<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 10, 1999
REGISTRATION STATEMENT NO. 333-70723
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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>
THE NETHERLANDS 4813 NONE
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
---------------------
TERHULPSESTEENWEG 6A
1560 HOEILAART,
BELGIUM
(32-2) 658-5200
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------------
CT CORPORATION SYSTEM
1633 BROADWAY
NEW YORK, NY 10019
(212) 664-1666
(Address, including zip code, and telephone number, including area code, of
agent for process)
---------------------
with copies to
JOHN D. MORRISON
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NY 10022
(212) 848-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
<TABLE>
=================================================================================================================
<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
10 3/8% Senior Notes due 2009... $200,000,000 100% $200,000,000 $55,600
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10 3/8% Senior Notes due 2006... E85,000,000 100% E85,000,000 $27,288
=================================================================================================================
</TABLE>
THIS 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.
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<PAGE> 2
EXPLANATORY NOTE
The sole purpose of this Amendment is to file certain exhibits to the
Registration Statement. Accordingly, this Amendment consists only of the facing
page, this explanatory note and Part II of the Registration Statement. The
Prospectus and Financial Statement Schedules are unchanged and have been
omitted.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Netherlands law does not prohibit indemnification of directors, employees
and agents of corporations. The Company is in the process of obtaining liability
insurance for its directors, employees and agents. Under Netherlands law, the
legal reasonableness and fairness test means that such indemnity cannot be
relied on where the individual has been grossly negligent, fraudulent or
dishonest.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
3.1* -- Deed of Incorporation and Articles of Association (as
amended) of the Company
4.1* -- Form of Outstanding Dollar Note for the Registrant's
10 3/8% Senior Notes due 2009 (contained in Dollar
Indenture filed as Exhibit 4.5)
4.2* -- Form of Outstanding Euro Note for the Registrant's
10 3/8% Senior Notes due 2006 (contained in Euro
Indenture filed as Exhibit 4.6)
4.3* -- Form of Dollar Exchange Note for the Registrant's 10 3/8%
Senior Notes due 2009 (contained in Dollar Indenture
filed as Exhibit 4.5)
4.4* -- Form of Euro Exchange Note for the Registrant's 10 3/8%
Senior Notes due 2006 (contained in Euro Indenture filed
as Exhibit 4.6)
4.5* -- Dollar Indenture, dated as of January 4, 1999, between
the Company and The Bank of New York of New York, as
Trustee
4.6* -- Euro Indenture dated as of January 4, 1999, between the
Company and The Bank of New York, as Trustee
4.7* -- Dollar Registration Rights Agreement, dated as of January
4, 1999, between the Company and Initial Purchasers
4.8* -- Euro Registration Rights Agreement dated as of January 4,
1999, between the Company and Initial Purchasers
5.1* -- Opinion of Shearman & Sterling regarding the legality of
the securities being registered
5.2* -- Opinion of Loeff Claeys Verbeke regarding the legality of
the securities being registered
8.1* -- Opinion of Shearman & Sterling regarding tax matters
10.1* -- Indenture, dated August 19, 1997, among Hermes Europe
Railtel B.V., as Issuer, Global TeleSystems Group, Inc.
and The Bank of New York, as Trustee.
10.2* -- Registration Rights Agreement, dated August 19, 1997,
between the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, UBS Securities LLC and Lehman
Brothers Inc.
10.3* -- Escrow Agreement, dated August 19, 1997, among the
Company and The Bank of New York, as Trustee and as
Escrow Agent.
10.4* -- Shareholders Agreement among the Company, GTS-Hermes
Inc., HIT Rail B.V., SNCB/NMBS and AB Swed Carrier.
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.
</TABLE>
II-1
<PAGE> 4
<TABLE>
<C> <S>
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.
10.14* -- License, dated October 22, 1997, granted by the Secretary
of State of Industry relating to France.
10.15+ -- Agreement, dated November 24, 1997, between COLT and the
Company.
10.16* -- Authorization Letter, dated March 16, 1998, granted by
the Deputy Director of Federal Communication Office
relating to Switzerland.
10.17+ -- Agreement, dated April 3, 1998, between AT&T Unisource
and the Company.
10.18+ -- Agreement, dated November 3, 1998, between Cable &
Wireless and the Company.
12.1* -- Statements re Computation of Deficiency of Earnings to
Fixed Charges
21.1* -- List of subsidiaries
23.1* -- Consent of Shearman & Sterling (included as part of
Exhibit 5.1)
23.2* -- Consent of Ernst & Young Reviseurs d'Entreprises S.C.C.,
Independent Auditors
23.3* -- Consent of Loeff Claeys Verbeke (included as part of
Exhibit 5.2)
24.1* -- Power of Attorney (included on the signature pages of
this Registration Statement)
25.1* -- Statement of Eligibility of The Bank of New York, Trustee
</TABLE>
- ---------------
* Previously filed.
