES PROVIDED BY FLAG ATLANTIC
11.1 During the Term, at each POP FLAG Atlantic shall provide the
following (the "FLAG Atlantic Services"), in compliance with all
local laws and regulations, at no additional charge to VGSI:
11.1.1 plant for sufficient commercial power and DC
rectification to feed standard DWDM
amplifying/regenerating equipment;
11.1.2 a diesel generator or equivalent, and fuel, sufficient
to maintain the load of the POP for a minimum of 48
hours;
11.1.3 a battery plant capable of handling the load of the POP
for a minimum of 30 minutes to ensure uninterrupted
power;
11.1.4 HVAC units necessary to support heat dissipation
requirements; and
11.1.5 a fire protection system.
11.2 FLAG Atlantic shall fit-out the POPs with appropriate power and
air conditioning and VGSI shall be entitled to sufficient power
and air conditioning for industry-typical loads assuming full
use of the Equipment Space. The aggregate power consumption
provided to VGSI will not exceed 500 ▇▇▇▇▇ per square meter of
leased space in the London Hosting Centre. The aggregate power
consumption power will not exceed 500 ▇▇▇▇▇ per square meter in
the Paris POP.
12. INVOICES
12.1 FLAG Atlantic shall render to VGSI invoices for all amounts
payable pursuant to this Agreement. All invoices shall be due
and payable within 30 days after receipt by VGSI.
12.2 Any amount payable pursuant to this Agreement which is not paid
when due shall accrue interest at the annual rate of 3% above
the U.S. Dollar LIBOR for one month as quoted in THE WALL STREET
JOURNAL on the first business day of the month in which the
payment is due or the maximum rate permitted under the laws of
the
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State of
New York, USA, whichever is less (the "Late Payment
Rate"). All such default interest shall accrue from the day
following the date payment of the relevant amount was due until
it is paid in full (and shall accrue both before and after
judgement). Such interest shall be payable on demand.
Notwithstanding clause 12.3, in the event that upon
investigation the amount in dispute or part thereof is found to
be correct as originally invoiced, VGSI shall pay, in addition
to the amount in dispute, interest at the Late Payment Rate, in
accordance with this clause on such portion of the disputed
amount which is found to have been correctly invoiced, such
interest to be paid from the date payment of the relevant amount
was originally due until it is paid in full. If VGSI pays a
disputed charge and upon investigation the amount in dispute is
found to be properly disputed (because it was not due as
invoiced), the FLAG Atlantic shall repay to VGSI, in addition to
the amount wrongly invoiced, interest at the Late Payment Rate,
on such portion of the disputed amount which is found to have
been wrongly invoiced, such interest to be paid from the payment
date of the wrongly paid amount until it is repaid by FLAG
Atlantic to VGSI in full.
12.3 If VGSI disputes any invoiced amount in good faith, VGSI must
provide to FLAG Atlantic, on or before the due date of the
invoice, reasonable notice and a detailed explanation of the
basis of the dispute, and pay any undisputed amount in
accordance with this Agreement. Failure by VGSI to pay amounts
disputed by VGSI in good faith shall not be deemed a default by
VGSI hereunder, or the basis for termination of this Agreement
by FLAG Atlantic. The Parties will make a good faith effort to
resolve all billing disputes as expeditiously as possible.
12.4 Except as otherwise set forth herein, VGSI's obligation to pay
amounts that have become due and payable pursuant hereto shall
not be subject to any set-off, counterclaim, deduction, defense
or other right which VGSI may have against FLAG Atlantic or any
other party under this Agreement or otherwise.
12A. DEFAULT
In the event that VGSI shall have failed to pay any amount payable by
VGSI pursuant hereto (and not being disputed in good faith) for more
than 60 days after its due date, then VGSI shall not be entitled to
occupy the Paris POP or to any [*] Space or [*] Space (to the extent
such options have not already been exercised). If such failure continues
for an additional 60 days, FLAG Atlantic shall be entitled to refrain
from performing any services for VGSI required by this Agreement and to
deny VGSI the right of access to
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any Equipment Space until VGSI has paid in full all amounts overdue
together with applicable default interest.
