*The redacted portions of this contract have been omitted pending the outcome of
a confidential treatment request filed with the Securities and Exchange
Commission.*
CAPACITY AND DARK FIBER IRU PURCHASE AGREEMENT
THIS CAPACITY AND DARK FIBER IRU PURCHASE AGREEMENT (the Agreement")
is made and entered into as of the 11th day of April, 2000 (the "Effective
Date"), by and between LEVEL 3 LANDING STATION INC., a corporation organized and
existing under the laws of the State of Delaware, LEVEL 3 (BERMUDA) LIMITED, a
corporation organized and existing under the laws of Bermuda, and LEVEL 3
COMMUNICATIONS LIMITED, a corporation organized and existing under the laws of
England, (collectively "Level 3"), and VIATEL, INC., a corporation organized and
existing under the laws of the State of Delaware ("Viatel").
RECITALS
WHEREAS, Level 3 has entered into certain agreements (the "System
Agreements") whereby Level 3 owns or obtains the right to use and re-sell
certain telecommunications capacity on the Atlantic Crossing 1 submarine cable
system ("AC-1") and certain telecommunications capacity and/or dark fibers in
certain terrestrial (backhaul and interlink) cable systems in the USA and UK
(collectively the "AC/Backhaul System").
WHEREAS, Viatel desires to acquire certain telecommunications
capacity and dark fibers.
WHEREAS, Level 3 and Viatel have simultaneously herewith executed
that certain Fiber Purchase Agreement ("Fiber Agreement"), pursuant to which
Viatel has agreed to purchase certain fiber from Level 3 in the Yellow Submarine
cable system between the USA and the UK (the "Yellow System").
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein and in the Fiber Agreement, covenant and agree with
each other as follows:
1. DEFINITIONS. Capitalized terms used herein shall have the following
meanings:
A. "AC-1" shall have the meaning set forth in the Recitals hereto.
B. "AC-1 CAPACITY" shall mean 20 Gbps of unprotected restoration
capacity on AC-1 as more particularly described on Exhibit "A."
C. "AC-1 TERM" shall mean the period during which Viatel has the IRU in
the AC-1 Capacity.
D. "AC/BACKHAUL SYSTEM" shall have the meaning set forth in the
Recitals hereto.
E. "AO&M PAYMENTS" shall have the meaning set forth in Section 3.
F. "AO&M PLAN" shall have the meaning set forth in Section 3.
1
<PAGE>
G. "BACKHAUL FIBERS" shall mean one pair of dark fibers along two
diverse routes generally running between the Yellow System cable
landing station in Bude, Cornwall, UK and a Level 3 gateway facility
located at 6 Braham Street, in London, UK and one pair of dark
fibers along two diverse routes generally running between the Yellow
System cable landing station in Bellport, Long Island, New York, USA
and the Level 3 gateway facility located at 111 8th Avenue in New
York, New York, USA; the technical specifications for the Backhaul
Fibers, together with the construction and conduit specifications
relating thereto, are set forth on Exhibit "B".
H. "BACKHAUL TERM" shall mean the period during which Viatel has the
IRU in the Backhaul Fibers.
I. "COLOCATION AGREEMENT" shall mean that certain Colocation Agreement
entered into between Level 3 and Viatel more or less
contemporaneously herewith.
J. "DOLLARS" or "$" shall mean United States dollars.
K. "FIBER AGREEMENT" shall have the meaning set forth in the Recitals
hereto.
L. "FIBER PAYMENT DATE" shall mean the date of full and complete
payment by Viatel of (a) the Purchase Price (as defined in the Fiber
Agreement) for the Purchased Fiber (as defined in the Fiber
Agreement), (b) the Purchase Price for the Purchased Capacity and
Fibers, and (c) the License Payment (as defined in the Colocation
Agreement) for the Colocation Space (as defined in the Colocation
Agreement).
M. "INTERLINK CAPACITY" 20 Gbps of unprotected capacity between the
AC-1 cable landing stations and Yellow System cable landing stations
in the USA and UK.
N. "INTERLINK TERM" shall mean the period during which Viatel has the
IRU in the Interlink Capacity.
