EXHIBIT 2.1
ASSET PURCHASE AND TRANSFER AGREEMENT
-------------------------------------
This Asset Purchase and Transfer Agreement (the "Agreement") is entered into as
of 25 June 2002, among
1. Cybernet Internet Dienstleistungen AG
Stefan-George-Ring 19-23, D-81929 Munich
- hereinafter referred to as "Seller" -
and
2. Disko Leasing GmbH
Fritz-Vomfelde-Strasse 2 - 4
40547 Dusseldorf
- hereinafter referred to as "Purchaser" -
- 1. and 2. together hereinafter referred to as the "Parties"
and each a "Party" -
Preamble
1. Seller is engaged in the internet service providing business and leases
premises - which are not owned by Seller - for data-centers in
Frankfurt, Hamburg and Munich (individually, a "Data-Center" and
collectively, the "Data-Centers"). Seller is leasing the premises as
lessee on the basis of (i) a lease agreement concerning the Frankfurt
Data Center with GiP Gewerbe im Park GmbH ("GIP") dated June 7/11, 1999
taken over by DIFA Deutsche Immobilien Fonds AG ("DIFA") on the basis of
a unilateral transaction dated November 23, 1999 and amended by
supplement between the Seller, DIFA and Telehouse International
Corporation of Europe Ltd. ("Telehouse Europe"), dated September 1,
2000 (the "Frankfurt Lease Agreement"), (ii) a lease agreement concerning
the Munich Data Center with DIFA dated June 30/July 7, 1999 amended by
the supplement between the Seller, DIFA and Telehouse Europe dated
November 1, 2000/February 15, 2001 (the "Munich Lease Agreement"), (iii)
a lease agreement concerning the Hamburg Data Center with DIFA dated
January 27, 1999 amended by the supplement between the Seller, DIFA and
Telehouse Europe dated October 18/November 1/December 4, 2000 (the
"Hamburg Lease Agreement"), (collectively, the "Lease Agreements").
Seller also owns hardware or has certain proprietary rights as beneficial
ownership (wirtschaftliches Eigentum) to such hardware and has rights
to use such hardware under the terms of the Lease Agreements and has
equipped the Data-Centers with such hardware in order to let the
Data-Centers to third parties.
2. Telehouse Deutschland GmbH, a company with its registered office at
Hanauer Landstrasse 316-320, 60314 Frankfurt, ("Telehouse") operates (i)
the Frankfurt Data-Center as a lessee on the basis of a data-center
operating agreement with the Seller dated August 30, 2000 amended by a
supplement dated July 2, 2001 (the "Frankfurt Data-Center Agreement"),
(ii) the Munich Data-Center on the basis of a data-center operating
agreement with the Seller dated September 29, 2000, amended by a
supplement dated July 2, 2001 (the "Munich Data-Center Agreement"), and
(iii) the Hamburg Data-Center on the basis of a data-center operating
agreement with the Seller dated September 29, 2000 (the "Hamburg
Data-Center Agreement"), (collectively, the "Data-Center Agreements").
3. The Seller leases back from Telehouse co-location areas on the basis of a
data center service agreement of July 3, 2001 regarding premises in
the Data Centers in Frankfurt and Munich (the "Data Center Service
Agreement"), which shall not be affected by this Agreement, but
which shall be amended.
4. By this Agreement, the Parties hereto intend to enable the Purchaser
instead of the Seller to provide such services and performances which
heretofore the Seller has effected for Telehouse, and therefore the
Parties agree (i) to sell and transfer to the Purchaser all of the
assets, equipment, furniture and fixtures and all of Seller's other
proprietary rights to such assets, equipment, furniture and fixtures
and its rights under the terms of the Lease Agreements to use such
assets, equipment, furniture and fixtures which are located in the
Data-Centers and as set forth hereinafter, (ii) to arrange for the
intended termination of the Hamburg Lease Agreement and parts of the
Frankfurt and Munich Lease Agreements and the conclusion of new leases
with DIFA and Telehouse which conditions mirror the Lease Agreements
(the "New Lease Agreements"), (iii) to arrange for an agreement
between Telehouse, DIFA, and the Purchaser, in order that Telehouse
and DIFA give consent to the transfer of the Seller's title, of other
proprietary rights and of the Seller's rights under the terms of the
Lease Agreements to use as mentioned under (i) and agree to grant to the
Purchaser the same legal and contractual title and positions in such
respect as the Seller holds under the Lease Agreements and (iv) to
provide for the termination of the Data-Center Agreements between the
Seller and Telehouse in order to permit the Purchaser to enter into a
new service agreement with Telehouse (the "New Service Agreement").