13. LIABILITIES, INDEMNITIES AND COVENANTS
13.1 Notwithstanding any other provision in this Agreement to the
contrary, neither Party shall be liable to the other Party for
any indirect, special, punitive or consequential damages
(including, but not limited to, any loss of profit or business
or claim from any customer for loss of services) arising out of
this Agreement or from any breach of any of the terms and
conditions of this Agreement.
13.2 Each Party (the "Indemnified Party") agrees to defend, indemnify
and hold harmless the other Party and its respective Affiliates
and the other Party's and its Affiliates' directors, officers,
agents and employees (each hereinafter referred to as the
"Indemnified Party") from and against any and all third party
claims, claims, fines or penalties (including the amount of any
settlement approved by the Indemnifying Party) (collectively,
"Claims"), and any expenses of enforcing this provision, which
any Indemnified Party may suffer, incur or become subject to,
and to reimburse the Indemnified Party for any reasonable legal
expenses incurred by such Indemnified Party in connection with
defending any actions related to any Claim, to the extent such
Claim arises out of, relates to or is based upon (i) any false
or untrue representation made by the Indemnifying Party in this
Agreement, or (ii) gross negligence or willful misconduct by the
Indemnifying Party, in connection with the Indemnifying Party's
operation of its business or failure to perform under this
Agreement, or (iii) the Indemnifying Party's violation or
alleged violation of any applicable law or rule, regulation,
order or decree of a governmental or regulatory body of
competent jurisdiction. Each Party has no obligation under this
Agreement to indemnify any Indemnified Party for that portion of
any Claim that arises from the Indemnified Party's negligence,
gross negligence or willful misconduct.
13.3 FLAG Atlantic will, to the extent applicable, comply with the
Government Requirements set forth in Schedule 3 in the
performance of this Agreement. Reference to "Seller" in Schedule
3 shall be deemed to be references to FLAG Atlantic.
14. INSURANCE
14.1 VGSI shall, at its own expense, procure and maintain in force
during the Term for each Facility the insurance coverage
provided for in this clause 17 in a form and with underwriters
with an A.M. Best and Company rating acceptable to FLAG
Atlantic:
13
14.1.1 Worker's Compensation and Employer's Liability insurance
shall be provided as required by any applicable law or
regulation. Employer's Liability insurance shall be
provided in amounts not less than (pound)10 million in
the United Kingdom and France, and $1 million for each
accident for bodily injury and $1 million each employee
for bodily injury in the United States.
14.1.2 Third Party Liability Insurance covering losses and
claims from injuries or death to any person (including
any employee or customer of VGSI) or damage to any
property (including that of FA-1, its customers, and
VGSI's customers) suffered on or about the Facilities.
Coverage shall be provided in amounts not less than $2
million per occurrence, $5 million products completed
operations aggregate and $5 million general aggregate
and shall include contractual, independent contractors,
broad form property and personal injury coverage.
14.1.3 Umbrella and/or Excess Liability coverage in the amount
of $100 million, excess of the coverage specified in
clause 14.1.2.
14.1.4 All Risk Property coverage on a full replacement cost
basis insuring all of VGSI's real and personal property
situated on or within the Facilities. VGSI may also
elect to purchase business interruption and contingent
business interruption insurance, knowing that neither
FLAG Atlantic nor any of its Affiliates has any
liability for loss of profit or revenues should an
interruption of service occur.
14.1.5 Builder's Risk / Installation Floater Insurance on an
"All Risk" basis and a completed value basis during the
course of construction at any Equipment Space until
completion thereof. The policy shall cover fire,
vandalism, malicious mischief and collapse, for the full
replacement value covering the interests of VGSI, FLAG
Atlantic and each of its Affiliates and Barclays Bank
PLC (and their respective contractors and
subcontractors) in all work incorporated into the
building and all materials and equipment located in or
about any Equipment Space.
