<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 27, 1997
REGISTRATION NO. 333-37719
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
------------------------
HERMES EUROPE RAILTEL B.V.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
NETHERLANDS 4813 NONE
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Numbers)
</TABLE>
TERHULPSESTEENWEG 6A
1560 HOEILAART, BELGIUM
(322) 658-5200
(Address, including ZIP code, and telephone number, including area code,
of registrant's principal executive officers)
CT CORPORATION SYSTEM
1633 BROADWAY
NEW YORK, NY 10019
(212) 664-1666
(Name, address, including ZIP, and telephone number,
including area code, of agent for service)
------------------------
Copy to:
JOHN D. MORRISON, JR., ESQ.
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 848-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED EXCHANGE OFFER:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
PROPOSED
MAXIMUM PROPOSED AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER NOTE OFFERING PRICE FEE(1)
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
11 1/2% Senior Exchange Notes
Due 2007...................... $265,000,000 $1,000 $265,000,000 $80,303.03
=================================================================================================
</TABLE>
(1) The registration fee was calculated, pursuant to Rule 457(f), as
one-thirty-third of one percent of $265,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Dutch Company Law ("Netherlands Law") permits indemnification of directors,
employees and agents of corporations under certain conditions and subject to
certain limitations.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<S> <C>
(A) EXHIBITS.
3.1* -- Deed of Incorporation and Articles of Association, as amended to date
4.1* -- Form of Outstanding Note (contained in Indenture filed as Exhibit 4.3)
4.2* -- Form of Exchange Note (contained in Indenture filed as Exhibit 4.3)
4.3* -- Indenture, dated August 19, 1997, among the Company, Global TeleSystems Group,
Inc. and The Bank of New York, as Trustee
4.4* -- Registration Rights Agreement, dated August 19, 1997, between the Company and
Donaldson, Lufkin & Jenrette Securities Corporation, UBS Securities LLC and
Lehman Brothers Inc.
4.5* -- Escrow Agreement, dated August 19, 1997, among the Company and The Bank of New
York, as Trustee and as Escrow Agent
5.1** -- Opinion of Shearman & Sterling regarding the legality of the securities being
registered
5.2** -- Opinion of Loeff Claeys Verbeke
8.1** -- Opinion of Shearman & Sterling regarding tax matters
10.1** -- Shareholders Agreement, dated as of July , 1997, among the Company,
GTS-Hermes Inc., HIT Rail B.V., SNCB/NMBS and AB Swed Carrier
10.2* -- Employment Agreement, dated as of January 3, 1995, between SFMT, Inc. and Jan
Loeber
10.3* -- Employment Agreement, dated as of January 3, 1995, between SFMT, Inc. and
Gerard Caccappolo
10.4* -- Employment Agreement, dated as of January 1, 1996, between GTS Group, Inc. and
Bruce Rudy
10.5* -- Employment Agreement between the Company and Peter Magnus
10.6* -- Employment Agreement, dated as of September 26, 1995, between the Company and
J.A. Shearing
10.7* -- License, dated December 18, 1996, granted by the Secretary of State for Trade
and Industry relating to the United Kingdom
10.8** -- Registration, dated July 26, 1996, granted by IBPT relating to Belgium
10.9** -- Authorization Letter, dated August 1, 1996, granted by Hoofdirectie
Telecommunicate & Post relating to the Netherlands
10.10**-- License, dated May 28, 1997, granted by BMPT relating to Germany
10.11+ -- Agreement, dated April 1, 1997, between Eastern Group Telecoms Limited and the
Company
10.12+ -- Agreement, dated January 16, 1997, between SNCB/NMBS and the Company
10.13+ -- Agreement, dated February 3, 1997, between SANEF and the Company
12.1* -- Statements re computation of deficiency of earnings to fixed charges
21.1* -- List of Subsidiaries
23.1* -- Consent of Ernst & Young LLP
23.2** -- Consent of Shearman & Sterling (included in its opinion filed as Exhibit 5.1)
24.1* -- Powers of Attorney (included on the signature pages of this Registration
Statement)
25.1* -- Statement of Eligibility of The Bank of New York on Form T-1
27.1* -- Financial Data Schedule for 1996
27.2* -- Financial Data Schedule for Second Quarter 1997
99.1** -- Form of Letter of Transmittal
99.2** -- Form of Notice of Guaranteed Delivery
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment.
+ Confidential material has been redacted and filed separately with the
Securities and Exchange Commission.
II-1
<PAGE> 3
(B) FINANCIAL STATEMENT SCHEDULES.
(1) Financial Statements
The financial statements filed as part of this Registration Statement are
listed in the Index to Financial Statements on page F-1.
(2) Schedules
The financial statement schedules of the Company have been omitted because
the information required to be set forth therein is not applicable or is shown
in the Financial Statements or Notes thereto.
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
The undersigned registrant hereby undertakes that every prospectus (i) that
is filed pursuant to the immediately preceding paragraph, or (ii) that purports
to meet the requirements of section 10(a)(3) of the Securities Act and is used
in connection with an offering of securities subject to Rule 415, will be filed
as a part of an amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes of determining any
liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant hereby undertakes: (i) to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means; and (ii) to arrange or provide for a facility in the
U.S. for the purpose of responding to such requests. The undertaking in
subparagraph (i) above includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 20 "Indemnification
of Directors and Officers," above, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the paying by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act, Hermes Europe Railtel
B.V. has duly caused this Amendment No. 1 to Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in Hoeilaart,
Belgium, on October 24, 1997.
HERMES EUROPE RAILTEL B.V.
By: /s/ Jan Loeber
------------------------------------
JAN LOEBER
Managing Director
Pursuant to the requirements of the Securities Act, this Amendment No. 1 to
Registration Statement has been signed by the following persons in the
capacities indicated on October 24, 1997.
<TABLE>
<CAPTION>
Signature TITLE
- ------------------------------------------ -----------------------------------------------
<C> <S>
/s/ Jan Loeber Managing Director (Principal Executive Officer)
- ------------------------------------------
(Jan Loeber)
* Corporate Financial Director -- Chief Financial
- ------------------------------------------ Officer (Principal Financial and Accounting
(Peter Magnus) Officer)
* Member of Board of Supervisory Directors
- ------------------------------------------
(Gerald W. Thames)
* Member of Board of Supervisory Directors
- ------------------------------------------
(Bernard J. McFadden)
* Member of Board of Supervisory Directors
- ------------------------------------------
(Lars Stig M. Larsson)
* Member of Board of Supervisory Directors
- ------------------------------------------
(Svend Laursen)
/s/ Jan Loeber Member of Board of Managing Directors
- ------------------------------------------
GTS-Hermes, Inc.
By Jan Loeber,
Senior Vice President and Representative
</TABLE>
- ---------------
* By power of attorney.
II-3
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
---------- ------------------------------------------------------------------ ------------
<S> <C> <C>
3.1* -- Deed of Incorporation and Articles of Association, as amended to
date
4.1* -- Form of Outstanding Note (contained in Indenture filed as Exhibit
4.3)
4.2* -- Form of Exchange Note (contained in Indenture filed as Exhibit
4.3)
4.3* -- Indenture, dated August 19, 1997, among the Company, Global
TeleSystems Group, Inc. and The Bank of New York, as Trustee
4.4* -- Registration Rights Agreement, dated August 19, 1997, between the
Company and Donaldson, Lufkin & Jenrette Securities Corporation,
UBS Securities LLC and Lehman Brothers Inc.
4.5* -- Escrow Agreement, dated August 19, 1997, among the Company and The
Bank of New York, as Trustee and as Escrow Agent
5.1** -- Opinion of Shearman & Sterling regarding the legality of the
securities being registered
5.2** -- Opinion of Loeff Claeys Verbeke
8.1** -- Opinion of Shearman & Sterling regarding tax matters
10.1** -- Shareholders Agreement, dated as of July , 1997, among the
Company, GTS-Hermes Inc., HIT Rail B.V., SNCB/NMBS and AB Swed
Carrier
10.2* -- Employment Agreement, dated as of January 3, 1995, between SFMT,
Inc. and Jan Loeber
10.3* -- Employment Agreement, dated as of January 3, 1995, between SFMT,
Inc. and Gerard Caccappolo
10.4* -- Employment Agreement, dated as of January 1, 1996, between GTS
Group, Inc. and Bruce Rudy
10.5* -- Employment Agreement between the Company and Peter Magnus
10.6* -- Employment Agreement, dated as of September 26, 1995, between the
Company and J.A. Shearing
10.7* -- License, dated December 18, 1996, granted by the Secretary of
State for Trade and Industry relating to the United Kingdom
10.8** -- Registration, dated July 26, 1996, granted by IBPT relating to
Belgium
10.9** -- Authorization Letter, dated August 1, 1996, granted by
Hoofdirectie Telecommunicate & Post relating to the Netherlands
10.10**-- License, dated May 28, 1997, granted by BMPT relating to Germany
10.11+ -- Agreement, dated April 1, 1997, between Eastern Group Telecoms
Limited and the Company
10.12+ -- Agreement, dated January 16, 1997, between SNCB/NMBS and the
Company
10.13+ -- Agreement, dated February 3, 1997, between SANEF and the Company
12.1* -- Statements re computation of deficiency of earnings to fixed
charges
21.1* -- List of Subsidiaries
23.1* -- Consent of Ernst & Young LLP
23.2** -- Consent of Shearman & Sterling (included in its opinion filed as
Exhibit 5.1)
24.1* -- Powers of Attorney (included on the signature pages of this
Registration Statement)
25.1* -- Statement of Eligibility of The Bank of New York on Form T-1
27.1* -- Financial Data Schedule for 1996
27.2* -- Financial Data Schedule for Second Quarter 1997
99.1** -- Form of Letter of Transmittal
99.2** -- Form of Notice of Guaranteed Delivery
</TABLE>
- ---------------
* Previously filed.
** To be filed by amendment.
+ Confidential material has been redacted and filed separately with the
Securities and Exchange Commission.
<PAGE> 1
CONFIDENTIAL TREATMENT
Exhibit 10.11
Note: Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment filed with the SEC under Rule 406. The omitted
confidential material has been filed separately with the SEC. The location of
the omitted confidential information is indicated herein by a legend stating,
"MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT."
DATED 1st April 1997
EASTERN GROUP TELECOMS LIMITED (1)
- and -
HERMES EUROPE RAILTEL B.V. (2)
NETWORK SERVICES AGREEMENT
Hewitson Becke+Shaw
Solicitors
CAMBRIDGE
<PAGE> 2
AGREEMENT dated the 1st day of April 1997
Made BETWEEN:
(1) EASTERN GROUP TELECOMS LIMITED (Registered No. 2937788) whose registered
office is Wherstead Park Wherstead Ipswich, Suffolk IP9 2AQ ("EGT"); and
(2) HERMES EUROPE RAILTEL B.V. a company incorporated under the laws of the
Netherlands whose registered office is Drentestraat 20, 1083 HK,
Amsterdam, the Netherlands ("the User")
together "the Parties"
BACKGROUND
(A) EGT operates a telecommunications network ("the Network") under its Public
Telecommunications Operator Licence dated 24 July 1996.
(B) The User wishes to acquire the right to use optical fibres from EGT as set
out in Schedule 1 on the Network from Aldeburgh to London and from Margate
to London.
OPERATIVE PROVISIONS
The Services will be provided in accordance with the attached Schedules and
their associated Appendices which subject to Clause 11.7 of Schedule 2 comprise
the entire agreement between the parties.
Schedule 1 Service Definition
Appendix A Technical Definition
Appendix B Implementation Plan
Schedule 2 Standard Terms and Conditions
Schedule 3 Performance Specifications
Schedule 4 Maintenance and Support
Appendix A Support and Maintenance Operating Procedures
-1-
<PAGE> 3
Contents
BACKGROUND...................................................................1
OPERATIVE PROVISIONS.........................................................1
SCHEDULE 1 SERVICE DEFINITION................................................3
Appendix A Technical Definition.............................................10
Appendix B Implementation Plan..............................................23
SCHEDULE 2 STANDARD TERMS AND CONDITIONS....................................25
1. Interpretation.........................................................25
2. Provision Of The Service...............................................30
3. Covenants By EGT.......................................................30
4. Covenants By The User..................................................31
5. Maintenance............................................................33
6. Payments...............................................................34
7. Duration And Termination...............................................35
8. Warranties And Liability...............................................37
9. Confidentiality And Intellectual Property..............................38
10. Expert Determination...................................................39
11. Insurance..............................................................40
12. General................................................................40
SCHEDULE 3 PERFORMANCE SPECIFICATIONS.......................................43
SCHEDULE 4 MAINTENANCE AND SUPPORT..........................................44
1. Introduction...........................................................44
2. Interpretation.........................................................44
3. Duties Of The User.....................................................45
4. Duties Of EGT..........................................................47
5. Corrective Maintenance.................................................48
6. Planned Work...........................................................50
7. Service Acceptance Tests...............................................51
8. Control, Implementation And Execution Of The Services..................51
9. Accommodation Maintenance..............................................51
10. Priority of Restoration................................................52
11. User's Cable Maintenance...............................................52
12. Liability..............................................................53
Appendix 1 to Schedule 4 Support and Maintenance
Operating Procedures.......................................................54
<PAGE> 4
EXECUTED AS AN AGREEMENT on the day first above written.
SIGNED by )
duly authorised for and on )
behalf of EASTERN GROUP ) /s/ [ILLEGIBLE]
TELECOMS LIMITED in the )
presence of:- )
SIGNED by )
duly authorised for and on ) /s/ [ILLEGIBLE]
behalf of HERMES EUROPE )
RAILTEL B.V. in the presence of:- )
-2-
<PAGE> 5
CONFIDENTIAL TREATMENT
SCHEDULE 1 - SERVICE DEFINITION
This Schedule forms part of the Network Services Agreement and is subject to the
Interpretations and Provisions therein.
SERVICE PARAMETERS
1 The Services EGT will provide the User with the exclusive
right to use two pairs of non-specific
optical fibres ("the Fibres") in EGT's
Network in accordance with the Technical
Definition attached at Appendix A to
Schedule 1 and Performance Specifications
attached at Schedule 3 on each of the Routes
specified in Clauses 1.1 and 1.2 below. EGT
will have the right to designate which
fibres shall be provided to the User and to
change the designation from time to time
provided, however, that no change in
designation causes a Disruption and provided
also that the User is kept aware of any
changes in designation.
The User may request and where available EGT
will provide additional fibre pairs on the
Routes at the prices given in Clause 6 below
in accordance with forecasts periodically
reviewed and agreed between the Parties in
accordance with Clause 11. The terms and
conditions of this Agreement will apply to
additional fibres in the same manner as the
Fibres.
The User is responsible for the provision of
all electronic equipment needed to make use
of the Fibres in accordance with the
Standard Terms and Conditions set out in
Schedule 2.
1.1 Route 1 Route 1 shall be between a Terminal Station
to be established in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and EGT's
equipment in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and
1.2 Route 2 Route 2 shall be between a Terminal Station
to be established in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and EGT's
equipment in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## including a
splicing chamber to connect to the Users ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## at
locations to be reasonably agreed by EGT.
-3-
<PAGE> 6
CONFIDENTIAL TREATMENT
The Parties shall agree the exact cable end
locations and method of connection in
relation to the locations identified in
Appendix A to this Schedule, the optical
losses between the cable end locations (such
losses to be measured by means of a
calibrated optical source and power meter),
the number and location of the Regenerator
Sites, the length in kilometres of each
Section and having so agreed shall include
this information in amendments to Appendix A
to Schedule 1.
1.3 Terminal Stations EGT will manage and maintain the Terminal
Stations in ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (to be provided by
EGT) and ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## (whether owned by EGT or the
User) and these will accommodate and provide
a suitable environment for User's and
Customers' equipment in accordance with the
Technical Definition attached at Appendix A
to Schedule 1.
EGT will accommodate the User's and/or
Customers' cable, ducts and equipment at the
Terminal Stations and enable them to connect
their networks to the User's submarine cable
provided that:
1.3.1 the User's and Customers' equipment space
requirements do not exceed those specified
in the floor space diagram contained in the
Technical Definition attached at Appendix A
to Schedule 1; and
1.3.2 Customers' equipment power requirements are
consistent with the User's equipment power
requirements set out in the Technical
Definition attached at Appendix A to
Schedule 1,
EGT shall permit Customers access to the
Terminal Stations and EGT Sites to install,
maintain and repair the said equipment,
cabling and ducts upon the terms set out in
Clauses 3.7, 3.8 and 4.5 of Schedule 2.
1.4 Regenerator Sites EGT will provide then manage and maintain
Regenerator Sites at locations to be
indicated in Appendix A to Schedule 1.
1.5 Maintenance Maintenance and support of the Services is
to be provided in accordance with the
provisions of Schedule 4.
-4-
<PAGE> 7
CONFIDENTIAL TREATMENT
2 Designated Purpose The conveyance of traffic and Signals
through the User's equipment between cable
ends (i.e. ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##). The User will
also be permitted to make an in-span User
Breakout to establish a connection to ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ##.
The User will not be permitted to transfer
the right to use the Fibres to any other
person in dark or dim form but will
otherwise be allowed to exercise the right
to use the Fibres as it sees fit including
increasing capacity or leasing capacity.
Capacity means bandwidth over a fibre pair
between multiplexing equipments wholly owned
and operated by the User.
EGT will consider written requests for
variations to the Designated Purpose. Such
variations may give rise to additional or
increased payments.
3 Initial Term Commencing on the date of this Agreement and
continuing in relation to each Route for the
period of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## years from the Provision Date
for that Route.
3.1 Term The Initial Term and thereafter unless and
until terminated in accordance with the
Notice Period.
4 Notice Period Notice of at least ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## months given at
any time to expire at the end of the Initial
Term or on any date thereafter.
5 Dates
5.1 Ready for Testing Dates The Routes shall be Ready for Testing on the
following dates or such later dates as may
be agreed in writing between the Parties
- Route 1 1st September 1997
- Route 2 1st September 1997
5.2 Provision Date The Provision Date for each Route shall be
the date when EGT has demonstrated that the
Services on the Route satisfy the Acceptance
Tests contained in Schedule 3.
-5-
<PAGE> 8
CONFIDENTIAL TREATMENT
6 Usage Payment Payments for each Route as defined below are
due per annum paid in equal Quarterly
installments in advance and subject to RPI
Uplift on each anniversary of its Provision
Date in accordance with Clause 6 of Schedule
2 of this Agreement.
The first year payment for the right to use
additional fibre pairs will be adjusted by
the RPI Uplift from the prices given below
from the Provision Date for the Route
concerned.
Route 1 ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
##
Usage Payment
Dark fibre service at Provision Date
First pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Second pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Each additional pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Route 2 ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
##
Usage Payment
Dark fibre service at Provision Date
First pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Second pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
Each additional pair ## MATERIAL OMITTED
AND SEPARATELY FILED
UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT
##
No Usage Payment is due for a Route for any
period when, following initial Acceptance of
the Route, the Route is not available for
transmission of Signals (the period of which
shall be determined in accordance with
Schedule 4) except where due to any
negligent act or omission or default or
breach of this Agreement by the User. The
Usage Payment due for the following Quarter
will be adjusted on the invoice to take
account of such loss of service.
6.1 The total Usage Payment will be reduced by
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## per Quarter adjusted by RPI Uplift for
each fibre pair or supply of bandwidth
services from the User's submarine cable
provided during that Quarter by EGT to a
third party along a Route at or above the
price of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## on Route 1 and ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## on Route 2,
such deduction to be made commencing the
first full Quarter for which the third party
takes the service.
-6-
<PAGE> 9
CONFIDENTIAL TREATMENT
6.2 RPI Uplift The RPI uplift effective on any anniversary
of the Provision Date will be at a rate of
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## less than the published RPI percentage
increase for the immediately preceding
twelve month period, up to a maximum uplift
of ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## for that period.
7 Time Limits Return to service following notification of
a fault in accordance with Schedule 4 of
this Agreement:
- Equipment module, connector
or splice fault within 6 hours
- Fibre fault within 15 hours
8 Loss of Service Payments In the event of a loss of service
attributable to a fault on EGT's Network or
Interface Equipment notified in accordance
with Schedule 4 of this Agreement, where EGT
fails to restore the Services within the
Time Limits at Clause 7 above EGT will make
a deduction of ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (subject to RPI
Uplift) for each additional hour from the
invoice for the following Quarterly
instalment of the Usage Payment, up to a
maximum total deduction in any twelve month
period of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## of the Usage Payment for that
year.
Payments under this Clause 8 will only be
made where the failure to restore service
within the Time Limits is not due to Force
Majeure or any negligent act or omission, or
default or breach of this Agreement by the
User.
9 Liquidated Damages For failures to meet the Ready for Testing
Dates for each Route the following
Liquidated Damages will apply:
- for being Ready for Testing on or before
31st October l997 ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Liquidated Damages
are due
- for each complete week after 31st October
1997 that the ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route is not Ready
for Testing ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
- for each complete week after 31st October
1997 that the ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route is not Ready
for Testing ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
-7-
<PAGE> 10
CONFIDENTIAL TREATMENT
The limit payable by EGT as Liquidated
Damages under this clause is ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## EGT shall not
be responsible for failures to meet Ready
for Testing Dates to the extent such
failures are attributable to Force Majeure.
The User may set off any Liquidated Damages
payment against initial Usage Payments.
The Parties agree that the Liquidated
Damages provided for above are a genuine
pre-estimate of the damages the User would
suffer as a consequence of any delay in the
initiation of service by the User to
Customers and are not to be regarded as
onerous or as a penalty.
10 Service Levels In addition to its rights under Clause 7 of
Schedule 2, the User may terminate this
Agreement by not less than 30 (thirty) days
notice in writing to EGT in the event that:
10.1 there are ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## Disruptions (of whatever
duration and howsoever caused other than by
third party damage) in respect of the
Services on a Route in any ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## month period;
or
10.2 there are ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## Planned Outages of more than
twelve hours duration (not including outages
planned for that duration at the request of
the User or ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Planned Outages
where one or more is as a consequence of
cable relocation requirements of a Local
Authority or Statutory undertaking
(excluding EGT) in respect of the Services
on a Route in any ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## month period;
10.3 there are ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## Planned Outages or Disruptions
howsoever caused of:
10.3.1 more than ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## in duration where the User has
the right to use up to and including ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ##
fibre pairs; or
10.3.2 more than ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## duration where the User has the
right to use more than ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## fibre pairs;
-8-
<PAGE> 11
CONFIDENTIAL TREATMENT
in respect of the Services on a Route in any
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## month period.
11 Future Provision Once a year the User will discuss with EGT a
## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## year forecast showing its future fibre
and facilities requirements along the Routes
with a view to agreeing additional
provision.
Any additional fibre provision shall be at
the price determined under Clause 6 of this
Schedule for additional pairs and for the
purposes of this Agreement additional fibre
shall be treated as "Fibres" from the
Provision Date.
The following initial contact points will apply, these may be changed by written
notice when required by the Parties.
12 EGT contacts Commercial Owen Williams tel: 0044 1473 553170
fax: 0044 1473 553166
Operations Bill Hughes tel: 0044 1473 542700
fax: 0044 1473 542166
Fault Control EGT NMC tel: 0044 1473 542244
fax: 0044 1473 544766
13 User Contacts Commercial John Green tel: 0032 2 6585166
fax: 0032 2 6585107
Operations Arnaud tel: 0032 2 6585269
van Rietschoten fax: 0032 2 6585107
Fault Control HER NOC tel: 0032 2 6585454
fax: 0032 2 6585106
-9-
<PAGE> 12
CONFIDENTIAL TREATMENT
APPENDIX A TO SCHEDULE 1 - TECHNICAL DEFINITION
1. PURPOSE
The purpose of this Appendix is to define the planing and design
requirements for the Routes specified in Clauses 1.1 and 1.2 of Schedule
1.
2. BACKGROUND
In accordance with its network implementation the User is installing 2
submarine cables:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (Northern route)
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## (Southern route)
The diagram below outlines the scope of this Appendix:
Section covered by this Appendix
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
-10-
<PAGE> 13
CONFIDENTIAL TREATMENT
3. PLANNING INFORMATION
3.1 Safety and Security
EGT will adopt appropriate safety and security measures at both the
Terminal Stations and Regenerator Sites. EGT's security officer will
liaise closely with the User's security officer in formulating such
measures.
3.2 Routes
The User requires the following Routes to be provided:
Route 1
o Linking the Terminal Station at ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## with ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
o Regenerator Site at ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## intermediate points.
Route 2
o Linking the Terminal Station at ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## with ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## including a
User Breakout.
Regenerator Site at ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## or possibly ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
intermediate points.
-11-
<PAGE> 14
CONFIDENTIAL TREATMENT
3.3 Route Diversity
The User requires total diversity of its core network and as such requires
the following:
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
3.3.1 ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## will have duct diversity for building entry
and exit points ideally of ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
3.3.2 Where practical internal fibre cabling within the ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## will
maintain a separation of at least ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## metres before entry
into the ODF from the building entry/exit points.
3.3.3. The User Breakout will be a minimum of ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## from ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
3.4 Fibre Optic Cable
The EGT fibre optic cable specification is detailed in Schedule 3 of
this Agreement.
-12-
<PAGE> 15
CONFIDENTIAL TREATMENT
4. ROUTE 1
Route 1 is as shown indicated in the diagram below:
e = estimated distance
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Note: The exact routings have not been finalised. EGT will advise the User of
the Section losses when the fibre route has been finalised. The exact routings
including maps will be provided by EGT as soon as possible in accordance with
the implementation plan and will be appended to Schedule 1.
-13-
<PAGE> 16
CONFIDENTIAL TREATMENT
5. ROUTE 2
The Route 2 is as shown in the diagram below:
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Note: The exact routings and number of Regenerator Sites have not been
finalised. EGT will advise the User of the section losses when the fibre route
has been finalised. The exact routings including maps will be provided by EGT as
soon as possible in accordance with the Implementation Plan and will be appended
to Schedule 1.
6. TERMINAL STATION SITES
EGT will provide the following at the Terminal Stations at ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
and ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
o Floor space as shown in the diagram below
o Maximum floor loadings ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## per cabinet
o Power with battery backup for ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## with diesel
generator
o External alarm provision to a suitable termination point
o Interface Point (ODF)
o Maintenance of the building and surrounding land.
-14-
<PAGE> 17
CONFIDENTIAL TREATMENT
FLOOR SPACE DIAGRAM
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
-15-
<PAGE> 18
CONFIDENTIAL TREATMENT
EGT will provide the following power and associated circuit breakers:
- --------------------------------------------------------------------------------
Equipment type Unit Power Number of Circuit Circuit Breaker -
(Watts) Breakers Value
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
- --------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT ##
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EGT will provide a suitable termination point for the non SDH alarms detailed
below. The User will provide its own alarm monitoring device for those alarms
asterixed and will be responsible for their onward transmission to the User.
- --------------------------------------------------------------------------------
Power Environmental Security
- --------------------------------------------------------------------------------
Input Power Fail High Temperature* Rack Door Entry*
- --------------------------------------------------------------------------------
Battery Low volts Low Temperature* Smoke Detector*
- --------------------------------------------------------------------------------
Battery High Volts Flood detector *
- --------------------------------------------------------------------------------
EGT will provide the User with interface points at the Terminal Stations on an
ODF as shown in the diagram below. It should be noted that although the User
will provide the optical cord from the ODF to the SDH equipment, EGT will be
responsible for maintaining it.
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Note: EGT will provide the ODF for the ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## fibre pairs for the sub sea cable
termination.
-16-
<PAGE> 19
CONFIDENTIAL TREATMENT
7. INTERMEDIATE REGENERATOR SITES
EGT will provide the following at the intermediate Regenerator Sites:
o Floor space as shown in the diagram below
o Maximum floor loadings ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## per cabinet
o Power with battery backup for ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## hours with
diesel generator
o External alarm provision to a suitable termination point
o Interface Point (ODF) Maintenance of the building and surrounding
land
-17-
<PAGE> 20
CONFIDENTIAL TREATMENT
[GRAPHIC OMITTED]
FLOOR SPACE DIAGRAM
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
-18-
<PAGE> 21
CONFIDENTIAL TREATMENT
EGT will provide the following power and associated circuit breakers:
- --------------------------------------------------------------------------------
Equipment type Unit Power Number of Circuit Circuit Breaker -
(Watts) Breakers Value
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
- --------------------------------------------------------------------------------
CONFIDENTIAL TREATMENT ##
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EGT will provide a suitable termination point for the non SDH alarms detailed
below. The User will provide their own alarm monitoring device for those alarms
asterixed and will be responsible for their onward transmission to the User.
- --------------------------------------------------------------------------------
Power Environmental Security
- --------------------------------------------------------------------------------
Input Power Fail High Temperature* Rack Door Entry*
- --------------------------------------------------------------------------------
Battery Low Volts Low Temperature* Smoke Detector*
- --------------------------------------------------------------------------------
Battery High Volts Flood Detector *
- --------------------------------------------------------------------------------
EGT will provide the User with interface points at the Regenerator Sites on an
ODF as shown in the diagram below. It should be noted that although the User
will provide the optical cord from the ODF to the SDH equipment, EGT will be
responsible for maintaining it.
[GRAPHIC OMITTED]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
-19-
<PAGE> 22
8. CABLE TESTING & ACCEPTANCE
Prior to hand over EGT will provide the User with the following for all
new and existing cables:
o OTDR test results completed at the time of commissioning the new
cable
o Manufacturers test results for the cable provided
The User in inspecting the above figures may request a verification OTDR
test if doubts exist as to the suitability of the cable in accordance with
Clause 5 of Schedule 2 to the Agreement.
The User will perform OTDR tests ODF to ODF at the time of installing the
SDH equipment.
9. EGT SECURITY MEASURES
EGT's standard security measures are detailed below. More in depth
measures may be implemented by mutual agreement and would be subject to
separate negotiation.
9.1 Equipment Rooms
EGT equipment rooms will be built out of materials designed to provide a
minimal protection of 2 hours against fire coming from the adjoining
spaces both internal or external. All holes in walls, floor and ceiling of
the room, i.e. for pipes, wires, etc. are filled with fire proof materials
and ducts are equipped with fire barriers.
Normally windows are not fitted but where they are special protection
measures are taken.
9.2 Doors
Doors will be made of 1 hour fire proof material and will be equipped with
panic bars. Door entry alarms will be fitted which will be remotely
monitored by the EGT Network Management Centre.
-20-
<PAGE> 23
9.3 Locks
Doors will be fitted with a security lock for which keys cannot be
reproduced without the agreement of EGT. Access control and management of
key distribution will be implemented.
9.4 Fire Extinguishing System
Where Sites are not located close to a 24 hours a day, 7 days a week basis
security centre allowing rapid intervention of less than 3 minutes in case
of fire detection, such Sites will be protected by a halon free
extinguishing system (type Argonite, Inergen or other). This system will
be connected to a fire detection system which operates automatically after
a predetermined time in case of fire detection. The system will generate
as a minimum the following alarms which will be remotely monitored by the
EGT Network Management Centre:
o Fault
o Operation
9.5 Fire Extinguishers
A minimum of two CO2 fire extinguishers will be installed in all equipment
rooms.
9.6 Lightning Protection
Buildings will be equipped with an appropriate number of lightning
conductors. External inputs to the building such as, cables, pipes, power
supplies, ducts, etc. will also be protected against lightning strikes
9.7 HVAC
The temperature and humidity of equipment rooms is controlled and
maintained between the following parameters:
o Temperature: 20 (degree)C +/ 2 (degree)C
o Humidity: 50% +/ 10%
-21-
<PAGE> 24
The system will generate as a minimum the following alarms which will be
remotely monitored by the EGT Network Management Centre:
o Fault
o Shutdown
9.8 Signs
Signs will be fitted in accordance with relevant Health and Safety
Regulations and will include the evacuation procedure and the list of
important numbers such as police, fire brigade etc.
9.9 Electrical Network
A simplified diagram showing the electrical path and location of equipment
from the public power supply network inlet to all equipment will be
available and maintained.
9.10 Inspection
The following will be inspected at least annually to ensure they are fully
functional and safe:
o Fire Extinguishing System
o Fire extinguishers
o Power and electrical systems
o HVAC system
o Lightning Protection
-22-
<PAGE> 25
CONFIDENTIAL TREATMENT
APPENDIX B TO SCHEDULE 1 - IMPLEMENTATION PLAN
ROUTE 1
1 General
Agreed Design Report for Route 1 30/4/97
Agreed Project Plan for Route 1 30/4/97
2 Terminal Station
Purchase site *30/4/97
Planning permission *31/5/97
TS Design *30/4/97
Build infrastructure *30/6/97
Fit out TS *31/7/97
RFS to the User *1/8/97
3 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
Plan for existing site *30/4/97
EGT/User site survey *30/4/97
Remedial work *31/7/97
RFS to the User *1/8/97
4 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
Plan for existing site *30/4/97
EGT/HER site survey *30/4/97
Remedial work *31/7/97
RFS to the User *1/8/97
5 Cable Route
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP *30/4/97
Contract award *30/4/97
Duct installed *30/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RES to the User *15/8/97
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Handover test results to
the User *30/4/97
RFS to the User *15/8/97
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP *30/4/97
Contract award *30/4/97
Duct installed *30/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RFS to the User *15/8/97
* DATES IN ITALICS ARE NOT BINDING. BINDING DATES WILL BE ESTABLISHED IN THE
AGREED PROJECT PLAN.
-23-
<PAGE> 26
CONFIDENTIAL TREATMENT
ROUTE 2
1 General
Agreed Design Report for Route 2 30/4/97
Agreed Project Plan for Route 2 30/4/97
2 Terminal Station
Purchase site *30/4/97
Planning permission *31/5/97
TS Design *30/4/97
Build infrastructure *30/6/97
Fit out TS *31/7/97
RFS to the User *1/8/97
3 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Purchase site *30/4/97
Planning permission *30/4/97
Regen Design *30/4/97
Build infrastructure *30/6/97
Fit out TS *31/7/97
RFS to the User *1/8/97
4 ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Plan for existing site *30/4/97
EGT/User site survey *30/4/97
Remedial work *31/7/97
RFS to the User *1/8/97
5 Cable Route
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP
Contract award *30/4/97
Duct installed *31/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RFS to the User *15/8/97
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## Route design *30/4/97
Wayleaves/PP *30/4/97
Contract award *30/4/97
Duct installed *30/6/97
Cable installed *31/7/97
ODF-ODF tests *14/8/97
RFS to the User *15/8/97
* DATES IN ITALICS ARE NOT BINDING. BINDING DATES WILL BE ESTABLISHED IN THE
AGREED PROJECT PLAN.
