EFTA00810694.pdf

Indefeasible Right to Use Agreement This Indefeasible Right to Use Agreement (the "Agreement") is effective as of the last date signed ("Effective Date"), is by and between the Virgin Islands Telephone Corporation dba Viya, a United States Virgin Islands limited liability company with a principal place of business at 4611 Tutu Park, Suite #200, St. Thomas, VI 00802 ("Viya") and Little St. James, LLC., a United States Virgin Islands limited liability company with a principal place of business at A, B, & C Little St. James Island, 6B Red Hook Quarter, St. Thomas, VI 00802 ("Customer"). WHEREAS, Customer and Viya are party to a Services Agreement whereby Viya will deliver telecommunications services (the "Services") to Customer's premises on the terms and conditions provided therein; WHEREAS, in order to facilitate and as an inducement to Viya to deliver the Services, Customer has agreed to provide Viya with an indefeasible right of use of Customer's Fibers (as defined below) on the terms and conditions provided herein; NOW, THEREFORE, in consideration of the promises and covenants made herein, the parties hereby agree as follows: 1. Definitions with the costs of any termination equipment to be borne by Customer. For purposes of this Agreement, the following terms have the following "Governmental Authority" means any definitions: federal, state, regional, county, city, municipal, local, territorial, or tribal "Affiliate" means, with respect to a party, government, whether foreign or domestic, or any firm, corporation, partnership, any department, agency, bureau or other association, trust or other person or entity, administrative or regulatory body obtaining whether now or hereafter existing, that authority from any of the foregoing. directly or indirectly controls, is controlled by, or is under common control with that "Insolvency Event" means (1) a receiver, party. administrator or similar officer is appointed over any assets or business of Customer; (2) "Customer Fibers" means the fibers, Customer makes a purpose of a genuine conduit, and any other appurtenances thereto amalgamation or reconstruction, or anything identified in Exhibit 1. similar happens under national, state or local laws of any country. "Commencement Date" means the date that Viya accepts delivery of the Customer Fibers "Indefeasible Right of Use" or "IRU" in accordance with Section 3.2. means (i) beneficial title and interest in, and exclusive, unrestricted and indefeasible right "End Points" means the termination points of use to the Customer Fibers and (ii) the of the Customer Fibers to which the Parties nonexclusive right to use the tangible and may mutually agree as specified in Exhibit 1, intangible property (including all Underlying 1 EFTA00810694 Rights) necessary for the use of the Customer right to revoke or restrict in any manner or to Fibers, but excluding any electronic or any degree whatsoever, through injunctive optronic equipment. relief or otherwise, the use of the Customer Fibers granted to Viya pursuant to this "Month" means a calendar month, unless Agreement, including following a breach by otherwise specified. Viya of any legal duty or obligation imposed by any contract, including this Agreement, by "Personnel" means, with respect to a party, the law of torts (including simple or gross that party's employees, agents, Affiliates, negligence, strict liability or willful independent contractors, subcontractors, and misconduct), or by federal or state laws, suppliers of any tier. rules, regulations, orders, standards or ordinances. The Parties agree that any such "Ready for Service Date" means the date breach shall be compensable, if at all, by a specified in Exhibit 1 by which date remedy at law and not at equity. Customer must make ready the Customer Fibers for Viya connection. 2.2 Use of the Customer Fibers. In consideration for the grant of the IRU "Specifications" means all descriptions and specified in Section 2.1, Viya agrees to use specifications for the Customer Fibers set the Customer Fibers solely to provide the forth in this Agreement (including Exhibit 1), Services to Customer and its guests, tenants, plus all additional written descriptions and and designees. The rates, terms, and specifications that Customer may furnish to conditions under which Viya will provide Viya in connection with the Customer Fibers. such communications services will be set "Underlying Rights" includes all rights, forth in separate agreements signed by Viya licenses, permits, authorizations, franchises, and Customer, its guests, tenants, or rights-of-way, easements and other approvals designees to which they may mutually agree. that are necessary for Customer to obtain in The Parties acknowledge and agree that Viya order to permit Customer to own, install and has no minimum commitment to use any of keep installed, and maintain the Customer the Customer Fibers. Fibers in accordance with this Agreement and to convey the IRU to Viya and all other 2.3 Changes to the Customer Fibers. rights under this Agreement pursuant to the Customer may not, at any time, add