14.2 The insolvency, liquidation, bankruptcy or failure of any
insurer providing insurance for VGSI or its subcontractors, or
failure of any such insurer to pay claims accruing, or failure
of VGSI to acquire or maintain such insurance, shall not excuse
VGSI from complying with any of the provisions of this clause
14.
14.3 All deductibles or self-insured retentions in the above
insurance coverage are for the account of VGSI and shall, under
no circumstances, be the responsibility of FLAG Atlantic or any
of its Affiliates.
14
14.4 Certificates of insurance, as evidence of the insurance required
by this Agreement, shall be furnished by VGSI to FLAG Atlantic.
The certificates of insurance shall provide that there will be
no cancellation, reduction, or material modification of coverage
without 30 days prior written notice to FLAG Atlantic. Notice of
cancellation should be forwarded to FLAG Atlantic, at the
following address:
FLAG Atlantic UK Limited
▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax:▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
With a copy to: General Counsel
14.5 The limits specified herein are minimum requirements and shall
not be construed in any way as limits of liability or as
constituting acceptance by FLAG Atlantic or any of its
Affiliates of such responsibility for financial liabilities in
excess of such limits.
14.6 FLAG Atlantic shall give VGSI prompt notification of any claim
with respect to any of the insurance to be provided hereunder,
accompanied by full details giving rise to such claim. VGSI
shall afford FLAG Atlantic all such assistance as may be
required for the preparation and negotiation of insurance
claims.
14.7 Policies shall include a provision or endorsement naming FLAG
Atlantic, its designated Affiliates and Barclays Bank PLC as
additional insureds and loss payees, with appropriate "Cross
Liability" and "Severability of Interests". Underwriters shall
agree to waive their rights of subrogation against FLAG Atlantic
and its affiliates regarding risks insured pursuant to clauses
14.1.4. and 14.1.5. FLAG Atlantic and its Affiliates and
Barclays Bank PLC shall be protected against all liability
occasioned by an occurrence insured against. All said policies
of insurance shall be: (i) written on an "occurrence" basis and
(ii) written as primary policy coverage regarding the interests
of FLAG Atlantic and its designated Affiliates and Barclays Bank
PLC, and any other insurance maintained by FLAG Atlantic and/or
its designated Affiliates is excess and not contributing
insurance.
15. ASSIGNMENT
15.1 This Agreement and all the provisions hereof shall be binding
upon and inure to the benefit of the Parties hereto and their
respective successors and permitted assigns; provided that,
except for the assignment of FLAG Atlantic's rights (but not
FLAG Atlantic's obligations) under this Agreement to one or more
financial institutions, lenders, creditors and export credit
agencies as collateral security for financing provided to FLAG
Atlantic or in connection with a sale of receivables
15
by FLAG Atlantic, neither this Agreement nor any of the rights,
interest or obligations hereunder shall be assigned or
transferred by any of the Parties hereto without the prior
written consent of the other Parties, and any attempted
assignment or transfer in violation of this clause shall be
void. Notwithstanding the foregoing, VGSI may assign its rights,
duties and obligations under this Agreement upon notice to FLAG
Atlantic, but without FLAG Atlantic's prior consent, to VGSI
Affiliates or to any transferee of or successor to all or
substantially all of the business assets of VGSI, provided:
15.1.1 the Affiliate, transferee or successor agrees to be
bound by all terms and conditions of this Agreement; and
15.1.2 the Affiliate, transferee or successor is authorised or
permitted under the laws and regulations of its country
to acquire and use the Equipment Space.
15.2 Notwithstanding the foregoing, FLAG Atlantic may assign its
rights, duties and obligations under this Agreement upon notice
to VGSI, but without VGSI's prior consent to an FLAG Atlantic
Affiliate:
15.2.1 to the extent commercially necessary for such Affiliate
to perform obligations of FLAG Atlantic under the terms
hereof; and
15.2.2 subject to such Affiliate agreeing to be bound by all
the terms of this Agreement.