-24-
<PAGE> 27
SCHEDULE 2 - STANDARD TERMS AND CONDITIONS
These terms and conditions apply to the Services except where expressly
overridden or qualified by Schedule 1 to this Agreement. Words defined in such
Schedule 1 shall have the same meaning throughout this Agreement
1. INTERPRETATION
In this Agreement the following expressions shall have the following
meanings unless the context otherwise requires.
"Agreement" means the Agreement of which this forms
part;
"Confidential Information" means all know-how, techniques, ideas,
principles and concepts which underlie any
of the Services and business or commercial
information and all other information in
whatever form obtained by either Party
directly or indirectly from the other Party
pursuant to this Agreement or prior to and
in contemplation of it;
"Customer" means any customer of the User, or of any
company within the Group of companies of
which the User is a member which is using
the Services;
"Designated Purposes" means the designated purpose as defined in
Schedule 1;
"Disruption" means a failure defect or damage to the
Network or Interface Equipment not being a
Planned Outage which causes a deterioration
in the performance of the Services below the
standards set out in the Performance
Specification or below such other measures
of performance as may be agreed between the
Parties while carrying out a Temporary
Repair in accordance with Clause 5.3 of
Schedule 4 and "Disrupt" and "Disrupted"
shall be construed accordingly;
"EGT's Sites" means those sites belonging to, leased by or
otherwise made available for use by EGT
during the Term which are not owned by
leased by or
-25-
<PAGE> 28
otherwise provided by the User;
"End Date" means the date when due to expiry or earlier
termination of this Agreement the Services
are no longer available to the User;
"Expert" means the person appointed in accordance
with clause 10;
"Expert Determination" means determination of any issue,
disagreement or dispute between the Parties
pursuant to the provisions of Clause 10;
"Force Majeure" means any cause beyond a Party's reasonable
control that prevents its performance of all
or some of its obligations hereunder
including without limitation failure or
delay in obtaining Infrastructure Requisite
Consents or Telecommunications Requisite
Consents provided that the failure or delay
has not been caused or contributed to the by
the party invoking the force majeure any act
of God tempest failure or shortage of power
supplies flood subsidence lightning or fire
strike lockout trade dispute or labour
disturbances the act or omission of
government highway authorities or other
competent authority or public
telecommunications operators (other than the
parties) war military operations riot
difficulty delay or failure in manufacture
production or supply by third parties of
spare parts for the Network or Interface
Equipment but for the avoidance of doubt
lack of financial or other non-labour
resources shall not be an event of Force
Majeure;
"Group" means the User and any other body corporate
which is its holding company or subsidiary
and any other body corporate which is a
subsidiary of that holding company, as
defined by section 53A of the Companies Act
1989; and "holding company" and "subsidiary"
have the meanings given by section 736 of
the Companies Act 1985;
"Infrastructure Requisite
Consents" means those permissions consents approvals
wayleaves or licences which are
-26-
<PAGE> 29
necessary lawfully to construct and run the
Network and to maintain and repair the
Network so that the User may use and enjoy
the Services;
"Interface Equipment" means any accommodation, power supplies,
cabling, equipment or other facilities that
are to be provided by EGT under this
agreement to enable the User to enjoy the
Services;
"Initial Term" shall have the meaning set out in Schedule
1;
"Network" means EGT's communications network as it may
exist from time to time including the fibre
optic cable and all ancillary apparatus and
equipment which is owned or operated by EGT
whether owned leased or made available under
some other form of agreement with a third
party and which is essential to the totality
of the operation of EGT's communication
network;
"Permanent Repair" has the meaning set out in Schedule 4 to the
Agreement;
"Planned Outage" means an interruption to the Services
planned by EGT and advised to the User in
accordance with the procedure set out in
Schedule 4 and in particular Planned Outage
includes:-
(i) any interruption to or degradation of
the Services caused by EGT effecting a
Permanent Repair following a Temporary
Repair; and
(ii) any interruption to or degradation of
the Services caused by changes to the
Network or Interface Equipments;
but does not include any interruption to or
degradation of the Services caused by the
provision of a new User Breakout;
"Provision Date" shall have the meaning set out in Schedule
1;
"PTO Licence" means a licence to operate a public
telecommunications system granted by the
Secretary of State for Trade and Industry
under the Telecommunications
-27-
<PAGE> 30
Act 1984;
"Quarters" Three month periods where the first Quarter
starts on the Provision Date and subsequent
Quarters commence at three, six and nine
months after the Provision Date or the
anniversaries thereof.
"RPI" means the general index of retail prices in
respect of all items as published in the
monthly digest of statistics by the Central
Statistics Office or if such index shall
cease to be published such other index as
may be officially published in substitution
thereof or if not officially published that
which most closely resembles such index;
"Services" shall have the meaning set out in Schedule
1;
"Signals" means any form of electrical or optical
signal connecting to the Network or
Interface Equipments including but not
limited to its physical properties, data
coding and data structures;
"Telecommunications
Requisite Consents" means those permissions, consents,
approvals, wayleaves, licences, certificates
and permits in legally effectual form
necessary for the User and Customers
lawfully to have access to EGT's Sites in
connection with this Agreement so that the
User may use and enjoy the Services for the
Designated Purposes;
"Temporary Repair" has the meaning set out in Schedule 4;
"Type Approved" means equipment for which the User has
provided performance specifications to EGT
and for which EGT has confirmed in writing
to the User that any equipments meeting the
said performance specifications may be
connected to the Network or Interface
Equipment such confirmation not to be
unreasonably withheld or delayed;
"Usage Payment" shall have the meaning set out in Schedule
1;
"User Breakout" means the point on the Network where the
User
-28-
<PAGE> 31
makes a connection to another network, the
location of such point to be agreed by EGT,
such agreement not to be unreasonably
withheld;
"User's Equipment" means any cable or equipment that is to be
provided by or on behalf of the User which
connects to the Network or the Interface
Equipment, or transmits or receives Signals
over the Network;
"User's Personnel" means any employee duly authorised agent or
contractor of the User;
"VAT" means Value Added Tax at the then currently
applicable rate.
1.2 In this Schedule:
1.2.1 the reference to "the Parties" shall include a reference to their
successors and permitted assigns
1.2.2 unless the context otherwise requires all references to a particular
Clause or Sub-Clause, shall be a reference to that Clause or
Sub-Clause in this Schedule, reference to this Schedule shall be to
this Schedule 2 to the Agreement, all other references to Schedules
are to other respective schedules to the Agreement;
1.2.3 words importing the singular shall include the plural and vice versa
and words importing the masculine gender shall include the feminine
and vice versa;
1.2.4 headings are for convenience only and shall be ignored in
interpreting this Agreement;
1.2.5 unless the contrary intention appears words denoting persons shall
include any individual, partnership, company, corporation, joint
venture, trust, association, organisation, or other entity, in each
case whether or not having separate legal personality;
1.2.6 the words "include" or "including" are to be construed without
limitation to the generality of the preceding words;
1.2.7 references to a statute include any statutory modification,
extension, or re-enactment of that statute.
-29-
<PAGE> 32
1.2.8 where the context so permits the word User shall be deemed to
include "User's Personnel";
1.3 The following documents form part of this Agreement, and any
inconsistencies between them shall be resolved by giving them the
following order of precedence, unless expressly stated to the contrary:
1.3.1 Schedule 1 and its appendices;
1.3.2 Schedules 3 and 4;
1.3.3 Schedule 2.
2. PROVISION OF THE SERVICE
2.1 EGT will provide the Services throughout the Term in accordance with
Schedule 1.
2.2 The Services will be available to the User continuously throughout
the Term save when there is a Disruption or Planed Outage.
2.3 EGT will carry out maintenance in accordance with Schedule 4 and in
the event of a Disruption or Planed Outage restore the Services as
soon as is reasonably practicable and will where due credit Loss of
Service Payments to the User in accordance within Clause 8 of
Schedule 1 and otherwise adjust the Usage Payments in accordance
with Clause 6.7 of this Schedule.
2.4 Provision of the Services does not prevent EGT from using its
Network and Interface Equipments to provide services to others save
as expressly limited in Schedule 1.
3. COVENANTS BY EGT
3.1 EGT will not tamper with, modify, or deal in and not without the
prior consent of the User, repair, or alter in any way whatsoever
(whether directly or indirectly) the whole or any part of the User's
Equipment or Customer's Equipment situated at any premises or
locations (whether in EGT's ownership, control, occupation or not)
other than as may be reasonably necessary in relation to EGT
fulfilling its obligations under this Agreement.
3.2 Without prejudice to the generality of the foregoing paragraph, EGT
will not knowingly take any action that could contribute to the
degradation of the User's Equipment or Customer's Equipment.
-30-
<PAGE> 33
3.3 EGT will obtain and maintain and renew all Infrastructure Requisite
Consents and all Telecommunications Requisite Consents from time to
time as may be required.
3.4 EGT will support and maintain the Network and Interface Equipments
in accordance with the procedures set out in Schedule 4.
3.5 EGT will give the User reasonable notice (being at least 30 days
when practicable) of any proposed changes to the Network or
Interface Equipments of which it is aware which might affect the
Services.
3.6 EGT shall diligently carry out the design and construction of the
Routes in accordance with the Technical Definition appended to
Schedule 1 and will use its reasonable endeavours to ensure that the
Routes are available for Acceptance Testing by the Ready for Testing
dates and develop and comply with the Implementation Plan in
conjunction with the User for such purposes.
3.7 EGT grants to the User and its employees and Customers and EGT
approved agents and contractors, access to EGT Sites on which the
User's Equipment or Customer's equipment is located. Access will be
available at any reasonable time for the purposes of maintenance to
the User's or Customers' equipment and will be available during
normal working hours upon reasonable written notice to EGT for other
purposes.
3.8 EGT grants access to the Terminal Stations for the purpose of
connecting Customers of the User to the Users Equipment. This access
shall be as arranged by prior written agreement with EGT.
3.9 EGT grants the User the right to connect its cable and User's
Equipment to the Network at the cable end locations and the User
Breakouts.
3.10 EGT shall at all times throughout the Term and any period under
Clause 7.9 comply in all material respects with the provisions of
its PTO licence and all statutes and regulations applicable to the
provision of the Services.
4 COVENANTS BY THE USER
Throughout the Term the User shall and in relation to Clauses 4.7-4.11
shall procure that its Customers when acting as Customers will:
4.1 In relation to the use and/or the operation of the Services comply
with reasonable rules, instructions or operations manuals, guidance
notes, user documentation, operation procedures and similar from
time to time notified by EGT to the User and all statutes and
regulations applicable to such use and/or operation;
-31-
<PAGE> 34
4.2 Immediately and without delay inform EGT using the fault reporting
procedure set out in Schedule 4 of any defect or problem experienced
by the User in relation to the Services as and when such defect or
problem arises;
4.3 Ensure all necessary consents and approvals (including BABT approval
where appropriate) required for the lawful installation and
connection of the User's equipment to the Network and/or Interface
equipments have been obtained prior to such installation and
connection;
4.4 Ensure that throughout the Term or the period during which the User
has equipment connected to the Network or Interface Equipments that
the User has the requisite permits to provide its services including
but not limited to a suitable licence under the Telecommunications
Act of 1984 or the Broadcasting Act 1990 if appropriate and that in
the event of the User ceasing to hold such permits the User will
immediately notify EGT in writing;
4.5 Remain responsible for compliance by those accessing the EGT Sites
pursuant to Clauses 3.7 and 3.8 or otherwise under this Agreement
with all reasonable regulations or procedures, or safety or security
instructions of EGT in force at those EGT Sites which have been
communicated to the User or the persons accessing the EGT sites and
the User shall subject to the limitations on liability in Clause 8
of Schedule 2 indemnify EGT from and against all losses, costs,
claims, damages and liabilities arising from any failure to comply
with those regulations, procedures or instructions or any negligent
act or omission or wilful default on the part of those accessing the
EGT Sites pursuant to this Agreement,
4.6 Use the Services for the Designated Purpose and not use the Services
for any other purpose without first obtaining the written agreement
of EGT;
4.7 Not damage, tamper with, modify, deal, repair, reverse engineer or
alter in any way whatsoever (whether directly or indirectly) the
whole or any part of the Network or Interface Equipments situated at
any premises or locations (whether in EGT's ownership, control,
occupation or not);
4.8 Under no circumstances whatsoever substitute, remove, add, or expand
any cable, wiring, equipment, software, or fibre comprising part of
the Network or Interface Equipment, hardware or software connected
(whether directly or indirectly) to the Network without EGT's
written prior permission;
4.9 Only connect equipment to the Network or Interface Equipment that
has been Type Approved by EGT and the User must submit
specifications for any Signals to be carried over the network for
approval by EGT before transmitting such Signals. Furthermore the
User warrants that all approved equipment connected or to be
connected to the Network is operating within its performance
-32-
<PAGE> 35
specifications to the best of the User's reasonable knowledge;
4.10 Without prejudice to the generality of the foregoing subclause
4.1-4.2, 4.6-4.9, not knowingly take any action that could
contribute to the degradation of the Network or Interface Equipment,
affect other users of the Network, or adversely impact on EGT's
ability to provide the Services;
4.11 Provide EGT with all information which EGT may reasonably require
from the User in order to efficiently establish and provide the
Services and to restore the Services following a Disruption or
Planned Outage;
4.12 Not use the Services or knowingly permit them to be used for any
transmission of anything contrary to any terms of EGT's PTO Licence.
5. MAINTENANCE
5.1 EGT may modify, change, maintain, repair or replace any part of the
Network or Interface Equipments at any time at its own expense in
accordance with Schedule 4 provided there is no deterioration to the
Services.
5.2 EGT shall use its reasonable endeavours to ensure that the Fibres
and Interface Equipment are fully prepared to be connected to the
User's Equipment or the User's fibre by the Ready for Testing dates
set. Once the Fibres and Interface Equipment are so prepared the
User shall carry out the connection.
5.3 EGT and the User shall each carry out the Acceptance Tests
designated as their responsibility in the Technical Definition and
exchange test results. Each party shall complete their Acceptance
Tests within 3 weeks.
5.4 On satisfactory completion of the Acceptance, EGT and the User shall
each sign a Certificate of Readiness indicating the Provision Date.
5.5 If an Acceptance Test ("the Initial Acceptance Test") is not
satisfactorily completed, the parties agree to co-operate in order
to identify the cause of the failure of the Acceptance Test. EGT and
the User shall use best efforts to resolve the problem. Once the
problem has been resolved, the parties shall carry out the
Acceptance Tests ("the Further Acceptance Tests") in accordance with
the provisions of the Annex. Unless the failure of the Initial
Acceptance Test is due to any negligent act, omission or breach of
contract by the User the costs of Further Acceptance Tests will be
borne by EGT.
5.6 If the cause of the failure of the Acceptance Tests has not been
identified within 5 Business Days of the date upon which the Initial
Acceptance Test failed to be
-33-
<PAGE> 36
CONFIDENTIAL TREATMENT
satisfactorily completed EGT shall use reasonable endeavors to
identify suitable alternative fibres (which shall themselves be
subject to Acceptance Testing under this Clause); or an alternative
solution that will meet the Acceptance Tests.
6. PAYMENTS
6.1 In consideration of EGT providing the Services, and the other
obligations assumed by EGT pursuant to the Agreement, the User
shall at the due dates pay Usage Payments (less any payments due
under Clauses 6, 8 or 9 of Schedule 1) to EGT.
6.2 EGT will invoice the User for Usage Payment Quarterly in advance.
6.3 The User shall pay the said invoices within 45 days of the date of
the said invoices.
6.4 The Usage Payment will be subject to annual review and uplift on
each anniversary of the Provision Date using the formula below:
new Usage Payment = last Usage Payment x (## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## +
fractional change in RPI since last annual review - ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##)
limited to a maximum uplift of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## for any one
annual period.
For the purposes of this calculation the new RPI used shall be the
one published most recently prior to the relevant anniversary of the
Provision Date.
All RPI Uplifts shall be calculated on this basis.
6.5 If the User fails to pay for the Services on or before the due date,
EGT may without prejudice to any rights or remedies it may have:
6.5.1 if payment in full is not made within 30 days of due date
cancel or suspend any further provision to the User of the
Services;
6.5.2 charge the User interest on the outstanding amounts (both
before and after any judgment) at the rate of ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## above the National Westminster Bank Plc base rate
per annum calculated on a daily basis from the date the
payment was due until the total sum has been paid.
6.6 The Usage Payment is expressed exclusive of VAT and any VAT
chargeable shall be paid in addition by the User.
6.7 Loss of Service Payments and payments under Clause 6 of Schedule 1
shall appear as a deduction from the Usage Payment otherwise payable
on User's account for the Quarter following the Quarter in which the
Loss of Service Payment arose.
-34-
<PAGE> 37
7. DURATION AND TERMINATION
7.1 The Agreement shall come into force the day it is executed by the
last Party but other than as indicated in the Implementation Plan
EGT shall not be obliged to provide the Services until the Provision
Date.
7.2 Subject to Clauses 7.3 and 7.6 and Schedule 1, Clause 10, the
Agreement shall continue in force throughout the Initial Term and
thereafter unless either party gives not less than the Notice Period
written notice to the other of termination.
7.3 Either Party shall be entitled to terminate this Agreement by 30
days written notice to the other if:
7.3.1 the other commits any material breach of the provisions of
this Agreement and in the case of such breach which is capable
of remedy, fails to remedy the same within 90 days of receipt
of a written notice giving full particulars of the breach and
requiring its remedy;
7.3.2 an encumbrancer takes possession or a receiver is appointed
over any property or assets of the other;
7.3.3 the other makes an involuntary arrangement with its creditors
or becomes subject to an administration order;
7.3.4 the other goes into liquidation (except for the purposes of
solvent amalgamation, reconstruction or other reorganisation
and in such manner that the company resulting from the
reorganisation effectively agrees to be bound to or to assume
to obligations imposed on the other by this Agreement);
7.3.5 the other ceases, or threatens to cease to carry on business.
7.4 A breach shall be considered capable of remedy for the purposes of
Clause 7.3.1 if the defaulting party can comply with the provisions
in question in all respects other than as to the time of performance
(provided that the time of performance is not of the essence).
7.5 Termination of the Agreement shall be without prejudice to the
rights by the party accrued prior to termination including any right
to payment of any sum and any right to sue in respect of any
antecedent breach of this Agreement.
-35-
<PAGE> 38
7.6 The User may, by written notice to EGT, terminate the whole of this
Agreement or either Route in any of the following circumstances
which are not caused or contributed to by Force Majeure or any
negligent act or omission, breach of contract or willful default by
the User:
7.6.1 At any time the design and construction of the Routes is more
than ninety (90) days or such other period as may be agreed
between the parties behind the schedule provided for in the
then current Implementation Plan; or
7.6.2 The Routes are not Ready for Testing (or EGT acknowledges in
writing that they will not be ready) by 1 March 1998.
7.7 Termination shall not:
7.7.1 affect any provision of the Agreement which in order to give
full effect to its meaning needs to survive termination
including Schedule 1 Clauses 8 and 9 and Schedule 2, Clause
7.9 and 7.10; or
7.7.2 bring to an end the confidentiality obligations of the Parties
under this Agreement which shall survive for a period of 3
years after termination.
7.8 Upon termination of the Agreement by EGT pursuant to Clause 7.3 all
sums properly invoiced to the User shall become immediately due and
payable.
7.9 Following termination under Clause 7 or under Schedule 1 Clause 10
otherwise than pursuant to termination by EGT under Clause 7.3.2 to
7.3.5 the User shall be entitled to continue to use the Services for
a period of 18 months (or such lesser period as it shall specify by
no less than thirty days notice in writing given at any time during
such period) upon and subject to provisions of this Agreement which
notwithstanding termination shall apply to such use.
7.10 Upon termination of this Agreement by EGT pursuant to Clauses
7.3.2-7.3.5 or at the expiry of any Notice Period or of the period
determined under Clause 7.9:
7.10.1 EGT shall forthwith disconnect the User's and the Customers'
equipment from the Network.
7.10.2 The User shall within 14 days remove the User's equipment and
shall (unless EGT direct otherwise) cause the Customer to
remove the Customer's equipment from EGT Sites forthwith
making good and otherwise indemnifying EGT against all damage
or loss occasioned thereby to the reasonable satisfaction of
EGT.
-36-
<PAGE> 39
CONFIDENTIAL TREATMENT
7.10.3 EGT shall within 7 days forward to the User a statement of
all monies due under the Agreement and/or pursuant to Clause
7.9 and the User shall within 14 days of receipt of such
statement pay the invoices then due to EGT with interest
thereon in default of payment in accordance with the
provisions of Clause 6.5.2.
8. WARRANTY AND LIABILITY
8.1 Each Party represents and warrants to the other that it has legal
power, authority and right to enter into the Agreement and to
perform its respective obligations in the Agreement.
8.2 Each Party shall be liable for death or personal injury arising as a
direct result of the negligence of that Party or its employees.
8.3 EGT's liability to the User shall be limited in the following
respects at all times during the Term and during any period under
Clause 7.9:
8.3.1 for failure to meet the Ready for Testing Dates, to Liquidated
Damages as set out in Clause 9, Schedule 1.
8.3.2 For failure to restore Services within the Time Limit, to Loss
of Service Payments as set out in Clause 8, Schedule 1.
Nothing in this Clause 8.3 shall prejudice or limit the quantum of
damages the User is entitled to recover consequent upon termination
pursuant to Clause 7 of Schedule 2 and Clause 10 of Schedule 1
8.4 Neither party shall be liable to the other in respect of any breach
of the provisions of this Agreement to the extent contributed to by
the negligence, act or omission of the other, or Force Majeure.
8.5 In no event shall either party be liable to the other in tort,
negligence, breach of statutory duty or otherwise for any loss,
damage, cost or expense of any nature incurred or suffered by the
other party of an indirect, consequential, incidental, special or
exemplary nature including any economic loss or other loss of
opportunity, turnover, profit, business or goodwill.
8.6 The maximum liability of each party to the other, whether during the
Term or following termination, in respect of any breach of this
Agreement (including any breach under this Clause 8 but excluding
breaches under Clause 8.2) or arising as a consequence of the tort,
negligence or breach of statutory duty shall be a total of ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## per event or series of connected events
and ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## in any 12 month period.
-37-
<PAGE> 40
8.7 Not withstanding the provisions of this Clause 8, each party shall
idemnify the other against all losses caused to the property of
the other as a consequence of any breach of any provision of this
Agreement up to the limits of insurance set out in Clause 11.
9. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
9.1 Each Party agrees to keep confidential all Confidential Information
of the other Party and to use the same exclusively for the purposes
of or as contemplated by the Agreement and to disclose the same only
to those of its employees, Group companies, agents and
sub-contractors pursuant to the Agreement (if any) to whom and to
the extent that such disclosure is reasonably necessary for the
purposes of the Agreement.
9.2 The obligations and restrictions contained in this Clause 9 shall
not apply to information:
9.2.1 which is now or subsequently becomes available to the public
otherwise than by breach of the Agreement by the receiving
Party;
9.2.2 which the receiving Party can prove by documentary evidence
was already in the receiving Party's possession and at its
free disposal prior to obtaining the same directly or
indirectly from the other Party;
9.2.3 which is subsequently disclosed to the receiving Party free of
restrictions on disclosure and use by a third party not acting
on behalf of the other Party or directly or indirectly bound
to the other Party by obligations of confidentiality or
non-use in relation to such information; or
9.2.4 which the receiving Party is required by any reason of law to
disclose.
9.3 For the avoidance of doubt nothing in this Clause 9 shall be
interpreted as preventing either Party making full and unrestricted
use of its knowledge and expertise pertaining generally to the
industry of the other Party.
9.4 All intellectual property relating to the subject matter of this
Agreement conceived, originated, devised, developed, or created by
EGT, its officers or employees shall vest in EGT.
9.5 The User acknowledges that it shall have no licence, right, title or
interest in or to any intellectual property relating to the Network
or Services.
-38-
<PAGE> 41
10. EXPERT DETERMINATION
10.1 All disputes or differences which shall at anytime hereafter arise
between EGT and the User in respect of the construction or effect of
this Agreement or the rights duties and liabilities of the Parties
hereunder or any matter or event connected with or arising out of
this Agreement (a "Relevant Event") shall be referred to a director
(or his nominee) of each of the Parties within 5 business days of
the Relevant Event arising and they shall endeavour to reach a
mutually acceptable solution. In the event that a Relevant Event
cannot be settled by the directors (or their nominees) within 5
business days of it being referred to the Parties' directors then if
both the Parties so decide the provision of Clause 10.2 shall apply.
10.2 If both Parties agree to refer an issue to an Expert and the Parties
fail to nominate or agree such Expert within 10 days, then the
Expert may be nominated at the request of either Party by the
President or other duly appointed officer of such UK professional
body as the parties may agree or in the absence of agreement:
10.2.1 in the case of a dispute as to the interpretation or
construction of this Agreement, by the President or other
authorised officer of the Law Society of England and Wales;
10.2.2 in the case of a dispute as to the sum payable under this
Agreement by the President or other authorised officer of the
Institute of Chartered Accountants in England and Wales; and
10.2.3 in the case of all other disputes concerning the operation
and maintenance of the Network or the provision of the
Services, by the President or other authorised officer of the
Institution of Electrical Engineers or equivalent as
appropriate in the circumstances.
10.3 Each of the Parties shall be entitled to provide the Expert with
such information and such written representation as may be necessary
to assist in the determination of the dispute in question provided
such information and/or representations are made within 30 days of
the date of the referral.
10.4 The Expert shall be entitled to seek expert evidence at his
discretion as to the circumstances relating to the dispute between
the Parties and the most expeditious method of its resolution.
10.5 The Expert shall be required by the Parties to reach a determination
of the issues referred to him as soon as is reasonably practicable
and unless the Parties otherwise agree within 45 days of his
appointment.
-39-
<PAGE> 42
CONFIDENTIAL TREATMENT
10.6 The Expert shall act as an expert and not as an arbitrator and his
decision shall be notified to both Parties simultaneously and
implemented a soon as is practicable upon notification. Unless both
Parties agree in writing prior to the appointment of the Expert, the
Expert's decision (including his decision as to costs) shall be
final and binding on both Parties.
11. INSURANCE
11.1 EGT shall procure prior to the Provision Date for each Route and
maintain in force during the Term:
11.1.1 All risk physical damage insurance (subject to all usual
exclusions) for damage caused by EGT and/or its equipment in
an amount no less than ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## covering
the EGT Sites and the cable and equipment at the EGT Sites
belonging to EGT, the User and the Customers. All losses
recoverable under this Clause shall be payable to the User,
EGT and their Customers, as their respective interests may
appear.
11.1.2 Public liability insurance at the Insurance Sites in an amount
no less than ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##.
11.2 The User shall procure all risks physical damage insurance and
public liability insurance on the terms and for the period set out
in Clause 11.1 and shall maintain such insurance for so long as the
User's or customers' equipment shall remain at the EGT Sites. Such
insurance shall cover the cable and equipment at the EGT Sites
belonging to the User, the Customer and EGT and its customers, for
damage, personal injury or loss caused by the User or its Equipment.
11.3 EGT and the User will provide each other with satisfactory evidence
of the existence of said coverages on request.
12. GENERAL
12.1 Except as provided in this Clause, neither EGT nor the User may
assign any of its rights or obligations under this Agreement without
the prior written consent of the other party such consent not to be
unreasonably withheld or delayed. The User may assign all, but not
part, of its rights and obligations under this Agreement to a wholly
owned subsidiary of the User provided that the User remains fully
responsible to EGT for the performance by the assignee of its
obligations under this Agreement. The User shall enter into a
guarantee of the assignee's obligations to EGT if requested to do so
by EGT.
12.2 EGT may sub-contract the performance of any of its obligations under
the Agreement to any third party.
-40-
<PAGE> 43
12.3 Neither Party shall be deemed to be in breach of the Agreement, or
otherwise liable to the other by reason of any delay in performance,
or non-performance of any of its obligations under this Agreement to
the extent that delay or non-performance is caused by Force Majeure.
Any Party affected by such circumstances shall notify the other
Party and use all reasonable endeavours to avoid or overcome
circumstances of Force Majeure.
12.4 The Agreement shall be governed by and construed in accordance with
English law and the Parties submit to the non-exclusive jurisdiction
of the English Courts.
12.5 No delay by either Party in enforcing the provisions of the
Agreement shall be deemed a waiver of that Party's right to enforce
that provision.
12.6 The illegality or invalidity of any part of the Agreement shall not
affect the legality or validity of the remainder of it.
12.7 The Agreement together with its appendices and schedules and all
information contained and referred to therein and the letter from
EGT to the User of even date respecting the Margate Terminal Station
embody the entire understanding between the Parties concerning the
subject matter of this Agreement and override and supersede any
prior promises, representations, undertakings and implications
between the Parties concerning the subject matter of this Agreement.
12.8 This Agreement may only be varied in writing signed by an authorised
representative of each Party.
12.9 Any notice given under this Agreement shall be in writing and sent
or delivered to the address of the recipient Party given in this
Agreement (or as from time to time otherwise notified) by:
12.9.1 facsimile transmission, in which case it will be deemed
received when sent; or
12.9.2 hand (including courier) in which case it will be deemed
received when delivered; or
12.9.3 air mail (where appropriate) in which case it will be deemed
received 5 days after posting; or
12.9.4 ordinary first class mail (where the recipient is within the
same jurisdiction as the sender) in which case it will be
received 2 days after posting.
-41-
<PAGE> 44
12.10 None of the provisions of this Agreement shall be deemed to
constitute a partnership between the Parties and neither of them
shall have the authority to bind the other in any way except as
provided in this Agreement.
12.11 Each Party shall bear its own legal costs, legal fees and other
expenses incurred in the preparation and execution of this
Agreement.
-42-
<PAGE> 45
CONFIDENTIAL TREATMENT
SCHEDULE 3- PERFORMANCE SPEClFICATIONS
EGT Single Mode Optical Fibre Cable Parameters
================================================================================
TYPE AND CONSTITUTION
Single mode, complying with recommendation: CCITT G 652
================================================================================
GEOMETRICAL PROPERTIES
- ----------------------
Mode field diameter at ## MATERIAL ((mu)m) ## MATERIAL OMITTED AND
OMITTED AND SEPARATELY FILED UNDER SEPARATELY FILED UNDER A
A REQUEST FOR CONFIDENTIAL REQUEST FOR CONFIDENTIAL
TREATMENT ## TREATMENT ##
Reference Surface diameter ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Primary Coating diameter ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Core non circularity (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Reference surface non circularity (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Core/cladding concentricity error ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Primary coating concentricity error ((mu)m) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
OPTICAL PROPERTIES
- ------------------
Cut-off-wavelength (nm) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Attenuation:
## MATERIAL OMITTED AND SEPARATELY (dB/km) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
## MATERIAL OMITTED AND SEPARATELY (dB/km) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
Total Dispersion:
## MATERIAL OMITTED AND SEPARATELY (ps/nm.km) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
## MATERIAL OMITTED AND SEPARATELY (ps/nm.km) ## MATERIAL OMITTED AND
FILED UNDER A REQUEST FOR SEPARATELY FILED UNDER A
CONFIDENTIAL TREATMENT ## REQUEST FOR CONFIDENTIAL
TREATMENT ##
Zero Dispersion Wavelength (nm) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
MECHANICAL PROPERTIES
- ---------------------
Proof test (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Macro bend attenuation at (dB) ## MATERIAL OMITTED AND
## MATERIAL OMITTED AND SEPARATELY SEPARATELY FILED UNDER A
FILED UNDER A REQUEST FOR REQUEST FOR CONFIDENTIAL
CONFIDENTIAL TREATMENT ## (## MATERIAL TREATMENT ##
OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL
TREATMENT ## turns on ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL
TREATMENT ## diameter mandrel)
Fibre Strain non uniformity (%) ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Splice Losses (Maximum) dB ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
Connector Type Diamond ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL
TREATMENT ##
================================================================================
-43-
<PAGE> 46
SCHEDULE 4 - MAINTENANCE AND SUPPORT
1. INTRODUCTION
This Schedule and its Appendix sets out the responsibilities of the User
and of EGT in respect of the Corrective Maintenance and Preventative
Maintenance for the Services, Fibre and cable maintenance and
accommodation maintenance.
2. INTERPRETATION
2.1 In this Schedule the Interpretations in the Network Services
Agreement will apply and in addition the following expressions shall
have the following meanings unless the context otherwise requires:
"Acceptance Test" means all those tests and proving
works set out in Appendix A to
Schedule 1 which will be carried out
by EGT and may be witnessed by the
User to demonstrate that the Services
are functioning in accordance with the
Performance Specification;
"Connection Number" means the number that uniquely
identifies on EGT's Interface
Equipment the point at which the
connection to the User's Equipment is
made;
"Corrective Maintenance" means works necessary to repair the
Network or Interface Equipments to
restore the Services following a
Disruption;
"Fault Control Point" means the EGT Network Management
Centre or HER Network Operation Centre
as specified in Schedule 1 Clauses 12
and 13 being the single point of
contact for all maintenance
activities;
"Permanent Repair" means a repair of a standard such that
the Services are re-instated in
accordance with the Performance
Specification and no further attention
as a result of the cause of the
associated Disruption is required by
EGT;
-44-
<PAGE> 47
Planned Work" means all work required to be carried
out by this Schedule which is
programmed for execution at a future
time;
"Preventative Maintenance" means the reasonable planned
systematic testing and inspection of
the Network and Interface Equipment to
identify (so far as such reasonable
tests are capable of identifying)
faults and defects in the Network or
Interface Equipment or a state of
affairs which could reasonably be
expected to give rise to such faults
and defects;
"Section" means a length of the Network between
two adjacent User Breakout points;
"Temporary Repair" means a repair made using any
technique chosen by EGT to restore or
re-instate the Services until a
Permanent Repair has been completed.