O. "IRU" shall mean an indefeasible (except as set forth herein) right
to use the Purchased Capacity and Fibers, subject to and under the
terms set forth herein, for the duration specified herein.
P. "PAYMENT DUE DATE" shall mean the due date for payments hereunder by
Viatel.
Q. "PERMITS" shall have the meaning set forth in Section 8.
R. "PURCHASE PRICE" shall mean the aggregate purchase price payable by
Viatel for the Purchased Capacity and Fibers, or [REDACTED].
S. "PURCHASED CAPACITY AND FIBERS" shall mean the Backhaul Fibers, the
Interlink Capacity and the AC-1 Capacity.
T. "RFS DATE" shall have the meaning set forth in the Fiber Agreement.
2
<PAGE>
U. "SYSTEM AGREEMENTS" shall have the meaning set forth in the Recitals
hereto.
V. "SYSTEM OPERATOR" shall mean the owners and operators (which may
include Level 3) of the AC/Backhaul System.
W. "TAXES" shall have the meaning set forth in Section 2.E.
X. "TERM" shall mean the period commencing with the Fiber Payment Date
and ending on the expiration of the Backhaul Term, the Interlink
Term or the AC-1 Term, whichever is later.
2. IRU.
A. AC-1 CAPACITY. In consideration for the payment of the Purchase
Price, Level 3 hereby agrees to grant to Viatel an IRU, for the AC-1
Term, in the AC-1 Capacity, on the terms and conditions set forth
herein. The IRU in the AC-1 Capacity shall commence and become
effective as of the Fiber Payment Date.
B. BACKHAUL FIBERS. In consideration for the payment of the Purchase
Price, Level 3 hereby agrees to grant to Viatel an IRU, for the
Backhaul Term, in the Backhaul Fibers, on the terms and conditions
set forth herein. The IRU in the Backhaul Fibers shall commence and
become effective as of the Fiber Payment Date.
C. INTERLINK CAPACITY. In consideration for the payment of the Purchase
Price, Level 3 hereby agrees to grant to Viatel an IRU, for the
Interlink Term, in the Interlink Capacity, on the terms and
conditions set forth herein. The IRU in the Interlink Capacity shall
commence and become effective as of the Fiber Payment Date.
D. PURCHASE PRICE. In consideration of the grants of IRUs to Viatel,
Viatel agrees to make payments of the Purchase Price for the
Purchased Capacity and Fibers to Level 3 on the Payment Due Dates
set forth below:
PAYMENT DUE DATE AMOUNT DUE
[REDACTED] [REDACTED]
Purchase Price [REDACTED]
Viatel shall, on or before the respective Payment Due Dates set
forth above, pay to Level 3, in immediately available Dollars, the
portion of the Purchase Price then due (provided Level 3 shall give
five (5) business days prior notice of such Payment Due Date to
Viatel for any Payment Due Date not specifically ascertainable in
the above schedule).
E. TAXES. All payments made by Viatel under this Agreement shall be
made without any deduction or withholding for or on account of any
tax, duty or other charges of whatever nature imposed by any taxing
3
<PAGE>
or governmental authority (collectively "Taxes"). If Viatel is or
was required by law to make any deduction or withholding from any
payment due hereunder to Level 3, or if Level 3 is required to pay
any Taxes (other than net income taxes) upon, measured by, or
reasonably attributable to the Purchase Price or the cost or value
of Purchased Capacity and Fibers, then, notwithstanding anything to
the contrary contained in this Agreement, the gross amount payable
by Viatel to Level 3 will be increased so that, after any such
deduction, withholding or other payment of Taxes, the net amount
received by Level 3 will not be less than Level 3 would have
received had no such deduction, withholding or other payment been
required. If any taxing or government authority asserts that Viatel
should have made a deduction or withholding, or Level 3 should have
made any payment, for or on account of any Taxes with respect to all
or a portion of any payment made hereunder, Viatel hereby agrees to
indemnify Level 3 for such Taxes and hold Level 3 harmless on an
after-tax basis from and against any Taxes, interest or penalties
levied or asserted in connection therewith. Viatel shall not be
responsible under this Agreement for any Taxes payable with respect
to other portions of the AC/Backhaul System.