to, IRU. reconfigure or otherwise vary the Customer Fibers or any fiber optics communications 2. Scope of Grants system of which the Customer Fibers may be a part, including the capacity, segments, 2.1 General. Customer hereby cable landing stations or landing parties (a irrevocably sells, conveys, transfers, assigns "Fiber Change"), if that Fiber Change: (1) and delivers to Viya, and Viya hereby accepts has a material adverse effect on Viya's rights and acquires from Customer the following: in or use of the Customer Fibers as (i) exclusive, unrestricted and indefeasible determined by Viya in its reasonable right of use to, for the purposes described discretion; or (b) interrupts Viya's use of the herein, the Customer Fibers. The IRU grant Customer Fibers for a continuous period of does not convey full legal title or legal more than 6 hours or more than an aggregate ownership of any fibers or equipment. During of 12 hours in any six-month period. the Term of this Agreement, Customer has no Customer agrees to hold Viya harmless and 2 EFTA00810695 waive any rights it may have for service relocation. Following receipt notice from credits or other remedies based on an outage Customer that a relocation will occur, Viya of the Services caused by a Fiber Change or may elect to terminate this Agreement Customer. pursuant to Section 6.3, if such relocation has an adverse effect on Viya's rights in or use of 2.4 Maintenance of Underlying Rights. the Customer Fibers as determined by Viya Customer agrees to maintain during the in its reasonable discretion. Term, at Customer's cost, all Underlying Rights necessary for the construction, 2.6 Network Control. Viya will (at its installation, maintenance, and repair of the full cost and expense) have full and complete Customer Fibers. Customer will ensure that control and responsibility for determining such Underlying Rights are and will remain any network and service configuration or sufficient to allow Viya to perform its designs, routing configurations, re-grooming, obligations and to exercise its rights set forth rearrangement or consolidation of channels in this Agreement. In the event Customer is or circuits and all related functions with unable to resolve any issue with respect to regard to the use of the Customer Fibers for Underlying Rights in a manner reasonably providing the Services; provided, such acceptable to Viya, and if such issue control and responsibility by Viya will not interferes with or prevents the exercise by materially and adversely affect those Viya of any of the rights under this portions of Customer's network not subject Agreement, then Viya may: (i) after to the IRU and/or any electric or optronic providing Customer thirty (30) days prior equipment used on Customer's network. written notice attempt to resolve the issue directly with the Customer of such 2.7 On-Site Services. If Viya needs to Underlying Rights; or (ii) terminate this access Customer's premises to perform its Agreement for breach pursuant to Section obligations under this Agreement, Viya will 6.2. obtain Customer's permission (which may be granted verbally) prior to entering the 2.5 Relocation. If, after the Effective premises. Date, Customer is required (i) by any Governmental Authority under the power of 3. Installation and Delivery; Acceptance eminent domain or otherwise, (ii) by the provider of any Underlying Right, ( iii) by 3.1 Installation and Delivery. Customer any other Person having the authority to so will deliver the Customer Fibers on or before require (each a "relocating authority") or (iv) the Ready for Service Date. by the occurrence of any Force Majeure Event, to relocate the Customer Fibers or any 3.2 Acceptance Process. Upon portion thereof, Customer may either proceed completion of the delivery of the Customer with such required relocation minimizing all Fibers, Customer will notify Viya that the negative impacts to Viya or pay such Customer Fibers are ready for acceptance amounts to the Relocating Authority as are testing. Viya may reject the Customer Fibers necessary to avoid the need for such only if they do not conform to the relocation. Customer will keep Viya fully Specifications, in which case Customer will informed of such relocation and will consider promptly correct the deficiency, and the any recommendations of Viya in good faith. acceptance process described in this Customer will bear all costs of such paragraph will recommence. 3 EFTA00810696  Viya may be legally obligated to deduct or 4. Viya Access withhold from any amounts payable to Customer under this Agreement, and 4.1 General. Subject to the requirements payment to Customer as reduced by those of all Underlying Rights, Viya will have deductions or withholdings will constitute reasonable access to the Customer Fibers at full payment and settlement to Customer of the End Points. Customer will permit Viya amounts payable under this Agreement. and its Personnel to have direct access to the During the term of this Agreement, Customer End Points twenty-four (24) hours a day, will provide Viya with any forms, seven (7) days a week. documents, or certifications as may be required for Viya to satisfy any information 4.2 Inspections. Customer will have the reporting or withholding tax obligations with right, upon not less than twenty-four (24) respect to any payments under this hours prior written notice to Viya, to access Agreement. the End Points to perform periodic inspections to ensure compliance with this 6. Term; Termination Agreement. 