3 DUTIES OF THE USER
3.1 The User shall monitor the Services in order to detect any
Disruption to the Service.
3.2 In the event that:-
3.2.1 The User detects a Disruption and such Disruption continues;
and
3.2.2 The User requires EGT to carry out Corrective Maintenance to
the Network or Interface Equipments following the detection of
a Disruption;
the User shall so notify EGT (such notice herein after referred to
as a "Fault Notice").
3.3 A Fault Notice shall contain the following information:-
3.3.1 a unique fault reference number allocated by the User;
3.3.2 the time at which the User issued the Fault Notice to EGT;
-45-
<PAGE> 48
3.3.3 the Section in which the fault or defect giving rise to the
Disruption is located;
3.3.4 the Connection Number of the Service that is Disrupted; and
3.3.5 any further information available to the User which may assist
EGT in locating the fault and restoring the Services;
all of the foregoing information will be notified to the EGT Fault
Control Point by telephone and within 2 hours thereafter confirmed
by the User by facsimile transmission.
3.4 Subject to Clause 5.1.2. the User shall provide reasonable
assistance in connection with the location of a fault or defect
within a Section giving rise to a Disruption. The User shall act
reasonably and without delay in determining whether it shall agree
to such request and shall not delay in notifying EGT of its
decision. Each Party shall bear its own costs incurred in attempting
to locate any such fault or defect within a Section.
3.5 If upon service of a Fault Notice:
3.5.1 it shall be found that the Fault Notice contains a material
inaccuracy; or
3.5.2 it is found that the deterioration in the Service which is the
subject of the Fault Notice has been caused by the act or
omission of the User or its Customers contrary to the notified
requirements of EGT or to the ordinary and proper standards of
usage applicable to the Designated Purpose; or
3.5.3 it is found that the deterioration in the Service which is the
subject of the Fault Notice is not due to a Disruption;
(any such Fault Notice hereinafter referred to as a "Defective
Notice") then:-
3.5.4 immediately on becoming aware of a matter referred to in
Clauses 3.5.1, 3.5.2 and 3.5.3 the User shall advise EGT
accordingly (unless the User was made aware of such matter by
EGT); and
3.5.5 the User shall pay to EGT within 28 days of demand a fee equal
to such reasonable costs if any as EGT shall have incurred in
responding to the Defective Notice and attempting to carry out
Corrective Maintenance; and
-46-
<PAGE> 49
3.5.6 the Defective Notice shall cease to have effect and all
provisions in respect of Time Limits for the completion of
Corrective Maintenance and the provisions in respect of the
Loss of Service Payments in the Agreement shall cease to have
effect in respect of the Defective Notice but without
prejudice to other relevant provisions in the Agreement; and
3.5.7 in the event that:
3.5.7.1 The Defective Notice is in respect of a Disruption;
and
3.5.7.2 the User continues to require EGT to carry out
Corrective Maintenance hereunder;
the User shall issue a further Fault Notice which shall
validly contain the information referred to in Clause 3.3
hereof.
3.6 Subject to Clause 5.1.4 the User shall provide assistance to carry
out the above Corrective Maintenance in which case the User shall
act reasonably and without delay in determining whether it will
agree to such a request and shall not delay in notifying EGT of its
decision. For the avoidance of doubt the User will not be requested
to provide on-site assistance.
3.7 For the avoidance of doubt the User shall be responsible for all
corrective maintenance, preventative maintenance and all other works
or tests of whatsoever kind to the User's Equipment for the purpose
of using the Services but shall not carry out Corrective Maintenance
or Preventative Maintenance.
3.8 It is recognised by the User that in certain circumstances EGT may
require the User to power down the lasers and otherwise make safe
the User's Equipment to allow work to take place on the Network or
Interface Equipments; the User will comply with all such requests
and will leave the User's Equipment in such condition until
authorised by EGT's Fault Control Point that it may be restored to
its operational condition. Such requirements will be considered
Corrective Maintenance or Preventative Maintenance as appropriate.
4 DUTIES OF EGT
4.1 EGT shall supply the User with such accurate records of the Network
and interface Equipment as the User may reasonably request in order
to enjoy the Services within four weeks of the Provision Date or
within six weeks of any change to the Network or Interface
Equipments that might impact on the User's enjoyment of the
Services. Such records to include drawings, specifications and
results of tests in a format to be agreed carried out under Clause 7
hereof as appropriate to the Services. EGT retains all copyright in
such records and they
-47-
<PAGE> 50
CONFIDENTIAL TREATMENT
shall form part of EGT's Confidential Information.
4.2 When carrying out work on the Network or Interface Equipments EGT
will provide for itself communications facilities (other than mobile
phones, which may interfere with the User's Equipment) independent
of the Services to allow EGT on-site work teams to maintain contact
with the EGT Fault Control Point.
4.3 In respect of Preventative Maintenance:-
4.3.1 EGT shall plan and carry out all Preventative Maintenance
which EGT deems necessary to the Network or Interface
Equipment;
4.3.2 EGT shall consult with the User and use reasonable endeavours
to take account of the User's reasonable requirements and its
obligations under Clause 6.3 of this Schedule when planning
Preventative Maintenance; and
4.3.3 all works in respect of such Preventative Maintenance shall be
carried out by EGT as Planned Work in accordance with Clause
6.
4.4 EGT shall carry out Corrective Maintenance to the Network and
Interface Equipment upon:-
4.4.1 receipt of a Fault Notice in accordance with Clause 3.2; such
Corrective Maintenance shall be carried out by EGT in
accordance with Clause 5;
4.4.2 detecting a state of affairs which could give rise to a
Disruption whilst carrying out Preventative Maintenance to the
Network or Interface Equipment; such Corrective Maintenance
shall be carried out by EGT in accordance with Clause 6.
However notwithstanding the provisions of Clause 6 the Parties
hereby acknowledge that they may agree to carry out works at a
time affording the User less notice than specified in Clause
6.
5 CORRECTIVE MAINTENANCE
5.1 Upon receipt of the Fault Notice under Clause 3.2 EGT shall:-
5.1.1 acknowledge receipt of the Fault Notice (such acknowledgement
confirming the time at which EGT received the Fault Notice for
the purposes of Clause 3.3);
5.1.2 If it requires the assistance of the User under Clause 3.4 so
notify the User within ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of receipt
of the Fault Notice;
-48-
<PAGE> 51
CONFIDENTIAL TREATMENT
5.1.3 use its reasonable endeavours, including the use of any test
equipment which EGT considers appropriate, to locate the cause
of the Disruption within the Section and notify the User with
an estimate of when in EGT's opinion the Services are likely
to be re-instated;
5.1.4 within ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## of notifying the User of
the location of the fault or defect notify the User if the
User is required to give assistance under Clause 3.6.
5.1.5 update the User on an hourly basis of progress in resolving
the Fault Notice.
5.2 Subject to Clause 3.5.6 and Clause 5.3 upon receipt of a Fault
Notice EGT shall complete Corrective Maintenance within the Time
Limits specified in Schedule 1.
5.3 In respect of fibre maintenance EGT may make a Temporary Repair
using whatever techniques it considers to be suitable to remedy a
Disruption providing that it advises the User of the likely impact
if any of such Temporary Repair on the quality of the Services and
the parties agree on such measures of performance during such
Temporary Repair. Thereupon EGT and the User shall agree a time to
complete a Permanent Repair (each Party shall act reasonably in this
respect). Such works in completing a Permanent Repair shall be
carried out as Planned Work.
5.4 For the avoidance of doubt in respect of a Disruption remedied by a
Temporary Repair for the purpose of calculating time elapsed under
the Time Limit in Clause 5.2 Corrective Maintenance shall be deemed
to have been completed upon issue of the Notice referred to in
Clause 7.1.2.
5.5 EGT may restore the Services by repairing or substituting
alternative Interface Equipment, Network equipment, cables,
conductors or optical fibres provided that the Services when so
restored comply with the Performance Specification and provided EGT
issues the User with revised drawings, specifications and test
results as appropriate for the User to enjoy the Services.
5.6 For the purpose of calculating time elapsed in respect of any Time
Limit under this Schedule each Party shall keep, maintain and upon
request disclose to the other Party proper written records of the
following periods:
5.6.1 any period during the Time Limit where the User shall have
been in default of this Agreement;
-49-
<PAGE> 52
5.6.2 any period wherein EGT was unable to perform its obligations
contained in this Schedule due to an act or omission of the
User (which shall include any delay by the User in performing
any of its obligations under this Schedule);
5.6.3 any period during which an event of Force Majeure prevents
Corrective Maintenance being carried out.
6 PLANNED WORK
6.1 Before EGT carries out any Planned Work to the Network or Interface
Equipments, EGT shall give the User notice of such Planned Work as
follows:-
6.1.1 for Planned Work to the Network or Interface Equipments not
involving an interruption to the Services EGT shall give three
working days notice of the commencement of the work;
6.1.2 should it be necessary for Planned Work to involve
interruption to the Services EGT shall give the User as much
notice as it is reasonably able to give but in any event not
less than 30 days notice of the commencement of such Planned
Work and the User shall afford all assistance to EGT to enable
the work to commence on the planned date and for it to be
completed efficiently;
6.1.3 Planned Work undertaken in order to complete a Permanent
Repair under Clause 5.3 hereof shall be carried out at the
time agreed by the Parties in accordance with Clause 5.3
hereof.
6.2 For the avoidance of doubt, a Planned Outage which lasts longer than
has been scheduled shall be treated as a Disruption for the
remainder of its duration.
6.3 EGT shall not arrange for Planned Outages on both Routes at the same
time under any circumstances; subsequent Planned Outages shall be at
least 3 working days apart. Furthermore, EGT shall use reasonable
endeavours not to implement any Planned Outage when the User
notifies EGT that there is or is likely to be an isolation of one of
the User's nodes (bearing in mind the impact on EGT's Network of
carrying out the works against the impact of delaying the works
until the outage on the User's Network is repaired).
6.4 For the purpose of calculating time elapsed during a Planned Outage,
Planned Work shall be deemed to have commenced at the time agreed
between the parties under Clause 6.1.3 hereof and ended on issue of
a notice under Clause 7.1.2 hereof.
-50-
<PAGE> 53
7 SERVICE ACCEPTANCE TESTS
7.1 Upon completion of Corrective Maintenance whether by Temporary
Repair or Permanent Repair or on completion of Planned Work to the
Network or Interface Equipment EGT shall:-
7.1.1 carry out Acceptance Tests in accordance with Clause 8 of the
Technical Definition at Appendix A to Schedule 1; and
7.1.2 upon satisfactory completion of the Acceptance Tests issue a
Notice to the User of the results of such tests.
7.2 For the purposes of calculating time elapsed under any Time Limit
contained in Clause 5.2 Corrective Maintenance shall be deemed to
have commenced on issue of a valid notice under Clause 4.2 and been
completed upon issue of the Notice referred to in Clause 7.1.2.
7.3 Any dispute under this Clause 7 in relation to any matter in
connection with Acceptance Tests shall be referred to the Expert in
accordance with the Agreement.
8 CONTROL, IMPLEMENTATION AND EXECUTION OF THE SERVICES
8.1 EGT and the User shall nominate suitably skilled and equipped staff
with responsibility for the reporting control implementation
execution and review of the maintenance and support provided under
this Schedule for the Services.
8.2 Regular meetings shall take place between the Parties to monitor the
operation of this Schedule amid to revise where and when necessary
the Support and Maintenance Operating Procedures which will be
agreed between the parties prior to the Provision Date.
9 ACCOMMODATION MAINTENANCE
9.1 EGT shall ensure that, at all times, the Terminal Stations and
Regenerator Sites are kept in a good state of repair.
9.2 EGT shall and the User shall to the extent that it is within its
control take proper precautions to ensure that, at all times, the
Terminal Stations and Regenerator Sites are kept clean and tidy and
in conformity with all applicable health and safety standards and
free from environmental hazards such as flammable materials and
asbestos or other hazards which may reasonably be held to present a
risk to any equipment or to persons working on or inspecting such
equipment.
-51-
<PAGE> 54
9.3 EGT shall monitor and give notice to the User of any environmental
or other incidents which are likely to have an immediate or
potential effect upon the User Equipment and/or the Services.
9.4 EGT shall keep the Terminal Stations and Regenerator Sites secure at
all times and ensure that only persons authorised under this
Agreement and persons authorised by EGT shall have access to those
sites.
9.5 EGT shall install or permit the User to install or have installed at
the Terminal Stations and regenerator sites alarm systems for
detection of smoke, temperature changes, water presence and other
similar events.
9.6 Where EGT fails to provide the accommodation maintenance in
accordance with this Clause, without prejudice to the User's other
rights and remedies, EGT shall permit and enable the User to provide
such maintenance.
10 PRIORITY OF RESTORATION
10.1 EGT shall give at least equal priority to the restoration of Links
on the Network as it gives to restoration of its own services and
those provided to EGT's other Customers
10.2 EGT represents to the User that all Maintenance provided by EGT to
the User under this Agreement are provided at prices and upon terms
and service levels that are no less favourable in aggregate to the
User than the prices, terms and service levels offered to its most
favoured customers for substantially similar services. EGT will
improve its service levels as necessary to remain in compliance
with the commitment on a going forward basis.
11 USER'S CABLE MAINTENANCE
11.1 EGT shall provide maintenance to the User's network from the
Terminal Stations to the User's beach manhole in accordance with the
terms of this Schedule provided that:
11.1.1 the User shall provide to EGT all spare cable to be used for
maintenance;
11.1.2 EGT shall store the spare cable in a secure location on an
EGT Site, the exact site to be agreed between the Parties;
11.1.3 the User shall provide 1 day of training for up to 15 persons
to EGT on maintenance of the land/subsea cable joints;
-52-
<PAGE> 55
11.1.4 the user shall pay to EGT its costs incurred in carrying out
this maintenance activity. The payment terms in Schedule 2
Clause 6 shall apply.
12 LIABILITY
12.1 For the avoidance of doubt the liability of the Parties under this
Schedule shall be limited in accordance with the Clauses of the
Agreement as if the same had been expressly set out herein.
-53-
<PAGE> 56
APPENDIX 1 TO SCHEDULE 4 - SUPPORT AND MAINTENANCE OPERATING PROCEDURES
To be agreed between the Parties prior to the earliest Provision Date under the
Agreement.
-54-
<PAGE> 1
CONFIDENTIAL TREATMENT
Exhibit 10.12
Note: Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment filed with the SEC under Rule 406. The omitted
confidential material has been filed separately with the SEC. The location of
the omitted confidential information is indicated herein by a legend stating,
"MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT."
SNCB/NMBS Fibre Agreement Confidential
Dated 16 January 1997
(1) SOCIETE NATIONALE DES CHEMINS DE FER
BELGES S.A. DE DROIT PUBLIC / NATIONALE
MAATSCHAPPIJ DER BELGISCHE SPOORWEGEN
N.V. VAN PUBLIEK RECHT
(2) HERMES EUROPE RAILTEL B.V.
FIBRE AGREEMENT
<PAGE> 2
SNCB/NMBS Fibre Agreement Confidential
CONTENTS
1. Definitions 4
2. Provision and Use of Railway Fibre 9
3. Term 9
4. Charges 9
5. Standards of Fibre and Equipment 10
6. Connection to the Fibre 11
7. Acceptance Tests 11
8. Approvals and Authorisations 12
9. Cuts and Degradation 13
10. Planned Works 15
11. Back-up Provision 15
12. Provision of Bandwidth 16
13. Railway Fibre Forecasts and Railway Fibre Ordering Procedures 16
14. Warranties 16
15. Liability 18
16. Insurance 19
17. Exoneration 19
18. Assignment and Transfer 20
19. Review 21
20. Events of Default 21
21. Suspension 22
22. Termination 23
23. Not used 24
24. Project Management and Dispute Resolution 24
25. Provision of Information and Confidentiality 24
26. Notices 25
27. Waivers and Variations 26
28. Entire Agreement 26
29. Severability 26
30. No Partnership 26
31. Proper Law 26
32. Obligations 27
SCHEDULES:
1. Fibre Description, Service Levels And Interface Standards 28
2. Railway Fibre Ordering Procedures 30
3. Charges, Billing, Payments And Credits 31
4. Dispute Resolution 33
5. Provision Of Bandwidth 35
6. Disclosure Against Warranties 42
ANNEXES
1. Optical Cable Specifications and testing for the Hermes Network (Issue 6.0)
2. Technical Specification for the Provision of Services
2 of 42
<PAGE> 3
SNCB/NMBS Fibre Agreement Confidential
Dated 16 January 1997
PARTIES:
(1) SOCIETE NATIONALE DES CHEMINS DE FER BELGES SA DE DROIT PUBLIC/ NATIONALE
MAATSCHAPPIJ DER BELGISCHE SPOORWEGEN NV VAN PUBLIEK RECHT ("the
Participating Railway") an autonomous public enterprise, whose office is
at rue de France 85, 1060 Brussels; and
(2) HERMES EUROPE RAILTEL B.V. ("HER") a corporation organised and existing
under the laws of the Netherlands whose registered office is at
Drentestraat 20, 1083 HK, Amsterdam, Netherlands.
INTRODUCTION:
(A) The Railway Fibre is owned by the Participating Railway and in the public
domain.
(B) HER intends to develop and operate a pan-European telecommunications
network, that will run primarily along the route of railway lines for the
transport of international telecommunications traffic as a Carriers'
Carrier.
(C) On [ ] 1996, the Parties together with the Supplier entered into an
agreement ("the Railway Framework Agreement") under which the
Participating Railway agreed, amongst other things, to provide dark fibre
to HER to be used in connection with the HER Network.
(D) The Fibre Agreement sets out the detailed terms now agreed between the
Parties in relation to the provisions of Railway Fibre.
3 of 42
<PAGE> 4
SNCB/NMBS Fibre Agreement Confidential
AGREED TERMS:
1. Definitions
Unless the context requires otherwise, in this Agreement the following
terms shall have the meaning set out against them below:
"Acceptance Tests" the tests described in the Annex which are to be
carried out in accordance with the procedures also
described in the Annex;
"Affiliate" in the case of a party:
(a) any company over which it has a Controlling
Interest;
(b) any company which has a Controlling Interest
in that party (a holding company); or
(c) any company which has the same holding
company as that party;
"this Agreement" this Fibre Agreement, the Schedules and the
Annexes;
"Business Day" Monday to Friday (inclusive) excluding any day
which is a public holiday in Belgium;
"Calculation Month" the month of March immediately preceding the
Calculation Date referred to in Schedule 3;
"Carriers' Carrier" a telecommunications operator solely concerned
with the carriage of telecommunications traffic
for and on behalf or other (licensed or otherwise
authorised) telecommunications operators;
"Charges" the charges to be paid in respect of the Railway
Fibre and maintenance services as set out in
Schedule 3;
Page 4 of 42
<PAGE> 5
SNCB/NMBS Fibre Agreement Confidential
"Confidential Information" any information in any form which is identified at
the time when it is disclosed as being
confidential or is by its nature confidential and
including Confidential Information which has
already been disclosed by either party to the
other prior to the date of this Agreement
including pre-contractual correspondence, but
excluding:
(a) information which is in the public domain
other than by reason of a breach of this
Agreement;
(b) information which is previously known to the
other party to whom it is disclosed at the
time of its receipt other than in breach of
this Agreement; and
(c) information which is independently developed
or discovered at any time by or for the
party to whom it is disclosed;
"Controlling Interest" (a) holding a majority of the voting rights; or
(b) being a member of the company with a right to
appoint or remove a majority of that
company's board of directors;
the credits which fall due to HER where the
Railway Fibre is Cut or suffers from Degradation;
"Credits"
network terminating equipment and other equipment
as may be required based on customers needs used
"Customer Equipment" by HER customers in order to pass messages from
the customer network to the HER Network;
unavailability of Railway Fibre for the
transmission of Messages for more than five
"Cut" minutes other than due to a Planned Outage;
failure of the Railway Fibre to conform with the
Optical Specification of Annex I, other than for
"Degradation" reasons of a Cut or a Planned Outage;
Page 5 of 42
<PAGE> 6
SNCB/NMBS Fibre Agreement Confidential
"Design Report" the Phase 1 Design Report and any other report
prepared by the Supplier with the assistance of
the Participating Railway for each network build
out phase of the HER Network detailing network
implementation works by country;
"Disaster Recovery Plan" a plan to be agreed jointly between the parties to
identify the procedures that will be complied with
by Participating Railway in the event of a Cut or
Degradation to ensure that the Service Levels are
complied with; including but not limited to:
- fault reporting;
- supply and provision of temporary fibre;
- engineer availability and response times;
"Failure to Maintain" a serious diversion from the Disaster Recovery
Plan by the Participating Railway whereby:
(a) a Cut occurs, or is not repaired within the
Service Levels; and
(b) there is an isolation of a Multiplexor node
on the HER Network;
"Facilities Agreement" an agreement dated [ ] entered into between HER
and the Participating Railway for the provision of
rights and facilities to house HER Equipment and
other equipment;
"Fibre Description" the technical description of the Fibre set out in
Schedule 1;
"HER Equipment" all equipment (other than HER Fibre) owned by HER
or provided to HER by a third party forming part
of the HER Network, including optical connectors
from HER transmission equipment to Railway Fibre;
"HER Fibre" optic fibre owned by HER, or provided to HER by a
third party which is to be connected with the
Railway Fibre in the development of the HER
Network;
Page 6 of 42
<PAGE> 7
SNCB/NMBS Fibre Agreement Confidential
"HER Network" the integrated pan-European trunk
telecommunications network to be developed by HER
comprising of fibre optic cables laid primarily
along railway tracks in Europe and including the
Railway Fibre, HER Fibre and HER Equipment;
"Index" the health index for Belgium as published by
Staatsblad Financ. Econ. Tijd or any other
official publication used for labour costs in
Belgium substituted therefor;
"Interface Standards" the technical standards set out in Schedule 1 with
which the "HER Fibre, the Railway Fibre and HER
Equipment must comply in order for there to be
full connectivity and interoperability of the HER
Network and the Participating Railway Network and
to enable them to be connected at the Points of
Connection;
"Licences" all licences approvals and authorisations required
under local, national, European or international
laws;
"Link" a physical link between two Points of Connection
by use of Railway Fibre;
"Message" speech, sounds, data, visual images and any other
signals serving to impart any matter;
"National Centre" The Participating Railways single point of contact
for HER as further specified in the Facilities
Agreement;
"NOC" the HER Network Operations Centre located at
Terhulpsesteenweg, 6A - 1560 Hoeilaart or such
other address as HER may notify the Participating
Railway from time to time;
"Planned Outage" unavailability of the Railway Fibre for the
Transmission of Messages due to Planned Works of
the Railway Fibre which does not exceed one hour;
"Planned Works" planned works or maintenance of the Railway Fibre
or the cable containing Railway Fibre or planned
alteration to the Participating Railway fibre
network;
Page 7 of 42
<PAGE> 8
SNCB/NMBS Fibre Agreement Confidential
"Points of Connection" one or more physical points at which the HER Fibre
or HER Equipment is no be connected no the Railway
Fibre;
"Railway Fibre" optical dark fibre provided by the Participating
Railway to HER and described in Schedule 1.
Railway Fibre extends to and includes the fibre
terminating equipment owned by the Participating
Railway and may include optical connectors as
specified in Schedule 1 for border crossing
points;
"Railway Fibre an order for Railway Fibre given by HER to the
Order" Participating Railway in accordance with Schedule
2;
"Ready for Service" trackside lands and other property, buildings and
structures including, without limitation, tracks,
gutters, ducts, gantries, poles, accommodation,
buildings power and telecommunications facilities
and storage areas owned by the Participating
Railway over or through which HER and the Supplier
and their respective employees and agents may
reasonably wish to have access in order to benefit
from this Agreement and any other land over which
the Participating Railway has sufficient rights
from time to time to permit or procure access for
such purposes;
"Railway Lands" the date on which the parties have signed the
Certificate of Readiness provided for in Clause 7
certifying that the Railway Fibre is available and
complies with the Fibre Description;
"Relevant Equipment" HER Equipment and Customer Equipment;
"Service Levels" the service levels set out in Schedule 1 in
accordance with which the Railway Fibre must be
provided; and
"The Supplier" Alcatel Bell N.V., a Belgian company whose
registered office is at Francis Wellesplein 1,
2018 Antwerp, Belgium, Alcatel Italia S.p.A. an
Italian company whose registered office is at
33/39 Viale Luigi Bodio, 20158 Milan, Italy; and
Alcatel Contracting S.A. a French
Page 8 of 42
<PAGE> 9
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
company whose registered office is at 30, Rue des
Chasses 92111 Clichy, France.
2. Provision and Use of Railway Fibre
2.1 The Participating Railway shall provide to HER the Railway Fibre in
accordance with the provisions of this Agreement and in particular the
provisions of Schedule 1.
2.2 The Participating Railway agrees that only HER shall have the right to use
the Railway Fibre referred to in Schedule 1.
2.3 Subject to Clause 12, in relation to traffic into and out of Belgium, HER
is only enabled to provide cross-border managed bandwidth contracting as a
Carriers' Carrier.
2.4 Subject to Clause 10, the Participating Railway shall not interfere with
or disrupt HER's right to use the Railway Fibre.
2.5 This Agreement shall not transfer to HER any right, title or interest in
the Railway Fibre other than the right to use the Railway Fibre in
accordance with this Agreement.
3. Term
3.1 This Agreement shall commence on date of signature and shall continue for
a period of ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## or until terminated in accordance with the
provisions of Clause 22.
3.2.1 HER and the Participating Railway agree that ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## from the
date of the signing of this Agreement the parties will commence good faith
negotiations on a reasonable basis and use reasonable endeavours to renew
this Agreement.
3.2.2 In the event that HER and the Participating Railway fail to reach an
agreement by the expiry of this Agreement the parties agree that there
shall be no referral to any form of dispute resolution and this Agreement
will terminate in accordance with the provisions of Clause 22.
4. Charges
4.1 HER agrees to pay to the Participating Railway the Charges set out in
Schedule 3 in the manner and on the dates provided for in Schedule 3.
Charges are exclusive of any value
Page 9 of 42
<PAGE> 10
SNCB/NMBS Fibre Agreement Confidential
added or sales tax due and payable in relation to the same. No sales tax
will become due until a valid sales tax invoice is received.
4.2 Liability for payment of Charges shall begin one month after when the
Railway Fibre is Ready for Service.
4.3 The Charges for maintenance of the Fibre shall be reviewed at the times
and in accordance with the indexation procedures set out in Schedule 3.
4.4 All sums due or payable by either party under this Agreement shall be paid
free and clear of any deduction or withholding except as may be required
by law.
4.5 HER shall indemnify the Participating Railway against all taxes which are
now or may be payable in respect HER's right to use of the Railway Fibre
excluding any tax (other than sales tax) assessable on the Participating
Railway in respect of the Charges or on the sale of the Railway Fibre or
on assignment of this Agreement.
4.6 HER shall pay the fees referred to in Clause 8.1 for licences and
authorisation to the manner and extent set out in that Clause.
5. Standards of Fibre and Equipment
5.1 HER shall ensure that the HER Fibre and HER Equipment and the
Participating Railway shall ensure that the Railway Fibre comply with the
requirements and Interface Standards set out in part 3 of Schedule 1.
5.2 It is acknowledged by the parties that Interface Standards may vary from
time to time. Schedule 1 may be amended to reflect technical and
operational requirements of the parties or changes in industry standards
from time to time by agreement between the parties or, failing such
agreement, in accordance with the dispute resolution procedures under
Clause 24.
5.3 The Participating Railway agrees that the Railway Fibre shall perform in
accordance with the Service Levels throughout the term of this Agreement.
Page 10 of 42
<PAGE> 11
SNCB/NMBS Fibre Agreement Confidential
6. Connection to the Fibre
6.1 The HER Fibre and/or HER Equipment and the Railway Fibre shall be
connected at the Points of Connection. Such work to be carried out by or
on behalf of HER at its own risk. Any HER fibre on Railway Land shall
comply with regulation 2444C.
6.2 In order to enable connection of the Railway Fibre and HER Equipment, the
Participating Railway shall ensure that the Railway Fibre (including
terminators and connectors) is fully prepared to be connected to HER
Equipment without necessity for HER or the Supplier to carry out any
further works to the Railway Fibre or Railway Lands prior to attaching it
to the HER Equipment or HER Fibre.
6.3 Where HER provides its own accommodation for HER Equipment, the
Participating Railway shall to the extent it is able to do so grant HER
sufficient rights to connect the Railway Fibre to HER Equipment.
7. Acceptance Tests
7.1 The Participating Railway will use its best endeavours to ensure that the
Railway Fibre is available for Acceptance Tests by the dates set out in
the Railway Fibre Order.
7.2 The Participating Railway small permit HER or its Supplier and their
respective sub-contractors agents and employees access to the Railway
Fibre at the Points of Connection to carry out Acceptance Tests of the
type and in accordance with the procedure set out in the Annex.
7.3 HER will procure that the Supplier shall carry out the Acceptance Tests in
the presence of the Participating Railway and HER and/or their agents.
7.4 On satisfactory completion of the Acceptance Tests, the test results
sheets shall be produced to the Participating Railway for signature; these
will be countersigned by the Supplier and approved by HER. The
Participating Railway and HER shall then each sign a Certificate of
Readiness following which the Railway Fibre shall be deemed Ready for
Service. A copy of the Certificate of Readiness, together with test
results will be supplied to the Participating Railway.
7.5 If the Acceptance Test ("the Initial Acceptance Test") is not
satisfactorily completed, the parties agree to cooperate in order to
identify the cause of the failure of the Acceptance Test
Page 11 of 42
<PAGE> 12
SNCB/NMBS Fibre Agreement Confidential
and to make all reasonable efforts to resolve the problem without delay.
Once the problem has been resolved, the parties shall carry out the
Acceptance Tests ("the Further Acceptance Tests") in accordance with the
provisions of the Annex.
7.6 If the cause of the failure of the Acceptance Tests has not been
identified within 5 Business Days of the date upon which the Initial
Acceptance Tests failed to be satisfactorily completed both parties shall
use their best endeavours to identify suitable alternative Railway Fibre
(which itself shall be subject to Acceptance Testing under this Clause).
7.7 The costs of further Acceptance Test should be borne equally between the
parties.
8. Approvals and Authorisations
8.1.1 The Participating Railway shall use best endeavours to obtain and renew
any Licences required in order to provide Railway Fibre and fulfil its
obligations under this Agreement and shall comply with all of their terms
to be observed on its part. If despite using its best endeavours the
Participating Railway fails to obtain such Licences or if they are revoked
in shall not face any claim for loss damage or compensation from HER;
8.1.2 The Participating Railway shall on a continuing basis consult with HER on
its strategy for obtaining the Licenses and to the extent that a licence
fee, tender prices or similar payment is due for the Licences inform HER
of the amount of such fee and use best endeavours to reduce the amount of
such fee;
8.1.3 Subject to sub-clauses 8.1.2 and 8.1.4 HER shall indemnify the
Participating Railway against any fee, tender price or similar payment (or
a reasonable part of it) or payment for universal service which is clearly
identifiable prior to obtaining the licence as solely relating to the
provision by the Participating Railway of the Railway Fibre to HER;
8.1.4 Failure by HER to comply with its obligation to indemnify the
Participating Railway under sub-clause 8.1.3 within 30 days of demand
shall entitle the Participating Railway (during the following 30 days) to
terminate this Agreement immediately without either party having further
recourse for breach of this Clause 8.1 other than for all reasonable
administrative costs and expenses incurred in complying with this clause
8.1. On termination Clause 22.2 shall apply. If the Participating Railways
Page 12 of 42
<PAGE> 13
SNCB/NMBS Fibre Agreement Confidential
does non exercise this right to terminate this Agreement shall continue in
full force and effect.
8.2 HER shall be responsible for compliance with all law, licences, approvals
and other authorisations to be observed on its part relating to the use of
the Railway Fibre for the conveyance of Messages over the HER Network and
all other matters relating to its performance of this Agreement and will
use best efforts to procure that its customers accept and abide by similar
obligations in respect of the conveyance of Messages. Any evidence
produced by HER's Customer of compliance with this obligation shall, if
not in breach of HER's confidentiality requirements be notified to the
Participating Railway.
8.3 The parties will consult with each other and provide each other with
reasonable assistance in complying with their respective obligations under
Clauses 8.1 and 8.2.
8.4 HER shall, in exercising its rights under this Agreement, comply with, and
shall procure the compliance of HER's authorised agents and employees
with, all railway industry procedures of general application of which the
Participating Railway has previously provided sufficient information to
allow compliance.
8.5 The parties agree that the Participating Railway has no responsibility for
the content of Messages transmitted over the HER Network and HER shall
indemnify the Participating Railway and hold in harmless against all
direct liability, losses and damages incurred or suffered by the
Participating railway arising out of any claims by third parties in
respect of the content of transmitted Messages unless in any of the above
cases such Messages were transmitted by or received from the Participating
Railway and shall assist the Participating Railway in defending any action
brought against it.
8.6 Notwithstanding the provisions relating to telecoms licences in Clause 8.1
above, the Participating Railway shall, an its own expense, use best
endeavours to obtain all other necessary consents wayleaves and other
rights as may be required from any third party in respect of the
connection of the HER Fibre and HER Equipment with the Railway Fibre
within Railway Lands. If despite using its best endeavours the
Participating Railway fails to obtain such Licences or if they are revoked
it shall not face any claim for loss damage or compensation from HER;
9. Cuts and Degradation
Page 13 of 42
<PAGE> 14
SNCB/NMBS Fibre Agreement Confidential
9.1 The Participating Railway shall use all reasonable efforts to protect the
Railway Fibre and minimise the likelihood of Cuts or Degradation occurring
and shall provide maintenance services in order to ensure compliance of
the Railway Fibre with the Fibre Description and Service Levels.