+ Confidential material has been redacted and filed separately with the
Securities and Exchange Commission.
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:
(1) To file, during any period in which offers for sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate
II-2
<PAGE> 5
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section
do not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statement required by sec. 210.3-19 of this chapter at the start
of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the
Act need not be furnished, provided that the registrant includes in the
prospectus, by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information necessary
to ensure that all other information in the prospectus is at least as
current as the date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form F-3, a
post-effective amendment need not be filed to include financial statements
and information required by Section 10(a)(3) of the Act or sec. 210.3-19 of
this chapter if such financial statements and information are contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Form F-3.
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 paragraph (1) immediately preceding, or (ii) that purports
to meet the requirement of section 10(a)(3) of the 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 of 1933, 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.
II-3
<PAGE> 6
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 arising under the Securities Act of 1933 may be
permitted to directors, officers, or persons controlling the registrant pursuant
to the foregoing provisions, the registrant has been informed 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 payment 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-4
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing a Form S-4 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hoeilaart, Belgium, on the 15th day of January, 1999.
Hermes Europe Railtel B.V.
By: /s/ JAN LOEBER
----------------------------------
R. Jan Loeber
Managing Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the th day of January, 1999. Each person whose
signature appears below hereby authorizes Jan Loeber and Francois Note, and each
of them, with full power of substitution, to execute in the name and on behalf
of such person any amendment or any post-effective amendment to this
Registration Statement and to file the same, with any exhibits thereto and other
documents in connection therewith, making such changes in this Registration
Statement as the Registrant deems appropriate, and appoints each of Jan Loeber
and Francois Note, and each of them, with full power of substitution,
attorney-in-fact to sign any amendment and any post-effective amendment to this
Registration Statement and to file the same, with any exhibits thereto and other
documents in connection therewith.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JAN LOEBER Managing Director (principal executive
- ----------------------------------------------------- officer)
Jan Loeber
/s/ FRANCOIS NOTE Corporate Financial Director -- Chief
- ----------------------------------------------------- Financial Officer (principal financial and
Francois Note accounting officer)
/s/ BERNARD J. MCFADDEN Supervisory Director
- -----------------------------------------------------
Bernard McFadden
/s/ BO C.O. HAMNELL Supervisory Director
- -----------------------------------------------------
Bo C.O. Hamnell
/s/ LARS STIG M. LARSSON Supervisory Director
- -----------------------------------------------------
Lars Stig M. Larsson
/s/ JOSEPH SURMONT Supervisory Director
- -----------------------------------------------------
Joseph Surmont
/s/ BRUNO d'AVANZO Supervisory Director
- -----------------------------------------------------
Bruno d'Avanzo
/s/ MIKEL WILLIAMS Supervisory Director
- -----------------------------------------------------
Mikel Williams
</TABLE>
II-5
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
3.1* -- Deed of Incorporation and Articles of Association (as
amended) of the Company
4.1* -- Form of Outstanding Dollar Note for the Registrant's
10 3/8% Senior Notes due 2009 (contained in Dollar
Indenture filed as Exhibit 4.5)
4.2* -- Form of Outstanding Euro Note for the Registrant's
10 3/8% Senior Notes due 2006 (contained in Euro
Indenture filed as Exhibit 4.6)
4.3* -- Form of Dollar Exchange Note for the Registrant's 10 3/8%
Senior Notes due 2009 (contained in Dollar Indenture
filed as Exhibit 4.5)
4.4* -- Form of Euro Exchange Note for the Registrant's 10 3/8%
Senior Notes due 2006 (contained in Euro Indenture filed
as Exhibit 4.6)
4.5* -- Dollar Indenture, dated as of January 4, 1999, between
the Company and The Bank of New York of New York, as
Trustee
4.6* -- Euro Indenture dated as of January 4, 1999, between the
Company and The Bank of New York, as Trustee
4.7* -- Dollar Registration Rights Agreement, dated as of January
4, 1999, between the Company and Initial Purchasers
4.8* -- Euro Registration Rights Agreement dated as of January 4,
1999, between the Company and Initial Purchasers
5.1* -- Opinion of Shearman & Sterling regarding the legality of
the securities being registered
5.2* -- Opinion of Loeff Claeys Verbeke regarding the legality of
the securities being registered
8.1* -- Opinion of Shearman & Sterling regarding tax matters
10.1* -- Indenture, dated August 19, 1997, among Hermes Europe
Railtel B.V., as Issuer, Global TeleSystems Group, Inc.
and The Bank of New York, as Trustee.