Now, therefore, the Parties agree as follows:
Section 1
Objects of Purchase and Transfer
(Assets and Contracts)
Object of this Agreement are (i) the Lease Agreements, (ii) the assets,
equipment, furniture and fixtures of Seller as listed hereinafter, (iii) the
proprietary and contractual rights to the assets and (iv) the contracts which
follow:
a) Frankfurt Lease Agreement as set forth in Exhibit 1 and to the extent
as areas marked in Exhibit 2;
b) Munich Lease Agreement as set forth in Exhibit 3 and to the extent
as areas marked in Exhibit 4;
c) Hamburg Lease Agreement as set forth in Exhibit 5;
d) any and all of the assets and equipment, furniture and fixtures as
currently used by Telehouse for the carry on of the business of
operating the Data-Centers and which are located in the areas
marked in Exhibit 2a, 4a and 6, in particular as set forth
in, but not limited to Exhibit 7, and the complete documentation
relating thereto as set forth in Exhibit 10 and 11 (the
"Assets") and any and all other proprietary rights to the aforesaid
Assets and any and all rights under the terms of the Lease
Agreements to use the aforesaid Assets; and
e) all guaranty agreements and warranties and guarantee warranties
provided by suppliers, producers, service providers and
contractors relating to the Assets ("Guarantees"), particularly as
listed in, but not limited to Exhibit 8.
f) the Data-Center Agreements
Section 2
Sale, Purchase and Transfer
1. With the exception of (i) the Lease Agreements and the Data-Center
Agreements which shall be terminated and (ii) the Data-Center Service
Agreement which shall be amended pursuant to Section 5 (b) (v)
hereunder, the Seller hereby agrees to sell the Assets and transfer the
rights under the Guarantees to the Purchaser and the Purchaser hereby
agrees to purchase the Assets and accepts the transfers and the
Seller shall transfer title to the sold Assets and the rights under the
Guarantees as more precisely set out hereunder.
2. The Seller herewith transfers title (Eigentum) to the Assets as far as
they are legally qualified as movables or as fictitious integral parts
(Scheinbestandteile, Sec. 95 German Civil Code) of the premises leased
by the Seller and any other rights (including expectant rights
(Anwartschaftsrechte)) with regard to the Assets to the Purchaser and
assigns to the Purchaser his claims for delivery of the Assets under
Sec. 931 German Civil Code. As far as the Assets are legally qualified
as integral parts (wesentliche Bestandteile, Sec. 94 German Civil Code)
of the premises leased by the Seller, the Seller herewith transfers his
other proprietary rights to the Assets, i.e. the beneficial ownership
(wirtschaftliches Eigentum) with regard to the Assets to the Purchaser
and assigns any and all of his rights, claims and interests with respect
to these proprietary rights to the Purchaser. Further the Seller
herewith transfers and assigns any and all of his rights under
the Lease Agreements, which will be replaced pursuant to the terms of
this Agreement, to use the Assets (movables, fictitious integral parts
and integral parts) to the Purchaser. The Purchaser hereby accepts the
transfer of title, rights, claims and interests to the Assets.
3. To the extent permitted under the Guarantees, and subject to the
conditions as set forth in Section 5 of this Agreement, the Seller
herewith assigns its rights and entitlements under the Guarantees to
the Purchaser and the Purchaser is accepting such assignment. Where
consent of a third party is required to permit the transfer or assignment
to the Purchaser of the interest of the Seller in any of the Assets in
the manner contemplated by this Agreement, any such transfer or
assignment where the required consent has not been received on or before
the Effective Date as set forth in Section 4 of this Agreement or where
the Parties have agreed not to apply for a consent (a "Retained Asset")
shall not have legal effect in each case until the applicable consent
has been received thereafter and such Retained Asset shall be held by
the Seller following signing of this Agreement in trust for the benefit
and exclusive use of the Purchaser. The Seller shall only make use of
such Retained Asset in accordance with the directions of the Purchaser.