9.2 Where the Railway Fibre is Cut:
(a) the parties agree to report any faults occurring with the Railway
Fibre to the other party as soon as reasonably practicable after
they become aware of the same in accordance with fault reporting
procedures. These procedures will be agreed between the parties
before any Railway Fibre is Ready for Service and updated from time
to time;
(b) the Participating Railway agrees to use its best endeavours to
restore full availability of the Railway Fibre (either by repair or
replacement) as soon as reasonably possible and in accordance with
the Service Levels and (when available) the Disaster Recovery Plan;
and
(c) HER shall be entitled to Credits in accordance with the provisions
of Schedule 3.
9.3 Where the Railway Fibre is not performing to the Optical Specification:
(a) HER shall notify the National Centre as soon as it is aware of any
interference with Message which is reasonably believes arises from
Degradation of the Railway Fibre in accordance with Clause 9.2(a);
(b) upon receipt of such notice the Participating Railway shall carry
out an Optical Time Domain Reflection, (OTDR), Test to test the
Railway Fibre for Degradation. The OTDR test shall be carried out
under the supervision of HER and shall be treated as a Planned
Outage;
(c) the Participating Railway shall immediately pass the test results to
HER who shall have the right to review them;
(d) if the test shows no Degradation HER shall reimburse to the
Participating Railway the cost of carrying out the test;
(e) if the test results show Degradation the Credits shall be deducted
from the Charge from the date of the test until the Degradation is
repaired (except for any period during which suitable alternative
fibre is provided under Clause 11);
Page 14 of 42
<PAGE> 15
SNCB/NMBS Fibre Agreement Confidential
(f) the Participating Railway shall use its best endeavours to repair
Degradation;
(g) repair of Degradation shall only be proved by the Participating
Railway by the carrying out of a test in accordance with Clause
9.3.(b); and
(h) for the avoidance of doubt if there is Degradation on the Railway
Fibre to the extent that it becomes unavailable for the transmission
of Messages the Degradation shall be treated as a Cut and Clause 9.2
shall apply.
10. Planned Works
10.1 The Participating Railway shall give HER (at the NOC) at least 30 calendar
days advance written notice of Planned Works.
10.2 The notice under Clause 10.1 shall state the place, time, date and
duration of the Planned Works and the nature effect and technical details
of the potential impact on the HER Network.
10.3 The parties shall work together to reduce the potential impact of the
Planned Works on the HER Network and the Participating Railway shall
continue to provide information on the manner in the notice to HER.
10.4 For the avoidance of doubt the unavailability of Railway Fibre due to
Planned Works shall be treated as Cut from the moment in exceeds the
duration of 1 hour and Clause 9.2 shall apply.
11. Back-up Provision
11.1 Where the Participating Railway is unable to restore full availability of
Railway Fibre under sub-clause 9.2(b), or where a test of Degradation
fails under sub-clause 9.3(b), it shall use its best endeavours to provide
temporary fibre (with cable from spare stock) for the entire period of the
Cut or Degradation.
11.2 Where it is not possible to restore full availability of the Railway Fibre
in accordance with the Service Levels or cure the Degradation and no
suitable temporary fibre is provided under Clause 11.1 or the temporary
fibre does not meet the requirements of Schedule 1, the Participating
Railway agrees to use its best endeavours to provide to HER, as soon as
Page 15 of 42
<PAGE> 16
SNCB/NMBS Fibre Agreement Confidential
practicable and at no additional cost to HER, suitable alternative Railway
Fibre which meets all the requirements provided for in Schedule 1. If
suitable alternative Railway Fibre is not provided HER shall have the
right to terminate or suspend this Agreement in accordance with Clauses 20
to 22.
12. Provision of Bandwidth
HER shall provide the Participating Railway with managed bandwidth on the
HER Network strictly in accordance with Schedule 6.
13. Railway Fibre Forecasts and Railway Fibre Ordering Procedures
13.1 HER shall provide the Participating Railway with fibre forecasts from time
to time showing its requirements for fibre in the future. These shall be
used for planning purposes only.
13.2 Railway Fibre Orders shall be made in accordance with the procedure set
out in Schedule 2.
14. Warranties
14.1 The Participating Railway warrants to HER that:
(a) It is a company duly incorporated and validly existing in all
respects under the laws of the jurisdiction of its incorporation,
with full power and authority to own its assets to carry on its
business as it is now being conducted;
(b) No action is being taken or threatened whether by it or any third
party for or with a view to its liquidation, receivership or
analogous process;
(c) Subject to Clause 32, it has the right:
(i) to enter into this Agreement;
(ii) to grant all rights provided for under this Agreement;
(iii) to permit HER to connect HER Fibre to Railway Fibre in order
to construct the HER Network;
Page 16 of 42
<PAGE> 17
SNCB/NMBS Fibre Agreement Confidential
(d) The Participating Railway has not already granted these rights on
any exclusionary basis to any third party that would prevent HER
from having the benefit of these rights;
(e) The execution of this Agreement is being validly authorised and the
obligations expressed as being assumed by it under this Agreement
constitute valid legal and binding obligations, enforceable against
it in accordance with their respective terms except that under
Belgian law the goods of the Participating Railway used for public
service are not subject for enforcement;
(f) No provision of this Agreement is in any way inconsistent with its
constitution (or that of any Affiliate);
(g) it is fully licensed and authorised to lay cable within which
Railway Fibre is provided and in particular in all places where
Railway Fibre is provided under this Agreement and has sufficient
rights to enter the land surrounding the existing cable in order to
properly maintain it in accordance with the terms of this Agreement;
and
(h) subject to Schedule 6, in is not aware of any contracts, licences,
approvals or other authorisations relating to the Railway Fibre
which materially and adversely affect the ability of HER to benefit
from this Agreement.
14.2 HER warrants to the Participating Railway that:
(a) It is a company duly incorporated and validly existing in all
respects under the laws of the jurisdiction of its incorporation,
with full power and authority to own its assets to carry on its
business as it is now being conducted;
(b) No action is being taken or threatened whether by it or any third
party for or with a view to its liquidation receivership or
analogous process;
(c) The execution of this Agreement is being validly authorised and the
obligations expressed as being assumed by in under this Agreement
constitute valid legal and binding obligations, enforceable against
it in accordance with their respective terms; and
(d) No provision of this Agreement is in any way inconsistent with its
constitution or with any Agreements with its shareholders.
Page 17 of 42
<PAGE> 18
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
15. Liability
15.1 Credits shall be deducted in respect of periods during which the Railway
Fibre is Cut (whatever the cause of that Cut) or is subject to Degradation
in accordance with the provisions of Schedule 3.
15.2 Nothing in this Agreement shall restrict the liability of either party for
death or personal injury resulting from the negligence of that party or
its employees acting in the course of their employment.
15.3 Subject to Clause 15.6 neither party shall be liable to the other in
respect of any costs, claims, demands or damages that the other may
sustain in connection with this Agreement or the provision of the Railway
Fibre arising out of any claim brought or made against that other party by
a customer of that other party.
15.4 Neither party shall be liable to the other in respect of any loss of
revenue, business, contracts or profits or for any other indirect or
consequential loss whatsoever, howsoever arising.
15.5 Subject to Clauses 15.1 to 15.4, each party shall fully indemnify the
other in respect of all direct losses, costs, claims, demands and damages
arising as a result of any breach of this Agreement such indemnity to be
limited to the aggregate charges for a 12 months period in respect of any
single incident or series of incidents arising out or single breach of
this Agreement unless caused by the wilful default of the party breaching
the Agreement.
15.6 In the event of a Failure to Maintain, the Participating Railway shall
indemnify HER for any proven losses, costs, claims, demands and damages
paid by HER to its Customers, such indemnity to be limited as follows:
(a) for each hour that there is Failure to Maintain ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
(b) for each incident of a Failure to Maintain - ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of
the Charges for maintenance services; and
(c) in any 12 months period - the aggregate Charges for maintenance
services for ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##
Page 18 of 42
<PAGE> 19
SNCB/NMBS Fibre Agreement Confidential
15.7 The provisions of this Clause shall survive the termination of this
Agreement.
16. Insurance
16.1 Each party shall maintain for the duration of this Agreement fully
comprehensive all risks (including professional indemnity) insurance or
appropriate self insurance with a sum insured adequate to meet any claim
arising under this Agreement and shall on demand, promptly produce written
evidence of this insurance to the other party reasonably requesting that
evidence from time to time.
16.2 Any insurance taken out by any party in relation to this Agreement shall
include a waiver of subrogation rights by the relevant insurer against the
other party under this Agreement.
16.3 Neither party shall do anything which might render void or voidable such
insurance policies or cause the payment of any of such insurance policy
money to be withheld solely or partly because of their act or omission.
16.4 If insurance moneys are withheld due to the act or omission of either
party that party will pay, on demand, to the other all such irrecoverable
sums.
17. Exoneration
17.1. In this Agreement, "Event of Force Majeure" means any abnormal or
overwhelming circumstances which (despite prudent management and
operations) are beyond the control of the party affected and which prevent
that party from fulfilling its obligations under this Agreement in a
timely manner or in compliance with this Agreement, including any storm,
tempest, fire, flood, snow, water, sabotage, riot, rebellion or government
action (save to the extent that the government is acting as shareholder in
the party in question) or industrial disputes by any person other than
employees of the party claiming the benefit of Force Majeure or its
Affiliates, but specifically excluding failures or delays on the part of
the defaulting party, arising out of:
(a) any failure or delay on the part of any defaulting party or any
sub-contractor engaged by the defaulting party which is not itself
caused by Force Majeure; or
(b) shortages of fuel, supplies or services which are not themselves
caused by Force Majeure.
Page 19 of 42
<PAGE> 20
SNCB/NMBS Fibre Agreement Confidential
17.2 A party affected by an Event of Force Majeure or strike action by its
employees shall use its best endeavours to minimise its effects.
17.3 No party shall be responsible for any failure to fulfil its obligations
under this Agreement if, and only to the extent that such failure shall be
caused by an Event of Force Majeure or strike action by its employees
which makes in impossible or impractical for than party to comply with
such obligations.
17.4 If a party considers than any Event of force Majeure has arisen or may
arise, or that strike action by its employees is planned it shall
immediately notify the other Party of its reasons and likely extent of the
delay and the parties shall endeavour to find a means of avoiding the
delay or disruption.
17.5 Credits shall remain payable in accordance with sub-clause 15.1 to be
calculated in accordance with Schedule 3 and the Participating Railway
shall comply with its maintenance obligations in Clause 9 notwithstanding
the fact than a Cut or Degradation may be due to an Event of Force
Majeure.
18. Assignment and Transfer
18.1 The Participating Railway acknowledges that HER may only assign the
benefit of this Agreement in whole or in part to any Affiliate which has
particular responsibility for construction and/or operation of the Network
in Belgium (such Affiliate to be 100% owned by HER; save for any directors
qualifying shares), or to any successor of HER or its Affiliates, so long
as the commercial, legal, and regulatory and ownership interests between
the parties remain unchanged.
18.2 HER acknowledges that the Participating Railway may only assign this
Agreement to any successor of the telecommunications operations of the
Participating Railway, so long as the commercial, legal, and, regulatory
obligations between the parties in relation to this Agreement remain in
force.
18.3 Each party agrees to notify the others immediately upon organisational
change which may result in assignment of all or any portions of this
Agreement.
Page 20 of 42
<PAGE> 21
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
19. Review
19.1 HER and the Participating Railway acknowledge that there are likely to be
changes in circumstances which may impact upon the relationship between
them and the provisions contained in this Agreement and which may require
modifications to the services, facilities or rights provided or granted by
one of them to the other under this Agreement. In recognition of this
fact, HER and the Participating Railway agree that, not more than once in
any year of this Agreement:
(i) either of HER or the Participating Railway may give written notice
to the other setting out the details of the relevant change in
circumstances together with the amendments proposed to be made to
the Agreement;
(ii) within two weeks HER and the Participating Railway shall enter into
good faith negotiations with a view to making appropriate amendments
to the Agreement;
(iii) if no agreement has been reached within three months from the
commencement of negotiations, the matter shall be referred for
determination in accordance with the Dispute Resolution Procedures
contained in Clause 24 and Schedule 5 save that HER and the
Participating Railway agree that the matter shall not be referred
for determination by the courts;
(iv) if agreement cannot be reached under (iii) above the Agreement shall
continue in force unamended.
20. Events of Default
20.1 The following shall be an Event of Default:
(a) Breach of Agreement
A material breach of the terms of this Agreement committed by either
Part.
(b) Unavailability or Degradation or Railway Fibre
Any Railway Fibre is Cut for a continuous period of ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## or there are ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
or more each in any ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## period or suffers Degradation
for a continuous period of ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## beyond a test under
Clause 9.
Page 21 of 42
<PAGE> 22
SNCB/NMBS Fibre Agreement Confidential
20.2 The parties shall notify each other as soon as they become aware of an
Event of Default.
21. Suspension
21.1 Service of a Suspension Notice
(a) A party may serve a Suspension Notice on the other party ("the
Receiving Party") where an Event of Default under sub-clauses
20.1(a) has occurred to the Receiving Party and is reasonably
capable of remedy;
(b) Without prejudice to its right to terminate under Clause 20 HER may
also serve a Suspension Notice upon the Participating Railway if an
Event of Default under sub-clauses 20.1(b) has occurred and is
reasonably capable of remedy and it is agreed that HER shall be
entitled to serve a Suspension Notice in respect of an Event of
Default under sub-clause 20.1(b) even where the cause of Cut or
Degradation is an Event of Force Majeure.
21.2 A Suspension Notice shall specify:
(a) the nature of the Event of Default (including, in respect of an
Event of Default under Clause 20.1(b) details of the relevant
Railway Fibre);
(b) the date and time at which Suspension is to take effect;
(c) the steps reasonably required to remedy the Event of Default;
(d) a reasonable period (of at least 90 days if the notice is served by
the Participating Railway and an least 180 days if the notice is
served by HER) for the defaulting party to remedy it; and
(e) the specific Links in respect of which this agreement is suspended.
21.3 Service of a Suspension Notice
(a) service of the Suspension Notice shall have the effect of suspending
the operation of this Agreement to the extent specified in such
Suspension Notice;
(b) the receiving party shall comply with any reasonable restrictions
imposed on it in the Notice;
(c) without prejudice to any other remedies in this Agreement service of
the Suspension Notice by the Participating Railway shall not affect
the obligations to make payments under this Agreement;
Page 22 of 42
<PAGE> 23
SNCB/NMBS Fibre Agreement Confidential
(d) without prejudice to any other remedies in this Agreement service of
a Suspension Notice by HER shall result in the suspension of
payments for the Railway Fibre during the suspension period;
(e) during the period of a Suspension Notice served by HER, HER shall
continue to provide managed bandwidth along the Railway Fibre
including that offered to the Participating Railway under Clause 12,
unless prevented from providing any managed bandwidth by the
Participating Railway's Event of Default.
21.4 The Receiving Party shall, with all reasonable diligence, take such steps
as shall be reasonable and necessary to remedy the Event of Default and
shall keep the serving party fully informed of the progress which is being
made.
21.5 Where the Receiving Party has complied with the obligations in clause 21.4
and it is reasonable for the Suspension Notice to be revoked the serving
party shall revoke the Suspension Notice as soon as is practicable by
notice in writing.
22. Termination
22.1 A Party may terminate this Agreement in whole or with respect to specific
Links:
(a) If the other party fails to comply with the terms of a Suspension
Notice;
(b) If the other party breaches its obligation to remedy an Event of
Default under clause 21.4; or
(c) except during the period of a Suspension Notice, if the other party
has committed an Event of Default and it is continuing provided
however that where an Event of Default is capable of remedy, a
Suspension Notice has first been served to the other party;
(d) subject to Clause 20.2, if the party terminating has validly served
notice to terminate the Facilities Agreement;
on notice in writing on expiry of the cure period stated in the Suspension
Notice (under clause 21.2(d)) or by 90 calendar days' notice in writing if
the Event of Default is not
Page 23 of 42
<PAGE> 24
SNCB/NMBS Fibre Agreement Confidential
capable of remedy. In the case of a partial termination the notice shall
specify the Links to which the termination shall apply.
22.2 The following shall apply on termination:
(a) save where termination has been invoked by the Participating Railway
due to non payment of the price, this Agreement shall continue in
force beyond termination to the extent that in relates to the
provision of Railway Fibre which HER can demonstrate as necessary in
order to be able to continue to fulfil obligations to its customers
which are in force on the date of termination, up to a maximum
period of eighteen (18) months; and
(b) termination or expiry of this Agreement shall not amount to a waiver
of any breach by either party and shall be without prejudice to any
liabilities or obligations of either party which have accrued up to
the date of termination.
22.3 If either party has terminated only part of the Facilities Agreement so
that certain Railway Fibre no longer forms part of the HER Network (and is
unlikely to form part of the HER Network), they may also terminate this
Agreement in respect of that Railway Fibre only. Subject to this, the
obligations between the parties in respect of all other Railway Fibre
shall remain in full force and effect.
23. Not used
24. Project Management and Dispute Resolution
24.1 Each of the parties shall appoint a Project Manager to act as that party's
representative and prime point of contact in relation to all day-to-day
matters arising in connection with this Agreement. Each Project Manager
shall have the power to commit his principal on day-to-day matters; but he
shall not have the right to vary the terms of this Agreement.
24.2 Any dispute in relation to any matter between the parties arising pursuant
to this Agreement shall be determined in accordance with the provisions of
Schedule 5.
25. Provision of Information and Confidentiality
Page 24 of 42
<PAGE> 25
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
25.1 Subject to the party in question having the necessary rights in respect of
relevant intellectual property rights and being free of any obligation of
confidentiality, each party shall provide to the other information about
matters which are relevant to the connection of the Railway Fibre and the
HER Fibre and/or Equipment and the provision of the Railway Fibre under
this Agreement as the other party shall reasonably require at no charge to
the other party to the extent that the information is necessary in order
for that party to perform its obligations under this Agreement and to
benefit from this Agreement.
25.2 Each party will endeavour to ensure that the information provided to the
other party under this Agreement is correct to the best of its knowledge
at the time when it is provided.
25.3 Where a party to this Agreement (the "Disclosing Party") provides to the
other party (the "Receiving Party") Confidential Information, the
Disclosing Party shall ensure that before doing so it has all necessary
consents as may be required in order to disclose the information.
25.4 The Receiving Party shall keep in confidence all Confidential Information
and will not (and will procure that its employees, directors and
professional advisers will not) disclose that information to any third
party.
25.5 The Receiving Party shall be entitled to disclose any Confidential
Information to any of its employees, agents, directors, officers, legal
representatives, consultants or authorised subcontractors or (if approved
in writing by the Disclosing Party) any other third party provided that
the recipient is bound by an undertaking in substantially the same terms
as the provisions of this Clause 25.
25.6 Confidential Information shall only be used for the purposes for which it
was disclosed and/or for the purposes of performing the obligations of the
parties under this Agreement.
25.7 The obligations of Confidentiality in this Clause 25 shall continue for ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## following the termination of this Agreement for any reason or
its expiry.
26. Notices
26.1 Any Notice served pursuant to this Agreement shall be served personally or
sent by pre-paid first class post, by facsimile or by any other method
agreed between the parties including electronic transmission between the
National Centre and the NOC.
Page 25 of 42
<PAGE> 26
SNCB/NMBS Fibre Agreement Confidential
26.2 All Notices and other documents served pursuant to this Agreement shall be
sent to the Managing Director of HER or the Deputy Director of the
Participating Railway at the respective addresses sent out on page 3 of
this Agreement.
26.3 Notices served personally shall be deemed delivered on delivery, by post
shall be deemed delivered three working days following posting and by
facsimile shall be deemed delivered upon being sent but shall be confirmed
by post. Suspension and Termination notices shall only be deemed delivered
if sent by registered post. Notice of Planned Works under Clause 10 shall
be copied to the Project Manager.
27. Waivers and Variations
27.1 No failure by either party to enforce any of the provisions of this
Agreement shall operate as a waiver of any right of that party relating to
that provision.
27.2 No variation of any provision of this Agreement shall be effective unless
in writing and signed by authorised representatives.
28. Entire Agreement
This Agreement is the entire understanding between the parties relating to
the subject matter of this Agreement and supersedes all previous
understandings or agreements whether written or oral.
29. Severability
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of the remainder of this
Agreement
30. No Partnership
This Agreement shall not create a partnership between the parties and, at
all times, each party shall act as an independent contractor for all
purposes of this Agreement.
31. Proper Law
Page 26 of 42
<PAGE> 27
SNCB/NMBS Fibre Agreement Confidential
31.1 This Agreement shall be governed by and construed in accordance with the
laws of Belgium and the parties agree that the Courts of Belgium shall
have exclusive jurisdiction to settle any dispute which may arise out of
or in connection with this Agreement.
31.2 The language of this Agreement and all documents issued pursuant to and
arising out of this Agreement shall be English and, notwithstanding any
translation which may be made, the construction of this contract in
English shall prevail.
32. Obligations
The obligations of each party are only valid to the extent permitted by
Belgian law.
SIGNED by the parties
SIGNED by ) Date:
duly authorised for and )
on behalf of )
SOCIETE NATIONALE DES )
CHEMINS DE FER BELGES S.A. DE )
DROIT PUBLIC/ )
NATIONALE MAATSCHAPPIJ )
DER BELGISCHE SPOORWEGEN )
N.V. VAN PUBLIEK RECHT )
/s/ [illegible]
SIGNED by ) Date: 18/11/96
duly authorised for and )
on behalf of )
HERMES EUROPE RAILTEL B.V. )
GOEDGEKEURD
/s/ [illegible]
DE GEDELEGEERD-BESTUURDER
E. SCHOUPPE
Page 27 of 42
<PAGE> 28
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
SCHEDULE 1
Fibre Description, Service Levels And Interface Standards
1. FIBRE DESCRIPTION
1.1 Technical description
The description of the technical requirements with which the Railway Fibre
must comply is set out in the HERMES Optical Cable Specification which is
set out in the Appendix to this Agreement. Revisions to the HERMES Optical
Cable specification will be agreed by HER and the Participating Railway
and the Appendix will be updated accordingly.
1.2 Geographical description
The Railway Fibre will be provided between Points of Connection. HER's
geographical requirements will be as specified in the appropriate Design
Report and confirmed in the Railway Fibre Order.
2. SERVICE LEVELS
2.1 Availability
2.1.1 Target maximum number of Cuts along whole Railway Fibre: ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
2.1.2 The target restoration time for repair of the Cut is ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
2.1.3 Availability requirements will be reviewed to the extent HER expands
the kilometres of the HER Network in Belgium with additional Railway
Fibre.
3. INTERFACE STANDARDS
3.1 HER must be notified by the Participating Railway and agree in writing to
the type of terminator to be used as interface between the Railway Fibre
and the HER Equipment or HER Fibre. The Participating Railway is
responsible for connecting its fibre to the terminator.
Page 28 of 42
<PAGE> 29
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
3.2 The Participating Railway will give HER or their designated
representatives access to the terminator for the purposes of Acceptance
Testing as set out in Schedule 3 and for the purposes of connecting HER
Equipment or HER Fibre to the terminator.
3.3 HER shall provide an optical connector from the Railway terminator to
HER Equipment and connect into than terminator.
[graphic omitted]
3.4 The parties agree that ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## will be used to connect HER
Equipment with Railway Fibre.
3.5 The responsibility for connecting HER Fibre to Railway Fibre at border
crossings is detailed in the Design Report.
Page 29 of 42
<PAGE> 30
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
SCHEDULE 2
Railway Fibre Ordering Procedures
1. RAILWAY FIBRE ORDERS
1.1 The first Railway Fibre Orders are:
i. Number of fibre pairs : ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
ii. Route: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
iii. Total Distance : ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## kilometers
iv. Available for acceptance Tests by: 10 June 1996
v. Fibres to be provided in accordance with Phase I Design Report
(issue number 1.4) and the terms of this Fibre Agreement.
i. Number of fibre pairs : ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
ii. Route: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
iii. Total Distance : ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## kilometers
iv. Available for acceptance Tests by: 30 May 1997
v. Fibres to be provided in accordance with Phase I Design Report
(issue number 1.4) and the terms of this Fibre Agreement.
1.2 Further Railway Fibre Order shall be made as follows:
(i) based on fibre forecasts provided, either party may seek a
commitment from the other by forwarding an offer to the other party,
in writing, stating the same information as in paragraph 1.1 and
commercial terms consistent with the terms of this Agreement;
(ii) each party is required to respond to an offer in paragraph 1 as soon
as is reasonably possible but in any event within one month;
(iii) as soon as terms are agreed both parties shall sign the Railway
Fibre Order which shall be annexed to this Agreement and be
incorporated into it.
Page 30 of 42
<PAGE> 31
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
SCHEDULE 3
Charges, Billing, Payments And Credits
1. CHARGES
HER agrees to pay the Participating Railway:
- ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## ECU/kilometre per fibre pair per year
- maintenance services fees at:
Years ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##/kilometre per fibre pair per year
Years ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##/kilometre per fibre pair per year
On the anniversary of the date of this Agreement in each year doing which
the Agreement shall remain in force (each such date being called the
"Calculation Date"), the Charges for maintenance services shall be varied
in accordance with the formula set out below:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
where
RC = Revised Charges
C = Charges listed above as being payable in the relevant year for
maintenance services
CMI(Y) = Index for the month of March immediately preceding the date of
this Agreement
CMI(N) = the Index for the Calculation Month
Note: the CMI(N) figure in any year shall be revised if there is any
change to the reference base for the index so than the above calculation
may be made as if the reference base had not changed.
2. INVOICING AND PAYMENT
2.1 Charges shall be invoiced quarterly in arrears and amounts invoiced shall
be paid within thirty days of the date of the invoice. Payments shall be
made in the currency of account within the European Union from time to
time (currently the ECU). In the event that no such currency exists an the
time of invoicing payment shall be made in the currency of Belgium.
2.2 In the first quarter of each calendar year the Participating Railway shall
issue a credit invoice for the accrued Capacity Credits of the previous
calendar year an the same time as issuing the invoice for the Charges. If
and to the extent that the credit invoice exceeds the charges invoiced on
that quarter, the balance shall be carried forward and deducted from the
Page 31 of 42
<PAGE> 32
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
following quarters Charges. Interest is payable on late payment of the
Charges (net of Credits) at the accrued quarterly rate of legal interest
plus ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## until such payment is made.
3. CREDITS
Credits will be deducted from the Charges an a rate of ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
hour/fibre pair
Credits shall accrue at the rates set out above from the moment that the
National Centre is informed of the Cut or Degradation until the moment HER
is notified that availability has been restored.
Credits will be reviewed to the extent that HER orders additional Railway
Fibre.
Page 32 of 42
<PAGE> 33
SNCB/NMBS Fibre Agreement Confidential
SCHEDULE 4
Dispute Resolution
1. Any dispute in relation to any matter between the parties arising pursuant
to this Agreement shall in the first instance be referred to the Project
Managers.
2. If the Project Managers are not able to settle the dispute concerned it
shall be referred to the Director of Networks for HER who shall meet the
Chief of Telecommunications Division from the Participating Railway in
Belgium within 10 Business Days of being required to do so by the party
and negotiate in good faith to settle the dispute.
3. If such individuals are unable to resolve the dispute then; the Managing
Director of HER and the Director responsible for telecommunications of the
Participating Railway will meet to attempt resolution. They will meet
within 20 Business Days of being requested to do so.
4. If such group cannot resolve the dispute, then the following group will
meet within 20 Business Days of being requested to do so: the Chief
Executive Officer of Global TeleSystems Group (or such other equivalent
shareholder of HER), the Director General or Chief Executive of the
Participating Railway and the senior railway representative on the HER
Supervisory Board.
5. If this final group cannot resolve the outstanding issue, then either
Party may request to resolve the dispute through mediation conducted by a
mediator agreed by the parties or failing which appointed by the Director
of the Belgian Centre for Study and Practice of National and International
Arbitration (CEPINA) in Belgium which mediator shall be familiar with
Belgian law ("the Project Mediator").
6. Should the Project Mediator be unable or unwilling to serve or continue to
serve, the Parties shall select a replacement. If they are unable to agree
then the matter may be referred by either Party to the Director of CEPINA
who shall be requested to appoint a replacement within twenty eight
calendar days of this request.
7. The mediation procedure shall be determined by the Project Mediator in
consultation with the Parties. It shall allow for delivery and exchange of
brief written summaries of the cases of each Party, with any supporting
documents essential to an understanding of the dispute. The Parties and
the Project Mediator may join in the mediation any other party necessary
for
Page 33 of 42
<PAGE> 34
SNCB/NMBS Fibre Agreement Confidential
a mutually acceptable resolution of the dispute. The Project Mediator may
call upon such experts to assist him in his task as he considers
appropriate.
8. The mediation procedure shall be "without prejudice" and all information,
data or documentation disclosed or delivered by a Party shall be treated
as confidential.
9. The Parties shall endeavour in good faith to reach a mutually acceptable
resolution with the Project Mediator.
10. The fees and expenses of the Project Mediator shall be borne equally by
the Parties unless the Project Mediator shall decide otherwise
11. Notwithstanding the above the Courts of Belgium have exclusive
jurisdiction to settle any dispute which may arise out of or in connection
with this Agreement and nothing in this Schedule shall prevent either
Party at any time seeking any interim or interlocutory relief from the
Court.
12. Preliminary proceedings and disputes in connection with this Agreement
shall be conducted in English. When the dispute is escalated to the
Project Mediator, the language will be agreed between the parties. Where
proceedings take place in the Courts of Belgium, they shall take place in
French or Flemish.
13. Unless the Agreement has already been terminated and subject to the
suspension provisions of clause 19, the Participating Railway shall in
every case continue to grant or procure the rights and comply with all its
obligations under the terms of this Agreement regardless of the nature of
the dispute and notwithstanding the referral of the dispute for resolution
under this Schedule.
Page 34 of 42
<PAGE> 35
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
SCHEDULE 5
Provision Of Bandwidth
AGREED TERMS
1. Interpretation
This Schedule forms an integral part of the Fibre Agreement between the
Participating Railway and Hermes Europe Railtel B.V.
Expressions defined and references construed in the Fibre Agreement have
the same meaning in this Schedule. In addition the following expressions
in this Schedule shall have the meaning set out against it below:
"HER Link" are the links as described in the Table in
Paragraph 3.1 of this Schedule;
"Interface Standards" the standards supported by HER at any Point
of Connection which are identified in the
Technical Specifications at Annex 2;
"Loss of Services" a failure by HER to provide any of the Links
listed in Paragraph 3.1 which is not in
whole or in part due to a failure of the HER
Network in Belgium;
"Participating Railway
Equipment the equipment including connectors
connecting the Participating Railway network
to the HER Equipment;
"Services" the provision by HER of managed capacity
between Points of Connection as defined in
the Technical Specifications;
"Service Credits" the amount of ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## ECU per E1 per
hour;
"Service Dates" the date an which the Service relating to a
specific link is effectively available;
Page 35 of 42
<PAGE> 36
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
"Technical Specifications" the description of Services, Interface Standards,
Points of Connection and performance
characteristics attached to this Schedule as
Annex A as amended from time to time;
"Thresholds" for Premium service means ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## per annum and for Standard service
means ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## per
annum.
2. Scope, Term and Review of the Service Agreement
2.1 HER agrees to make available Services under the terms and conditions of
this Schedule to the Participating Railway without charge provided the
Services are used solely for its internal railway purposes.
2.2 This Service Agreement shall commence on the date of the signature of the
Fibre Agreement to which it is attached as a Schedule and shall continue
for a period of ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## years or until the Fibre Agreement is
terminated.
2.3 Except for the right to receive Services, this Agreement shall not
transfer to the Participating Railway any right, title or interest in the
HER Network.
3. Description of Service and Link
3.1 Table
- --------------------------------------------------------------------------------
HER Links Service Level of Availability Quantity
- ---------------------
From To Service Target Dates
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
3.2 The provision of Services by HER is subject to availability at the target
dates specified in the Table above. Quantities of E1 in addition to the
quantities specified in the Table will be provided by HER conditionally
upon the Participating Railway demonstrating the need
36 of 42
<PAGE> 37
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
within the scope of this Service Agreement and up to a maximum of ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## for each of the HER Links referred to in the table, each
additional E1 being dependent upon the use by HER of an additional pair of
fibres on that HER Link.
4. Connecting
4.1 The Participating Railway shall be responsible for connecting to the HER
Links at the Point of Connection designated by HER.
4.2 Prior to the connection of the Participating Railway to the HER Links, the
Participating Railway shall comply in all respects with the Technical
specifications and the relevant Interface Standards and with the
provisions of Paragraph 5.
4.3 The Participating Railway shall abide by all technical and operational
conditions laid down from time to time by HER, which are necessary to
maintain the integrity of the HER Network.
5. Regulatory Issues and Approvals
5.1 HER is responsible for obtaining regulatory approvals for the
establishment and operation of the HER Network and the provision of
transmission service in each country over which the HER Network extends
from time to time. HER will use best endeavours to obtain relevant
regulatory approvals.
5.2 The Participating Railway is responsible for obtaining any licences for
the provision of its services over the HER Links, the Participating
Railway shall provide HER with a written Certificate confirming that the
Participating Railway has obtained all licences, clearances or other
regulatory authorisations under national, supranational or local laws,
licences or regulations for the establishment and operations of the
Participating Railway telecommunications systems and the provision of its
services.
5.3 The parties agree that the Participating Railway has full responsibility
for ensuring that all signals transmitted over the HER Links which
originate from or terminate with the Participating Railway comply with all
relevant national, supranational or local laws, licences or regulations in
each country over which the HER Links run.
37 of 42
<PAGE> 38
SNCB/NMBS Fibre Agreement Confidential
5.4 The Participating Railway shall indemnify HER and hold HER harmless
against all direct liability, losses, demands and damages incurred or
suffered by HER arising out of any claims brought by third parties in
respect of the content of Messages transmitted over the HER Links where
those signals originate from or terminate with the Participating Railway.
5.5 If and as soon as HER becomes aware through formal notification that it
will not be able to meet any Service Dates for Services over HER Links as
a result of failing to obtain any necessary regulatory approval in time,
it shall immediately notify the Participating Railway and provide a new
date for service.