3. ADMINISTRATION, OPERATION AND MAINTENANCE OF AC/BACKHAUL SYSTEM.
A. PERFORMANCE.
1) Level 3 shall use reasonable efforts to cause each System
Operator to establish a plan (the "AO&M Plan") to
administrate, operate and maintain the AC/Backhaul System in
efficient working order, in accordance with industry standards
and in accordance with the standards set forth in the System
Agreements.
2) Should any condition exist in any segment of the AC/Backhaul
System that may impair the integrity of the AC/Backhaul
System, Level 3 shall request that the relevant System
Operator initiate and coordinate planned maintenance on such
relevant segment which may include the deactivation of such
segment. Level 3 shall, to the extent reasonably practicable
(and to the maximum extent allowable under any agreements
respecting such action), advise Viatel in writing prior to the
initiation of a planned maintenance operation, of the timing,
scope and costs of such planned maintenance operation and use
reasonable efforts to minimize disruption of the AC/Backhaul
System.
3) In the event of disruption of service of the Purchased
Capacity and Fibers, Level 3 shall request that the relevant
System Operator cause service to be restored as quickly as
reasonably possible, and Level 3 shall request that such
System Operator take such measures as are reasonably necessary
to obtain such objective.
4
<PAGE>
4) Notwithstanding anything contained herein to the contrary,
Viatel shall be responsible for all costs relating to
acquisition, installation and maintenance of the equipment
necessary to light and operate the Backhaul Fibers.
B. AO&M PAYMENTS. For performance of the administration, operation and
maintenance of the AC/Backhaul System, Viatel shall pay to Level 3
"AO&M Payments" as follows:
1) for the Backhaul Fibers, [REDACTED] per year, plus six percent
(6%) of such costs as a management fee to Level 3 per year,
for each year of the Backhaul Term (Level 3 agrees that if its
costs relating to the administration, operation and
maintenance of the Backhaul Fibers shall be less than
[REDACTED] per year, Level 3 shall reduce the AO&M Payment by
Viatel by such savings; however, in no event shall any
reduction occur during the first [REDACTED] of the Backhaul
Term); and
2) for the Interlink Capacity, no additional consideration or
payments shall be payable by Viatel; and
3) for the AC-l Capacity, a pro rata share of the costs incurred
by Level 3 for such services, based on the ratio which the
amount of AC-1 Capacity bears to the total capacity of Level 3
in the AC-1 portion of the AC/Backhaul System obtained
simultaneously with the AC-1 Capacity (which ratio is
anticipated, as of the Effective Date, to be [REDACTED], plus
[REDACTED] of such costs as a management fee to Level 3, for
each year of the AC-1 Term.
C. PAYMENT OF AO&M PAYMENTS. The AO&M Payments respecting the AC-1
Capacity shall be paid by Viatel as such costs are incurred by Level
3. Viatel shall have the right to audit the books and records of
Level 3 reasonably necessary to verify the costs on which the AO&M
Payments for the AC-1 Capacity and, after the first two (2) years of
the Backhaul Term, the Backhaul Fibers, are based. The AO&M Payments
respecting the Backhaul Fibers and Interlink Capacity shall commence
on the RFS Date and shall continue on each anniversary of said date
during the Backhaul Term.
D. REVIEW OF AO&M. Level 3 and Viatel shall meet periodically at
mutually agreeable times to review AO&M procedures.
4. INVOICES; DEFAULT INTEREST.
A. INVOICES. Excluding scheduled payments of the Purchase Price, Level
3 or its authorized agent shall render invoices under this Agreement
in Dollars, and Viatel shall pay such invoiced amounts in Dollars
within [REDACTED] after invoice. Viatel shall make all payments by
means of a wire transfer to an account or accounts specified by
Level 3. Level 3 reserves the right to direct, in writing, that
payment be apportioned among the entities comprising
5
<PAGE>
Level 3 as Level 3 directs, or to separate subsidiaries or
affiliates of Level 3.