4. The transfers and assignments mentioned in this Section 2 are subject to
the fulfillment or waiver of all of the signing conditions as set
forth in Section 5 of this Agreement (aufschiebende Bedingung), in
particular the receipt of the Purchase Price as defined in Sec. 3.1.
by the Seller.
5. The Seller undertakes to use his best efforts to enter (i) into a
termination agreement as drafted in Exhibit 9 with Telehouse
concerning the termination of all of the Data-Center Agreements,
such termination to take effect on the Effective Date as defined
below, and (ii) into a termination agreement with DIFA in respect of
each of the Lease Agreements, in order to enable Telehouse to enter
into the New Lease Agreements. Further, the Seller undertakes to use his
best efforts to arrange within the framework of the New Lease Agreements
for an agreement between Telehouse and DIFA, and these with the
Purchaser, in order of Telehouse and DIFA giving consent to the
transfer of title, rights, claims and interests as set forth in
Sub-Section 2 above and DIFA agreeing to grant for the benefit of the
Purchaser, with respect to title, rights, claims and interests
transferred, the same legal and contractual title and position as the
Seller holds under the Lease Agreements. The undertaking of the Seller
pursuant to this Section 2 (5) shall be considered fulfilled, when the
respective parties have entered into the respective agreements.
Section 3
Consideration
1. As consideration for the sale and transfer of the Assets the Purchaser
shall pay a total amount of Euro 38,966,577.32 (Euro thirty-eight million
nine hundred sixty-six thousand five hundred seventy-seven and
thirty-two; the "Purchase Price") (Euro 33,591,877.00 plus VAT at the
statutory rate [=Euro 5,374,700.32]) (see Sub-Section 4 below), which
shall be payable as of 25 June 2002.
2. Payments to the Seller shall be made into the following account:
Deutsche Bank AG, Frankfurt
Swift Code: DEUTDEFF
Favour Account No. 100 941 8088 00
INO Bank Sal. Oppenheim, Zurich
FFC Account No. 88'637
INO MFC Merchant Bank S.A., Herisau
Ref: Cybernet/Acc. 100.596/00.
3. Any part of the Purchase Price in default shall bear interest at a rate
of 3-Months-LIBOR plus 2,0 % p.a.
4. Any applicable value added tax shall be added to the Purchase Price. If
the Transfer of the Assets as set forth in Section 1 is being treated by
the tax authorities as a transfer which is not VAT-exempted, the Seller
shall provide the Purchaser at the applicable tax point with a valid VAT
invoice of the Purchase Price. The Purchaser shall be entitled to assign
to the Seller his claim for VAT-deduction (Vorsteuerabzugsanspruch)
against the tax office in lieu of payment provided that such
assignment is legally possible und consented to by the competent
tax office. The Seller shall ensure that until the
Effective Date all records are kept and all returns are made in
connection with the Assets, as may be required by law for the purpose
of the enticement relating to VAT.
Section 4
Effective Date
The effective date shall be 25 June 2002 (the "Effective Date").