6.1 Term of the Agreement. This 5. Fees Agreement is effective on the Effective Date and will continue in effect for the longer of 5.1 No Fees. Customer will not invoice the term of any agreement for Services Viya, and Viya will have no obligation to pay between the parties or the term of any Customer, any fees or charges for the IRU. Services that Viya actually delivers to Customer. 5.2 Taxes. Each party will be responsible, as required under applicable law, 6.2 Termination of Agreement for for identifying and paying all taxes and other Breach or Insecurity. Either Party may governmental fees and charges (and any terminate this Agreement [and the Services penalties, interest, and other additions Agreement] if: thereto) that are imposed on that party upon (a) The other Party breaches any material or with respect to the transactions under this obligation, other than its confidentiality Agreement. Customer may charge and Viya obligations, under this Agreement and the will pay applicable national, state or local breach remains uncured for five business sales or use taxes or value added taxes that days after the non-breaching Party Customer is legally obligated to charge delivers written notice of the breach to the ("Taxes") ,but only if those Taxes are stated other Party (or any longer cure period to on the original invoice that Customer which the Parties mutually agree in provides to Viya and Customer's invoice writing); states those Taxes separately and meets the (b) The other Party breaches its requirements for a valid tax invoice. Viya confidentiality obligations under this may provide Customer with an exemption Agreement or violates law applicable to certificate or equivalent information Vya's provision of the Services; or acceptable to the relevant taxing authority, in (c) An insolvency Event occurs which case, Customer will not charge or involving the other Party. collect the Taxes covered by that certificate. Viya may deduct or withhold any taxes that 4 EFTA00810697 6.3 Termination for Convenience. Viya 7.2 Costs. The cost of all maintenance may terminate this Agreement upon at least and repair will be borne by Customer, and 90 days' prior written notice to Customer. there will be no charge for maintenance or Upon the effective date of any termination, repair during the Term. all rights in and use of the Customer Fibers will revert to Customer, and from and after 7.3 Step-In Rights. If Customer fails to the effective date of such termination, Viya maintain and repair the Customer Fibers in have no further rights or obligations under accordance with the terms of this Agreement this Agreement. (the "Disrupted Services"), Viya may, upon written notice to Customer, perform the 6.4 No other Termination. Neither party Disrupted Services itself, have the Disrupted may terminate this Agreement other than in Services performed by a third party, or obtain accordance with the provisions of this from a third party substitute services for the Agreement. Disrupted Services ("Substitute Services"). Customer will use commercially reasonable 6.5 Removal of Viya Equipment efforts to cooperate with Viya and the third Following Termination. If any Viya party, as applicable, in order to allow the equipment is installed on premises owned or performance of the Disrupted Services or controlled by Customer or any of its Substitute Services by Viya or that third Affiliates, the removal of such equipment party, as applicable, and will use shall be governed by the terms of the Service commercially reasonable efforts to Agreement. recommence performance of the Disrupted Services as quickly as commercially possible 7. O&M Service and in full conformance with the Performance Standards and the other 7.1 Performance. From and after the applicable terms of this Agreement. Unless Effective Date, Customer will maintain and Customer's failure is caused by a Force repair the Customer Fibers in accordance Majeure Event, Customer will reimburse with industry standard requirements and Viya for the costs to Viya for performing the procedures. Such maintenance and repair Disrupted Services itself or retaining a work will be performed by Customer or a substitute provider to provide the Substitute contractor chosen by Customer to perform Services, plus all costs that Viya incurs to the work. Notwithstanding the foregoing, transition the Disrupted Services to the nothing contained herein is intended to create substitute provider. any contractual relationship between Viya and a contractor performing maintenance or 8. Representation, Warranties and repair work on Customer's behalf. Customer Certain Covenants is the party solely responsible to Viya for the maintenance and repair of the