B. DEFAULT INTEREST. Any amounts payable under this Agreement which are
not paid within [REDACTED] of the Payment Due Date shall accrue
interest (from the Payment Due Date) at an annual rate equal to
[REDACTED] above the rate for U.S. dollar LIBOR for one month as
published in THE WALL STREET JOURNAL on the first business day of
the month in which such payment is due. Such interest shall accrue
from the day following the date payment was due until it is paid in
full. In the event that applicable law does not allow the imposition
of "default interest" at the rate established in accordance with
this Section 4.B, such "default interest" shall be at the lower of
the rate provided in this subsection or the highest rate permitted
by applicable law. For purposes of this Section, "paid" shall mean
payment in funds that are available for immediate use by Level 3.
Viatel may avoid the incurrence of default interest or a payment
default in the case of a bona fide dispute by (i) giving written
notice of such dispute to level 3 prior to the Payment Due Date, and
(ii) paying the non-disputed amount to Level 3 and retaining, in a
segregated Viatel account the disputed amount. Viatel shall, upon
Level 3's request, deliver evidence of the retention of such sums in
such account. The resolution of such dispute shall be governed by
Section 11. In the event Level 3 is determined to be entitled to all
or any part of such disputed amount, such amount shall be paid to
Level 3 together with default interest thereon from the Payment Due
Date.
5. DEFAULT.
A. VIATEL DEFAULT. If Viatel fails to pay any undisputed installment of
the Purchase Price when due and such failure continues for a period
of [REDACTED] after written notice from Level 3 to Viatel, Level 3
shall have the option to terminate this Agreement and all previously
paid installments of the Purchase Price and any other sums paid by
Viatel shall be non-refundable. In the event of such termination of
this Agreement by Level 3, the Colocation Agreement and Fiber
Agreement shall automatically terminate. Except as immediately set
forth above, if Viatel fails to make a payment required by this
Agreement, or if Viatel is otherwise in material breach of this
Agreement, Level 3 may notify Viatel in writing of such breach and
if such breach is not fully remedied within [REDACTED] of such
notification, Level 3 shall be entitled to pursue any and all rights
and legal and equitable remedies, including its rights and remedies
to enforce Viatel's obligations under this Agreement.
B. LEVEL 3 DEFAULT. If Level 3 is in material breach of this Agreement,
Viatel may notify Level 3 in writing of such breach and if such
breach is not fully remedied within [REDACTED] of such notification,
Viatel shall be entitled to withhold payment of any obligations owed
to Level 3, and may offset such payments against any obligations
owed by Level 3 to Viatel, under this Agreement, the Fiber Agreement
and the Colocation Agreement, and pursue any and all
6
<PAGE>
rights and legal and equitable remedies, including its rights and
remedies to enforce Level 3's obligations under this Agreement.
6. USE.
A. NON-INTERFERENCE. Each party agrees that its use of the AC/Backhaul
System and its equipment shall be such as not to interrupt,
interfere with, or impair service over any of the facilities
comprising the AC/Backhaul System, or impair privacy of any
communications over such facilities, cause damage to plant or create
hazards to employees, affiliates or connecting companies of Level 3,
any System Operator, Viatel, or any other user, owner or operator of
the AC/Backhaul System or the public.
B. AVAILABILITY FOR TESTING AND MAINTENANCE. The Purchased Capacity and
Fibers granted to Viatel shall be made available to Level 3 and/or
the relevant System Operator (or its contractors), at such times
agreeable to Viatel and Level 3, to permit Level 3 and/or such
System Operator (or its contractors) to conduct such tests and
adjustments as may be necessary for such capacity and fibers to be
maintained in efficient working order. Level 3 agrees to provide at
least seven (7) days (or such longer period as allowed under any
agreements respecting such action) written notice to Viatel prior to
conducting scheduled maintenance tests or adjustments which might
affect Viatel's use of the Purchased Capacity and Fibers and to use
reasonable efforts to minimize disruption of the AC/Backhaul System.