15.3 FLAG Atlantic may use subcontractors or agents to fulfil its
obligations hereunder and shall be wholly liable therefor as if
such subcontractors were its agents.
16. FORCE MAJEURE
No failure or omission by either Party to carry out or observe any of
the terms and conditions of this Agreement (other than payment
obligations) shall give rise to any claim against such Party or be
deemed a breach of this Agreement if such failure or omission arises
from a Force Majeure Event provided that the observation of reasonable
care and industry standards would not have avoided such failure or
omission.
17. SURRENDER OF THE EQUIPMENT SPACE
17.1 Upon termination of the License with respect to any Equipment
Space, VGSI shall surrender such Equipment Space in good
condition, reasonable wear and tear excepted. VGSI shall be
responsible at its own cost:
16
17.1.1 to remove the VGSI Equipment and personal property from
the relevant POPs and to reimburse FLAG Atlantic for its
direct costs properly incurred in repairing any damage
caused by such removal (reasonable wear and tear
excepted); and
17.1.2 to remove all additions and alterations made or
installed by VGSI and to restore such Equipment Space
and the related POPs to the same condition as existed on
the day the VGSI Equipment was first installed
(reasonable wear and tear excepted).
17.2 In the event VGSI fails to remove the VGSI Equipment and
personal property from such Equipment Space and POPs, or fails
to remove any additions or alterations in accordance with clause
17.1.2, within a reasonable period following termination of the
License with respect to any Equipment Space (in no event less
than thirty (30) days following termination of the relevant
License or, if such termination is disputed, in no event less
than twenty one days following final resolution of such
dispute), FLAG Atlantic may, without further notice to VGSI:
17.2.1 remove and store the VGSI Equipment and personal
property for VGSI's benefit and at VGSI's sole expense;
and/or (as the case may be)
17.2.2 perform the work required pursuant to clause 17.1.2 at
VGSI'S risk and expense.
18. GOVERNING LAW AND DISPUTE RESOLUTION
18.1 Subject to clause 2.2, this Agreement shall be construed in
accordance with
New York law, without regard to the law of
New
York governing conflicts of law.
18.2 Except as otherwise provided herein, any dispute or controversy
at law arising under or in connection with this Agreement,
provided neither party shall have given notice of termination
hereof to the other, shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce by one
arbitrator appointed in accordance with such Rules and familiar
with the commercial law of the State of
New York. Any such
dispute or controversy to be settled under this clause shall be
between VGSI and FLAG Atlantic. The place of arbitration shall
be London. The arbitration shall be conducted in English. The
decision and award resulting from such arbitration shall be
final and binding on the Parties. Judgment upon the arbitration
award may be rendered by any court of competent jurisdiction, or
application may be made to such court for a judicial acceptance
of the award and an order of enforcement. Insofar as permissible
under the applicable laws, the Parties hereby waive all rights
to object to any action for judgment or execution which may be
brought before a court of competent jurisdiction on an
arbitration award or on a judgment rendered thereon. Disputes
17
at equity, such as disputes where monetary compensation is
insufficient to provide adequate relief, or in issue following
notice by a party of termination hereof, may be resolved in
court or by arbitration as the parties may then agree.
19. NOTICES
19.1 Any notice, request, demand or other communication required or
permitted hereunder shall be sufficiently given if in writing in
English and delivered by hand or sent by prepaid registered or
certified mail (airmail if international), by facsimile or by
prepaid international courier service of international
reputation addressed to the appropriate Party at the following
address or to such address as such Party may from time to time
designate:
If to VGSI:
VGSI
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇ or BGSI Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
VGSI
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ or VP Network
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇
If to FLAG Atlantic:
FLAG Atlantic UK Limited
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: VP Finance
Tel: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
18
19.2 Any notice, request, demand or other communication given or made
pursuant to this clause shall be deemed to have been received
(i) in the case of hand delivery or courier, on the date of
receipt as evidenced by a receipt of delivery from the
recipient, (ii) in the case of mail delivery, on the date which
is seven days after the mailing thereof and (iii) in the case of
transmission by facsimile, on the recipient's business day next
following the date of transmission with confirmed answer back.