Section 5
Concurrent Signing Conditions
Subject to the complete fulfillment of the conditions set out hereunder in this
Section 5 or the waiver thereof by the respective other Party,
a) the Seller shall
(i) enter into a termination agreement between the Seller and
DIFA in respect of the Lease Agreements (termination of partial
spaces as agreed between Seller and DIFA; ), such termination
being effective no later than 30 June 2002;
(ii) cause Telehouse and DIFA to enter into an agreement with
Purchaser as is provided for in Section 5 (b) (i) below;
(iii) deliver Assets, including the documentation thereto (as listed
in Exhibit 10 and 11), which are not in possession (Besitz) of
Telehouse, if any, to Telehouse. To the extent copyrights in
connection with the Assets are existing and are not
transferable, particularly software and know-how, the Seller
grants to the Purchaser and to Telehouse an unlimited and
exclusive copyright license to the extent such transfer
is legally possible;
(iv) assign to Telehouse all his warranty claims and other claims,
if any, against producers and former owners of the Assets;
(v) transfer the right of the keys (Schlusselrecht) regarding
the Data-Centers to Telehouse;
(vi) return to Telehouse all comfort letters and bank guarantees
provided by Telehouse to Seller in connection with the
Data-Center Agreements;
(vii) enter into an agreement with Telehouse providing for the
termination of the Data-Center Agreements as of the Effective
Date whereby the obligation of Telehouse to pay the monthly fee
under the Data-Center Agreements shall cease as of the Effective
Date;
(viii) either (i) provide the Purchaser with an absolute bank guarantee,
or (ii) make a guarantee deposit to Telehouse (escrow account)
amounting to Euro 500,000.00 in order to secure any claims of the
Purchaser as set forth in Section 6 Sub-Section 3 and Section 9
below. The bank guarantee shall be payable on first demand (auf
erstes Anfordern) by a respectable German Bank. The guarantee
shall contain a waiver of pleas according to sections 768, 770
and 771 of the German Civil Code (BGB) and shall be limited
to a time period of 12 months after the Effective Date. After
six months from the Effective Date the Seller may reduce the
amount of the bank guarantee provided to the Purchaser to an
amount of Euro 250,000 (Euro two hundred fifty thousand); should
the Seller elect to make the guarantee deposit, such deposit
shall be repayable to the Seller on satisfaction by Telehouse
of a replacement bank guarantee ("Replacement Guarantee"). The
Purchaser shall be entitled to assign the claims as set forth in
Section 6 Sub-Section 3 and Section 9 below and the guarantee
deposit to Telehouse in the New Service Agreement.
(ix) enter into an addendum agreement to the Data Center Service
Agreement as drafted in Exhibit 13.
b) the Purchaser shall
(i) within the framework of the New Lease Agreements enter into
agreements with Telehouse and DIFA, in order to receive DIFA's
consent to the transfer of title, rights, claims and interests
as set forth in Section 2.2 above and DIFA agreeing to grant
for the benefit of Purchaser, with respect to title, rights,
claims and interests transferred, the same legal and
contractual title and position as the Seller holds under the
Lease Agreements;
(ii) pay the Purchase Price according to Section 3.1;
(iii) provide to Seller a confirmation of Mizuho Corporate Bank, Ltd.,
Dusseldorf ("MCB"), that MCB has received from the Purchaser
the irrevocable instruction to pay (i) the Purchase Price to
Seller and (ii) that MCB effects the transfer of the Purchase
Price to the Seller at its account as indicated under Sec. 3 (2)
and that the Purchase Price will be available at this account not
later than 2 days after the date of this Agreement;
(iv) enter into a New Service Agreement with Telehouse as drafted in
Exhibit 14;
(v) cause Telehouse to enter into an addendum agreement to the Data
Center Service Agreement as drafted in Exhibit 13;
c) Telehouse shall
(i) have entered into New Lease Agreements with DIFA for the residual
period of the Lease Agreements;
(ii) have entered into agreement with DIFA and the Purchaser as is
provided for in Section 5 (b) (i) above.
Section 6
Documentation
1. The Seller and the Purchaser shall provide to each other, and at the
Purchaser's request, the Seller shall provide to Telehouse, any
and all information and shall assist in any and all transactions
necessary for consummating this Agreement. In particular, as requested
by the Purchaser or, as the case may be, by Telehouse, the Seller will
forward any and all documentation relating to the Assets and available
to the Seller to the Purchaser, or, at the Purchaser's request, to
Telehouse, including the documentation listed in Exhibit 10 and 11,
exclusive only of such items as referenced in the Settlement
Agreement ("Documentation").
2. The Seller shall not hold back any copies of the Documentation unless
required by applicable law or accounting principles. In the case
that documentation has to be kept back due to requirements by
applicable law or accounting principles, the Seller shall immediately
inform the Purchaser about the Documentation held back.