C. COOPERATION. In the event either party experiences a degradation or
significant interruption in the performance of its capacity on the
AC/Backhaul System, the parties shall cooperate to the extent
reasonable possible to minimize the impact of such occurrence.
7. TERM.
A. BACKHAUL TERM. The Backhaul Term shall commence on the Fiber Payment
Date and, unless earlier terminated pursuant to the terms hereof,
shall terminate on the [REDACTED] anniversary of the RFS Date.
B. AC-1 TERM. The AC-1 Term shall commence on the Fiber Payment Date
and, unless earlier terminated pursuant to the terms hereof, shall
terminate on [REDACTED].
C. INTERLINK TERM. The Interlink Term shall commence on the Fiber
Payment Date and, unless earlier terminated pursuant to the terms
hereof, shall terminate on the later of the termination of the
Backhaul Term and the AC-l Term.
D. END OF TERM. Upon termination of the respective Term, the IRU in the
relevant Purchased Capacity and Fibers, and Level 3's obligation to
maintain it, shall end. The termination of the Term (whether under
this Section, or otherwise) shall not relieve Viatel from any
liabilities arising prior to such termination.
7
<PAGE>
E. TERMINATION OF OTHER AGREEMENTS. Notwithstanding anything contained
herein to the contrary, Viatel acknowledges and agrees that this
Agreement and the Term shall automatically terminate upon the
occurrence of a default on the part of Viatel under Section 6A1) of
the Fiber Agreement, a default on the part of Viatel under Section
13A of the Colocation Agreement, or a termination of the Fiber
Agreement under Sections 12D or 12E thereof. In the event of a
termination of this Agreement as a result of the termination of the
Fiber Agreement under Sections 12D or 12E thereof, all portions of
the Purchase Price which may have been made by Viatel to Level 3
prior to such termination shall be refunded to Viatel.
8. APPROVALS; LICENSES.
A. PERMITS. The performance of this Agreement by each party hereto is
contingent upon the obtaining and continuance of such approvals,
consents, governmental authorizations, licenses and permits (the
"Permits") as may be required or reasonably deemed necessary by such
party for performance by a party hereunder and as may be
satisfactory to it. Level 3 and Viatel each covenant and agree to
use commercially reasonable efforts to acquire or otherwise obtain,
upon commercially reasonable terms, all necessary Permits on or
before the RFS Date.
B. CONTINGENCY. The performance of this Agreement by Level 3 is
contingent upon each System Operator obtaining, and the continuance
of, such Permits as may be required or reasonably deemed necessary
by such System Operator for performance by such System Operator of
the System Agreements. The parties shall use reasonable efforts to
obtain and continue, and to have continued, such approvals,
consents, licenses and permits. No license under patent is granted
by Level 3 or shall be implied or arise by estoppel in Viatel's
favor with respect to any apparatus, system or method used by Viatel
in connection with the use of the Purchased Capacity and Fibers.
9. DISCLAIMER.
A. NO WARRANTIES. Level 3 has entered into the System Agreements to
obtain the right to use plant, equipment and services necessary to
allow the Purchased Capacity and Fibers to be placed into operation.
VIATEL ACKNOWLEDGES AND AGREES THAT LEVEL 3 IS NOT LIABLE FOR ANY
SYSTEM OPERATOR'S FAILURE TO PERFORM UNDER THE SYSTEM AGREEMENTS.
UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ALL WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE
SPECIFICALLY DISCLAIMED. Nothing contained herein shall limit or
impair Viatel's acceptance rights under Section 2D of the Fiber
Agreement or Viatel's rights under Section 9B below.
8
<PAGE>
B. ENFORCEMENT OF SYSTEM OPERATOR OBLIGATIONS. Level 3 shall diligently
enforce any obligations and warranties of the System Operators, and
any benefits or payments received in respect thereof shall be shared
proportionately with Viatel.
10. LIMITATIONS OF LIABILITY.
A. DAMAGES. In no event shall Viatel or Level 3 be liable to the other
for consequential, incidental, indirect or special damages,
including, but not limited to, loss of revenue, loss of business
opportunity, or the costs associated with the use of external
restoration facilities, including, without limitation, for any loss
or damage sustained by reason of any failure in or breakdown of the
AC/Backhaul System or the facilities associated with the AC/Backhaul
System, whatever the cause and however long it shall last.