Each such communication sent by facsimile shall be promptly
confirmed by notice in writing hand-delivered or sent by
courier, mail or air mail as provided herein, but failure to
send such a confirmation shall not affect the validity of such
communication.
20. INVALIDITY
If any provision of this Agreement is found by an arbitral, judicial or
regulatory authority having jurisdiction to be void or unenforceable,
such provision shall be deemed to be deleted from this Agreement and the
remaining provisions shall continue in full force and effect.
21. VARIATION
No variation or amendment of this Agreement shall be effective unless in
writing signed by authorized representatives of each of the Parties.
22. COUNTERPARTS
This Agreement may be executed in counterparts. Any single counterpart
or set of counterparts signed, in either case, by all the Parties hereto
shall constitute a full and original Agreement for all purposes.
23. CONSTRUCTION
The language used in this Agreement is deemed the language chosen by the
Parties to express their mutual intent. No rule of strict construction
shall be applied against either Party. Headings are used in this
Agreement for purposes of convenience only, and shall not be deemed a
part of this Agreement nor used to interpret or construe the provisions
hereof. Any reference herein to any clause, section, subsection,
paragraph, subparagraph, exhibit, Schedule or attachment shall be deemed
a reference to such portion of this Agreement unless otherwise
specified.
24. WAIVERS
19
Except as set forth in clause 4, no waiver of any term or condition of
this Agreement shall be enforceable unless it is in writing and signed
by the Party against whom it is sought to be charged. No failure or
delay by either Party in exercising any right, power or remedy will
operate as a waiver of any such right, power or remedy, unless otherwise
provided herein. The waiver by either Party of any of the covenants,
conditions or agreements to be performed by the other or any breach
thereof shall not operate or be construed as a waiver of any subsequent
breach of any such covenant, condition or agreement.
25. INTEGRATION, CONSISTENCY
This Agreement and all Exhibits, Schedules and other attachments
attached hereto (which Exhibits, Schedules and other attachments are
hereby incorporated by reference), represent the entire agreement
between the Parties with respect to the subject matter hereof and
supersede and merge all prior agreements, promises, understandings,
statements, representations, warranties, indemnities and inducements to
the making of this Agreement relied upon by either Party, whether
written or oral. In the event of any inconsistency between the terms of
this Agreement and the terms of any Exhibits, Schedules and other
attachments incorporated herein, the terms of this Agreement shall
prevail, except in relation to any amendment thereof pursuant to clause
2.3.
20
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
FLAG ATLANTIC UK LIMITED FLAG ATLANTIC FRANCE SARL
By: By:
------------------------- -------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------- -------------------------
VERIZON GLOBAL SOLUTIONS U.K. VERIZON GLOBAL SOLUTIONS
LTD FRANCE SAS
By: By:
------------------------- -------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------- -------------------------
21
SCHEDULE 1
1. London:-
[*]
2. Paris:-
[*]
* The [*] figures shown above do not include any [*] referred to in clause
5.2.4.
-----------------------
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions.
22
SCHEDULE 2
POP NAME:
----------------------------------------------
POP LOCATION:
----------------------------------------------
VGSI CONTACT:
----------------------------------------------
NAME:
----------------------------------------------
ADDRESS:
----------------------------------------------
----------------------------------------------
TELEPHONE NO:
----------------------------------------------
FACSIMILE NO:
----------------------------------------------
E-MAIL:
----------------------------------------------
EFFECTIVE DATE:
----------------------------------------------
DESCRIPTION OF EQUIPMENT
SPACE:
----------------------------------------------
----------------------------------------------
----------------------------------------------
DESCRIPTION OF VGSI EQUIPMENT:
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
----------------------------------------------
SPECIAL CONDITIONS
----------------------------------------------
23
SCHEDULE 3
GOVERNMENT REQUIREMENTS
To the extent that this Agreement is subject to them, FLAG Atlantic shall comply
with the applicable provisions of the following: Exec. Order No. 11246, Exec.
