EXHIBIT 2.3
ARRANGEMENT FEE AND SETTLEMENT AGREEMENT
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This Arrangement Fee and Settlement 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 "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
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 DIFA Deutsche Immobilien Fonds
AG ("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
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.
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 Caybernet dated September 29, 2000 (The "Hamburg Data-Center Agreement"),
(collectively, the "Data-Center Agreements").
Cybernet leases back from Telehouse co-location areas on the basis of a data
center service agreement of July 13, 2001 regarding premises in the Data Centers
in Frankfurt and Munich (the "Data Center Service Agreement").
By an Asset Purchase and Transfer Agreement (the "Asset Purchase and Transfer
Agreement"), Cybernet enables Disko Leasing GmbH ("Disko"), a company with its
registered office in 40547 Dusseldorf, Fritz-Vomfelde-Strasse 2-4, instead of
Cybernet to provide such services and performances which heretofore Cybernet has
effected for Telehouse, and therefore Cybernet agreed (i) to sell and transfer
to Disko all of the assets, equipment, furniture and fixtures 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,
(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 Disko, in order that Telehouse and DIFA give consent to the transfer
of Cybernet's title, of other proprietary rights and of the 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 (the
"New Service Agreements"). The conclusion of the Asset Purchase and Transfer
Agreement was arranged by Telehouse.
This Agreement provides for a fee payable by Cybernet in connection with the
arrangement of the Asset transaction ("Arrangement Fee"). This Agreement also
provides for the full and final settlement of any contractual claims which have
arisen until 30 June 2002 from the Data-Center Agreements and the Data-Center
Service Agreement which a Party of this Agreement has or may have against the
other Party of this Agreement. Now therefore, the Parties agree as follows
(capitalized terms used herein are used in the same meaning as defined in the
Asset Purchase and Transfer Agreement dated 25 June 2002):
1. Arrangement Fee
The fees payable by Cybernet to Telehouse in connection with the
arrangement of the Asset transaction and the conclusion of the Asset
Purchase and Transfer Agreement are amounting to Euro 1,450,000.00
(Euro 1,250,000.00 plus VAT at the stautory rate [=Euro 200,000.00]).
The Arrangement Fee becomes due and payable on signing of the Asset
Purchase and Transfer Agreement and has to be paid to the account of
Telehouse at Mizuho Corporate Bank Ltd., Dusseldorf branch, account
number: 30971-33-008, bank code: 30020700.
2. Full and Final Settlement
Telehouse and Cybernet hereby confirm that they are in full and final
settlement of any contractual claims which might arise in connection
with the Data Center Agreements and the Data Center Service Agreement.
In particular, both Parties hereby confirm that - until 30 June 2002
- neither party owes
any rent ("monatliches Entgelt") to the other party resulting from
the Data-Center Agreements (Frankfurt, Munich and Hamburg) or the Data
Center Service Agreement (waiver of rent).
There is an exception from the full and final settlement in
connection to electricity costs to be recharged to Cybernet with
regard to the Data-Center Munich (January 2002 - June 2002). The
parties shall conclude an independent agreement in connection to
those electricity costs.
Cybernet shall transfer the optic fibre from DT to the DT-room and will
bear the costs accordingly. Also, the removing costs are not part
of this Agreement.
3. Confidentiality
The terms of this Agreement and all discussions on the subject will be
treated by the Parties as confidential and the Parties will not
disclose them to any other person (save as may be required by law or to
any regulatory authority or to professional advisers).
4. Severability
In the event that any of the provisions of this Agreement should be or
become invalid or cannot be enforced, the rest of the contents of this
Agreement shall not be affected thereby. The parties undertake to
replace the invalid or unenforceable clause by a valid and enforceable
clause which the parties would have agreed upon if they had known
that the clause would be invalid or unenforceable at the time of the
conclusion of this Agreement. The same applies to any gaps in this
Agreement.
5. Amendments and Changes
Amendments and changes to this Agreement are required to be in writing.
This applies also to a change of the written form requirement.
6. Choice of Law and Place of Jurisdiction
This Agreement is exclusively governed by German Law. The courts in
Frankfurt am Main shall have exclusive jurisdiction.
Dusseldorf, 25 June 2002
/s/ Andreas Eder /s/ Claudio Morandi /s/ Werner Tillmanns
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Cybernet Internet-Dienstleistungen AG Telehouse Deutschland GmbH