6. Maintenance and Modification
6.1 HER and its agents and sub-contractors shall have the right form time to
time to modify, extend, repair or replace any part of the HER Network and
HER shall not be liable to the Participating Railway in respect of any
unavailability of Services.
6.2 HER agrees to keep the Participating Railway informed of its maintenance
activities which may affect the Services. HER agrees to give the
Participating Railway 30 days prior warning of any engineering work to be
carried out under Paragraph 6.1 which may affect the Services and agree a
schedule of work to reduce the impact on the Participating Railway.
6.3 HER agrees to provide 24 tour monitoring or Services and, where Services
become unavailable, to use its best endeavours to restore availability
within the periods provided for in the Technical Specifications.
7. General Obligations on the Participating Railway
7.1 The Participating Railway represents, warrants and undertakes, in favour
of HER that it will, at all times, maintain in force and comply with the
conditions of the licences, laws and regulations under which it provides
its services.
7.2 The Participating Railway represents, warrants and undertakes that it
will, at all times:
(a) comply with any conditions for the time being of any licence of HER,
details of which have been communicated to the Participating Railway
in writing;
38 of 42
<PAGE> 39
CONFIDENTIAL TREATMENT
SNCB/NMBS Fibre Agreement Confidential
(b) comply with all regulations and or laws in every country over which
the HER Links run which concern the provision of services by the
Participating Railway; and
(c) restrict its use of the Services to the application described in
Paragraph 2.1.
7.3 The Participating Railway shall indemnify HER and hold it harmless against
all actions, proceedings, claims, demands or costs howsoever arising out
of any breach by the Participating Railway of any provision of this
Schedule or any infringement of third party intellectual property rights
arising from the carriage of signals introduced into the HER Network by
the Participating Railway or of any breach by the Participating Railway of
any law, regulation, licence approval authorisation applicable to the
provision or use of Services.
7.4 The Participating Railway and HER agree that, should the Participating
Railway use the Services to provide a commercial service to a third parry
in violation of Paragraph 7.2(c), the appropriate measure of the damage
suffered by HER as result of that breach is an amount equal to the total
revenues derived by the Participating Railway from the provision of such
service.
8. Liability
8.1 Provided that HER is able to offer diverse routing along any HER Link, HER
shall pay Service Credits to the Participating Railway for any Loss of
Service exceeding the Thresholds on that HER Link, arising due to the
gross negligence of HER. The aggregate Service Credits payable in any ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## period shall not exceed the annual contract value of the
Fibre Agreement
For the avoidance of doubt, HER shall not be liable to the Participating
Railway for any delay in the implementation of the Services or any part
thereof.
8.2 HER shall in no event be liable to the Participating Railway for any loss
of revenue, loss of profit, loss of contract or loss of goodwill, or any
indirect or other consequential loss, howsoever caused, arising under or
in connection with this Schedule.
8.3 The provisions of this paragraph will survive termination of this
Schedule.
39 of 42
<PAGE> 40
SNCB/NMBS Fibre Agreement Confidential
9. Right of Rescission
9.1 If, despite using best endeavours, HER is unable to obtain or maintain any
licences required by HER in any country to establish or operate the HER
Network or any HER Link or to provide transmission services, or if they
are revoked, or if HER's provision of transmission services is challenged
in any country over which the HER Links run by a formal written
communication from any relevant national regulatory authority or Court,
HER shall not face any claim for loss damage or compensation from the
Participating Railway;
10. Termination
10.1 Notwithstanding clauses 21 and 22 of this Agreement, if the Participating
Railway commits a material breach of its obligations under this Schedule
which is capable of remedy, HER shall serve notice in writing on the
Participating Railway, requiring the Participating Railway to cure the
breach:
(a) within two months if it is a breach of the proviso to paragraph 2.1
of this Schedule or a breach of paragraph 7.1 or 7.2 of this
Schedule or if the Participating Railway's use of the Services
damages or disrupts the HER Network; or
(b) within six months for any other material breach.
10.2 on receipt of the notice in paragraph 10.1 the Participating Railway shall
with all reasonable diligence take such steps as shall be reasonable and
necessary to remedy the breach and shall keep HER informed of the progress
being made.
10.3 Without prejudice to paragraph 10.4. in the event that the Participating
Railway disputes that there is a material breach then the parties will
appoint a Project Mediator in accordance with Schedule 4 paragraphs 5 to
10 to resolve the issue within the cure period mentioned above.
10.4 If the breach is not cured within the periods stated above and no solution
has been found under paragraph 10.3 HER shall be entitled to terminate the
Services and clause 22.2(b) shall apply.
10.5 For the avoidance of doubt. In the event and for the period that HER is
using the Railway Fibre after the Participating Railway has terminated
this Agreement, as provided for by sub-clause 22.2(a), HER shall continue
to provide the Services to the Participating Railway.
40 of 42
<PAGE> 41
SNCB/NMBS Fibre Agreement Confidential
11. Assignment
The Participating Railway may not assign or sub-contract its rights or
obligations under this Service Agreement without the prior written consent
of HER.
41 of 42
<PAGE> 42
SNCB/NMBS Fibre Agreement Confidential
SCHEDULE 6
Disclosure Against Warranties
The Regulation relating to the service and resting periods of personnel under
Bundel 541 Article 14
42 of 42
<PAGE> 43
ALCATEL
- --------------------------------------------------------------------------------
OPTICAL CABLE SPECIFICATIONS AND TESTING
FOR THE HERMES NETWORK
- --------------------------------------------------------------------------------
Author: Michel LAURENT Date : 08. 12. 1995
And completed by: Daniel CHALAMET Date : 25. 03. 1996
Daniel CHALAMET Date : 10. 04. 1996
Daniel CHALAMET Date : 02. 05. 1996
Daniel CHALAMET Date : 22. 08. 1996
Daniel CHALAMET Date : 29. 08. 1996
<PAGE> 44
ALCATEL
TABLE OF CONTENTS
1 - INTRODUCTION ........................................................ 3
2 - SPECIFICATIONS FOR NEW CABLES OWNED BY HERMES ....................... 3-4-5
3 - SPECIFICATIONS FOR FIBRES LEASED BY HERMES .......................... 6
3.1. NEW CABLES BUILT BY RAILWAYS .................................. 6
3.2. EXISTING CABLES ............................................... 6
4 - CABLE TESTING ....................................................... 6
4.1. INTRODUCTION .................................................. 6
4.2. GENERALITIES .................................................. 6-7
4.3. TEST TO BE PERFORMED ON SITE FOR NEW CABLES ................... 7
4.3.1. TESTS AFTER LAYING THE CABLE AND BEFORE JOINTING ....... 7
4.3.2. TESTS DURING JOINTING .................................. 7
4.3.3. TESTS AFTER JOINTING ................................... 7
4.4. PARAMETERS TO BE CHECKED ...................................... 7
4.5. LINK ACCEPTANCE TEST .......................................... 8-9
4.6. PRINCIPLES OF WORKING ......................................... 10
4.6.1. LEASED FIBRE LINKS .....................................9-10-11
4.6.2. CABLE LINKS BUILT BY ALCATEL FOR HERMES ................ 12
4.6.3. SUMMARY OF DATA TO BE PROVIDED AND TESTS TO BE EXECUTED. 13
5 - TEST METHODS ........................................................ 12
5.1. POWER LOSS MEASUREMENTS ........................................ 12
5.2. OPTICAL TIME DOMAIN REFLECTOMETRY MEASUREMENTS ................. 12-13
5.3. POLARIZATION MODE DISPERSION MEASUREMENTS ...................... 13
5.4. CHROMATIC DISPERSION MEASUREMENTS .............................. 13
5.5. LIST OF PROPOSED EQUIPMENT ..................................... 14
6 - APPENDIX (LIST) ..................................................... 15
o APPENDIX 1 Test record for fibre splice attenuation (Reflectometry) 16
o APPENDIX 2 Test record for attenuation measurements (Reflectometry)
and return loss ..................................... 17
o APPENDIX 3 Test record for attenuation measurements (Optical
loss measurement) ................................... 18
o APPENDIX 4 Test record for acceptance test certificate .......... 19
o APPENDIX 5 Test record for Polarization Mode Dispersion ......... 20
o APPENDIX 6 Test record for acceptance test certificate .......... 21
o APPENDIX 7 Test record for chromatic dispersion ................. 22
o APPENDIX 8 Test record for acceptance test certificate .......... 23
7 - HISTORY ............................................................. 24
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 2/24
ALCATEL 1996 Issue 6.0
<PAGE> 45
ALCATEL
1 - INTRODUCTION:
The purpose of this document is to define the Optical Cable Specifications
relevant to the Phase 1 of the HERMES Project and to give the test
procedures on cables.
2 - SPECIFICATIONS FOR NEW CABLES OWNED BY HERMES:
In the case where new cables are supplied by ALCATEL to HERMES, they will
comply with the technical data shown in Table 1 for single mode fibers,
and in Table 2 for dispersion shifted fibers.
In addition to the cable specification shown in Table 1 and 2, the
following specifications will be applied:
- Maximum Splice attenuation average : 0.1 dB at 1550 nm
- Maximum unitary ODF/S connector attenuation : 0.5 dB at 1550 nm
- Minimum connector Return Loss : 50 dB at 1550 nm
- Maximum value for Polarization mode dispersion : 0.7
ps/(checkmark)Km at 1550 nm
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 3/24
ALCATEL 1996 Issue 6.0
<PAGE> 46
ALCATEL
- --------------------------------------------------------------------------------
TYPE and CONSTITUTION
Single mode, complying with recommendation : CCITT G 652
The fibres are made of high grade doped silica core surrounded by a silica
cladding; they are coated with a dual layer, UV cured acrylate based coating.
- --------------------------------------------------------------------------------
GEOMETRICAL PROPERTIES
Mode field diameter at 1310 nm (micro-m.) [9 - 10] +/- 10 %
Cladding diameter (micro-m.) 125 +/- 3
Coating diameter (micro-m.) 245 +/- 10
Mode field non circularity (%) <= 6
Cladding non circularity (%) <= 2
Core/cladding concentrity error (micro-m.) <= 1
Cladding/coating concentrity error (micro-m.) <= 15
- --------------------------------------------------------------------------------
OPTICAL PROPERTIES
Cut-off-wavelength (Cabled fibre) (nm) (lambda)cc <= 1280
Attenuation:
Maximum value between 1285 and 1330 nm (dB/km) 0.38
Maximum value at 1550 nm (dB/km) 0.25
Attenuation uniformity (local default) (dB) <= 0.1
Chromatic dispersion:
between 1285 and 1330 nm (ps/nm.Km) <= 3
at 1550 nm (ps/nm.Km) < 20
- --------------------------------------------------------------------------------
MECHANICAL PROPERTIES
Proof test (%) >= 1
(minimum duration 1 s)
Macro bend test
additionnal loss at 1550 nm (dB) <= 0.1
(100 turns on 75 mm diameter mandrel)
- --------------------------------------------------------------------------------
Note: All measurements to be in accordance with CCITT G. 652 recommendations
Table 1
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 4/24
ALCATEL 1996 Issue 6.0
<PAGE> 47
ALCATEL
- --------------------------------------------------------------------------------
TYPE and CONSTITUTION
Single mode dispersion shifted, complying with recommendation: CCITT G 653
The fibres are made of high grade doped silica core surrounded by a pure silica
cladding; they are coated with a dual layer, UV cured acrylate based coating.
- --------------------------------------------------------------------------------
GEOMETRICAL PROPERTIES
Mode field diameter at 1550 run (micro-m.) [7.0 - 8.3] +/- 10 %
Cladding diameter (micro-m.) 125 +/- 3
Coating diameter (micro-m.) 250 +/- 10
Cladding non circularity (%) <= 2
Mode field concentrity error (micro-m.) <= 1
Cladding/coating concentrity error (micro-m.) <= 10
- --------------------------------------------------------------------------------
OPTICAL PROPERTIES
Cut-off-wavelength (nm) 1050 <= (lambda)c
<= 1350
Attenuation:
Maximum value at 1550 nm (dB/km) 0.25
Attenuation uniformity (local default) (dB) <= 0.1
Chromatic dispersion
between 1535 and 1575 nm (ps/(nm.Km) <= 2.7
Zero dispersion wavelength (nm) 1530 <= (lambda)o
<= 1590
Zero dispersion slope (ps/(nm(2).Km) <= 0.085
- --------------------------------------------------------------------------------
MECHANICAL PROPERTIES
Proof test % >= 1
(minimum duration 1 s)
Macro bend test
additional loss at 1550 nm (dB) <= 0.2
(100 turns on 60 mm diameter mandrel)
- --------------------------------------------------------------------------------
Note : All measurements to be in accordance with CCITT G. 653 recommendations
Table 2
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 5/24
ALCATEL 1996 Issue 6.0
<PAGE> 48
ALCATEL
3 - SPECIFICATIONS FOR FIBRES LEASED BY HERMES
3.1. NEW CABLES BUILT BY THE RAILWAYS:
In the case of new cables built by the RAILWAYS, it is recommended
that, as a minimum, specifications for cables as defined in chapter
2 (including for the cable splices and connectors) are applicable.
The minimum cable specification required for the HERMES Network is
as defined in 3.2. Existing cables
3.2. EXISTING CABLES:
In the case of existing cables owned by the RAILWAYS, the
specifications in Chapter 2 must be met with respect to the
following optical properties at 1550 nm : Attenuation, Chromatic
Dispersion, and Polarization Mode Dispersion. The specifications for
the cable splices and connectors in chapter 2 are also applicable.
4 - CABLE TESTING
4.1. INTRODUCTION:
This chapter describes tests related to cable. For existing and new
leased cables this chapter provides advice to the RAILWAYS on test
procedures to be applied.
It should be noted that all measurements must be carried out by
personnel who are skilled and experienced in the use of test
equipment involved and have proven ability to carry out these
measurements in a field environment.
4.2. GENERALITIES:
The purpose of the testing during and alter installation is:
- To check that cable laying operation did not adversely affect the
attenuation of the optical fibres, compared to that recorded during
factor acceptance tests.
- To check that splices on the optical fibres are satisfactory, and
do not adversely affect the attenuation values.
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 6/24
ALCATEL 1996 Issue 6.0
<PAGE> 49
ALCATEL
- To establish validity of the link by measuring its performances
from end to end.
Measurements made on optical fibres refer to CCITT recommendation G
652 for single mode fibers and C 653 for dispersion shifted fibers.
The characteristics of optical fibre transmission mostly concern
transmission attenuation and determines the ability to transmit data
across the link. It can also reveal mechanical strains that may
cause later fibre breakage.
There are two types of attenuation measurements:
- Optical power attenuation measurement : measuring the power
launched into the fibre as well as that restored at the receiver
input enables accurate calculation of the complete link attenuation.
Att (dB) = Tx P (dB) - R x P (dB)
- Back scattering measurement: Measuring the light scattered into
the fibre, to draw up the attenuation curve. This measurement shows
any variation in attenuation, and allows the location to be
determined.
4.3. TESTS TO BE PERFORMED ON SITE FOR NEW CABLES:
The tests described in this section are recommended to the RAILWAYS
for new cables leased by HERMES from the RAILWAYS. For new cables
delivered and installed by ALCATEL the tests described here can be
considered as part of ALCATEL's standard practice.
4.3.1. - TESTS AFTER LAYING THE CABLE AND BEFORE JOINTING:
(only in case of difficult laying or important traction
force)
The purpose of this test is to check that the quality of the cable
has not been adveresly affected during laying.
A back-scattering measurement is done at 1550 nm and in both
directions for each fibre, and from each origin of laid sections of
cable.
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 7/24
ALCATEL 1996 Issue 6.0
<PAGE> 50
ALCATEL
4.3.2. - TESTS DURING JOINTING:
The purpose of this test is to assess the quality of each splice. An
estimate of the attenuation value is directly indicated by the
splicing machine.
4.3.3. - TESTS AFTER JOINTING:
The purpose of this test is to check the quality of the splices in
detail.
An OTDR-based back-scattering measurement is done at 1550 nm and in
both directions for each fibre, and from each origin of laid
sections of cable.
4.4 PARAMETERS TO BE CHECKED:
For leased fibre, the Chromatic Dispersion (CD) and Polarization
Mode Dispersion (PMD) parameters need to be checked by the RAILWAYS
in order to verify whether the fibres meet the specifications of
HERMES as defined in chapters 2 and 3.
If these parameters are not available to the RAILWAYS, they should
request their manufacturer to deliver that data. If PMD data remains
unavailable, it should be measured on site.
For new fibre delivered by ALCATEL, the CD and PMD values will be
made available from factory measurements.
4.5. LINK ACCEPTANCE TEST:
For both fibres leased from the RAILWAYS and cable delivered by
ALCATEL, tests shall be performed in both directions in the 1550 nm
window.
The purpose of the tests is to check that the fibres between two
stations (nodes and/or regenerators) can operate in the 1550 nm
window, according to the technical specifications
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 8/24
ALCATEL 1996 Issue 6.0
<PAGE> 51
ALCATEL
The following tests are to be performed :
- Back scattering measurements.
- Attenuation measurement.
- Section 5 describes the test Methods to be used
- Section 6 provides blank copies of the tests sheets to be
used
4.6. PRINCIPLES OF WORKING:
4.6.1. - Leased fibre links:
4.6.1.1. - For input into the Design Report, it is required for
existing cables that the RAILWAYS supply measurement values as
defined in 4.6.1.2. For new cables the RAILWAYS are required to
provide a prediction of values as defined in 4.6.1.2. Assumptions
used in the prediction to be stated.
4.6.1.2 - As soon as the fibre is available, fibre measurement
values are to be provided and communicated to ALCATEL / HERMES by
the RAILWAYS. ALCATEL will include these values in the Design
Report.
The following measures are carried out at 1550 nm:
ATTENUATION:
- Total budget of the route or link
- Analysis of each splice and of each particular point where
the average attenuation value is equal or more than 0.1 db
- Analysis of ODF for each section (<= 0.5 db)
- Return loss ODF for each link (>= 50 db)
CHROMATIC DISPERSION:
- Given by the manufacturer of optical fibre cables.
- To be communicated by the RAILWAYS which have this value in
their files.
POLARIZATION MODE DISPERSION:
- To be measured on site for each link, if the tests realised
in factory are not available
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 9/24
ALCATEL 1996 Issue 6.0
<PAGE> 52
ALCATEL
4.6.1.3. - ALCATEL will provide to HERMES a report that contains the
fibre performance data obtained from the RAILWAYS and complete this
report with an assessment of the received fibre information. If the
leased fibre data shows that the fibre is not compliant with the
HERMES specifications, HERMES will, in collaboration with ALCATEL,
define the necessary actions. Subsequently, HERMES and ALCATEL will
proceed jointly to incorporate any required changes in the planning
and the costs into the Design Report.
If repairs by the RAILWAYS are necessary, ALCATEL will verify the
new fibre data obtained from the RAILWAYS after their repairs and
ALCATEL will issue a new report containing the new fibre parameter
values and the associated assessment by ALCATEL.
If one or several assessments are neccessary, following the refusal
of the second one, ALCATEL will ask for a financial compensation
concerning this extra performance.
ALCATEL will send HERMES its report, no more than ten working-days
after receiving test results from the RAILWAYS.
4.6.1.4. - When asked by HERMES, ALCATEL will perform the acceptance
tests. These tests will be executed to verify the fibre data made
available by the RAILWAYS. ALCATEL will execute the link acceptance
tests as presented in section 4.5. on the fibres that HERMES will
lease for the link envisaged. Furthermore, if the RAILWAYS cannot
provide PMD values from their cable manufacturers, ALCATEL will
verify, at this moment, the PMD through its own tests.
The test data from the tests performed by ALCATEL will be written on
measurements sheets as shown in Section 6.
If the test results obtained from the ALCATEL tests are in
accordance with the HERMES specifications (as outlined in chapters 2
and 3), the test sheets will be chronologically signed by:
- the RAILWAYS first,
- ALCATEL then,
and later approved by HERMES.
If the test results obtained from the ALCATEL tests are not in
accordance with the HERMES specifications, ALCATEL will reject the
acceptance of these fibres. ALCATEL will then ask HERMES how to
proceed.
The tests realised by ALCATEL, at the request of HERMES, will be
executed only once.
ALCATEL will send HERMES its report, no more than ten working-days
after receiving test results signed by the RAILWAYS.
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 10/24
ALCATEL 1996 Issue 6.0
<PAGE> 53
ALCATEL
4.6.2. - Cable links built by ALCATEL for HERMES:
ALCATEL will execute the link acceptance tests specified in sections
4.3 and 4.5 to verify conformance with the specifications of chapter
2. These tests will be executed as part of installation works. CD
and PMD values will be made available from factory tests.
The test results obtained from the ALCATEL tests and realised by the
country ALCATEL's team, will be in accordance with the HERMES
specifications (as outlined in chapters 2 and 3). The test sheets
provided by it, will be chronologically signed by:
- ALCATEL first,
and later approved by HERMES.
The test results will be provided to HERMES within 5 working-days
after the completion of the tests.
4.6.3. - Summary of data to be provided and tests to be executed:
<TABLE>
<CAPTION>
-------------------------------------------------------------------
Fibre data to be provided by the Fibre acceptance data provided by
RAILWAYS ALCATEL tests
- -----------------------------------------------------------------------------------------
<S> <C> <C>
Leased Fibre Links Required factory data: Link tests data:
(existing or new) - Chromatic dispersion - Attenuation measurements
Optional factory data: (with Wattmeter)
- Polarization Mode Dispersion - OTDR measurement
Required link tests data : - PMD measurement
- Attenuation measurements (if factory data not available)
(with Watt meter)
- OTDR measurement
- PMD measurement
(if factory data not available)
- -----------------------------------------------------------------------------------------
Cable links built by Factory data
ALCATEL for - C D measurement
HERMES - PMD measurement
Link tests data:
- Attenuation measurements
(with Watt meter)
- OTDR measurement
- -----------------------------------------------------------------------------------------
NOTE: All rests will be at 1550 nm.
- -----------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 11/24
ALCATEL 1996 Issue 6.0
<PAGE> 54
ALCATEL
3 - TEST METHODS
5.1. POWER LOSS MEASUREMENTS:
The purpose of this test is to measure accurately the value of the
total end-to-end optical loss along the considered link. (It only
shows the total link loss, without identification of local
concentration of losses). This test is executed in the field, in
both directions at 1550 nm.
The measurement is done with an optical wattmeter connected to one
end of the fibre and an optical laser light source (at 1550 nm) to
the other end of the fibre. Measured attenuation is recorded on a
test sheet, as shown in Section 6 Appendix 3. The test is then
repeated in the opposite direction.
The test equipment must be calibrated according to the prescriptions
of the manufacturer of the test equipment.
The test provides a global and very accurate measurement of the
complete link attenuation, and allows the optical power of the
receiver input to be calculated.
5.2. OPTICAL TIME DOMAIN REFLECTORY MEASUREMENTS (O.T.D.R.):
The purpose of this test is to measure any problem points with
respect to the transmission or reflection losses of the fibre link
and to locate the position of these points. This test is executed in
the field.
This measurement is done with an optical reflectometer, connected to
both fibres end points and is used to perform remote measurements.
The optical reflectometer launches power into the fibre and analyses
the reflected signal, which permits the fibre attenuation due to
scattering, absorption and reflections to be calculated.
Part of the scattered power pulse is sent back to the optical
reflectometer where it is detected and displayed on a
cathode-ray-screen.
The rate of returned power depends on the power launched into the
fibre and on the back scattering factor of the latter.
The optical reflectometer displays on its screen the optical power
of the received signals on a logarithmic scale.
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 12/24
ALCATEL 1996 Issue 6.0
<PAGE> 55
ALCATEL
Direct reading of the following can be made:
- On the X axis : distance between each point of the fibre and the
measuring instrument.
- On the Y axis : power scattered by each point of the fibre. Any
sudden drop of the curve means punctual attenuation.
This measure is performed in both directions of a link. It is the
average of both results which is considered.
This measure also provides an accurate value of the Return Loss for
each O.D.F. situated at both extremities of the measured link.
5.3. POLARIZATION MODE DISPERSION MEASUREMENTS (P.M.D.):
The purpose of this test is to measure the end to end Polarization
Mode Dispersion of the optical fibre link. This test is routinely
performed in factory; field tests will be performed if factory data
is not available for existing cable.
In this case, this test is carried out in one direction only, and
the results filled on test sheets (Section 6 - Appendices 4 and 6).
The source consists of a LED and of a polarizer (transmitter). The
receiver consists of a MICHELSON's interferometer.
The measurement is performed by analysing the decomposition into two
perpendicularly polarized modes of a light signal injected into the
fibre under test (bi-refrangibility phenomenon).
The two modes do not propagate at the same speed because of the
anomalies of the fibre (ovality of the heart, local constraint,
etc...).
The measured lateness of transmission (in picoseconds) allows to
obtain the Polarization Dispersion value in picoseconds per square
root kilometer (Ps / (checkmark)Km).
5.4. CHROMATIC DISPERSION MEASUREMENTS (C.D.):
The purpose of this test is to measure the end to end Chromatic
Dispersion of the optical fibre link. This test is routinely
performed in factory. For existing cables, factory data should be
made available.
The Chromatic Dispersion is the difference, expressed in
picoseconds, between the propagation times of the different modes at
a specific wavelength (1550 nm), depending on the index of the
materials used for the construction of the fibre.
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 13/24
ALCATEL 1996 Issue 6.0
<PAGE> 56
ALCATEL
5.5. LIST OF PROPOSED EQUIPMENT:
(which can be used for testing and acceptance tests)
- Complete set for attenuation measurement:
* Monomode Laser source for 1550 nm
* Optical power meter (850 to 1550 nm)
* Optical attenuation (variable)
- Complete set for back-scattering measurement:
* Optical Time Domain Reflectometer (OTDR)
* OTDR accessories
- Complete set/or PMD measurement:
* Optical Transmitter (Polarizer)
* Optical Receiver controlled by computer (PMD Analyser)
* PMD accessories
- Complete set for CD measurement:
* Optical Transmitter
* Optical Receiver
* CD accessories
*NOTE: PMD and CD equipment are not the same.
All equipment that is used for testing has to be suitable to obtain
results within reasonable accuracy. The accuracy should be stated in
the specifications of the equipment and must be guaranteed by
calibration reports of max. one year old.
Any measurement resorts should always state the name of the person
who carried out the measurements the brand, type and serial numbers
of the equipment that were used, the date and number of the
calibration - certificate and of course a unique definition of the
fibre (s) that has been measured.
- Fibre Cleaning Kit:
Before performing any test, each fibre end/connector should be
properly cleaned. Here is a short list (for example) of different
materials to use for cleaning:
* Dry air spray
* Alcohol at 90(degrees)
* Gauze
* Cotton-buds
etc....
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 14/24
ALCATEL 1996 Issue 6.0
<PAGE> 57
ALCATEL
6 - APPENDIX (LIST)
PAGES
* APPENDIX 1 Test record for fibre splice attenuation (Reflectometry) ..... 16
* APPENDIX 2 Test record for attenuation measurements (Reflectometry) and
return loss ................................................ 17
* APPENDIX 3 Test record for attenuation measurements (Optical loss
measurement) ............................................... 18
* APPENDIX 4 Test record for acceptance test certificate .................. 19
* APPENDIX 5 Test record for Polarization Mode Dispersion ................. 20
* APPENDIX 6 Test record for acceptance test certificate .................. 21
* APPENDIX 7 Test record for Chromatic dispersion ......................... 22
* APPENDIX 8 Test record for acceptance Test certificate .................. 23
- --------------------------------------------------------------------------------
29 August 1996 OPTICAL CABLE SPECIFICATIONS Page 14/24
ALCATEL 1996 Issue 6.0
<PAGE> 58
CONFIDENTIAL TREATMENT
APPENDIX 1 (ISSUE 6.0) PAGE 16/24
- -----------------------
NEW OR LEASED CABLE (1)
- -----------------------
FIELD MEASUREMENT VALUES
MONODE OPTICAL FIBRE CABLE
TEST RECORD FOR FIBER SPLICE ATTENUATION (REFLECTROMETRY)
[LOGO FOR ALCATEL]
CABLE ROUTE: ____________________________________________ SSF OR DSF (1)
LINK (1)
OR (ORIGIN (O): _________________________________
SECTION)
(EXTREMITY (E): ______________________________
CABLE MANUFACTURER: ______________________________________
FIBRE MANUFACTUER: _______________________________________
MEASUREMENT EQUIPMENT:
(Make, Model and Serial Number) __________________________
WAVELENGTH: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
--------------------------------------------------------
FOR CONFIDENTIAL TREATMENT ##
----------------------------
INDEX OF REFRACTION: __________________________________
NUMBER OF SPLICES: __________________________________
DATE: __________________________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
[ILLEG.] SPLICE
Fibre CONNECT SPLICE SPLICE SPLICE SPLICE SPLICE SPLICE SPLICE SPLICE SPLICE SPLICE AVERAGE CONNECT
Number "0" 1 2 3 4 5 6 7 8 9 10 BY O.F. "E"
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
-> <- AV. -> <- AV. -> <- AV. -> <- AV. -> <- AV. -> <- AV. -> <- AV. -> <- AV. -> <- AV. -> <- AV.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
AVERAGE OF SPLICES Total splice
average
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Measured by: (2) Transmitted to HERMES by ALCATEL Returned by HERMES for acceptance
Name: Name:
Name: Date: Date:
Signature: Signature: Signature:
- ------------------------------------------------------------------------------------------------------------------------------------
(1) Delete as necessary (2) ALCO or COUNTRY RAILWAYS
</TABLE>
<PAGE> 59
CONFIDENTIAL TREATMENT
APPENDIX 2 (ISSUE 6.0) PAGE 17/24
- -----------------------
NEW OR LEASED CABLE (1)
- -----------------------
FIELD MEASUREMENT VALUE
MONOMODE OPTICAL FIBRE CABLE
TEST RECORD FOR ATTENUATION MEASUREMENTS (REFLECTROMETRY)
AND RETURN LOSS
[LOGO FOR ALCATEL]
CABLE ROUTE: ____________________________________________ SSF OR DSF (1)
LINK (1)
OR (ORIGIN (0): _________________________________
SECTION) )
(EXTREMIT: _________________________________
CABLE MANUFACTURER: _________________________________
NUMBER OF FIBRES: _________________________________
FIBRE MANUFACTUER: _________________________________
TEST EQUIPMENT:
(Make, Model and Serial Number) __________________________
WAVELENGTH: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
--------------------------------------------------------
FOR CONFIDENTIAL TREATMENT ##
----------------------------
INDEX OF REFRACTION: __________________________________
NUMBER OF SPLICES: __________________________________
AVERAGE OPTICAL LENGTH __________________________________
DATE: __________________________________
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Fibre ATTENUATION (dB) RETURN LOSS Fibre ATTENUATION (dB) RETURN LOSS ATTENUATION (dB)
------------------------- (dB) ------------------------- (dB)
number O -> E E -> O Average O E Number O -> E E -> O Average O E Total
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------ average |_|
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------ Measured
- ------------------------------------------------------------------------------------------------------------ minimum value |_|
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------ Measured
- ------------------------------------------------------------------------------------------------------------ maximum value |_|
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------ RETURN LOSS (dB)
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------ Measured
Minimum value |_|
- ----------------------------------------------------------------------------------------------------------------------------------
Measured by: (2) Transmitted to HERMES by ALCATEL: Returned by HERMES for acceptance:
Name: Name: Name:
Date: Date:
Signature: Signature: Signature:
- ----------------------------------------------------------------------------------------------------------------------------------
(1) Delete as necessary (2) ALCO or COUNTRY RAILWAYS
</TABLE>
<PAGE> 60
CONFIDENTIAL TREATMENT
APPENDIX 3 (ISSUE 6.0) PAGE 18/24
- -----------------------
NEW OR LEASED CABLE (1)
- -----------------------
FIELD MEASUREMENT VALUE
[LOGO FOR ALCATEL]
MONOMODE OPTICAL FIBRE CABLE
TEST RECORD FOR ATTENUATION MEASUREMENTS (OPTICAL LOSS MEASUREMENT)
CABLE ROUTE: ____________________________________________ SSF OR DSF (1)
LINK (1)
OR (ORIGIN (0): _______________________________
SECTION) )
(EXTREMITY(E): ________________________________
CABLE MANUFACTURER: _______________________________
NUMBER OF FIBRES: _______________________________
FIBRE MANUFACTUER: _______________________________
TRANSMITTER:) Make, Model _________________________________
RADIOMETER: (and Serial Number _________________________________
WAVELENGTH: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
--------------------------------------------------------
FOR CONFIDENTIAL TREATMENT ##
----------------------------
INDEX OF REFRACTION: __________________________________
CALIBRATION VALUE: __________________________________
DATE: __________________________________
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Fibre Measurement Measurement Average Fibre Measurement Measurement Average
Number Optical loss Reflecto. Number Optical loss Reflecto.