Order No. 11625, Exec. Order No. 12138, Exec. Order No. 11701, Exec. Order No.
11758, Section 503 of the Rehabilitation Act of 1973 as amended by PL93-516 and
▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇ Era Veteran's Readjustment Assistance Act of 1974, Veteran's
Compensation, Education and Employment Amendments of 1982, and the rules,
regulations and relevant orders of the Secretary of Labor pertaining to the
Executive Orders and Statutes listed above. The following table describes the
clauses which are included in this Agreement.
ANNUAL CONTRACT VALUE CLAUSES
--------------------- -------
Under $10,000 5*
$10,000 - $50,000 1, 2, 5*, 6, 7, 8,
$50,000 - $500,000 1, 2, 3**, 4**, 5, 6,
7, 8, 9
Over $500,000 1, 2, 3**, 4**, 5, 6,
7, 8***, 9
1. Equal Employment Opportunity Provisions
In accordance with Executive Order 11246, dated September 24, 1965 and
Subpart 22.8 of Subchapter D of Chapter 1 of Title 48 of the Code of
Federal Regulations as may be amended from time to time, the Parties
incorporate herein by this reference the regulations and clauses
required by those provisions to be made a part of government contracts
and subcontracts.
2. Certification of Non-segregated Facilities
FLAG Atlantic certifies that it does not and will not maintain any
facilities it provides for its employees in a segregated manner, or
permit its employees to perform their services at any location under its
control, where segregated facilities are maintained; and that it will
obtain a similar certification, prior to the award of any non-exempt
subcontract.
24
3. Certification of Affirmative Action Program
FLAG Atlantic affirms that it has developed and is maintaining an
Affirmative Action Plan as required by Subpart 22.8 of Subchapter D of
Chapter 1 of Title 48 of the Code of Federal Regulations.
4. Certification of Filing of Employer's Information Reports
FLAG Atlantic agrees to file annually on or before the 31st day of March
complete and accurate reports on Standard Form 100 (EEO-1) or such forms
as may be promulgated in its place.
5. Utilization of Small Business Concerns and Small Disadvantaged Business
Concerns
(a) It is the policy of the United States that small business
concerns and small business concerns owned and controlled by
socially and economically disadvantaged individuals shall have
the maximum practicable opportunity to participate in performing
contracts let by any Federal agency.
(b) FLAG Atlantic hereby agrees to carry out this policy in the
awarding of subcontracts to the fullest extent consistent with
efficient contract performance. FLAG Atlantic further agrees to
co-operate in any studies or surveys as may be conducted by the
United States Small Business Administration or the awarding
agency of the United States as may be necessary to determine the
extent of FLAG Atlantic's compliance with this clause.
(c) As used in this contract, the term "Small Business Concern"
shall mean a small business as defined pursuant to section 3 of
the Small business Act and relevant regulations promulgated
pursuant thereto. The term "Small Business Concern" owned and
controlled by socially and economically disadvantaged
individuals" shall mean a small business concern -
(1) Which is at least fifty-one percent (51%) owned by one
or more socially and economically disadvantaged
individuals; or, in the case of any publicly owned
business, at least fifty-one percent (51%) of the stock
of which is owned by one or more socially and
economically disadvantaged individuals; and
(2) Whose management and daily business operations are
controlled by one or more of such individuals. Seller
shall presume that socially and economically
disadvantaged individuals include Black Americans,
Hispanic Americans, Native Americans, Asian-Pacific
Americans, Asian-Indian Americans and other minorities,
or any other individual found to be
25
disadvantaged by the Administration pursuant to section
8 (a) of the Small Business Act.