Customer 8.1 By Customer. Customer represents Fibers. To that end, in the event the and warrants to, and covenants with, Viya Customer Fibers are not maintained or that: (1) Customer will provide the Customer repaired in accordance with the terms of this Fibers in a competent, professional and Agreement, Viya's recourse will be against workmanlike manner, free from defects in Customer, not Customer's contractor. materials, workmanship and design, and in conformance with the Specifications; (2) Customer will promptly and satisfactorily 5 EFTA00810698 correct any Customer Fibers that are defective or do not conform with the 9. Defense, Indemnity and Limitation Specifications or other requirements of this of Liability Agreement; (3) none of the Customer Fibers or Viya's use thereof will violate, 9.1 Indemnification by Customer. misappropriate or infringe any third party's Customer will defend, indemnify and hold rights (including intellectual property rights) harmless Viya, its Affiliates, and its and their or confidential information; (4) Customer respective directors, officers, employees, will comply with all applicable law in successors, assigns and agents, from and performing its obligations under this against all claims, allegations, demands and Agreement; (5) Customer is duly proceedings by a third party, and all resulting incorporated, validly existing, and in good losses, judgments, liabilities, damages, standing as a company under the laws of the settlements, costs and expenses (including jurisdiction of its formation; (6) Customer reasonable attorneys' fees and expenses) has all rights necessary for (and is not subject (each, a "Third Party Claim") to the extent to any restriction, penalty, agreement, arising out of or relating to: (1) Customer's contract, commitment, law, rule, regulation breach of any of its warranties, or order which is violated by) its execution representations or covenants under this and delivery of this Agreement and Agreement; (2) Customer's fraud, performance of its obligations under this negligence or willful misconduct in the Agreement; (7) when performing its performance of its obligations under this obligations under this Agreement, Customer Agreement; (3) any bodily injury (including will not interfere with the activities and illness or death) or property damage caused obligations of Viya, its employees, agents or by Customer; (4) infringement or customers; and (8) Customer will promptly misappropriation of any copyright, patent, notify Viya of any matters pertaining to, or trademark, trade secret or other proprietary the occurrence or impending occurrence of, right of any third party by the provision or use any event of which it is reasonably aware that of the Customer Fibers; or (5) any breach by could give rise to any damage (or impending Customer of its confidentiality obligations damage) to or loss of all or any part of the under this Agreement. Customer Fibers. 9.2 Indemnification by Viya. Viya will 8.2 By Viya. Viya represents and defend, indemnify and hold harmless warrants to, and covenants with, Customer Customer, its Affiliates, and its and their that: (1) Viya is duly incorporated, validly respective directors, officers, employees, existing, and in good standing as a company successors, assigns and agents, from and under the laws of the jurisdiction of its against all Third Party Claims to the extent formation; (2) Viya has all rights necessary arising out of or relating to: (1) Viya's breach for (and is not subject to any restriction, of any of its warranties, representations or penalty, agreement, commitment, law, rule, covenants under this Agreement; (2) the regulation or order which is violated by) its fraud, negligence or willful misconduct of execution and delivery of this Agreement Viya in the performance of its obligations and performance of its obligations under this under this Agreement; (3) any bodily injury Agreement; and (3) Viya will use the (including illness or death) or property Customer Fibers in compliance with all laws damage caused by Viya; or (4) any breach by applicable to Viya's delivery of the Services. 6 EFTA00810699 Viya of its confidentiality obligations under this Agreement. 10. Confidentiality 9.3 Indemnification Procedures. The 10.1 Confidentiality Obligations. Both indemnifying party will use counsel Parties will: ( I) protect and keep confidential reasonably satisfactory to the indemnified the existence of this Agreement, its terms and parties to defend each Third Party Claim and conditions, and any other information will keep the indemnified parties informed of obtained in connection with this Agreement the status of each Third Party Claim. The or related to the Customer Fibers that is indemnified parties will cooperate with the identified as confidential or proprietary or indemnifying party in the defense at the that, given the nature of the information or indemnifying party's expense. Any the manner of its disclosure, reasonably indemnified party may participate in the should be considered confidential or defense at its own expense. In addition, any proprietary (including