in dB: in dB: in dB: in dB: Total average
way OE way EO dB dB/Km dB way OE way EO dB dB/Km dB in:
dB dB/Km
|_| |_|
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------- Measured
- --------------------------------------------------------------------------------------------------------------------- minimum value
- --------------------------------------------------------------------------------------------------------------------- in dB | |
- ---------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------- Measured
- --------------------------------------------------------------------------------------------------------------------- maximum value
- --------------------------------------------------------------------------------------------------------------------- in dB | |
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------
Measured by: (2) Transmitted to HERMES by ALCATEL: Returned by HERMES for acceptance:
Name: Name: Name:
Date: Date:
Signature: Signature: Signature:
- ---------------------------------------------------------------------------------------------------------------------
(1) Delete as necessary (2) ALCO or COUNTRY RAILWAYS
</TABLE>
<PAGE> 61
APPENDIX 4 (ISSUE 6.0) PAGE 19/24
[LOGO FOR ALCATEL]
- -----------------------
NEW OR LEASED CABLE (1)
- -----------------------
TEST RECORD FOR ACCEPTANCE TEST CERTIFICATE
- --------------------------------------------------------------------------------
REFLECTOGRAM
- --------------------------------------------------------------------------------
CABLE ROUTE: Link or Section (1):
SSF or DSF (1)
- --------------------------------------------------------------------------------
Number of fibres: Fibre No: measured from:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: Measured by: (2) Name:
Signature:
- --------------------------------------------------------------------------------
Transmitted to HERMES by ALCATEL: Returned by HERMES to ALCATEL for
acceptance:
Name: Name:
Date: Date:
Signature: Signature:
- --------------------------------------------------------------------------------
(1): Delete as necessary
(2): ALCO or COUNTRY RAILWAYS
<PAGE> 62
CONFIDENTIAL TREATMENT
APPENDIX 5 (ISSUE 6.0) PAGE 20/24
- ---------------------------------------
NEW OR LEASED CABLE (1) [LOGO FOR ALCATEL]
- ---------------------------------------
FACTORY OR FIELD (1) MEASUREMENT VALUES
MONOMODE OPTICAL FIBRE CABLE
TEST RECORD FOR POLARIZATION MODE DISPERSION
CABLE ROUTE: ____________________________________________ SSF OR DSF (1)
LINK (1)
OR (ORIGIN (0): _________________________________
SECTION) )
(EXTREMITY: (e) _________________________________
CABLE MANUFACTURER: _________________________________
NUMBER OF FIBRES: _________________________________
FIBRE MANUFACTUER: _________________________________
TEST EQUIPMENT: _________________________________
(Make, Model and Serial Number)
WAVELENGTH: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
--------------------------------------------------------
FOR CONFIDENTIAL TREATMENT ##
----------------------------
INDEX OF REFRACTION: __________________________________
NUMBER OF SPLICES: __________________________________
MEASURED LENGTH: __________________________________
DATE: __________________________________
- --------------------------------------------------------
Fibre number PMD Fibre number PMD REMARKS
in pS/(sq.rt.)Km in pS/(sq.rt.)Km
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- -------------------------------------------------------- Measured
- -------------------------------------------------------- minimum value | |
- -------------------------------------------------------- Measured
- -------------------------------------------------------- maximum value | |
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------------------------------
Measured by (2) Transmitted to HERMES by ALCATEL Returned by HERMES to
ALCATEL for acceptance:
Name: Name: Name:
Date: Date:
Signature: Signature: Signature:
- --------------------------------------------------------------------------------
(1): Delete as necessary:
(2): ALCO or COUNTRY RAILWAYS
<PAGE> 63
APPENDIX 6 (ISSUE 6.0) PAGE 21/24
[LOGO FOR ALCATEL]
- ------------------------
LEASED CABLE [ILLEGIBLE]
- ------------------------
FIELD MEASUREMENT VALUE
TEST RECORD FOR ACCEPTANCE TEST CERTIFICATE
- --------------------------------------------------------------------------------
POLARIZATION MODE DISPERSION
- --------------------------------------------------------------------------------
CABLE ROUTE: Link or Section (1):
SSF or DSF (1)
- --------------------------------------------------------------------------------
Number of fibres: Fibre No: measured from:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: Measured by: (2) Name:
Signature:
- --------------------------------------------------------------------------------
Transmitted to HERMES by ALCATEL: Returned by HERMES to ALCATEL
for acceptance:
Name: Name:
Date: Date:
Signature: Signature:
- --------------------------------------------------------------------------------
(1): Delete as necessary (2): ALCO or COUNTRY RAILWAYS
<PAGE> 64
CONFIDENTIAL TREATMENT
APPENDIX 7 (ISSUE 6.0) PAGE 22/24
- ---------------------------------------
NEW OR LEASED CABLE (1) [LOGO FOR ALCATEL]
- ---------------------------------------
FACTORY OR FIELD (1) MEASUREMENT VALUES
TEST RECORD FOR CHROMATIC DISPERSION
CABLE ROUTE: ____________________________________________ SSF OR DSF (1)
LINK (1)
OR (ORIGIN (0) _________________________________
SECTION) )
(EXTREMITY (E) _________________________________
CABLE MANUFACTURER: _________________________________
NUMBER OF FIBRES: _________________________________
FIBRE MANUFACTUER: _________________________________
TEST EQUIPMENT: _________________________________
(Make, Model and Serial Number)
WAVELENGTH: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
--------------------------------------------------------
FOR CONFIDENTIAL TREATMENT ##
----------------------------
INDEX OF REFRACTION: __________________________________
MEASURED LENGTH: __________________________________
DATE: __________________________________
- ----------------------------------------------------
Fibre number CD Fibre number CD REMARKS
in pS/nm, Km in pS/nm, Km
- ----------------------------------------------------
- ----------------------------------------------------
- ----------------------------------------------------
- ---------------------------------------------------- Measured
- ---------------------------------------------------- minimum value |_|
- ---------------------------------------------------- Measured
- ---------------------------------------------------- maximum value |_|
- ----------------------------------------------------
- ----------------------------------------------------
- ----------------------------------------------------
- ----------------------------------------------------
- ----------------------------------------------------
- --------------------------------------------------------------------------------
Measured by (2) Transmitted to HERMES by ALCATEL Returned by HERMES
to ALCATEL for acceptance:
Name: Name: Name:
Date: Date:
Signature: Signature: Signature:
- --------------------------------------------------------------------------------
(1): Delete as necessary
(2): ALCO or COUNTRY RAILWAYS
<PAGE> 65
APPENDIX 8 (ISSUE 6.0) PAGE 23/24
[LOGO FOR ALCATEL]
- ------------------------
LEASED CABLE [ILLEGIBLE]
- ------------------------
FIELD MEASUREMENT VALUE
TEST RECORD FOR ACCEPTANCE TEST CERTIFICATE
- --------------------------------------------------------------------------------
CHROMATIC DISPERSION
- --------------------------------------------------------------------------------
CABLE ROUTE: Link or Section (1)
SSF or DSF (1)
- --------------------------------------------------------------------------------
Number of fibres: Fibre No: measured from:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Date: Measured by: (2) Name:
Signature:
- --------------------------------------------------------------------------------
Transmitted to HERMES by ALCATEL Returned by HERMES to ALCATEL
for acceptance:
Name: Name:
Date: Date:
Signature: Signature:
- --------------------------------------------------------------------------------
(1): Delete as necessary (2): ALCO or COUNTRY RAILWAYS
<PAGE> 66
[LOGO FOR ALCATEL]
7 - HISTORY
- --------------------------------------------------------------------------------
Status Date Author Details of change
- --------------------------------------------------------------------------------
Draft Issue 0.1. 23 novembre 1995 Michel LAURENT First Draft
- --------------------------------------------------------------------------------
Issue 1.0. 8 decembre 1995 Michel LAURENT Minor
modifications
agreed with
HERMES
- --------------------------------------------------------------------------------
Issue 2.0. 25 mars 1996 Daniel CHALAMET UPDATE for Beta
Trial and Phase 1
- --------------------------------------------------------------------------------
Issue 3.0. 10 avril 1996 Daniel CHALAMET Modifications after
the meeting
ALCATEL/HERMES
on April 4th 1996
- --------------------------------------------------------------------------------
Issue 4.0. 02 mai 1996 Daniel CHALAMET Modifications after
the meeting
ALCATEL/HERMES
on May 02th 1996
- --------------------------------------------------------------------------------
Issue 5.0. 22 August 1996 Daniel CHALAMET Modifications after
the meeting
ALCATEL/HERMES
on August 22th 1996
- --------------------------------------------------------------------------------
Issue 6.0. 29 August 1996 Daniel CHALAMET Modifications after
the meeting
ALCATEL/HERMES
on August 29th 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
29 August 1995 OPTICAL CABLE SPECIFICATIONS Page 24/24
ALCATEL 1996 Issue 6.0
<PAGE> 67
CONFIDENTIAL TREATMENT
Confidential
TECHNICAL SPECIFICATION
PART I
Service Definitions
1. Backbone Services
Backbone Services are defined between HER Points of Presence that serve the
Participating Railway. They are provided via the Hermes Europe Railtel
Trans-European Network, which is a fully meshed fiberoptic network that is
SDH-compatible running at ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##
"Standard" and "Premium" service levels are available (see below). Both are
supported by the Service Level Agreement in Part II.
1.1 Service Bandwidths and Interfaces
Backbone services are available in the following bandwidth/interface
combinations:
- --------------------------------------------------------------------------------
Bandwidth Interface
- --------------------------------------------------------------------------------
VC-12 (2.04S Mb/s) G.703 at 2.048 Mb/s (PDH electrical)
G.703 at 155.520 Mb/s (SDH electrical)
G.957 at 155.520 Mb/s (SDH optical)
VC-3 (34.368 Mb/s) G.703 at 34.368 Mb/s (PDH electrical)
G.703 at 155.520 Mb/s (SDH electrical)
G.957 at 155.520 Mb/s (SDH optical)
VC-3 (44.736 Mb/s) G.703 at 155.520 Mb/s (SDH electrical)
G.957 at 155.520 Mb/s (SDH optical)
VC-4 (139.264 Mb/s) G.703 at 139.264 Mb/s (PDH electrical)
STM-1 (155.520 Mb/s) G.703 at 155.520 Mb/s (SDH electrical)
G.957 at 155.520 Mb/s (SDH optical)
- --------------------------------------------------------------------------------
Uni-directional, bi-directional, or broadcast configurations are available.
1 of 11
<PAGE> 68
CONFIDENTIAL TREATMENT
Confidential
1.2 Basic Service
Basic service is offered only to locations where, due to the logistics of
network rollout, only one fiber-optic path exists between two locations. All
procedures and performance measures in the Service Level Agreement apply.
- --------------------------------------------------------------------------------
Characteristic Standard
- --------------------------------------------------------------------------------
Availability Not guaranteed
Restoration mechanism Time to repair
(fiber outage)
Diversity Single route between HER POPs
- --------------------------------------------------------------------------------
Note that Basic service is only a temporary service existing. Subject to
existing contractual commitments, the offering will be withdrawn once Standard
and Premium are available to the location (multiple fiberoptic paths exist).
1.3 Standard service
Standard service has as a prerequisite minimum the availability of two
fiber-optic paths operational between locations. It is designed with extensive
redundancy built-in for high availability performance. The following table
indicates the design criteria and guaranteed operational performance; please see
Schedule 2 for details of the service level agreements.
- --------------------------------------------------------------------------------
Characteristic Standard
- --------------------------------------------------------------------------------
Availability Target: ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Guarantee: ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##
Restoration mechanism Operator re-routing
(fiber outage)
Diversity Multiple routes between HER POPs
Guaranteed SLA Yes
- --------------------------------------------------------------------------------
1.4 Premium Service
Premium service is designed with a dedicated protection path that is physically
diverse end-to-end for highest availability performance. The following table
shows the characteristics that are different to Standard; please also see
Schedule 2 for details of the service level agreements.
- --------------------------------------------------------------------------------
Characteristics Standard
- --------------------------------------------------------------------------------
Availability Target: ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
Guarantee: ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##
Restoration mechanism ## MATERIAL OMITTED AND SEPARATELY FILED
(fiber outage) UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## automatic switch
Diversity ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## end-to-end physically diverse paths
Guaranteed SLA Yes (see SLA for details)
- --------------------------------------------------------------------------------
2 of 11
<PAGE> 69
Confidential
PART II
Service Level Agreement
1. Purpose of the Agreement
This document sets out agreed standards and procedures for the provisioning
(service delivery) and operations (fault and performance management) of services
provided by HER to the Participating Railway.
This agreement also sets out measurable entities that allow periodic reviews of
the quality of the provisioning and operations of HER services.
2. Definitions
ADM Add/Drop Multiplexer
AMI Alternate Mark Inversion (line code)
Backbone HER network between two HER POPs
BIS Bringing-Into-Service
CS Customer Services
CSC Customer Services Centre
EI 2.048 Mb/s providing 1984 kb/s usable bandwidth
G.826 Long-term network performance standard defined by ITU-T
HDB3 High Desity Bipolar 3 (line code)
HER Hermes Europe Railtel
ITU Int'l Telecommunications Union
M.2100 Short-term network performance standard defined by ITU-T
NOC Network Operations Centre
OPS Operations
PDH Plesiochronous Digital Hierarchy
SDH Synchronous Digital Hierarchy
POP Point Of Presence
SLA Service Level Agreement
3. Service Delivery
3.1 General Principles
Service delivery is defined as the period between receipt of HER Service Order
and handover of acceptance-tested operational service. HER will accept Service
Orders up to 3 months prior to the planned 'live' date of a HER node.
This process will be managed through single points of contact from both the
Participating Railway and HER; the HER contact will be assigned upon receipt of
Service Order.
3.2 Service Planning Schedule
HER Backbone services will be provided to locations according to the schedule
shown in paragraph 3 of Schedule 5. This schedule will be updated via controlled
document issued to the customer on a quarterly basis.
3 of 11
<PAGE> 70
Confidential
3.3 Service Order Placement
Service Orders may be initiated via fax or E-Mail to the HER point of contact
listed above, and must contain at minimum the following information:
o request service delivery date
o type of service required (Standard, Premium)
o details of bandwidth required including interfacing details
o the Participating Railway single point of contact for service delivery
planning
Alternatively, the Participating Railway may proceed directly to complete a
Service Order.
Upon receipt of Service Order, HER will confirm to the Participating Railway
that order is received via fax or E-mail. HER will in parallel determine whether
the requested date is feasible, and will confirm this within 3 days.
HER will then confirm this by sending the complete and verified HER Service
Order with above details and a "Committed Service Delivery Date". This must then
be signed by the contracting party, and returned to HER single point of contact
above.
3.4 Installation
If the Participating Railway requires the service, at the Participating
Railway's cost, HER will provide a service design and coordinate with the
Participating Railway's specified contact persons all installation activities.
Depending on the contracted service, this may include:
o local access provider equipment installation in the Participating
Railway's Points of Presence
o the Participating Railway or local access provider equipment installation
in HER Points of Presence.
3.5 Acceptance Testing and Commissioning
HER will coordinate with the Participating Railway-specified contact persons all
acceptance testing activities. Depending on the contracted service, this may
include:
o local access network BIS testing
o HER end-to-end service BIS testing
3.6 Handover
Upon successful results from HER end-to-end BIS testing, a certificate will be
provided to the Participating Railway. the Participating Railway shall then have
72 hours, measured from time of receipt of HER BIS results, to perform its
internal testing. At end of this period, billing shall commence unless the
Participating Railway notifies HER that its tests have failed, and agreement is
reached with HER to extend BIS testing.
3.7 Escalation
if the stated delivery standards are not met, the following escalation sequence
should be used to find a satisfactory solution.
- --------------------------------------------------------------------------------
Contact Level Name Tel. No. Fax number
- --------------------------------------------------------------------------------
1st Level CS Manager 658-5260 658-5107
- --------------------------------------------------------------------------------
2nd Level John Shearing 658-5260 658-5107
Operations Director
- --------------------------------------------------------------------------------
4 of 11
<PAGE> 71
Confidential
Fault Management
24Hrs/7 Days Fault Reporting Contact
All faults be reported to the HER Customer Service Centre. When the local access
network is provided by HER, note that local access providers must not be
contacted directly. This to ensure HER CSC controls all activities.
Phone : 32-2-658-5252
Fax : 32-2-658-5105
E-mail : [email protected]
All faults detected by HER shall be reported to a single the Participating
Railway point of contact.
Fault Reporting Procedure/Information
HER to the Participating Railway
HER will phone the Participating Railway within 15 minutes of problem detection
and provide
o ID's of affected paths
o start time of problem
o nature of problem (degraded/down)
o HER trouble-ticket reference number
o estimated time repair (if problem is still not solved)
Fault repair will be done using non-service degrading tests to diagnose and
correct the problem; service degrading tests will be done after consent from the
Participating Railway. These may include:
o service interruption
o intrusive tests to the Participating Railway equipment
HER will update the Participating Railway every 30 mins. until problem is
repaired.
the Participating Railway to HER
the Participating Railway will contact HER CSC; for expediency purposes, phone
contact is preferable. the Participating Railway should provide the following
details:
o customer ID
o contact name
o the Participating Railway trouble-ticket reference
o nature of problem (degraded/down)
o ID's of affected paths
o start time of problem
o can service be taken down for testing?
5 of 11
<PAGE> 72
Confidential
HER will immediately log the report in a trouble-ticket, provide the
trouble-ticket reference number, and begin fault localisation. HER will contact
the Participating Railway within 15 minutes with a problem description, and an
estimated time to repair (if problem is still not solved).
HER will update the Participating Railway every 30 mins. until problem is
repaired.
Fault Clearance Procedure
After service is repaired, HER will monitor for 10 mins. If service is stable,
HER will report fault clearance to the Participating Railway within 5 minutes.
Upon the Participating Railway agreement, the trouble-ticket will be cleared,
and HER will provide the Participating Railway.
o fault ticket number
o time of fault clearance
o cause of the fault
o corrective action taken
Fault clearance details are included in the monthly performance report
(see section 9.4).
the Participating Railway Site Access
the Participating Railway must provide 24-hour access to its premises to HER
and/or local access provider personnel to perform tests as required. HER will
provide to the Participating Railway identification details of the person(s)
arriving, and tests description.
Escalation
Customer Escalation
if the problem is not being addressed in a satisfactory manner, the following
escalation sequence is available for the Participating Railway.
- --------------------------------------------------------------------------------
Contact Contact function & Tel number Fax number
level name(s)
- --------------------------------------------------------------------------------
1st Level Shift Leader 658-5252 658-5107
- --------------------------------------------------------------------------------
2nd Level John Shearing 658-5260 658-5107
CSC Manager
- --------------------------------------------------------------------------------
3rd Level John Shearing 658-5260 658-5107
Operations Director
- --------------------------------------------------------------------------------
HER internal
The following escalation/awareness sequence will be used by HER as governed by
duration of the Participating Railway service interruption.
- --------------------------------------------------------------------------------
Contact Contact function Time since fault
level logged
- --------------------------------------------------------------------------------
1st Level Shift Leader Immediate
- --------------------------------------------------------------------------------
2nd Level NOC/CSC Manager 2 hrs.
- --------------------------------------------------------------------------------
3rd Level Operations Director 4 hrs.
- --------------------------------------------------------------------------------
6 of 11
<PAGE> 73
CONFIDENTIAL TREATMENT
Confidential
Planned Works Notification Procedure
HER and local access providers will from time to time undertake scheduled
service-affecting works. HER will inform the Participating Railway by fax
containing the proposed time and date, duration, and description of any such
works. HER has a target of 30 days advance notice. If the proposed time and date
are not acceptable, the Participating Railway must reply immediately with a
preferred alternative. If agreement cannot be reached, HER will decide the time
and date at its discretion, but with the target to minimize the participating
Railway inconvenience.
Planned works are not included in service availability calculations, but are
included in the monthly performance report.
the Participating Railway contacts for planned works notification are to be
formally specified.
Performance Management
Performance management will be reported using the measurable items described in
sections 5 and 6. The individual items and their definitions are listed below.
Availability
Guaranteed Service Availability (mo.) XX.X% (service-dependent)
(An outage is defined as ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## or more consecutive Severely Errored
Seconds as per ITU-T M.2100. The availability formula used is: ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##. Note
that planned works and outages prolonged by inability to access the
Participating Railway POP are excluded. Credits may be available where
guaranteed service availability levels are not met. Please see main Agreement.)
Time To Repair (per event) ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
(Time to Repair is defined as the time from actual service unavailability
until fault clearance is agreed between HER and the Participating Railway. Mean
time to repair is the monthly average.)
Error Performance (mo.) G.826 complaint
(Error performance will report ES and SES measured on a monthly average
basis)
Service Provisioning
Service order acknowledgment 3 days (under investigation)
(HER will provide a service delivery date within 3 days of acknowledgment
of receipt of purchase order)
Guaranteed Committed Connect Date By committed date
(Committed connect date is defined as after successful service acceptance
test by HER and initial 'handover' to the customer. Credits are available where
committed connect dates are not observed. Please see "Service Quality" section
of main Agreement.)
7 of 11
<PAGE> 74
CONFIDENTIAL TREATMENT
Confidential
Provisioning lead time
Existing infrastructure ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
New access facilities required ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## (under investigation)
(HER will endeavour to 'handover' with BIS test results all services that
do not require additional physical facilities (only software configuration)
within 3 days of Service Order acknowledgment. Where new access facilities are
required, 8 weeks is the target. The timer is triggered by the Participating
Railway acceptance of the provisioning date provided in the service order
acknowledgment)
Fault Management
Fault detection ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##
(HER will log all faults in its Problem Management System within ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## of the fault being detected by HER Network Operations Centre or reported by
the Participating Railway.)
Customer notification ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##
(HER will notify the Participating Railway if affected by the fault within
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## of the fault having been detected.)
Fault progress reporting every ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ##
(HER will keep the Participating Railway informed of the fault status with
expected clearance times every 30 minutes during which the fault remains
service-affecting)
Fault clearance
notification ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##
(HER will notify the Participating Railway of fault clearance, and seek
approval from the Participating Railway to clear the fault within ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of
the fault having been repaired.)
Planned works notification
Notice provided 30 days
Duration within expectation (y/n)
(HER will report the notice provided per instance of planned works, and
whether the expected duration was exceeded.)
Performance Reporting Procedure
Performance report containing all measures in this section, including detailed
description of any faults, will be provided on a monthly basis to the
Participating Railway contacts specified by the Participating Railway.
8 of 11
<PAGE> 75
Confidential
Contacts
The following contacts must be documented for each new Service Order through the
Service Delivery process and kept current.
Service delivery - (planning, arrange site access)
- --------------------------------------------------------------------------------
Organisation Name Telephone Fax E-mail
- --------------------------------------------------------------------------------
the Participating
Railway
HER -
planning
HER -
site access
- --------------------------------------------------------------------------------
Escalation within HER:
- --------------------------------------------------------------------------------
Contact Level Name Tel. No. Fax number
- --------------------------------------------------------------------------------
1st Level CS Account Mngr TBA TBA
2nd Level CS Manager TBA TBA
3rd Level OPS Director TBA TBA
Out of Hours NOC TBA TBA
- --------------------------------------------------------------------------------
Service handover with BIS results
- --------------------------------------------------------------------------------
Organisation Name Telephone Fax E-mail
- --------------------------------------------------------------------------------
the
Participating
railway
HER
- --------------------------------------------------------------------------------
9 of 11
<PAGE> 76
Confidential
24-hour fault reporting
- --------------------------------------------------------------------------------
Organisation Name Telephone Fax E-mail
- --------------------------------------------------------------------------------
the
Participating
railway
HER
- --------------------------------------------------------------------------------
Escalation within HER:
- --------------------------------------------------------------------------------
Contact Level Contact function & name(s) Tel. Number. Fax number
- --------------------------------------------------------------------------------
1st Level Shift Leader TBA TBA
2nd Level NOC Manager TBA TBA
3rd Level OPS Director TBA TBA
- --------------------------------------------------------------------------------
24/7 the Participating Railway POP access for fault management
- --------------------------------------------------------------------------------
Organisation Name Telephone Fax E-mail
- --------------------------------------------------------------------------------
the
Participating
railway
HER
- --------------------------------------------------------------------------------
Planned works notification
- --------------------------------------------------------------------------------
Organisation Name Telephone Fax E-mail
- --------------------------------------------------------------------------------
the
Participating
railway
HER
- --------------------------------------------------------------------------------
the Participating Railway performance report distribution list
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
10 of 11
<PAGE> 77
Confidential
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
11 of 11
<PAGE> 1
CONFIDENTIAL TREATMENT
Exhibit 10.13
Note: Portions of the Exhibit have been omitted pursuant to a request for
confidential treatment filed with the SEC under Rule 406. The omitted
confidential material has been filed separately with the SEC. The location of
the omitted confidential information is indicated herein by a legend stating,
"MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT."
- --------------------------------------------------------------------------------
Convention concerning availability of optical fibres
- --------------------------------------------------------------------------------
Between the undersigned:
1 - La Societe des Autoroutes du Nord et de l'Est de la France (Company for
Motorways in Northern and Eastern France), whose registered office is located at
41 bis avenue Bosquet, 75007 PARIS, a corporation registered in the PARIS Trade
and Companies Register under No. B 632 050 019, represented by Mr. Michel
AMILHAT, its managing director,
hereinafter designated as "the SANEF",
party of the first part,
and;
2 - The Company HERMES EUROPE RAILTEL B.V., whose registered office is at
Drentestraat 20, 1083 HK Amsterdam, Netherlands, registered in the Almere Trade
Register under No. 55004, represented by Mr. Jan LOEBER, its managing director,
hereinafter designated as "the OPERATOR",
party of the second part,
The SANEF and the OPERATOR being designated collectively as "the Parties".
<PAGE> 2
2
CONTENTS
1. PREAMBLE
2. DEFINITIONS
3. PURPOSE
4. LEGAL NATURE AND SCOPE OF THE CONVENTION
4.1 AUTHORISATION TO OCCUPY THE PUBLIC DOMAIN
4.2 INTUITU PERSONAE
4.3 EXCLUSIVITY
4.4 CONTRACTUAL RELATIONSHIPS - VALIDITY
4.5 EQUAL TREATMENT
4.6 MISCELLANEOUS
5. PARTIES' CONTACTS
6. INTELLECTUAL PROPERTY - CONFIDENTIALITY
6.1 INTELLECTUAL PROPERTY
6.2 CONFIDENTIALITY
7. EFFECTIVE DATE - DUARATION - RENEWAL
7.1 EFFECTIVE DATE
7.2 DURATION
7.3 RENEWAL
8. COOPERATION BETWEEN PARTIES
8.1 GENERAL PRINCIPLES
8.2 MONITORING COMMITTEE
8.3 CONNECTION
9. AVAILABILITY OF F.O.N. AND OF SITES
9.1 FIRM SERVICES
9.1.1 Content
9.1.2 deadlines
9.1.3 special conventions regarding Site availability
9.2 ADDITIONAL SERVICES
9.2.1 Informing the OPERATOR
9.2.2 Request for additional F.o.n.
9.2.3 Request for optional F.o.n.
9.2.4 Making additional F.o.n available
10. TECHNICAL PROVISIONS RELATIVE TO THE WORK
10.1 INSTALLATION OF THE F.O.N.
10.2 SITES
10.2.1 Evaluation of OPERATOR's needs
10.2.2 Improvement of the SANEF sites
10.2.3 Construction of Sites by the OPERATOR
10.2.4 OPERATOR's equipment installation
10.2.5 Use and maintenance of the Sites
11. TECHNICAL PROVISIONS RELATIVE TO OPERATIONS
11.1 ACCEPTANCE
11.1.1 Acceptance of the F.o.n. by the SANEF
11.1.2 Acceptance of the F.o.n. by the OPERATOR
<PAGE> 3
3
CONFIDENTIAL TREATMENT
11.1.3 Acceptance of the SANEF Sites
11.1.4 Acceptance of an Equipped Motorway Section
11.1.5 Compliance of the OPERATOR Sites
11.1.6 compliance of the OPERATOR's technical equipment
11.2 MAINTENANCE
11.2.1 Preventive maintenance
11.2.2 Remedial maintenance
11.2.3 Maintenance of the OPERATOR's Installation and Sites
11.2.4 Maintenance of the SANEF Sites
11.3 WITHDRAWAL OF THE OPERATOR's EQUIPMENT AND SITES
11.3.1 Withdrawal of the equipment of the SANEF Sites
11.3.2 Withdrawal of the OPERATOR Sites
11.3.3 Penalties
12. GENERAL CONDITIONS REGARDING INSTALLATION AND OPERATION
12.1 ACCESS TO THE EQUIPMENT
12.2 WORK ON THE MOTORWAY NETWORK
12.3 WORK ON THE TELECOMMUNICATIONS NETWORK
13. LIABILITY
13.1 GENERAL PRINCIPLE
13.2 EQUIPMENT COMPATIBILITY AND MAINTENANCE
13.3 INSURANCE
14. FINANCIAL PROVISIONS
14.1 FEES
14.2 REVISION
14.3 PAYMENT AND INVOICING PROCEDURES
14.3.1 Downpayment
14.3.2 Prefinancing option
14.3.3 Payment of prefinancing of the F.o.n.
14.3.4 Payment procedures regarding the fees for availability of the
F.o.n. and of the Sites
15. DECLARATIONS AND GUARANTEES
16 CANCELLATION
16.1 CANCELLATION BEFORE THE AVAILABILITY DATE OF THE LAST OF THE EQUIPPED
MOTORWAY SECTIONS TO BE DELIVERED IN 1997
16.1.1 Cancellation in case the OPERATOR prefinances
16.1.2 Cancellation in case the OPERATOR does not prefinance
16.2 CANCELLATION AFTER THE AVAILABILITY DATE OF THE LAST OF THE EQUIPPED
MOTORWAY SECTIONS TO BE DELIVERED IN 1997
16.2.1 Cancellation within ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## years
16.2.2 Cancellation after ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## years
17. FORCE MAJEURE
18. CONDITION SUBSEQUENT
19. DISPUTES
20. ELECTION OF DOMICILE
21. APPENDICES
<PAGE> 4
4
CONFIDENTIAL TREATMENT
1. Preamble
1. By virtue of a convention concerning concession of construction,
maintenance and operation of motorways concluded with the State on
June 27, 1990, and approved by a Council of State decree on October
29, 1990, the SANEF is the concessionaire of a motorway network
located in Northern and Eastern France (autoroutes ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##).
2. On certain sections of its network described in Appendix 1 to the
present Convention, the SANEF intends to deploy black optical fibres
in order to improve the conditions of operating the motorway public
service for which it is responsible. The SANEF also wishes to
reserve the part of the optical fibres it does not use for third
party operators working in the telecommunications field.
3. The OPERATOR intends to install and exploit a telecommunications
network within the framework of article I. 33-1 of the
Telecommunications Code, and it filed an authorisation application
for this purpose on November 15, 1996.
4. The Parties have consulted each other on a project under which the
SANEF would make a certain number of black optical fibres along its
motorway network available to the OPERATOR.
5. The present Convention falls within the framewotk of the principles
of the law of July 26, 1996, regulating telecommunications, and
hence will observe strict equality of treatment among the various
operators in connections with making F.o.n. available on the
equipped motorway sections (cf. the following definitions).
HAVING SET FORTH THESES PREMISES, NOW THEREFORE THE PARTIES HEREBY ENTER INTO
THE FOLLOWING AGREEMENT:
2. Definitions
In the present Convention, the Parties agree to give the following
meanings to the words and expressions designated below:
1. Optical Cable: a cable consisting of Black Optical Fibres.
2. Connector: this point consists physically of the extremity of an
F.o.n. connected with a terminal system. This connector, located at
a Site, is installed and maintained by the SANEF and makes it
possible to provide a connection between the F.o.n. made available
to the OPERATOR by the SANEF and the OPERATOR's equipment.
3 Convention: the present convention and its appendices.
4. Availability Date: the date on which the acceptance operations have
given rise to the OPRATORS's acceptance of an Equipped Motorway
section.
5. F.o.n District: a continuous segment of F.o.n. averaging around ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## kilometres located on an Equipped Motorway
Section, at the ends of which connectors are generally installed.
6. Dysfunction: an anomaly of the F.o.n. not respecting the technical
specifications laid down in Appendix 4, but not giving rise to an
interruption.
7. Extremity Equipment: the OPERATOR's technical equipment making it
possible to use an F.o.n.
<PAGE> 5
5
8. Black Optical Fibre: an optical fibre installed in accordance with
the SANEF's innovative method or otherwise, lacking any
telecommunications equipment and designated by the abbreviation
F.o.n. (Fibre optique noir).
9. Interruption: an anomaly preventing any use of one or several F.o.n.
10. Equipped Itinerary: a set of Equipped Motorway Sections making it
possible to connect two extremities of the Motorway Network.
11. Day: calendar day
12. Operator: a natural or legal person operating a telecommunication
network open to the public or the supplier of an optical
connectivity service.
13. Pair of F.o.n.: two F.o.n. located in the same Optical cable.
14. Secure Pair of F.o.n.: two pairs of F.o.n. located on both sides of
the motorway and one of which benefits from the "securisation"
discount in accordance with the price list appearing in Appendix
No.6.
15. R1: the fee to be paid by the OPERATOR to the SANEF in connection
with availability of the F.o.n.
16. R2: the fee to be paid by the OPERATOR to the SANEF in connection
with availability of the Sites.
17. Connection: the link between the Motorway Network Equipped with
F.o.n. and a third party telecommunications network.
18. Motorway Network: the motorways ("autoroutes") for which SANEF is
the concessionaire.
19. Equipped Motorway Network: the motorways in operation for which the
SANEF holds a concession, equipped with F.o.n. on each side.
20. Equipped Motorway Section: the part of the Motorway Network
consisting of a continuous series of F.o.n. Districts.
21. Site: the place where the OPERATOR's equipment is installed and
generally located in the SANEF's maintenance centres.
22. OPERATOR Site: a Site installed by the OPERATOR on the Motorway
Network.
23. SANEF Site: a Site made available to the OPERATOR by the SANEF.
3. Purpose
The purpose of the Convention is to lay down, together, the terms and
conditions under which the SANEF undertakes to make F.o.n. and associated
Sites constituting Equipped Motorway Sections available to the OPERATOR in
accordance with Appendix 3 and as defined in Appendix No. 1, with a view
to make their exploitation by the OPERATOR possible.
<PAGE> 6
6
4. Legal nature and scope of the Convention
4.1 Authorisation to occupy the public domain
Since the Motorway Network is part of the State's motorway public domain,
the Convention in particular is tantamount to authorisation to occupy the
motorway public domain, but does not grant the OPERATOR any real property
rights to the said public domain (article L.34-1 of the State Domain
Code).
4.2 Intuitu personae
The Convention is concluded intuitu personae.
The Parties may not transfer their rights and obligations under the terms
of the Convention except with the other Party's written consent in
advance. The said consent is hereby granted, subject to advance
notification, in case of transfer to any subsidiary of one of the Parties,
or to a company belonging to the group of one of the Parties, or to its
direct or indirect parent company under the same conditions, as long as
the assignee company is legally authorised to carry on the activities
making the present Convention possible.
4.3 Exclusivity
For its entire duration, the Convention does not grant any exclusive right
to the OPERATOR for using the F.o.n. installed by the SANEF, with the
exception of the ones made available to it under the conditions laid down
in the said Convention.
4.4 Contractual relationships - Validity
The present Convention constitutes the totality of the agreements between
the Parties.