B. FORCE MAJEURE. Neither party shall be liable to the other for any
loss or damage which may be suffered by reason of any circumstances
beyond the reasonable control of, and not due to the fault or
negligence of, such party.
11. SETTLEMENT OF DISPUTES.
A. AMICABLE RESOLUTION. The parties shall endeavor to settle amicably
by mutual discussions any disputes, differences, or claims
whatsoever related to this Agreement. In the event that any dispute
cannot be resolved through such efforts, then either party shall
have the right to declare a deadlock (by delivery of written notice
to the other party) and thereby invoke the escalation procedures set
forth below. After delivery of a notice of deadlock, the parties
shall, within fourteen (14) days after delivery of the notice,
escalate the dispute in the following manner: first, to the senior
vice president or senior management personnel for each party's
submarine network development/construction group; second, to the
executive vice president or senior management personnel within the
office of and reporting directly to the Chief Executive Officers of
the public company parent of each party (the "Executive Level");
and, finally (failing resolution at either level above), to the
Chief Executive Officers ("CEO") of the public company parent of
each party. Each party agrees to use reasonable efforts to make
necessary management-level personnel reasonably available for the
timely resolution of same, and any potential impacts on the
operation or construction of the AC/Backhaul System.
B. REMEDIES. In the event that the dispute is not resolved after
presentation to the CEOs of the parties, then either party may
exercise any remedy legally available. The parties agree that any
action or proceeding relating to this Agreement shall be held in the
U.S. District Court for the Southern District of New York or state
courts located in the State of New York. The parties further agree
that such courts shall have exclusive jurisdiction in any such
action or proceeding.
9
<PAGE>
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA.
13. WAIVER OF IMMUNITY. The parties hereto acknowledge that this Agreement is
commercial in nature, and each party hereto expressly and irrevocably
waives any claim or right which it may have to immunity (whether sovereign
immunity, act of state or otherwise) for itself or with respect to any of
its assets in connection with an arbitration, arbitral award or other
proceeding to enforce this Agreement, including, without limitation,
immunity from service of process, immunity of any of its assets from pre
or post judgment attachment or execution and immunity from the
jurisdiction of any court or arbitral tribunal.
14. EXPORT CONTROL. The parties hereto acknowledge that to the extent any
products, software or technical information provided under this Agreement
are or may be subject to any applicable export laws and regulations, the
parties hereto agree that they will not use, distribute, transfer or
transmit the products, software or technical information (even if
incorporated into other products) except in compliance with such export
laws and regulations (or licenses or orders issued pursuant thereto). If
requested by either party hereto the other party agrees to sign all
necessary export related documents as may be required to comply therewith.
15. REPRESENTATIONS; INDEMNITY.
A. LEVEL 3. Level 3 hereby represents and warrants to Viatel that (i)
each Level 3 entity is a corporation organized, validly existing and
in good standing under the laws of the jurisdiction of its
organization; (ii) the execution, delivery and performance of this
Agreement by Level 3 has been duly authorized by all necessary
corporate action on the part of Level 3 and this Agreement is a
valid, binding and enforceable obligation of Level 3 enforceable in
accordance with its terms; and (iii) the execution delivery and
performance of this Agreement by Level 3 does not violate, conflict
with or constitute a breach of, the organizational documents or any
order, decree or judgment of any court, tribunal or governmental
authority binding on Level 3.
B. VIATEL. Viatel hereby represents and warrants to Level 3 that (i)
Viatel is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; (ii)
the execution, delivery and performance of this Agreement by Viatel
has been duly authorized by all necessary corporate action on the
part of Viatel and this Agreement is a valid, binding and
enforceable obligation of Viatel enforceable in accordance with its
terms; and (iii) the execution, delivery and performance of this
Agreement by Viatel does not violate, conflict with or constitute a
breach of, the organizational documents or any order, decree or
judgment of any court, tribunal or governmental authority binding on
Viatel.
