EXHIBIT 2.2
TERMINATION AGREEMENT
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CONCERNING THE DATA CENTER OPERATING AGREEMENTS
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This Termination Agreement concerning the Data-Center Agreements (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 "Cybernet" -
and
2. Telehouse Deutschland GmbH
Hanauer Landstr. 316-324, 60314 Frankfurt/Main
- hereinafter referred to as "Telehouse" -
- 1. and 2. together hereinafter referred to as the "Parties"
and each a "Party" -
Preamble
1. Cybernet is engaged in the internet service providing business and leases
premises - which are not owned by Cybernet - for data-centers in
Frankfurt, Hamburg and Munich (individually, a "Data-Center" and
collectively, the "Data-Centers"). Cybernet 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 Deutsche Immobilien Fonds AG, Hamburg, ("DIFA") on the
basis of a unilateral transaction dated November 23, 1999 and amended by
supplement between Cybernet, DIFA and Telehouse, 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 Cybernet, DIFA and Telehouse 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 Cybernet, DIFA and Telehouse
dated October 18/November 1/December 4, 2000 (the "Hamburg Lease
Agreement"), (collectively, the "Lease Agreements"). Cybernet also owns
hardware or has certain proprietary rights as beneficial property
(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 operates (i) the Frankfurt Data-Center as a lessee on the basis
of a data-center operating agreement with Cybernet 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 Cybernet 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 Cybernet dated September 29, 2000
(the "Hamburg Data-Center Agreement"), (individually, "Data-Center
Agreement", collectively, the "Data-Center Agreements"; Exhibit 1).
3. Cybernet 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 a separate Asset Purchase and Transfer Agreement, Cybernet and Disko
Leasing GmbH, Dusseldorf ("Disko") have agreed (i) to sell and transfer
to Disko all of the assets, equipment, furniture and fixtures as well
as the related guarantees and all of Cybernet'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 in such Asset Purchase and Transfer Agreement (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
(iii) to arrange for an agreement between Telehouse, DIFA, and Disko, in
order that Telehouse and DIFA give consent to the transfer of Cybernet's
title, of other proprietary rights and of Cybernet's rights under the
terms of the Lease Agreements to use as mentioned under (i) and agree
to grant to Disko the same legal and contractual title and positions in
such respect as Cybernet holds under the Lease Agreements and (iv) to
provide for the termination of the Data-Center Agreements between
Cybernet and Telehouse in order to permit Disko to enter into new service
agreements with Telehouse.
5. By this Agreement, the parties hereto agree on the termination of each of
the Data-Center Agreements, namely for (i) the Munich Data-Center,
(ii) the Frankfurt Data-Center and (iii) the Hamburg Data-Center;
provided, however, that Telehouse concludes new Lease Agreements with
DIFA concerning the Data Centers which mirror the Lease Agreements.
Now, therefore, the Parties agree as follows:
Section 1
Termination of the Data-Center Agreements
1. Subject to the terms and conditions of this Agreement, each of the
Data-Center Agreements as set forth in the Preamble above shall terminate
as of 30 June 2002. Any and all rights and obligations under the
Data-Center Agreements shall cease as of such date, except for the
obligation to pay the monthly fee as provided for in such Data Center
Agreement which shall cease as of the Effective Date as defined in the
Asset Purchase and Transfer Agreement.
2. Cybernet shall return to Telehouse all comfort letters and bank
guarantees provided by Telehouse to Cybernet in connection with the Data
Center Agreements.
3. Cybernet hereby waives its rights to withdraw and remove all equipments
and fixtures, including those that are a permanent part of the rented
space, on time prior to the termination of the respective Data
Center Agreement.
Section 2
Condition Precedent to Effectiveness
This Agreement shall only become effective and have the effect as described in
Section 1 above, if, and insofar as,
1. Telehouse concludes new lease agreements with DIFA for the Hamburg lease
object and partial spaces of the Frankfurt and Munich lease objects
which conditions mirror the existing lease agreements between DIFA-
Cybernet ("New Lease Agreements"; Exhibit 2);
2. Disko enters into the Asset Purchase and Transfer Agreement as described
in the Preamble (4) above and the purchase price is paid.
Section 3
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 Cybernet: Cybernet Internet Dienstleistungen AG
Attn.: 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 Telehouse: Telehouse Europe
Attn.: Barney Bannington
Coriander Avenue, London E14, 2AA
and
Telehouse Deutschland GmbH
Attn.: Werner Tillmanns
Hanauer Landstrasse 316 - 320
D-60314 Frankfurt am Main
With a copy to: Lovells
Attn: Marc Werner/Oliver Platt
Darmstadter Landstr. 125,
60598 Frankfurt/Main
Section 4
Confidentiality
1. The Parties will not at any time hereafter divulge (other than as
required by law) any confidential information in relation to the
Data-Center Agreements 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 parties or used in or otherwise relates to
the Data-Centers including, without limitation, information relating to:
(i) the business methods, corporate plans, management systems,
finances, new business opportunities or development projects of
the Data-Centers; 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 5
Prior Arrangements
This Agreement supersedes all prior arrangements and understandings, both
written and oral, with respect thereto, except for the Data Center Service
Agreement (Exhibit 3), as amended, between the parties as listed in Exhibit 4
which shall remain unaffected by the aforesaid.
Section 6
Expenses
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.
Section 7
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 8
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 9
In-writing requirement, Exhibits
1. Any amendment or supplement to this Agreement must be in writing. This
also applies to this section 9.
2. Any and all Exhibits are part of this Agreement.
Dusseldorf, 25 June 2002
For For
Cybernet Internet Telehouse
Dienstleistungen AG: Deutschland GmbH:
/s/ Andreas Eder /s/ Claudio Morandi /s/ Werner Tillmanns
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Exhibits
Exhibit 1 Data Center Agreements
Exhibit 2 New Lease Agreements Telehouse and DIFA
Exhibit 3 Data Center Service Agreements
Exhibit 4 2nd Amendment to Data Center Service Agreement