The illegality or nullity of any provision whatsoever of the Convention
that is not of an essential nature shall not cast doubt on the validity of
the other provisions. The Parties agree to replace the invalid provisions
by provisions coming as close as possible to their joint intention
expressed within the framework of the Convention. Any modification of the
present Convention shall be the object of a rider signed by the authorised
representative of each of the Parties.
4.5 Equal treatment
The OPERATOR shall benefit by right from the most favourable treatment
granted by the SANEF to an Operator placed in a comparable situation and
for comparable service.
4.6 Miscellaneous
The SANEF agrees not to make F.o.n. available to third parties for
purposes of supplying optical connectivity.
In case of a modification of the legal or economic environment in which
the Parties have contracted that has a significant effect on the
provisions included in the present Convention, the Parties shall confer to
agree on the related adaptations.
<PAGE> 7
7
CONFIDENTIAL TREATMENT
5. Parties' Contacts
Each Party designates the following for application of the Convention:
1. For the SANEF: Mr. Helideo COSTA-ELIAS, Manager for Development and
Modernisation, domiciled at the following address: SANEF 100 avenue
de SUFFREN, 75015 PARIS.
2. For the OPERATOR: Mr John SHEARING, Manager of the Operations and
Engineering, domiciled at the following address: Hermes Europe
Railtel - Terhulpsesteenweg 6A, 1560 Joellaart, Belgium,
each having the option of appointing a substitute or of delegating,
subject to informing the other Party thereof.
Notice of a change of address or of the contact of one or the other of the
Parties shall have to be given by registered mail with receipt.
Upon signature of the present Convention, the Parties' contacts shall
send, by registered mail with receipt, the addresses and the telephone and
fax numbers required for operational management of the present Convention.
6. Intellectual property - Confidentiality
6.1 Intellectual property
The SANEF warrants the OPERATOR that it holds the intellectual property
rights relative to the innovative technique for installation of the F.o.n.
and the motorway know-how required by this technique.
6.2 Confidentiality
The Parties acknowledge that they are bound by the confidentiality
agreement effective on May 13, 1996, attached in Appendix No. 7.
7. Effective date - Duration - renewal
7.1 Effective date
The Convention goes into effect on the date of signature by the Parties.
7.2 Duration
It is concluded for a duration of ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## starting with the date of
availability of the last of the Equipped Motorway Sections delivered in
1997 (Appendix 3).
7.3 Renewal
The present Convention shall be renewed by tacit extension for a duration
of ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## in the absence of termination notice served by
registered mail with receipt on the other Party at least ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
before the expiration date of the current period.
<PAGE> 8
8
The SANEF will reject renewal only in the following cases:
1. The ageing of the Optical Cable does not allow continued
exploitation;
2. The renewal duration would exceed the duration of the concession
concluded by the SANEF with the State.
8. Cooperation between the Parties
8.1 General principles
For the entire duration of the present Convention, the Parties shall
inform each other about events that could have consequences on proper
execution of the project that is the object of the present Convention.
They shall cooperate in a spirit of close collaboration and transparence,
particularly in connection with the detailed study of the project and of
its execution. The OPERATOR shall be entitled to indicate the provisions
it wishes to have included in the project and which, to the greatest
possible extent, shall be taken into account by the SANEF.
They shall cooperate in so far as need be in their relationships with the
competent administration, particularly with a view to proper performance
of the work and of the acceptances by the OPERATOR.
The OPERATOR and the SANEF shall assist each other in seeking partners and
the required technical resources, particularly with respect to
relationships with the managers of the public domains neighbouring the
SANEF's Motorway Network.
8.2 Monitoring Committee
To see to monitoring application of the present Convention, examining the
conditions of operations of the service and the exact definition of the
operating procedures, a fully representative committee is instituted to
meet every quarter-year or, if necessary, at the initiative of one of the
Parties.
That committee's meetings shall give rise to the establishment of minutes
drawn up alternately by each of the Parties providing secretarial services
for the committee. The approval of the minutes shall be considered as
given in the absence of remarks made during a period of two weeks
following transmission thereof.
The committee's decisions are made with due observance of the provisions
of the present Convention.
8.3 Connection
The monitoring committee shall meet upon signature of the present
Convention to consider whether it is appropriate to contact the managers
of neighbouring networks for installation of the connection or
connections.
<PAGE> 9
CONFIDENTIAL TREATMENT
9
9. Availability of F.o.n. and of Sites
9.1 Firm services
9.1.1 Content
The SANEF shall make the Equipped Motorway Sections available to the
OPERATOR in accordance with the technical characteristics spelled out in
Appendix No. 4 and in accordance with the OPERATOR's needs spelled out in
Appendix No. 3, namely:
1. ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
2. ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
3. ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
The OPERATOR shall have to implement, at its own expense, the
telecommunications equipment it needs to use the F.o.n., and particularly
the hardware and software making it possible, in case of an interruption,
to shift operations from one F.o.n. to another and vice versa.
9.1.2 Deadlines
The F.o.n. and the Sites shall be made available to the OPERATOR at the
latest on the dates indicated in the schedule attached in Appendix No. 2.
In case of a delay in availability on an Equipped Itinerary, the SANEF
shall compensate the OPERATOR by allocating an hourly credit free to it
relating to availability of the F.o.n. equal to ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of the
anticipated annual fee for the Equipped Itinerary in question until ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## increased to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## beyond that date, for each week's
lateness. However, the penalties as a whole are limited to ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## of the amount of the prefinancing mentioned in article 14.3.
The credit constituted in this way shall be calculated and be deducted
from the amount of the fee to become due starting with the third year
following the availability date of the last of the delivered Equipped
Motorway Sections.
In case the availability date of the last Equipped Motorway Section comes
after ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##, the OPERATOR shall be entitled to cancel the
present Convention under the conditions mentioned in article 16.1.
9.1.3 Special conventions regarding Site availability
At the end of a detailed study, one or several special conventions will
spell out the technical conditions regarding availability of the Sites and
will make it possible, if appropriate, to update Appendix No. 3.
9.2 Additional services
9.2.1 Informing the OPERATOR
Depending on the extension of the Equipped Itineraries and on the surplus,
if any, of existing F.o.n., the SANEF may make some F.o.n. available to
the OPERATOR in addition to the ones provided for in article 9.1.1 above.
To this end, the SANEF shall inform the OPERATOR by October 30 of each
year and on the occasion of each change of the number of F.o.n. available
and of F.o.n. reserved on the Equipped Itineraries as well as, if the case
arises, about the programme for extension of the Equipped Itineraries.
<PAGE> 10
CONFIDENTIAL TREATMENT
10
This information will also have to be communicated by the SANEF whenever
the OPERATOR so requests.
9.2.2 Request for additional F.o.n.
The OPERATOR may request the SANEF at any time, by registered mail with
receipt, to have additional F.o.n. made available without reservation in
the light of the increase in its needs during the present Convention.
The SANEF undertakes to consider the technical feasibility of making
additional F.o.n. available in order to meet the OPERATOR's request. The
SANEF will provide its response within 30 days following the OPERATOR's
request.
9.2.3 Request for optional F.o.n.
The OPERATOR shall also be entitled to reserve optional F.o.n. to be made
available by the SANEF under the following conditions:
1) The OPERATOR shall inform the SANEF by registered mail with receipt of
the number of F.o.n. it wants to have reserved (hereinafter: "the
Request").
The Request may not bear on more F.o.n. than exploited by the OPERATOR.
2) The SANEF has two weeks to acknowledge the Request, which may be
rejected only in case of circumstances beyond its control. After that
time, the Request is considered to have been accepted by the SANEF subject
to payment by the OPERATOR of an amount equal to ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of the
amount of the annual fee relating to the request calculated on the price
terms provided for in the present Convention. Payment shall have to be
made within 30 days starting with the SANEF's explicit or tacit response,
failing which the Request will no longer be considered as having been
accepted.
3) The Request is valid for ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## starting with the date of
acceptance of the Request, during which the OPERATOR may request at any
time, by registered mail with receipt addressed to the SANEF, to have the
F.o.n. that are the object of the Request made available. The SANEF will
make the F.o.n. in question available within 2 weeks following the date of
receipt of the above-mentioned letter and will deduct the amount of the ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## paid in connection with the reservation from the fee for the
F.o.n. that are the object of the Request.
4) During the period of Request validity, and in case the SANEF's
available F.o.n. are in the limit of capacity, the SANEF may request the
OPERATOR at any time, by registered mail with receipt, to make a decision
as to the final nature of the availability of the F.o.n. that are the
object of the Request.
The OPERATOR shall then have a period of 2 weeks starting with the date of
receipt of the above-mentioned letter to make its response by registered
mail with receipt addressed to the SANEF.
<PAGE> 11
CONFIDENTIAL TREATMENT
11
In the absence of a response within that period or in case of a negative
response, the SANEF:
- shall be entitled to exploit the F.o.n. in question itself or make them
available to another Operator;
- to return the sum paid to the OPERATOR pursuant to section 2 of the
present article.
5) One month before the end of the reservation, the SANEF will ask the
OPERATOR by registered mail with receipt whether it wants to renew its
option. If so, the latter shall have to again pay an amount equal to ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## of the annual fee relative to the Request. In this case, the
amount of ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## paid by the OPERATOR for the past year shall
definitively remain the SANEF's property.
9.2.4 Making additional F.o.n. available
The technical conditions relating to making additional F.o.n. available
will be defined by a rider modifying Appendix No. 3 and, if the case
arises, Appendix No. 6 section 3.2 "motorway sections". The additional
F.o.n. will be subject to the same financial conditions as the ones laid
down in the present Convention. The base price of the work unit is defined
in Appendix 6. However, in case of prefinancing, the base price of the
work unit shall be the one for the year 1996/1997 or ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## per
linear meter per year. The payment schedule appearing to Appendix No. 8
will also be updated.
10. Technical provisions relative to the work
10.1 Installation of the F.o.n.
The SANEF shall perform the work of installing the Optical Cables on each
side of the motorway in accordance with the technical specifications
described in Appendix 4.
The SANEF warrants that the OPERATOR shall enjoy access to all technical
information it needs to evaluate the progress and the quality of the work
of installing the Optical Cable.
The means used to reach this objective concern access to the technical
documents relative to the project as well as the response to the
OPERATOR's written questions.
Some job site inspections will be arranged by SANEF for the OPERATOR's
benefit, at the latter's inquest.
10.2 Sites
10.2.1 Evaluation of OPERATOR's needs
With a view to establishing the special convention(s) spelling out the
conditions of making the Sites available, upon signature of the Convention
the Parties shall inspect the Sites. The OPERATOR shall then indicate by
registered mail with receipt addressed to the SANEF the list of the SANEF
Sites at which it wishes to install its telecommunications equipment or
any other equipment, required for exploitation of the F.o.n., or failing
this, the Sites that can be installed by the OPERATOR. For each Site the
OPERATOR shall supply specifications including, in particular, a detailed
layout plan of the equipment items as well as the specifications of the
required environment.
<PAGE> 12
12
The OPERATOR's specifications will be considered by the SANEF before any
work within a period of one month starting with the date of receipt
thereof. They shall give rise to a technical and financial evaluation.
In the interest of proper management of the motorway public domain, the
preferred solution is the one calling for installation of the OPERATOR's
equipment in the SANEF Sites in which private spaces are to be arranged
for the OPERATOR's benefit.
Furthermore, except in its private spaces in the SANEF Sites, the OPERATOR
shall not be entitled to oppose the presence of equipment belonging to the
SANEF or to other OPERATORS.
The OPERATOR may not oppose installation of a technical shelter near its
Site.
10.2.2 Improvement of the SANEF Sites
If the SANEF Sites made available in accordance with the special
conventions mentioned in article 10.2.1 are to be the object of other
improvements at the OPERATOR's request, such as, for instance, security of
the energy supply, air conditioning or access control, etc., the work will
be performed by the SANEF and will be paid for by the OPERATOR in
accordance with the financial evaluation that will have been made in
advance and which will have been approved by the two Parties.
In case the improvements financed by the OPERATOR are also used by other
Operators, the incoming Operator will be asked by the SANEF to make an
improvement contribution and this will be rebated to the OPERATOR in
proportion to the surface area occupied.
10.2.3 Construction of Sites by the OPERATOR
In case the SANEF cannot make the Sites desired by the OPERATOR available,
the latter is authorised to construct pursuant to the technical conditions
spelled out in a special convention in accordance with article 10.2.1 and
under the following conditions:
1. The Sites will be built by the OPERATOR, at its own expense, the
latter also paying the expenses induced by the work (fencing
modification, etc.),
2. The Sites shall be of a model approved by the SANEF,
3. The Sites may not occupy a surface area of more than 15 square
meters,
4. A plan of the Site's territorial area will be drawn up by the SANEF
for each place in question and will be signed by the two Parties'
contacts designated in article 5,
5. The OPERATOR shall see to installation and consumption of the
electricity, and shall be entitled to make the best possible use of
the existing electrical installations,
6. The Sites shall always be maintained in a good condition of
maintenance,
7. The OPERATOR shall see to the required administrative formalities.
<PAGE> 13
13
10.2.4 OPERATOR's equipment installations
The OPERATOR or its representative shall enjoy continuous access to the
Sites or to the territories in accordance with the safety rules spelled
out by SANEF in Appendix No. 5
10.2.5 Use and maintenance of the Sites
The OPERATOR undertakes to keep the private space of the SANEF Sites
reserved for it in good maintenance condition. However, it shall reimburse
the SANEF for its share of the electricity consumed. It shall remain fully
responsible under all circumstances for its use of its private spaces. In
this connection, it will have to take out insurance making it possible, at
the appropriate time, to cover the various risks connected with its use of
the Sites.
11. Technical provisions relative to operations
11.1 Acceptance
11.1.1 Acceptance of the F.o.n. by the SANEF
As soon as SANEF pronounces acceptance of the F.o.n. vis-a-vis its
manufacturer in an F.o.n. district, the SANEF shall inform the OPERATOR by
registered mail with receipt that the F.o.n. in question may become the
object of acceptance by the OPERATOR and it shall inform it of the result
of the measurements made.
11.1.2 Acceptance of the F.o.n. by the OPERATOR
In the interest of making sure that the technical characteristics of the
F.o.n. made available to it meet the technical specifications laid down in
Appendix No. 4, the OPERATOR must make its own acceptance tests, F.o.n.
District by F.o.n. District, pursuant to Appendix No 4, within a maximum
of 2 weeks following the date of receiving the registered letter with
receipt mentioned in article 11.1.1.
The following constraints shall be observed:
1. After having informed the SANEF of the place and date of acceptance
with 48 hours' notice, the OPERATOR shall carry out the test
operations relating to acceptance of the F.o.n. The said operations
shall be carried out as the SANEF makes F.o.n. available in each
F.o.n. District.
2. The results of the acceptance tests shall be recorded in minutes
concerning the operations prior to acceptance, to be drawn up and
signed by the Parties present at the time of the operations. If the
SANEF is absent, the minutes shall be applicable to it.
3. If the acceptance tests are positive, the OPERATOR shall send an
acceptance report signed by it within one week following the date of
the tests, by registered mail with receipt, to the SANEF.
4. In case of difficulties, the acceptance test operations shall have
to be renewed within 30 days at the latest starting with the date of
the first test operation.
5. If the OPERATOR does not pronounce acceptance of the F.o.n. at the
end of the latter period on the ground that the F.o.n. made
available do not meet the technical
<PAGE> 14
14
specifications laid down in Appendix No. 4, the OPERATOR shall be
entitled to cancel the Convention under the conditions of article
16.1. The same applies when the lack of acceptance results from
SANEF's absence.
6. If the OPERATOR does not pronounce acceptance of the F.o.n. within
the periods indicated for any reason other then the ones described
above, acceptance is considered to have occurred.
11.1.3 Acceptance of the SANEF Sites
The SANEF Sites shall be accepted by the OPERATOR at the same time as the
F.o.n. Districts concerned and in accordance with the specifications
appearing in the special convention mentioned in article 10.2.1 of the
present Convention.
11.1.4 Acceptance of an Equipped Motorway Section
When the OPERATOR has pronounced acceptance of all of the F.o.n. Districts
and of the SANEF Sites made available to the OPERATOR by SANEF in one and
the same Equipped Motorway Section, the latter is considered to have been
accepted by right.
11.1.5 Compliance of the OPERATOR Sites
On the basis of the documents provided for in article 10.2.3, the
compliance of the OPERATOR Sites will be checked by the SANEF on a date
set by the OPERATOR, the said inspection giving rise to signature of a
report.
11.1.6 Compliance of the OPERATOR's technical equipment
The compliance with specifications of the OPERATOR's technical equipment
will be checked by the SANEF at the same time and on the basis of the same
procedure as described in article 11.1.5, and within the limits of what is
necessary to verify the absence of disturbances.
11.2 Maintenance
The SANEF warrants the OPERATOR with respect to the compliance of the
F.o.n. made available to it with the technical specifications spelled out
in Appendix No. 4, and their proper operation for the entire duration of
the present Convention.
If the F.o.n. made available to the OPERATOR do not satisfy the technical
specifications appearing in Appendix 4 to the present Convention, the
SANEF shall supply the OPERATOR, as soon as possible and without any
additional expense to the latter, with new F.o.n. in the same Optical
Cable or in another cable.
The SANEF shall see to monitoring and maintenance of the F.o.n. installed
on its Motorway Network, outside of the Sites and as far as the Connectors
and distribution boxes inclusive.
<PAGE> 15
15
11.2.1 Preventive maintenance
The list of the work on motorways planned by the SANEF that could
interfere with proper operation of the F.o.n. will be transmitted to the
OPERATOR on the occasion of each updating, and if possible 45 days before
the start of work. The SANEF will inform the OPERATOR of the provision to
be adopted to minimise possible disturbances.
If the case arises, for unplanned motorway work, SANEF will inform the
OPERATOR in accordance with the procedure to be defined as soon as it
becomes aware thereof and it will indicate the provisions adopted to
minimise possible disturbances.
Preventive maintenance consists in carrying out the following:
1. semi-annually:
- a check on the mechanical and optical condition, including the
verification of the Connectors,
- a verification of the quality of the F.o.n. by checking on its
performance level in accordance with the technical
specifications described in Appendix No. 4.
2. every two months:
- a routine inspection making it possible to detect possible
deterioration including civil engineering, or departures from
desired performance.
In particular preventive maintenance includes the labour and the
replacement of defective equipment as well as keeping maintenance
documentation and a work ledger up to date.
All of the work carried out by the SANEF on the F.o.n. and Connectors,
including on behalf of third parties, as well as the events having given
rise thereto must be entered in a ledger called "journal de bord" kept on
the SANEF premises and which can be consulted by the OPERATOR.
The "journal de bord" must include the following information as a minimum
for each SANEF intervention: date, starting and ending time, nature of the
anomalies noted, work carried out and subassemblies replaced, indication
of the checks and measurements made, and an account of the incidents or
difficulties encountered.
Preventive maintenance is carried out In accordance with a schedule drawn
up by agreement with the OPERATOR.
The definition of the test, measurements and performance levels is given
in Appendix No. 4.
It must be possible to carry out the preventive maintenance work without
interruption. To this end, the SANEF shall keep at least one pair of
F.o.n. known as "manoeuvring fibres" on each side of the motorway that can
be used by the various Operators. This "manoeuvring" connection will have
to be as close as possible to the connection made available and comparable
in every respect. It will be accepted and maintained in identical fashion.
<PAGE> 16
CONFIDENTIAL TREATMENT
16
11.2.2 Remedial maintenance
11.2.2.1 General principles
The SANEF, at its own expense, shall see to repair of the F.o.n. made
available to the OPERATOR in case of interruption or of dysfunction.
The OPERATOR will be reimbursed for any interruption for the amount of the
fee on the Equipped Itinerary in question for the duration of the
interruption upon submission of an invoice payable at thirty (30) days or
in the form of an hourly credit, at its choice.
The remedial maintenance conditions will be assured by the SANEF under the
conditions described below.
11.2.2.2 Alert procedure
The SANEF shall have to install means making it possible to receive
telephone calls and faxes 7 days a week, 24 hours a day.
As soon as the failure of an F.o.n. is noted, the OPERATOR shall inform
the SANEF of this fact by telephone and fax.
The OPERATOR shall make sure that the failure does not result from
equipment it has connected to the F.o.n. made available or from the part
of the optical connection between the Connector and its equipment, for
which the SANEF is not responsible.
If appropriate, the OPERATOR shall confirm its request to the SANEF for
intervention by telephone and fax.
At the time of such interventions, the SANEF shall have to have qualified
staff and the required tooling to carry out all checks and to make the
analyses and the repair.
When there has been a request for intervention, the SANEF shall designate
a contact who will be able to supply the OPERATOR with full information
concerning the progress made in putting the optical connection back into
proper condition.
The work periods begin starting at the time of receipt of the work request
and are specified below.
11.2.2.3 Interruption of the F.o.n. on a single side of the motorway
on an Equipped Itinerary
In case the OPERATOR notes an interruption of a F.o.n. on an Equipped
Itinerary, the SANEF undertakes to begin repair within ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## during
business hours (8 a.m. to 6 p.m.) and within ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## during
non-business hours (6 p.m. - 8 a.m.) after the interruption has been
reported by the OPERATOR in accordance with the procedures defined above.
In case of non-observance of the above-mentioned undertakings, the SANEF
shall be required, in addition to the reimbursement provided for in
article 11.2.2.1, to indemnify the OPERATOR to the exclusion of any other
repair by allocating it, free, an hourly credit for F.o.n. availability
equal to the amount of the fee calculated pro rata temporis for the
duration of the interruption reduced by the periods of ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## or of
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## indicated above, on the Equipped Itinerary or Itineraries in
question. The said credit is subject to an annual ceiling of ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
of the amount of the annual fee for the Equipped Itinerary in question.
The hourly credit due for year N shall be deducted from the amount of the
fee paid at the start of year ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##.
<PAGE> 17
CONFIDENTIAL TREATMENT
17
The SANEF shall make its best efforts to repair within a period of less
than ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## after the start of the work. In any event, the
SANEF undertakes, if it has unused F.o.n., to make them available to the
OPERATOR before the end of the above-mentioned ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## period and
until the end of the repair.
11.2.2.4 Simultaneous interruption of the F.o.n. constituting a
Secured Area on an Equipped Itinerary
The following provisions apply solely to Pairs of Secure F.o.n. and
concern the simultaneous interruption of the F.o.n. located on each side
of the motorway.
In case of interruptions that might simultaneously affect F.o.n. located
on each side of the motorway belonging to one and the some Equipped
Itinerary, the SANEF shall remedy the interruption on a single side of the
motorway within a maximum of eight hours alter the interruption has been
reported by the OPERATOR in accordance with the procedures defined in
article 11.2.2. Beyond a cumulative period of ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## per year of
unavailability of service on the Equipped Itinerary in question, the SANEF
shall be required to indemnify the OPERATOR, to the exclusion of any other
repair, by allocating it free an hourly credit of F.o.n. availability in
an amount equivalent to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## per hour of the annual fee for the
Equipped Itinerary in question, calculated for each minute beyond the ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##. The said credit is subject to annual ceiling of ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
of the amount of the annual fee for the Equipped Itinerary in question.
The hourly credit due for year N shall be deducted from the amount of the
fee paid at the start of year ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##.
Beyond the above-mentioned ceiling, the OPERATOR shall be entitled to
cancel the Convention because of SANEF's doing under the conditions of
article 16.
The SANEF shall make its best efforts to repair within a period of less
than 6 hours after the start of the work. In any event, the SANEF
undertakes, if it has unused F.o.n., to make them available to the
OPERATOR before the end of the above-mentioned 6 hour period and until the
end of the repair.
For the F.o.n. located on the other side of the motorway, the repair will
be carried out under the conditions of article 11.2.2.3.
11.2.2.5 F.o.n. dysfunction
In case the OPERATOR notes a dysfunction of the F.o.n., the Parties shall
consult each other to remedy the situation with the required speed.
11.2.3 Maintenance of the OPERATOR's Installations and Sites
The SANEF shall cooperate with the OPERATOR or its representatives to
facilitate maintenance of the OPERATOR's technical installations as well
as of the part of the F.o.n. directly attached thereto.
<PAGE> 18
CONFIDENTIAL TREATMENT
18
11.2.4 Maintenance of the SANEF Sites
The list of the work planned by the SANEF on the SANEF Sites made
available will be sent to the OPERATOR on the occasion of each updating,
and if possible at least 45 days before the start of the work, spelling
out the provisions to be adopted to minimise possible disturbances.
In appropriate cases, for unplanned work, the SANEF shall inform the
OPERATOR by fax as soon as it becomes aware thereof, and shall indicate
the provisions adopted to minimise possible disturbances.
11.3 Withdrawal of the OPERATOR's equipment and Sites
11.3.1 Withdrawal of the equipment at the SANEF Sites
At the time of the normal or early end of the present Convention:
1. The OPERATOR shall proceed within a maximum of 90 days, on its own
and at in own expense except in case of cancellation due to the
SANEF's doing, with the withdrawal of its extremity equipment items.
2. The SANEF shall provide the OPERATOR with free access to the SANEF
Sites to make the said withdrawal.
3. The equipment items and the improvements, if any, made by the
OPERATOR in the SANEF Sites shall be acquired by the SANEF at their
residual value after depreciation, the depreciation rate adopted
being the usual rate in the OPERATOR's business.
4. A report concerning the delivery of the SANEF Sites made available
shall be signed by SANEF and the OPERATOR.
11.3.2 Withdrawal of the OPERATOR's Sites
At SANEF's request the OPERATOR's Sites may:
o either be destroyed or be removed by the OPERATOR within a maximum
of 90 days and at its expense, except in case of cancellation
because of the SANEF's doing,
o or be purchased by the SANEF at the residual value after
depreciation, the depreciation rate adopted being the rate usually
used in the OPERATOR's business.
11.3.3 Penalties
In case of delay in withdrawal of its equipment at the SANEF Sites or from
the OPERATOR's Sites, the SANEF shall be entitled to claim an indemnity
from the OPERATOR equal to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## per day of lateness, the said
amount being revised under the conditions of the present Convention.
Notwithstanding the foregoing, the SANEF shall also be entitled to have
the said withdrawal made at the OPERATOR's expense and risk.
<PAGE> 19
19
12. General conditions regarding installation and operations
12.1 Access to the equipment
In the interest of proper management of access to the motorway public
domain, before any intervention at a Site, the OPERATOR shall have to
inform by fax the representative of the SANEF designated for that purpose.
A list of the OPERATOR's agents and of its representatives authorised to
intervene in connection with its equipment shall be supplied to the SANEF
by the OPERATOR. The OPERATOR also undertakes to observe the safety rules
communicated by the SANEF in Appendix No. 5 and to see to their observance
by the companies intervening in its behalf, by including a clause to that
effect in the conventions concluded with them.
12.2 Work on the Motorway Network
The SANEF shall supply the OPERATOR with a forecast of its work on the
Motorway Network.
It is recalled that the OPERATOR may not in any case protest against the
work carried out by the SANEF on the Motorway Network.
However, the SANEF undertakes to see to it that the required means are
applied to avoid disturbing the operation of the F.o.n. made available to
the OPERATOR.
In case the work should necessarily affect proper operation of the F.o.n.,
the SANEF shall consider with the OPERATOR, as soon as possible and in any
event before the startup of the work, except in case of force majeure, the
steps to be taken to maintain the same service quality.
12.3 Work on the telecommunications network
The SANEF shall supply the OPERATOR with continuous information concerning
the state of the work relating to the F.o.n. In case the work should
necessarily affect proper operation of the F.o.n., the SANEF shall
consider with the OPERATOR, as soon as possible and in any event before
the startup of the work, except in case of force majeure, the steps to be
taken to maintain the same service quality.
13. Liability
13.1 General principle
The Parties are liable between themselves for any direct damage resulting
from the existence and the operation of their installations on the
Motorway Network.
The OPERATOR undertakes to strictly respect the conditions regarding
operation of its equipment and of the F.o.n. made available to it laid
down in the regulations applicable to the telecommunications sector, and
to obtain all advance authorisations required. The SANEF may not be held
liable in any way in this connection.
<PAGE> 20
CONFIDENTIAL TREATMENT
20
13.2 Equipment compatibility and maintenance
Each Party assures itself and warrants the other with respect to the
compliance of the installation of its equipment with the standards and
practices in the business, particularly with the recommendations relative
to electromagnetic compatibility, and that operation thereof is compatible
with the other Party's equipment.
Each Party remains responsible for proper performance of the present
article.
The OPERATOR shall have to monitor and maintain its equipment in a good
maintenance condition, at its own expense and risk, so as not to cause any
disturbance and not to create any danger to the motorway public domain
under concession and operation thereof. In case of a failure or of
insufficiency of the measures adopted for such maintenance, the SANEF
shall be entitled to have the required work done at its own initiative,
after having served formal notice, except in case of urgency, on the
OPERATOR by registered mail with receipt calling on it to record, in the
Parties' presence, the work required and to carry it out within 2 weeks.
13.3 Insurance
Each Party has taken an insurance policy out with an insurance company
represented in France concerning the Sites and covering the risks of fire,
explosion, water damage, public liability generally, and all risks
connected with its activity in particular linked with the Convention.
A Party may not be held liable in any way for the insufficiency of the
coverage taken out by another Party.
14. Financial provisions
14.1 Fees
In exchange for the authorisation to occupy the motorway public domain and
for the availability of the F.o.n. and of the Sites provided for under the
present Convention, the OPERATOR shall be required to pay two fees to the
SANEF:
1. an annual fee (R1) for the availability of the F.o.n. (cf. article
9.1.1) in an amount laid down in Appendix 6 for all of the Equipped
Motorway Sections delivered.
If the OPERATOR sees to prefinancing in accordance with articles
14.3.2 and 14.3.3 below, the duration discount (3.4.2 of the price
list in Appendix No. 6) shall apply as of the first year and for the
entire duration of the present Convention, to all F.o.n.
availabilities at the rate of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##. In addition,
the base price of the work unit shall, for the duration of the
Convention, be the one in effect in the year of signature of the
present Convention.
2. an annual fee (R2) for making the Sites available, which shall be
calculated excluding taxes in accordance with the fee schedule laid
down in Appendix 6 (point 6).
The two fees (R1 and R2) shall follow the following rules:
- the beginning date of their payability for an Equipped Itinerary
shall be the Availability Date of the last Equipped Motorway Section
of the said Itinerary.
<PAGE> 21
CONFIDENTIAL TREATMENT
21
- invoices shall be issued for them in accordance with the procedures
of article 14.3.2 below.
14.2 Revision
The amount of the fees provided for in article 14.1 shall be revised
annually as follows:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## in which:
R = Revised fee: R1 or R2
Ro= Fee corresponding to the latest known indices at the time of signature
of the Convention
So = The weighted general index of salaries in the electronic and
engineering industries as published by the INSEE
FCI o = The base index for insulated wires and cables established and
published by the INSEE under the reference NAF No. 2818/36
S and FCI = The revision indices, the latest indices known on the
invoicing date
The variation shall be taken into account and applied every year on
January 1.
The Parties agree to renegotiate the choice or structure of the revision
index adopted if ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## is less than or equal to ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## or
greater then or equal to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ##.
In case an index disappears, the calculation shall be made by using the
substitute index and the required correlation coefficient.
14.3 Payment and invoicing procedures
14.3.1 Downpayment
The OPERATOR shall pay the amount of ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## excluding taxes to the
SANEF as a downpayment on the first fee instalment (R1).
On the day of signature of the present Convention, the SANEF shall supply
the OPERATOR with the corresponding invoice, which the OPERATOR shall pay
within two weeks.
14.3.2 Prefinancing option
The procedures for payment of the R1 fee shall vary depending on whether
the OPERATOR has been able to use its option to prefinance the work of
installing the F.o.n. under the terms of article 14.3.3 below. In this
connection, the OPERATOR shall inform the SANEF of its decision to provide
or not provide the said prefinancing by registered mail with receipt sent
as soon as possible, and at the latest on May 15, 1997.
14.3.3 Payment of prefinancing of the F.o.n.
The OPERATOR shall have the option of providing, to SANEF's benefit,
prefinancing (P) equal to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## excluding taxes, payable in three
instalments by April 20, 1997, and releasing the OPERATOR from payment of
the R1 fees for ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##.
<PAGE> 22
CONFIDENTIAL TREATMENT
22
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## starting with the date of availability of the last Equipped
Motorway Section of each Equipped Itinerary, within the framework of the
payment schedule in Appendix 8.
The SANEF shall issue three invoices by registered mail with receipt sent
to the OPERATOR upon receiving the registered letter mentioned in section
14.3.2, informing it of its decision to provide prefinancing. The
downpayment made in application of section 14.3.1. shall be applied to the
amount of the invoice for the first prefinancing instalment (P1).
Payment of the first prefinancing instalment (P1) shall be made upon
submission of the corresponding invoice by bank transfer to a SANEF
account within a maximum of 30 days starting with the date of dispatch of
the letter mentioned in section 14.3.2 and at the latest on May 20, 1997.
The OPERATOR shall attempt to make the payments of the second instalment
(P2) and of the third instalment (P3) of the prefinancing in such a way
that the corresponding amounts reach the SANEF account in accordance with
the following schedule:
-------------------------------------------------
Millions of Francs Transfer date
- --------------------------------------------------------------------------------
P1 ## MATERIAL OMITTED AND ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## FOR CONFIDENTIAL TREATMENT ##
- --------------------------------------------------------------------------------
P2 ## MATERIAL OMITTED AND ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## FOR CONFIDENTIAL TREATMENT ##
- --------------------------------------------------------------------------------
P3 ## MATERIAL OMITTED AND ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## FOR CONFIDENTIAL TREATMENT ##
- --------------------------------------------------------------------------------
To [ILLEGIBLE] Date of dispatch of the registered letter with receipt
mentioned in article 14.3.2.
If payment P1 is made before ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## the OPERATOR shall pay P2
to the SANEF on ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##. If the P1 transfer occurs after ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
but before ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## the OPERATOR shall pay P2 to the
SANEF on the same day as P1.
If the P1 transfer occurs on ## MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## the OPERATOR shall pay P2
and P3 at the same time as P1.