all information indemnified party may, at its own expense relating to a Party's technology, customers, and without limiting the indemnifying business plans, marketing activities and party's indemnification obligations, take finances); (2) use that information only for control of its own defense of the Third Party the purpose(s) for which it was originally Claim. After taking control of its defense, disclosed and in any case only for the purpose that indemnified party and its counsel will of fulfilling its obligations under this proceed diligently and in good faith with its Agreement; and (3) return all that defense. Neither party will consent to the information to the other Party promptly upon entry of any judgment or enter into any the termination of this Agreement. settlement without the other party's prior written consent, which consent will not be 10.2 No Publicity. Customer will not use unreasonably withheld. Each party's any trade name, trademark, service mark, obligation to defend is independent of its logo or commercial symbol, or any other obligation to indemnify. proprietary rights of Viya or any of its Affiliates in any way without prior written 9.4 Waiver of Consequential Damages. authorization of that use by at least a Vice NEITHER PARTY WILL BE LIABLE TO President of Viya. Customer will not issue THE OTHER PARTY UNDER ANY press releases or publicity relating to Viya or CIRCUMSTANCES FOR this Agreement or reference Viya or its CONSEQUENTIAL DAMAGES Affiliates in any brochures, advertisements, (INCLUDING LOST OPPORTUNITIES client lists or other promotional materials. OR PROFITS) OR PUNITIVE DAMAGES, EXCEPT FOR ANY LIABILITY ARISING 10.3 Injunctive Relief. Each Party OUT OF (1) ITS NON-DISCLOSURE acknowledges that any material breach of this OBLIGATIONS UNDER THIS Section 10 by it would cause the other party AGREEMENT, (2) ITS (the "Non-breaching Party") irreparable INDEMNIFICATION OBLIGATIONS harm for which the Non-breaching Party has UNDER THIS AGREEMENT , (3) ITS no adequate remedies at law. Accordingly, FRAUD, OR (4) ITS RECKLESS OR the Non-breaching Party will be entitled to WILLFUL MISCONDUCT, INCLUDING obtain specific performance or immediate WILLFUL BREACH OF THIS injunctive or other equitable relief for that AGREEMENT. 7 EFTA00810700 breach without the necessity of posting any Customer to assign, subcontract or delegate bond or guarantee. in violation of this paragraph is void in each instance. Either Party may, without notice to 11. Miscellaneous or consent from the other Party, assign this Agreement (or any of its rights and 11.1 Force Majeure. Neither party will be obligations under this Agreement): (1) to its responsible for any delay or failure in Affiliates; or (2) in connection with any performance of any part of this Agreement to merger, consolidation, reorganization, sale of the extent that the delay or failure in all or substantially all of its assets or performance (1) is caused by an event or any similar transaction. circumstance beyond the reasonable control of the party whose performance is affected 11.3 Governing Law; Venue. This (the "Affected Party") and (2) could not have Agreement is governed by the laws of the been avoided or corrected through the United States Virgin Islands, excluding its exercise of reasonable diligence (a "Force conflicts of law rules or principles. Customer Majeure Event"). The Affected Party will irrevocably submits to venue and exclusive promptly notify the other party in writing of personal jurisdiction in the federal and state the Force Majeure Event, giving details of the courts in the United States Virgin Islands for Force Majeure Event circumstances, its any dispute arising out of this Agreement, anticipated effect upon the Affected Party's and waives all objections to jurisdiction and performance under this Agreement, and the venue of such courts. steps that the Affected Party is taking to remedy the delay. If Customer's performance 11.4 Notices. Except as otherwise is delayed or otherwise affected by any Force provided in this Agreement, any notice, Majeure Event for more than 30 days, Viya invoice or other document to be given by may terminate the Agreement or any Services either party under this Agreement must be agreement upon written notice to the given in writing to the other party at the Customer. The parties hereby agree that any address below its signature line above. Notice Force Majeure under the terms of this may be delivered by personal delivery, Agreement shall be deemed to be a Force certified mail (return receipt requested), Majeure impacting Viya's performance of nationally recognized overnight courier the Services. service, facsimile (with electronic confirmation to the sender), or email, and will 11.2 Assignment. This Agreement is be deemed delivered (1) if by overnight binding on the parties and their respective courier service, 1 business day after deposit successors and assigns. Except as approved with a reputable overnight courier with all by Viya in writing or as otherwise permitted charges prepaid; (2) if by certified mail, 3 under this Agreement, Customer will not business days after deposit with the mail assign any part or all of this Agreement or carrier; and (3) if by personal delivery, subcontract or delegate any of Customer's facsimile, or email, on the day of delivery, rights or obligations under this Agreement. facsimile transmission (with electronic Customer will remain responsible for the full confirmation to the sender), or email performance of any obligations it transmission if it is a business day, or the next subcontracts or delegates to its Personnel, following business day otherwise. A party and for all acts and omissions of its Personnel may change its notice address by giving under this Agreement . Any attempt by the notice in accordance with this paragraph. 