10
<PAGE>
C. GOVERNMENTAL REQUIREMENTS AND COMPLIANCE. Each party hereby
represents and warrants to the other party that it has obtained or
will obtain all approvals, consents, governmental authorizations,
licenses and permits as may be required to enter into this
Agreement, and grant or acquire, as the case may be, the IRU in the
Purchased Capacity and Fibers. Each party agrees to comply with all
applicable laws, rules and regulations respecting the execution and
performance of this Agreement.
D. SURVIVAL. The representations and warranties in this Agreement shall
survive the execution and delivery of this Agreement.
E. VIOLATIONS BY VIATEL. Subject to the limitations of liability set
forth in this Agreement, Viatel agrees to indemnify and hold
harmless Level 3 and their respective officers, directors,
employees, agents and representatives from and against any loss,
damage, expense or cost arising out of or in connection with: (i)
any breach or violation by Viatel of applicable law or governmental
regulation or nonpayment of taxes payable by Viatel; and (ii) any
claims of whatever nature by third parties with respect to the
services provided by Viatel.
F. VIOLATIONS BY LEVEL 3. Subject to the limitations of liability set
forth in this Agreement, Level 3 agrees to indemnify and hold
harmless Viatel and its officers, directors, employees, agents and
representatives from and against any loss, damage, expense or cost
arising out of or in connection with: (i) any breach or violation by
Level 3 of applicable law or governmental regulation or nonpayment
of taxes payable by Level 3; and (ii) any claims of whatever nature
by third parties with respect to the services provided by Level 3.
16. RELATIONSHIP OF THE PARTIES. This Agreement shall not form a joint venture
or partnership or similar business arrangement between the parties hereto,
and nothing contained herein shall be deemed to constitute a partnership
or joint venture or similar business arrangement.
17. NO THIRD PARTY BENEFICIARIES. This Agreement does not provide and is not
intended to provide third parties (including, but not limited to,
customers of Viatel, any permitted transferee of the Purchased Capacity
and Fibers or any other permitted user of the Purchased Capacity and
Fibers) with any remedy, claim, liability, reimbursement, cause of action,
or any other right. Furthermore, Viatel acknowledges that it is not a
third party beneficiary of any agreement entered into by Level 3
including, but not limited to, the System Agreements.
18. ASSIGNMENT.
A. LIMITATIONS. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns; provided that,
except as provided in paragraphs B and C of this Section, neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned, transferred or otherwise disposed of or
delegated by either party hereto without the prior written consent
11
<PAGE>
of the other party, which consent shall not be unreasonably
withheld.
B. PERMITTED ASSIGNMENTS. Each party shall be permitted, without the
consent of the other party, to assign, transfer or otherwise dispose
of any or all of their rights hereunder and delegate any or all of
their obligations hereunder to any present or future affiliated
entity of the transferring party, or to an entity controlled by,
under the same control as, or controlling, the transferring party,
or to an entity purchasing all or substantially all of the assets of
such party, or to an entity into which the transferring party may be
merged or consolidated. The transferring party shall give the other
parties hereto notice of any such assignment, transfer or other
disposition or any such delegation. No such transfer by a party
shall release or discharge such party from its duties and
obligations hereunder.
C. PERMITTED TRANSFEREES. Nothing contained herein shall prohibit
either party from leasing, licensing or otherwise granting rights in
fibers or capacity to third parties; provided, no such lease,
license or other grant of rights shall release or discharge a party
from its duties and obligations hereunder.
19. NOTICES.
A. SERVICE. Whenever under the provisions of this Agreement it shall be
necessary or desirable for one party to serve any notice, request,
demand, report or other communication on another party, the same
shall be in writing and shall be served (i) personally; (ii) by
independent, reputable, overnight commercial carrier; or (iii) by
facsimile transmission (A) where the transmitting party includes a
cover sheet identifying the name, location and identity of the
transmitting party, the phone number of transmitting device, the
date of transmission and the number of pages transmitted (including
the cover page), (B) where the transmitting device or receiving
device records verification of receipt and the date and time of
transmission receipt and the phone number of the other device, and
(C) where the facsimile transmission is immediately followed by
service of the original of the subject item in the manner provided
in clause (i), or (ii) hereof; addressed as follows:
1) If to Level 3:
Level 3 International, Inc.