(d) FLAG Atlantics acting in good faith may rely on written
representations by their subcontractors regarding their status
as either a Small Business Concern or a Small Business Concern
owned and controlled by socially and economically disadvantaged
individuals.
6. Utilization of Women-Owned Small Businesses
(a) "Women-owned small businesses," as used in this clause, means
businesses that are at least 51 percent owned by women who are
United States citizens and who also control and operate the
business. "Control," as used in this clause, means exercising
the power to make policy decisions. "Operate," as used in this
clause, means being actively involved in the day-to-day
management of the business.
(b) It is the policy of the United States that women-owned small
businesses shall have the maximum practicable opportunity to
participate in performing contracts awarded by any Federal
agency.
(c) FLAG Atlantic agrees to use its best efforts to give women-owned
small businesses the maximum practicable opportunity to
participate in the subcontracts it awards to the fullest extent
consistent with the efficient performance of its contract.
7. Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era
In accordance with Exec. Order 11701, dated January 24, 1973, and
Subpart 22.13 of Subchapter D of Chapter 1 of Title 48 of the Code of
Federal Regulations, as may be amended from time to time, the parties
incorporate herein by this reference the regulations and contract
clauses required by those provisions to be made a part of Government
contracts and subcontracts.
8. Affirmative Action for Handicapped Workers In accordance with Exec.
Order 11758, dated January 15, 1974, and Subpart 22.14 of Subchapter D
of Chapter 1 of Title 48 of the Code of Federal Regulations as may be
amended from time to time, the parties incorporate herein by this
reference the regulations and contract clauses required by those
provisions to be made a part of Government contracts and subcontracts.
9. Employment Reports on Special Disabled Veterans and Veterans of the
Vietnam Era
(a) FLAG Atlantic agrees to report at least annually, as required by
the Secretary of Labor, on:
26
(1) The number of special disabled veterans and the number
of veterans of the Vietnam era in the work force of FLAG
Atlantic by job category and hiring location; and
(2) The total number of new employees hired during the
period covered by the report, and of that total, the
number of special disabled veterans, and the number of
veterans of the Vietnam era.
(b) The above items shall be reported by completing the form
entitled "Federal Contractor Veterans' Employment Report
VETS-100."
(c) Reports shall be submitted no later than March 31 of each year.
(d) The employment activity report required by paragraph (a) (2) of
this section shall reflect total hires during the most recent
12-month period as of the ending date selected for the
employment profile report required by paragraph (a) (1) of this
section. FLAG Atlantic may select an ending date: (1) As of the
end of any pay period January through March 1st of the year the
report is due, or (2) as of December 31, if FLAG Atlantic has
previous written approval from the Equal Employment Opportunity
Commission to do so for purposes of submitting the Employer
Information Report EEO-1 (Standard Form 100).
(e) The count of veterans reported according to paragraphs (a) above
shall be based on voluntary disclosure. Each FLAG Atlantic
subject to the reporting requirements at 3 U.S.C. 2012(d) shall
invite all special disabled veterans and veterans of the Vietnam
era who wish to benefit under the affirmative action program at
38 U.S.C. 2012 to identify themselves to FLAG Atlantic. The
invitation shall state that the information is voluntarily
provided, that the information will be kept confidential, that
disclosure or refusal to provide the information will not
subject the applicant or employee to any adverse treatment, and
that the information will be used only in accordance with the
regulations promulgated under 38 U.S.C. 2012. Nothing in this
paragraph (e) shall preclude an employee from informing FLAG
Atlantic at a future time of his or her desire to benefit from
this program. Nothing in this paragraph (e) shall relieve FLAG
Atlantic from liability for discrimination under 38 U.S.C 2012.
* Applies only if this Agreement has further subcontracting opportunities.
** Applies only to businesses with 50 or more employees.
*** FLAG Atlantic must also adopt and comply with a small business and small
disadvantaged business subcontracting plan pursuant to Title 48 of the
Code of Federal Regulations.
27