3. In case the Seller does not provide the Purchaser, or at the Purchaser's
request Telehouse, with the complete Documentation on the Effective
Date, the Purchaser himself may or, in its absolute discretion the
Purchaser may authorize Telehouse to produce or ask a third party to
produce such missing parts of the Documentation at the Seller's costs
if the Seller does not provide the missing parts of the Documentation
within another two weeks after being informed of the incompleteness
of the Documentation by the Purchaser or, as the case may be,
Telehouse. The Seller is only obliged to pay for the production of the
missing parts of the Documentation if being provided with a respective
invoice for such work.
Section 7
[intentionally left blank]
Section 8
Representation and Warranties
1. The Seller warrants and guarantees ("sichert zu") (in the meaning of Sec.
443 German Civil Code) the following as of the day of signing hereof:
a) the Seller is the sole and unrestricted owner (Eigentumer) of the
Assets or is the sole and unrestricted holder of the other
proprietary rights, i.e. beneficial ownership (wirtschaftliches
Eigentum) and of all further title, rights, claims and interests
transferred to the Purchaser with respect to the Assets and
is not restricted with respect to any assignment (Verfugung)
of the Assets or to such other proprietary rights and
further title, rights, claims and interests, except
for the title of DIFA to the assets which form integral parts
of the premises leased by the Seller;
b) the Assets, other proprietary rights, further title, rights,
claims and interests with respect to the Assets and the payment
claims are free of any rights of third parties within the meaning
of sec. 433 et subs. of the German Civil Code except for the
Assets which form integral parts of the premises leased by the
Seller, for the rights of DIFA to claim for either the removal or
for the acquisition of the Assets for consideration under the
terms of the Lease Agreements and for DIFA's landlord's lien
which has not been asserted;
c) all Assets are ledger assets; the activation of the Assets in the
Seller's balance sheet is fully in accordance with the respective
accounting rules and principles under German law and is approved
by the fiscal authority;
d) there are no licenses, in particular software licenses, required
in order to use and operate the Assets except the consent of DIFA
and Telehouse as is provided for in Section 5 (b) (i) above;
e) all invoices in connection with the Assets are fully paid by the
Seller, there are no claims of third parties, particularly of
suppliers, producers or former owners of the Assets, against the
Seller with respect to the Assets;
f) the list of warranty claims and warranty guarantees as set
forth in Exhibit 8 is true and complete, and the conditions under
which such guarantees were granted were not breached by the
Seller;
g) there are no other actions or confirmations required by any third
person in order to transfer the Assets from the Seller to
the Purchaser;
h) the Seller has done all acceptance of performance (Abnahmen) with
regard to the Assets and the documentation to be provided
by the Seller to the Purchaser or, at the Purchaser's request,
to Telehouse contains all respective acceptance protocols
(Abnahmeprotokolle);
i) all final official inspections and approvals (bauamtliche
Abnahmen/Genehmigungen) for the Assets have been carried out and
granted by the respective authorities, and all such certificates
have been handed over by Seller to Purchaser, or, at the
Purchaser's request, to Telehouse, as set forth in Exhibit 11;
j) the documents and information, which have been made available
by the Seller to the Purchaser, or, at the Purchaser's request,
to Telehouse, are true and complete;
k) the execution of this Agreement will not result in any violation
of any obligation the Seller has with respect to the Assets
or any third party;
l) none of Seller's employees is occupied in the operating of
the Data-Centers. Therefore, the transfer of the Objects from
the Seller to the Purchaser does not mean a transfer of a business
in the meaning of sec. 613a of the German Civil Code;
m) there are no legal actions or threats thereof against the Seller
which could affect the Transfer of full and unencumbered title
to the Assets.
2. The parties agree that it shall not be considered a breach of the
representations and warranties above, if the matters and facts subject
thereof are not material for conducting of the Purchaser's business
in regard to the Assets purchased under this Agreement and if the amount
of losses, damages or indemnification (as set out under Sec. 9 below), in
each separate case, does not exceed Euro 5,000.00 (Euro five-thousand).