8 EFTA00810701  interpret or construe any provisions of this 11.5 Independent Contractors. Agreement. Each party has sought the advice Customer and Viya are independent of legal counsel and has participated to a Contractors. Each Party has exclusive control significant degree in the drafting and over its Personnel, its labor and employee preparation of this Agreement. Accordingly, relations and its policies relating to wages, no provision of this Agreement will be hours, working conditions and other construed against any party on the basis of employment conditions. Each Party has the that party being the drafter. Wherever used in exclusive right to hire, transfer, suspend, this Agreement, the singular includes the layoff, recall, promote, discipline, discharge plural, and the plural includes the singular; and adjust grievances with its Personnel. the use of any gender, tense or conjugation Each Party is solely responsible for all includes all genders, tenses and conjugations; salaries and other compensation of its and the word "including" means "including, Personnel, including making all deductions without limitation." and withholdings from its employees' salaries and other compensation and paying 11.10 Counterparts. This Agreement may all related contributions, taxes and be executed by facsimile or other electronic assessments. Neither Party has any authority means and in any number of counterparts, to bind the other Party to any agreement or each of which when executed and delivered obligation. will be an original, which together will constitute one and the same agreement. 11.6 Severability. If any provision of this Agreement is determined to be 11.11 Survival. Any provisions of this unenforceable, this Agreement will be Agreement which, by their nature, should enforced as if the unenforceable provisions survive or may reasonably be interpreted as were not present, and any partially valid and surviving the termination or expiration of this enforceable provisions will be enforced to the Agreement, including provisions relating to extent that they are enforceable. payment obligations arising before termination or expiration, defense and 11.7 No Waiver. Neither party waives any indemnity obligations, limitations of liability, right under this Agreement by failing to and confidentiality obligations, will survive exercise any rights under this Agreement. the termination or expiration of this Any waiver granted under this Agreement Agreement and continue in full force and will be effective only if stated in a writing effect. signed by the party granting the waiver. 11.12 Entire Agreement. This Agreement 11.8 Cumulative Rights. The parties' (including the Exhibits), all of which are rights and remedies under this Agreement are incorporated into this Agreement and any cumulative, and either party may enforce any agreement(s) for Services, constitute the of its rights or remedies under this Agreement complete and final agreement of the parties or other rights and remedies available to it at relating to the Customer Fibers and supersede law or in equity. the parties' prior or contemporaneous agreements, understandings and discussions 11.9 Construction. The section headings relating to the Customer Fibers. No in this Agreement are for convenience of modification of this Agreement will be reference only and will not be given effect to 9 EFTA00810702 binding unless in writing and signed by Viya 11.14 Time of the Essence. Time is of the and Customer. essence for Customer's performance of its obligations under this Agreement. 11.13 Rights of Third Parties. This Agreement does not create or confer any 11.15 Communications in English. All rights or benefits enforceable by any person reports, correspondence and other not a party to it. communications and documents under this Agreement will be in English. IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the last date written below: VI POWERNET, LLC Little St. James, LLC By: By: Name: Alvaro Pilar Name: Title: Chief Executive Officer Title: Date: Date: 10 EFTA00810703  EXHIBIT 1 CUSTOMER FIBERS AND THE ROUTE(S) The Route(s) (and any end Demarcation Points of any non-ring Route Segments) for the Customer Fibers are as follows: NUMBER OF END DEMARCATION POINT CUSTOMER FIBERS OF LINEAR ROUTE SEGMENT 1 A map depicting the above-referenced Route is included as below. 0.1,29S3: EFTA00810704