66 Prescot Street
London El 8HG
England
Attn: Legal Department
Fax No. 44-171-864-0391
With a copy to:
Level 3 International, Inc.
1025 Eldorado Blvd.
Broomfield, Colorado 80021
12
<PAGE>
Attn: General Counsel
Fax No. 720-888-5127
2) If to Viatel:
Viatel, Inc.
685 Third Avenue
New York, New York 10017
Attn: GENERAL COUNSEL
Fax No. 212-350-9245
B. CHANGE/DELIVERY. Any party may, from time to time, by notice in
writing served upon the other party as aforesaid, designate an
additional and/or a different mailing address or an additional
and/or a different person to whom all such notices, requests,
demands, reports and communications are thereafter to be addressed.
Any notice, request, demand, report or other communication served
personally shall be deemed delivered upon receipt, if received by
independent courier shall be deemed delivered on the date of receipt
as shown by the addressee's registry or certification receipt or on
the date receipt at the appropriate address, as shown on the records
or manifest of the independent courier, and if served by facsimile
transmission shall be deemed delivered on the date of receipt as
shown on the received facsimile (provided the original is thereafter
delivered as aforesaid).
20. WAIVER.
A. NON-WAIVER. No waiver by any party of any right or remedy under this
Agreement shall be deemed to be a waiver of any other or subsequent
right or remedy under this Agreement. The consent by one party to
any act by the other party requiring such consent shall not be
deemed to render unnecessary the obtaining of consent to any
subsequent act for which consent is required, regardless of whether
similar to the act for which consent is given.
B. WRITING. No waiver of any term, covenant or condition of this
Agreement shall be valid unless in writing and signed by the obligee
party.
C. LIMITED. The acceptance of any payment or reimbursement by a party
shall not waive any preceding or then-existing breach or default by
the other party of any term, covenant or condition of this
Agreement, other than the other party's prior failure to pay the
particular amount or part thereof so accepted, regardless of the
paid party's knowledge of such preceding or then-existing breach or
default at the time of acceptance of such payment or reimbursement.
21. SEVERABILITY. 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.
13
<PAGE>
22. HEADINGS. The Section headings of this Agreement are for convenience of
reference only and are not intended to restrict, affect or influence the
interpretation or construction of provisions of such Section.
23. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which when executed and delivered shall be deemed an original. Such
counterparts shall together (as well as separately) constitute one and the
same instrument.
24. ENTIRE AGREEMENT. This Agreement together with all attachments hereto
supersedes all prior oral or written understandings between the parties
hereto and constitutes the entire agreement with respect to the subject
matter herein. This Agreement shall not be modified or amended except by a
writing signed by authorized representatives of the parties hereto.
25. PUBLICITY AND CONFIDENTIALITY. The parties agree to be bound be the terms
of a Non-Disclosure Agreement between their respective affiliates dated
17th November 1999, the continuing efficacy of which, its terms being
unmodified herein, is hereby ratified and confirmed by the parties.
14
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
effective on the date first written above.
LEVEL 3 LANDING STATION INC.
By /S/ Thomas C. Stortz
--------------------
Name: Thomas C. Stortz
Title: Vice President and Secretary
LEVEL 3 COMMUNICATIONS LIMITED
By /S/ Thomas C. Stortz
--------------------
Name: Thomas C. Stortz
Title: Director
LEVEL 3 (BERMUDA) LIMITED
By /S/ Thomas C. Stortz
--------------------
Name: Thomas C. Stortz
Title: Vice President
VIATEL, INC.
By /S/ Michael J. Mahoney
--------------------
Name: Michael J. Mahoney
Title: Chief Executive Officer
15
<PAGE>
EXHIBIT "A"
Technical Specification for AC-1 Capacity
[REDACTED]
<PAGE>
EXHIBIT "B"
FIBER SPECIFICATIONS
[REDACTED]