3. Any further or other representations and warranties are excluded.
Section 9
Breach of Representation or Warranties,
Indemnification
1. If a representation, warranty and/or guarantee in section 8 is untrue,
incomplete or not complied with, the Seller shall compensate the
Purchaser or as the case may be, Telehouse for any damages, losses,
expenses, liabilities and other disadvantages of any kind and nature
which would not exist if such representation, warranty and/or guarantee
were true, complete and complied with. This obligation exists regardless
of whether or not the misrepresentation or misstatement is attributable
to the negligence (Verschulden) of the Seller.
2. The rights pursuant to sec. 8 and 9 do not affect the rights of the
Purchaser to assert the statutory claims and remedies, such as
specific performance, rescission (Rucktritt) of this Agreement, reduction
(Minderung) of the purchase price, claims for damages etc. However,
Purchaser shall not be entitled to rescind from this Agreement if the
matter which is subject to such claim is not material for conducting of
the Purchaser's business in regard to the Assets purchased under this
Agreement.
3. The Purchaser shall be entitled to exercise his rights under or in
connection with this Agreement regardless of whether or not any of the
Purchaser or Telehouse, their accountants, legal advisors or any of
their directors or employees was aware or could have been aware of the
fact that a representation, warranty and/or guarantee is untrue,
incomplete or not complied with. The provisions of sec. 442 German Civil
Code and sec. 377 et subs. German Commercial Code shall not apply.
4. Unless a longer limitation period is provided for by statutory law in
which case such longer period shall apply, the claims of the Purchaser
or, as the case may be, Telehouse under or in connection with this
Agreement shall be time-barred one year after the Effective Date,
provided, however, that claims directly or indirectly relating to
taxes, contributions and other duties relating to the Assets for
time periods up to the Effective Date shall be time-barred one
year after they have finally and completely
been assessed. The limitation period may in any case be validly
interrupted if the claim has been asserted in writing prior to the
expiration of the limitation period.
5. The Seller shall indemnify the Purchaser and Telehouse from any claim,
which might be asserted against the Purchaser or as the case may be
Telehouse under or in connection with the following:
(i) taxes, contributions and other public duties with respect to the
Assets and agreements relating to time periods until the
Effective Date;
(ii) a transfer of a business by the meaning of sec. 613a of the
German Civil Code.
The indemnification covers all costs, damages or expenses (including
court and attorney fees in defending against any claim) thus incurred
by the Purchaser or Telehouse.
Section 10
Competition Restraint
1. For a period of five years after the Effective Date the Seller shall not
directly or indirectly, in any other manner establish, operate or
participate in Data Centers or similar utilities in Frankfurt am Main,
Munich and Hamburg as a competitor of Telehouse within the business as
currently conducted by Telehouse.
2. This competition restraint shall not apply to the acquisition of shares,
which are quoted on the stock exchange in competitive companies for the
purpose of a mere capital investment.
3. In case the Seller is or is presumed to be in breach of his obligations
set forth in this Section 10, the Seller is obliged to pay to
Telehouse a contractual penalty in the amount of EURO 50,000.00 for
each and every individual breach and for breaches of duration
EURO 50,000.00 for each commenced week. The application of the German
law concept of "Fortsetzungszusammenhang" under which multiple breaches
can be considered as one single breach is excluded.
4. Any rights of Telehouse to claim additional damages caused by the breach
of this Section 10 for which the contractual penalty is triggered shall
remain unaffected, as well as any other remedy Telehouse may have by
operation of law.
Section 11
Notices
All notices and other communications under this Agreement must be in writing and
sent - prior by telefax - by courier or mail to the following addresses (or at
such other address as may be specified):
To the Seller: Cybernet Internet Dienstleistungen AG
Attn.: Mr Eduard Seligmann
Stefan-George-Ring 19 - 23
D-81929 Munich
With a copy to: Herzog Rechtsanwalte
Attn: Mr Christoph Heyne
Paul-Ehrlich-Strasse 37 - 39
D-60596 Frankfurt/Main
To the Purchaser: Disko Leasing GmbH
Attn.: Thilo Buller/Frank Lowenstein
Fritz-Vomfelde-Strasse 2 - 4
D-40547 Dusseldorf
With a copy to: Rodl & Partner
Attn: Dr. Ulrich Hottenbacher
Rudolf-Diesel-Strasse 7
D-65760 Eschborn
Lovells
Attn: Marc Werner/Oliver Platt
Darmstadter Landstrasse 125
D-60598 Frankfurt/Main
Section 12
Confidentiality
1. The Parties will not at any time hereafter divulge (other than as
required by law) any confidential information in relation to the Assets
or this Agreement.