In case of early payment, a payment discount shall be granted on the basis
of the overnight rate on the money market less ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##.
If payment of P1 has not been made by ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## at the latest, the
Parties shall consider that the OPERATOR is not providing prefinancing,
and if the OPERATOR fails to call upon the termination clause stipulated
in article 18, the F.o.n. shall be made available under the conditions of
the present Convention without any prefinancing discount, R1 being payable
as of the first year the F.o.n. are made available.
In case of late payment of the prefinancing instalments (P2) and (P3), the
OPERATOR shall have to pay penalties by right equal to ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## the
legal interest rate on the amount due beyond of that date.
<PAGE> 23
CONFIDENTIAL TREATMENT
23
After the deadline for payment of the prefinancing instalments (P2) and
(P3), the SANEF shall be entitled to serve formal notice to pay on the
OPERATOR by registered mail with receipt.
After a delay in payment of the prefinancing instalments (P2) and (P3) of
more than 30 days starting with the date of receiving the above-mentioned
formal notice, the SANEF shall be entitled to cancel the present
Convention under the conditions described in article 16.1.1.2.
In exchange for the prefinancing and subject to full payment thereof by ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## the OPERATOR shall benefit for the duration of the present
Convention from an exceptional discount on the R1 fee, which shall vary
depending on the P1 transfer date in the following proportions:
- if P1 is paid between ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## and ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## the amount
of the exceptional discount on R1 shall be equal to:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## per day's lateness starting on ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##.
In the absence of payment of the entire prefinancing (P) on ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
and in the absence of cancellation of the present Convention by the SANEF
or the application of the termination clause stipulated in article 18, the
F.o.n. shall be made available under the conditions of the present
Convention, but without any prefinancing discount, the first invoice in
connection with R1 being payable as of the date of availability of the
last Equipped Motorway Section of each Equipped Itinerary. In this case,
the amounts paid to the SANEF as prefinancing shall be returned to the
OPERATOR within three (3) days, with the exception of the downpayment
mentioned in article 14.3.1 of the present Convention, which shall be
applied to the amount of the said invoice.
14.3.4 Payment procedures regarding the fees for availability of the
F.o.n. and of the Sites
14.3.4.1 Invoicing procedure
The invoices are sent to the OPERATOR by registered mail with receipt.
i) In case of prefinancing (articles 14.3.2 end 14.3.3), at the end of a
period of three years starting with the date of availability of the last
Equipped Motorway Section of an Equipped Itinerary, an invoice shall be
issued less than 60 days before the due date in an amount equal to a
fraction of the annual fee calculated in proportion to the time remaining
until the end of the year.
ii) In the absence of prefinancing, an invoice will be issued less than 60
days before the availability date of each Equipped Itinerary in an amount
equal to the annual amount of the corresponding R1 fee, reduced by the
downpayment made pursuant to article 14.3.1.
In November 1997, a third invoice will be issued in an amount equal to the
fraction of the R1 fee in proportion to the time that has elapsed since
the availability date of the last Equipped Motorway Section of each of the
Equipped Itineraries.
<PAGE> 24
CONFIDENTIAL TREATMENT
24
iii) For the following years, whether there is prefinancing or not, the
annual fees mentioned in article 14.1 shall be covered by invoices issued
in November of each year for the period from January 1 to December 31 of
the following year.
14.3.4.2 Payment procedures
The fees provided for in article 14.1 shall be paid by bank transfer at 30
days end of the month starting with the date of receiving the invoice.
In case of early payment, a payment discount is granted on the basis of
the money market overnight rate less ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##.
In case of late payment, penalties by right equal to ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## the
legal interest rate on the amounts due beyond the deadline of 30 days end
of the month mentioned above will be demanded.
15. Declarations and guarantees
The SANEF declares and warrants the OPERATOR:
1. that it is and remains the holder of the Convention for the
concession of construction and operation of motorways concluded with
the State on June 27, 1990, and approved by a Council of State
Decree on October 29, 1990, pursuant to the terms of the convention
published in the JORF on October 31, 1990;
2. that it is unaware of any fact or event of such nature as to entail
total or partial invalidation of the said concession;
3. that it has seen to the steps preliminary to installation of the
F.o.n.;
4. that it is authorised to install F.o.n. along the motorway public
domain for which it is the concessionaire;
5. that it is authorised to make the above-mentioned F.o.n. available
to the OPERATOR under the present Convention.
16. Cancellation
In case one of the Parties does not perform an essential obligation of the
present Convention, particularly in case the required provisions are not
adopted by the SANEF to ensure the availability of the F.o.n., the other
Party shall serve formal notice on it by registered mail with receipt
calling on it to perform within a minimum period of 30 days starting with
the date of receipt of the said letter, in the absence of a stipulation to
the contrary laid down in the present Convention under the following
conditions:
If the formal notice produces no effect, the Party sending it shall be
entitled to cancel the present Convention under the following conditions.
The statement of cancellation for any reason whatsoever by one or the
other of the Parties shall be made in a registered letter with receipt
addressed to the other Party explaining the reasons for the cancellation.
<PAGE> 25
CONFIDENTIAL TREATMENT 25
Similarly, if the OPERATOR decides to put an early end to the Convention,
notice of the said decision shall be sent by registered mail with receipt
addressed to the SANEF and the decision shall take effect 90 days after
receipt of the above-mentioned notification.
The condition regarding refund of the amounts due and the possible penalty
clauses are defined for the various cases described below.
The following terminology is used:
R'1 is equal to R1 with prefinancing discount and with a duration discount
corresponding to the duration of actual availability of the F.o.n.
D is equal to the exact duration of use of the F.o.n. between the date of
availability of the last Equipped Motorway Section and the date of
cancellation, expressed in fractions of a year.
The amounts paid in advance to the SANEF by the OPERATOR for which the
OPERATOR may be reimbursed by the SANEF under the stipulations of the
present article shall be increased on the basis of the T4M money market
rate.
The cancellation penalties provided for in the present article shall be
reduced by the lateness interest or penalties already paid, if the case
arises, under a particular provision of the present Convention for the
reason having led to cancellation thereof.
16.1 Cancellation before the availability date of the last of the Equipped
Motorway Sections to be delivered in 1997
In case one of the Parties should apply for cancellation of the present
Convention before the availability date of the last of the Equipped
Motorway Sections to be delivered in 1997, the consequences shall be as
follows:
16.1.1 Cancellation in case the OPERATOR prefinances
16.1.1.1 By the OPERATOR because of the SANEF's doing
The amounts paid to the SANEF shall be returned to the OPERATOR.
Furthermore, the SANEF shall pay the OPERATOR a fixed and definitive
indemnity equal to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## of the P prefinancing mentioned in
article 14.3.1.
16.1.1.2 By the SANEF because of the OPERATOR's doing
The OPERATOR shall pay the SANEF a fixed and definitive indemnity equal to
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## of the P prefinancing mentioned in article 14.3.1, reduced by
the amounts already paid to the SANEF.
In case the amounts already paid to the SANEF by the OPERATOR are greater
than the amount of the indemnity due, the SANEF shall refund the balance
to the OPERATOR.
<PAGE> 26
CONFIDENTIAL TREATMENT
26
16.1.2 Cancellation In case the OPERATOR does not prefinance
16.1.2.1 By the OPERATOR because of the SANEF's doing
The downpayment made to the SANEF (article 14.3.1) shall be returned to
the OPERATOR. Furthermore, the SANEF shall pay the OPERATOR a fixed and
definitive indemnity in an amount equal to the said downpayment.
16.1.2.2 By the SANEF because of the OPERATOR's doing
The SANEF shall retain the downpayment made by the OPERATOR as a fixed and
definitive indemnity.
16.2 Cancellation after the availability date of the last of the Equipped
Motorway Sections to be delivered in 1997
The cancellation shall be effective after 3 months' notice served by
registered mail with receipt.
16.2.1 Cancellation within ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ## years
16.2.1.1 By the OPERATOR because of the SANEF's doing
The SANEF shall pay the OPERATOR the balance of the sums paid as
prefinancing mentioned in article 14.3.1 remaining to the OPERATOR's
credit in the SANEF accounts, or in the absence of prefinancing, the
balance of the fees paid by the OPERATOR and for which it remains the
creditor.
Furthermore, the SANEF shall pay the OPERATOR a fixed and definitive
indemnity equal to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## R1.
16.2.1.2 By the SANEF because of the OPERATOR's doing
The SANEF shall pay the OPERATOR the balance of the sums paid as
prefinancing mentioned in article 14.3.1 still to the OPERATOR's credit in
the SANEF accounts, or in the absence of prefinancing, the balance of the
fees paid by the OPERATOR and for which it remains the creditor.
The amount of the said sums shall be reduced by a fixed and definitive
indemnity equal to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## R1, increased by an amount equal to
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##.
16.2.2 Cancellation after ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## years
16.2.2.1 By the OPERATOR because of the SANEF's doing
The SANEF shall return to the OPERATOR the balance of the sums to the
OPERATOR's credit in the SANEF accounts. Furthermore, the SANEF shall pay
the OPERATOR a fixed and definitive indemnity equal to ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## R1.
<PAGE> 27
CONFIDENTIAL TREATMENT
27
16.2.2.2 By the SANEF because of the OPERATOR's doing
The OPERATOR shall pay a fixed and definitive indemnity to the SANEF equal
to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## R1, increased by an amount equal to ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
##. The SANEF shall return to the OPERATOR the balance of the sums to the
OPERATOR's credit in the SANEF accounts.
17. Force Majeure
Under the terms of the present Convention, a case of force majeure shall
be any circumstance beyond the Parties' control that is irresistible and
unpredictable in the meaning of the Council of State precedents.
The Parties agree that one will treat as a case of force majeure a traffic
accident or a demonstration on the motorway simultaneously affecting both
traffic directions, cases of external strikes, and sabotage.
No Party shall be considered as in default or as failing to meet its
contractual obligations in case performance of its obligations is
prevented by a case of force majeure.
The Parties shall consult each other to limit the effects of the case of
force majeure as far as possible.
18. Condition subsequent
The OPERATOR has applied to the European Investment Fund for guarantees in
an amount of ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## in order to be able to obtain a bank loan with a
view to assuring the financing of its pan-European telecommunications
network.
Within 3 days following notification of the OPERATOR by the European
Investment Fund of its decision to grant the said guarantees, the OPERATOR
shall inform the SANEF of the said decision by registered mail with
receipt.
If the OPERATOR has not obtained the above-mentioned guarantees from the
European Investment Fund before May 20, 1997, the present Convention shall
be terminated by right if the OPERATOR so decides.
In case the OPERATOR intends to call upon the present termination clause,
it shall notify the SANEF by registered mail with receipt by May 23, 1997,
of the European Investment Fund's decision refusing to grant the said
guarantee and of its decision to call upon the present clause.
In case of application of the termination clause by the OPERATOR, the
SANEF shall retain the downpayment provided for in article 14.3.1 of the
present Convention as fixed and definitive compensation.
<PAGE> 28
28
19. Disputes
The present Convention is governed by French law. Any dispute relative to
the formation, construction, performance or cancellation of the present
Convention that cannot be resolved by the Parties in a friendly fashion
shall be submitted to the competent courts of Paris.
20. Election of domicile
The Parties elect domicile at the respective addresses indicated in
article 5 for management of the present Convention. Notifications by
registered mail with receipt by telephone and/or by fax shall be sent to
the said addresses.
21. Appendices
Appendix No. 1 - SANEF motorway network
Appendix No. 2 - Schedule of availabilities of the F.o.n. and of the SANEF
Sites
Appendix No. 3 - OPERATOR's general needs
Appendix No. 4 - Technical specifications and acceptances of the F.o.n.
Appendix No. 5 - SANEF safety rules
Appendix No. 6 - Rates - General conditions
Appendix No. 7 - Confidentiality agreement
Appendix No. 8 - Payment schedule
Signed in Paris in two copies on February 3, 1997
SANEF HERMES EUROPE RAILTEL B.V.
(Signature) (Signature)
Michel AMILHAT Jan LOEBER
Managing Director Managing Director
<PAGE> 29
APPENDIX 1
SANEF MOTORWAY NETWORK
<PAGE> 30
CONFIDENTIAL TREATMENT
[Map]
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##
<PAGE> 31
APPENDIX 2
PLANNING ON AVAILABILITY OF F.O.N. AND SANEF SITES
<PAGE> 32
CONFIDENTIAL TREATMENT
================================================================================
APPENDIX 2
Planning on availability of "F.o.n." [fiber optic cables] and SANEF sites
================================================================================
================================================================================
Highway Section Date
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
================================================================================
The above-referenced ## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and ## MATERIAL OMITTED AND SEPARATELY FILE UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## sections are included as a guide and are
not part of the services requested by the OPERATOR on the date the Agreement was
signed.
Outfitted Routes
================================================================================
Routes Date
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
================================================================================
<PAGE> 33
APPENDIX 3
OPERATOR'S GENERAL NEEDS
<PAGE> 34
CONFIDENTIAL TREATMENT
29
================================================================================
APPENDIX 3
OPERATOR'S general needs
================================================================================
The OPERATOR's general needs are indicated below. The number of pairs of F.o.n.
indicated corresponds to the number of pairs actually available to the OPERATOR
on the indicated date.
- --------------------------------------------------------------------------------
Section 1997
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
<PAGE> 35
APPENDIX 4
TECHNICAL SPECIFICATIONS AND ACCEPTANCE OF THE F.O.N.
<PAGE> 36
CONFIDENTIAL TREATMENT
30
================================================================================
APPENDIX 4
Technical Specifications of the F.o.n.
Specifications of the acceptance tests for the F.o.n.
================================================================================
1. Technical specifications of the F.o.n.
The F.o.n. shall comply with the UIT-T-G.652 standard and with the associated
recommendations.
The F.o.n. are of the ## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## type and must be used in the ## MATERIAL OMITTED
AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## wavelength
2. Specification of the acceptance tests in the F.o.n. Districts
The acceptance tests shall be carried out by measuring the attenuation of a
light signal in the various F.o.n. Districts delivered by the SANEF.
In each F.o.n. District, the attenuation measured in dB at ## MATERIAL OMITTED
AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## shall have to
be less than:
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## in which
L: designates the length of the F.o.n. District in question, expressed in
kilometres,
Ns: designates the number of weldings made on the F.o.n. on the F.o.n.
District in question.
Nc: designates the number of Connectors equipping the F.o.n. on the F.o.n.
District in question.
Furthermore, the following values shall be respected:
o Minimum adaptation weakening of a connector: ## MATERIAL OMITTED AND
SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
o Maximum chromatic dispersion: ## MATERIAL OMITTED AND SEPARATELY FILE UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ##
o Polarisation dispersion in maximum mode: ## MATERIAL OMITTED AND SEPARATELY
FILE UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
o ## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## welds at the most per F.o.n. District on one and the same
optical fibre
3. Factory acceptances
The SANEF shall inform the OPERATOR of the characteristics of the F.o.n. to be
installed, and particularly the chromatic dispersion values and the mode
polarisation dispersion values.
<PAGE> 37
APPENDIX 5
SAFETY REGULATIONS OF SANEF
<PAGE> 38
SECTION ON GENERAL SAFETY REGULATIONS
TABLE OF CONTENTS
CHAPTER () INTRODUCTION
CHAPTER I GENERAL PROVISIONS
I.1 Notification Prior to Opening of Work Site
I.2 Suspension of Work
I.3 Transportation and Movement of Workers
I.4 Personal Safety
I.5 Sanctions and Penalties
CHAPTER II TRAFFIC CONTROL
II.1 Operation of Vehicles
II.2 Changing Traffic Direction
II.3 Traffic Rules Regarding Both Slow-Moving Vehicles and Machinery
II.4 Marking and Outfitting of Vehicles
CHAPTER III TRAFFIC SIGNS AT WORK SITE
III.1 Opening of Work Site
III.2 Source of and Setting Up of Traffic Signs
III.3 Protection and Repositioning of Traffic Signs
CHAPTER IV SPECIFIC INSTRUCTIONS
IV.1 Traffic Signs at Work Site
IV.2 Schedules and Work Periods
IV.3 Traffic Conditions at Work Site Entrance and Exit
IV.4 Work Site Security
IV.5 Use of Service Access Gates
IV.6 Length of Work Site
IV.7 Supplementary Temporary Traffic Signs
IV.8 Toll Exemptions
IV.9 Health and Safety
<PAGE> 39
CHAPTER () -- INTRODUCTION
[Summary: Informs contractors of basic safety regulations and procedures
pertaining to traffic conditions when work is taking place on an active
highway.]
<PAGE> 40
CHAPTER I - GENERAL PROVISIONS
ARTICLE I.1 NOTIFICATION PRIOR TO THE OPENING OF WORK SITE
[Summary: Sets forth procedures for communications with the district
supervisor prior to the opening of the work site.]
ARTICLE I.2 SUSPENSION OF WORK
[Summary: States that work may be stopped if safety conditions are deemed
inadequate.]
ARTICLE I.3 TRANSPORTATION AND MOVEMENT OF WORKERS
[Summary: Describes in great detail the proper way of walking, driving,
parking and dealing with highway traffic in general around a work site in all
types of weather conditions. Safety is heavily emphasized.]
ARTICLE I.4 PERSONAL SAFETY OF THE CONTRACTOR'S REPRESENTATIVES
[Summary: States that wearing safety jackets and reflectors is mandatory for
everyone.]
ARTICLE I.5 SANCTIONS AND PENALTIES
[Summary: States that a failure to observe safety rules will result in the
closing of the work site and/or the dismissal of either or both the company
and the work site supervisor.]
<PAGE> 41
CHAPTER II -- TRAFFIC CONTROL
ARTICLE II.1 OPERATION OF WORK SITE VEHICLES AND MACHINERY
[Summary: Details the restrictions on the movements of vehicles and
machinery.]
ARTICLE II.2 CHANGE OF DIRECTION OF TRAFFIC
[Summary: Indicates where it is possible to change the direction of traffic.]
ARTICLE II.3 TRAFFIC RULES REGARDING SLOW OR UNREGISTERED
VEHICLES OR MACHINERY
[Summary: States that, due to the elevated speeds of highway traffic,
slow-moving vehicles must either be transported or their movement must be
protected with the use of special traffic signs for which SANEF is
responsible.]
ARTICLE II.4 MARKING AND OUTFITTING OF VEHICLES
[Summary: States that all work vehicles registered with the District
Supervisor must be equipped with reflecting devices and lights, such as
emergency flashing beacons.]
<PAGE> 42
CHAPTER III -- TRAFFIC SIGNS AT WORK SITE
ARTICLE III.1 OPENING OF WORK SITE
[Summary: States that prescribed traffic signs must be set up before the work
site can be opened.]
ARTICLE III.2 SOURCE OF AND SETTING UP OF TRAFFIC SIGNS
[Summary: States that, with some exceptions, all traffic equipment will be
supplied and set up by SANEF.]
ARTICLE III.3 PROTECTION AND REPOSITIONING OF TRAFFIC SIGNS
[Summary: Pertains to the monitoring and upkeep of temporary traffic signs
and also provides instructions on whom to alert in case of a traffic
accident.]
<PAGE> 43
CHAPTER IV -- SPECIFIC INSTRUCTIONS
[Summary: The specific instructions mentioned in this section concern traffic
signs, work schedules, traffic interruption, night work, size of work site etc.
The instructions may be modified during the course of the work.]
ARTICLE IV.1 TRAFFIC SIGNS AT WORK SITE
[Summary: Details the four classes of work sites insofar as they relate to
specific traffic signs.]
ARTICLE IV.2 SCHEDULES AND WORK PERIODS
[Summary: Details the conditions (time, traffic density, weather, etc.) under
which the work site may be operational.]
ARTICLE IV.3 TRAFFIC CONDITIONS AT ENTRANCE, EXIT OR WITHIN
WORK SITE ZONES
[Summary: States that traffic conditions at entrances, exits or within work site
zones will be established during preliminary meetings with the District
Supervisor.]
ARTICLE IV.4 SECURITY
[Summary: Warns the contractor of the risk of theft and vandalism, and holds
the contractor responsible for security measures.]
ARTICLE IV.5 USE OF SERVICE ACCESS GATES
[Summary: States that the contractor must make sure that these gates are to be
used by proper personnel (contractor's employees, police vehicles and SANEF
vehicles) in a safe manner, and that they are to be closed after use. The
contractor must include in its price the expenses incurred by the opening and
closing of the gates or the hiring of a guard. All matters pertaining to the
opening and closing of the gates will be presented to the District Supervisor.]
<PAGE> 44
ARTICLE IV.6 LENGTH OF WORK SITE AREA -- DISTANCES BETWEEN
WORK SITES
[Summary: Defines the maximum length of a work site and the distances separating
consecutive work sites.]
ARTICLE IV.7 SUPPLEMENTARY TEMPORARY TRAFFIC SIGNS
[Summary: States that, in addition to the traffic signs set up by SANEF, the
contractor will set up its own signs when working away from the roadway area.]
ARTICLE IV.8 EXEMPTION FROM TOLLS
[Summary: States that vehicles belonging to the contractor are exempted from
tolls.]
ARTICLE IV.9 HEALTH AND SAFETY
[Summary: Indicates what actions should be taken in case of a traffic accident.]
<PAGE> 45
APPENDIX 6
RATES -- GENERAL CONDITIONS
<PAGE> 46
CONFIDENTIAL TREATMENT
31
================================================================================
Appendix 6
RATES
General Conditions
================================================================================
1. FEE CALCULATION (R1)
The R1 fee due in exchange for the availability of F.o.n. is calculated by
multiplying the base price of the work unit by the number of work units defined
below (ss. 3.1), reduced by the general discounts defined in ss. 3.4 if any.
The obtained result is then revised in accordance with a revision formula
defined in the Convention.
2. BASE PRICE OF THE WORK UNIT
The base price excluding taxes of the work unit expressed in KF (000 F) per km
is defined in the light of the year of contract signature regarding availability
of the pair of F.o.n. in accordance with the table given below.
- --------------------------------------------------------------------------------
1996-1997 1998 1999 2000 2001 2002
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
Remark: The values given in the above table are values as of December 1996,
and are revised in accordance with the revision formula given in the
Convention.
3. CALCULATION OF THE NUMBER OF WORK UNITS
3.1 Definition
The number of work units (U.O) made available for a year is equal to the length
of an Equipped Motorway Section in kilometres multiplied by the number of pairs
made available.
For instance, on a 100-kilometre Motorway Section, a pair of F.o.n. made
available represents ## MATERIAL OMITTED AND SEPARATELY FILE UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## for the year in question.
<PAGE> 47
CONFIDENTIAL TREATMENT
32
3.2 Motorway sections
The work units may be requested by the Operators on the following Motorway
Sections:
- --------------------------------------------------------------------------------
Motorway Section Length
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##
- --------------------------------------------------------------------------------
(*) this section cannot be taken separately. It must necessarily be associated
with at least one of the other two sections of which ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## constitutes the
extremity.
3.3 Discounts by section
Each motorway section defines a certain quantity to U.O corresponding to the
length of the said section.
3.3.1 Quantitative discounts
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## discount is granted for the first pair of F.o.n.
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## discount is calculated on the length of the section in
question for the second pair of F.o.n., which defines a new quantity of
U.O.
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## discount is calculated on the length of the section in
question starting with the third pair of F.o.n., which defines a new
quantity of U.O.
3.3.2 "Securisation"
If an operator wishes to make a pair of F.o.n. secured, the said security is
obtained by using another pair of F.o.n. located on the other side of the
motorway.
The number of U.O associated with a pair used on a standby basis is equal to ##
MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT
## of the number of U.O of the pair made secured in this way, starting with the
first F.o.n. requested by the operator.
3.3.3 Calculation of the number of U.O per section
The number of U.O for each section is the sum of the different U.O
associated with the F.o.n. requested for the said section.
3.4 Additional discounts by pairs
Additional discounts are applied to each pair of F.o.n. The said discounts may
be cumulated in succession in the following order:
<PAGE> 48
CONFIDENTIAL TREATMENT
33
3.4.1 Length discount
If a pair of F.o.n. is requested for all sections offered by the SANEF, then
the said F.o.n. benefits from a "length discount" of ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
3.42 Duration discount
if a pair of F.o.n. is requested for a duration of more than ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## years, an
additional discount is applied to the U.O reduced by the length discount if
any, pursuant to the following scale:
- --------------------------------------------------------------------------------
Duration Discount
- --------------------------------------------------------------------------------
Up to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## years inclusive
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## years
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## years
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## years
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## years
- --------------------------------------------------------------------------------
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ## years
- --------------------------------------------------------------------------------
3.4.3 Special discounts
For a fee corresponding to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## pairs of secured F.o.n. in the rate list,
the SANEF shall make ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ## pairs of secured F.o.n. available.
4. Other conditions
The rates given above are valid under the conditions laid down in the
Convention.
5. Contract changes
In case of modification of the number of F.o.n. on the Equipped Motorway
Section, or in case new Equipped Motorway Sections go into use, the new fee
value is calculated and the amount of the guarantee regarding payment of the
fees is modified if appropriate (cf. art. 14.4 of the Convention).
6. Fee for making premises or land parcels available (R2)
If the SANEF makes premises or bare land parcels available, this shall give rise
to payment of an R2 fee calculated on the basis of the following rate
conditions:
* Premises: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and per year
* Lands: ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ## and per year.
<PAGE> 49
34
7. General conditions regarding invoicing for the fees
The fees are payable in advance. They are paid for the totality of a fee at the
time of contact signature. At the end of the first calendar year or of the first
calendar quarter-year, depending on the periodicity adopted in the Convention
for the fee, SANEF will invoice the OPERATOR for an amount to be calculated so
as to reconstitute a balance corresponding to the totality of a fee.
Those general invoicing conditions are modified by the special provisions, if
any, agreed in the Convention.
<PAGE> 50
APPENDIX 7
CONFIDENTIALITY AGREEMENT
<PAGE> 51
CONFIDENTIALITY AGREEMENT
PARTIES:
HERMES EUROPE RAILTEL B.V., "HER", a Dutch Company, whose registered office is
at Radioweg 2, 1305 KW Almere, The Netherlands, and whose principal place of
business is at Avenue Louise 106, 1050 Brussels, Belgium; and
SOCIETE DES AUTOROUTES DU NORD ET DE L'EST DE LA FRANCE S.A.
"SANEF", of 4l Bis Avenue Bosquet 75007 Paris France.
In connection with a potential transaction by and between HER and SANEF relating
to the supply by SANEF of dark fibre and ancillary accommodation and services to
HER (the Transaction), the Parties have requested certain information concerning
each other and their respective affiliates. As a condition to providing
confidential or proprietary information the Parties agree to treat the
Evaluation Information (as defined below) as confidential in accordance with the
provisions of this Agreement.
Evaluation Information is defined as any technical or commercial information
concerning a Party (the Disclosing Party) which has been or may be provided by
the Disclosing Party or any of its affiliates or their respective directors,
officers, employees or agents, in oral, written, visual, magnetic, electronic or
other form to the other Party (the Recipient) or to any Recipient's directors,
officers, employees, lawyers, accountants, financial advisors or other agents
(collectively, Representatives), regardless of whether specifically identified
as confidential, together with analyses, compilations, studies or other
documents prepared by Recipient or Recipient's Representatives, which contain or
otherwise reflect such information, or Recipient's review of, or interest in the
Disclosing Party.
The term 'Evaluation Information' shall not include any information which:
i. was or becomes generally available to the public other than as a
result of a disclosure by Recipient;
ii. was available to Recipient on a non confidential basis prior to its
disclosure to the Recipient by the Disclosing Party; or
iii. was or becomes available to Recipient on a non-confidential basis from
a source other than the Disclosing Party or its affiliates, provided
that such source is not bound by a confidentiality agreement with the
Disclosing Party.
Recipient hereby agrees that the Evaluation Information will be used solely for
the purpose of evaluating the Transaction and that such information will be kept
confidential by Recipient and its Representatives and will not be disclosed or
divulged by Recipient or any of its Representatives without the express prior
written consent of the Disclosing Party. However, Recipient is permitted to
disclose the Evaluation Information to those of its Representatives (other than
any such person or a director, officer, employee or a substantial investor in a
direct competitor of the Disclosing Party) who need to know such information for
the purpose of evaluating the Transaction. Recipient agrees that such
Representatives shall be informed of the confidential nature of such
information, shall be directed by Recipient to treat such information as
confidential and shall agree to be bound by the provisions of this
Confidentiality Agreement.
<PAGE> 52
Recipient will be responsible for any breach of this Confidentiality Agreement
by its Representatives (including employees who, after the first date of
disclosure of Evaluation Information hereunder, become former employees).
Recipient agrees, at its sole expense, to take all reasonable measures,
including but not limited to court proceedings, to restrain its Representatives
from unauthorised disclosure or use of Evaluation Information.
In addition, without the prior written consent of the Disclosing Party,
Recipient will not disclose and will direct its Representatives not to disclose
to any person the fact that discussions or negotiations are taking place
concerning a possible Transaction, or any of the terms, conditions or other
facts with respect to any such Transaction, including the status thereof. The
term 'person' as used in this letter shall be broadly interpreted to include
without limitation any individual, governmental body, partnership, corporation
or other entity.
Upon the request of the Disclosing Party, Recipient will promptly deliver to the
Disclosing Party all documents provided by the Disclosing Party or any of its
affiliates or their respective directors, officers, employees, or agents, to
Recipient or its Representatives constituting Evaluation Information, without
retaining any copies, extracts or other reproductions of all or part thereof. In
the event of such request, all documents, memoranda, notes and other materials
prepared by Recipient or its Representatives based on the Evaluation Information
will be promptly destroyed. Notwithstanding the return or destruction of any
Evaluation Information and materials based on the Evaluation Information,
Recipient will continue to be bound by its obligations of confidentiality and
other obligations hereunder.
Although the Disclosing Party and its affiliates have endeavoured to include in
the Evaluation Information known to them which they believe to be relevant for
the purpose of Recipient's investigation, Recipient understands, acknowledges
and agrees that neither the Disclosing Party nor any of its affiliates, nor any
of their respective directors, officers, employees or agents, makes any
representation or warranty, expressed or implied, as to the accuracy or
completeness of the Evaluation Information. Recipient understands, acknowledges
and agrees that neither the Disclosing Party nor any of its affiliates, nor any
of their respective directors, officers, employees or agents shall have any
liability to Recipient or any of Recipient's Representatives resulting from the
use of any of the Evaluation Information by Recipient or Recipient's
Representatives.
The Confidentiality Agreement shall be governed by and construed in accordance
with the laws of France.
Approved and agreed:
By: SANEF HER
Signature: /s/ Jean Claude A [ILLEGIBLE] /s/ Jan Loeber
----------------------------- -------------------------------
Name: Jean Claude A[ILLEGIBLE] Jan Loeber
Position: Chairman MD
Date: 13th May '96 Date: 10 May '96
2
<PAGE> 53
APPENDIX 8
BILLS-RECEIVABLE BOOK
<PAGE> 54
CONFIDENTIAL TREATMENT
================================================================================
APPENDIX 8
Bills-Receivable Book
================================================================================
1. If the OPERATOR pre-finances.
[Table] ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
2. If the OPERATOR does not pre-finance.
[Table] ## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
<PAGE> 55
CONFIDENTIAL TREATMENT
[Table]
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
<PAGE> 56
CONFIDENTIAL TREATMENT
Calculation of R1 Fee
[Table]
## MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT ##
<PAGE> 57
CONFIDENTIAL TREATMENT
36
================================================================================
Rider No. 1 to the Convention of February 3, 1997
SANEF/ HERMES EUROPE RAILTEL
================================================================================
Article 1
The second sentence of article 14.3.2 of the Convention is modified as follows:
"In this connection, the OPERATOR shall inform the SANEF of its decision to
provide or not provide the said prefinancing by registered mail with receipt
sent as early as possible, and by May 22, 1997, at the latest."
Article 2
Article 14.3.3 is cancelled and is replaced by the following wording:
"The OPERATOR shall have the option of providing, to the SANEF's benefit,
prefinancing (P) equal to ## MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT ## excluding taxes payable by June 20, 1997,
and releasing the OPERATOR from payment of the R1 fee for ## MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## years
starting with the date of availability of the last Equipped Motorway Section of
each Equipped Itinerary, within the framework of the payment schedule in
Appendix 8.
The SANEF shall issue an invoice addressed by registered mail with receipt to
the OPERATOR upon receiving the registered letter mentioned in section 14.3.2
informing it of its decision to provide the prefinancing. The downpayment made
pursuant to section 14.3.1 shall be applied to the amount of the prefinancing
invoice (P).
Payment of the prefinancing shall occur upon submission of the corresponding
invoice by bank transfer to a SANEF account within a maximum of 30 days starting
with the day of dispatch of the letter mentioned in section 14.3.2, and at the
latest on June 20, 1997.
In case of early payment, a payment discount will be granted on the basis of the
money market overnight rate less ## MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT ##.
If payment of P has not been made by June 20, 1997, the Parties shall consider
that the OPERATOR is not providing prefinancing, and unless the latter calls
upon the termination clause stipulated in article 18 the F.o.n. shall be made
available under the conditions of the present Convention without any
prefinancing discount, R1 being payable as of the first year of the availability
of the F.o.n. In this case, the downpayment made to the SANEF as prefinancing
under article 14.3.1 of the Convention shall be applied to the amount of the
said invoice.
<PAGE> 58
CONFIDENTIAL TREATMENT
37
In exchange for the prefinancing, and subject to full payment thereof by June
20, 1997, the OPERATOR shall benefit for the duration of the present Convention
from an exceptional discount on the R1 fee that will vary in the following
proportions depending on the date of payment of P:
## MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT ##, in which J represents the number of calendar days between the
payment date and January 30, 1997."
Article 3
The second sentence of the second paragraph of article 9.1.2 is modified as
follows:
"However, the penalties as a whole are subject to a ceiling of ## MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ## of
the amount of the prefinancing mentioned in article 14.3, and the penalties
shall be suspended for the first seven days."
Paris, on
For SANEF For HERMES EUROPE RAILTEL BV
(Signature)
Michel AMILHAT Jan LOEBER
Managing Director Managing Director