2. For the purposes of Sub-Section 1, "confidential information" shall
include information of a confidential nature and not publicly known
which is owned by the Seller or used in or otherwise relates to the
Assets including, without limitation, information relating to:
(i) the business methods, corporate plans, management systems,
finances, new business opportunities or development projects
of the Assets; or
(ii) the marketing or sales of any past or present or future products,
goods or services including, without limitation, customer names
and lists and other details of customer names and lists and
other details of customers, sales targets, sales statistics,
market share statistics, prices, market research reports and
advertising and other promotional materials; or
(iii) future projects, business development or planning, commercial
relationships and negotiations; or
(iv) any trade secrets or other information relating to the provision
of any product or service.
Section 13
Prior Arrangements
This Agreement supersedes all prior arrangements and understandings, both
written and oral, with respect thereto. However, for the avoidance of doubt, the
Data Center Service Agreement between Seller and Telehouse as listed in Exhibit
12 shall remain unaffected by the aforesaid.
Section 14
Expenses
1. Each Party shall bear its own expenses relating to the execution or
consummation of this Agreement, including any fees and disbursements of
their respective legal, accountancy and other advisors.
2. Any costs charged by DIFA in connection with the termination of the Lease
Agreements and the conclusion of the New Lease Agreements shall be borne
by the Seller.
Section 15
Governing Law, Jurisdiction
1. This Agreement shall be governed exclusively by German law and construed
in accordance with the laws of the Federal Republic of Germany without
regard to the conflicts of laws rules and the United Nations
Convention on the International Sale of Goods.
2. The regional court of Frankfurt am Main shall have exclusive jurisdiction
of any case or controversy arising under or in connection with this
Agreement.
Section 16
Severability
Should any provision of this Agreement or any provision to be incorporated in
future be or become invalid or unenforceable, the validity of the balance of
this Agreement shall not be affected thereby. The same applies if this Agreement
contains any omissions. In lieu of the invalid or unenforceable provision or in
order to complete any omission, a fair provision shall apply which to the extent
legally permissible comes as close as possible to what the Parties had intended
or would have intended according to the spirit and purpose of this Agreement if
they had considered the matter at the time this Agreement was executed. The same
applies if the provision is invalid because of the stipulated scope or time
period.
Section 17
In-Writing Requirement, Exhibits
1. Any amendment or supplement to this Agreement must be in writing. This
also applies to this section 17.
2. Any and all Exhibits are part of this Agreement.
Dusseldorf, 25 June 2002
For Cybernet Internet Diensleistungen AG:
/s/ Andreas Eder /s/ Claudio Morandi
- -------------------------------------------------
For Disko Leasing GmbH:
/s/ Gerhard Hackemesser /s/ Thomas Scheithauer
- -------------------------------------------------
Exhibits
Exhibit 1 Frankfurt Lease Agreement
Exhibit 2 Marked Area of Frankfurt Data-Center
Exhibit 2 A Marked Area of Frankfurt Data-Center regarding the Assets
Exhibit 3 Munich Lease Agreement
Exhibit 4 Marked Area of Munich Data-Center
Exhibit 4 A Marked Area of Munich Data-Center regarding the Assets
Exhibit 5 Hamburg Lease Agreement
Exhibit 6 Area of Hamburg Data-Center regarding the Assets
Exhibit 7 Assets, Equipment, etc.
Exhibit 8 Guaranty Agreements and Warranties and Warranty Guarantees
Exhibit 9 Termination Agreement
Exhibit 10 Documentation (new)
Exhibit 11 Documentation (old)
Exhibit 12 Data-Center Service Agreement
Exhibit 13 Addendum to Data-Center Service Agreement
Exhibit 14 New Service Agreement
Exhibit 15 List of major Assets