10.2* -- Registration Rights Agreement, dated August 19, 1997,
between the Company and Donaldson, Lufkin & Jenrette
Securities Corporation, UBS Securities LLC and Lehman
Brothers Inc.
10.3* -- Escrow Agreement, dated August 19, 1997, among the
Company and The Bank of New York, as Trustee and as
Escrow Agent.
10.4* -- Shareholders Agreement among the Company, GTS-Hermes
Inc., HIT Rail B.V., SNCB/NMBS and AB Swed Carrier.
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.
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
10.13* -- Agreement, dated February 3, 1997, between SANEF and the
Company.
10.14* -- License, dated October 22, 1997, granted by the Secretary
of State of Industry relating to France.
10.15+ -- Agreement, dated November 24, 1997, between COLT and the
Company.
10.16* -- Authorization Letter, dated March 16, 1998, granted by
the Deputy Director of Federal Communication Office
relating to Switzerland.
10.17+ -- Agreement, dated April 3, 1998, between AT&T Unisource
and the Company.
10.18+ -- Agreement, dated November 3, 1998, between Cable &
Wireless and the Company.
12.1* -- Statements re Computation of Deficiency of Earnings to
Fixed Charges
21.1* -- List of subsidiaries
23.1* -- Consent of Shearman & Sterling (included as part of
Exhibit 5.1)
23.2* -- Consent of Ernst & Young Reviseurs d'Entreprises S.C.C.,
Independent Auditors
23.3* -- Consent of Loeff Claeys Verbeke (included as part of
Exhibit 5.2)
24.1* -- Power of Attorney (included on the signature pages of
this Registration Statement)
25.1* -- Statement of Eligibility of The Bank of New York, Trustee
</TABLE>
- ---------------
* Previously filed.
+ Confidential material has been redacted and filed separately with the
Securities and Exchange Commission.
<PAGE> 1
EXHIBIT 10.15
FRAMEWORK AGREEMENT - FINAL VERSION
DATED 24 NOVEMBER, 1997
(1) HERMES EUROPE RAILTEL B.V.
(2) COLT TELECOM GROUP PLC
FRAMEWORK AGREEMENT
FOR THE
PROVISION OF TRANSMISSION SERVICES
PAGE 1 OF 25
<PAGE> 2
FRAMEWORK AGREEMENT - FINAL VERSION
CONTENTS
1. Scope and Term of the Agreement...........................................3
2. HER Service Offerings.....................................................3
3. Provision of Services.....................................................4
4. Customer Obligations......................................................4
5. Charges and Billing.......................................................4
6. Service Quality...........................................................5
7. Liability.................................................................6
8. Force Majeure.............................................................6
9. Suspension and Early Termination..........................................7
10. Confidentiality...........................................................8
11. Intellectual Property Rights..............................................9
12. Assignment................................................................9
13. Definition and Interpretation.............................................9
14. Entire Contract..........................................................10
15. Variation................................................................10
16. No Waiver................................................................10
17. No Partnership...........................................................10
18. Survival.................................................................10
19. Severability.............................................................11
20. Notices..................................................................11
21. Dispute Resolution and Governing Law.....................................11
SCHEDULES
SCHEDULE 1: SERVICE LEVEL GUARANTEES..........................................16
SCHEDULE 2: SERVICE LEVEL AGREEMENT...........................................18
SCHEDULE 3: RING SERVICE CONTRACT.............................................25
PAGE 2 OF 25
<PAGE> 3
FRAMEWORK AGREEMENT - FINAL VERSION
This Agreement made this 24th day of November 1997,
BETWEEN:
HERMES EUROPE RAILTEL B.V., a private company with limited liability,
incorporated under the laws of the Netherlands, having its registered office
at Strawinskylaan 305, 1077 XX. Amsterdam, the Netherlands,
(hereinafter referred to as "HER"):
and
COLT TELECOM GROUP PLC, a company incorporated under the laws of England and
Wales and having its registered office at Bishopsgate Court, 4 Norton Folgate,
London E1 6DQ.
(hereinafter referred to as "CUSTOMER").
WHEREAS
A. HER operates telecommunications facilities between locations in Europe for
the purpose of providing cross-border transmission capacity to
telecommunications operators and other service providers as a "carriers'
carrier":
B. CUSTOMER is a telecommunications operator desiring to procure such
capacity from HER;
NOW THEREFORE the parties hereto agree with each other as follows:
1. SCOPE AND TERM OF THE AGREEMENT
1.1 The purpose to this Agreement is to establish the terms and conditions for
the provisioning and supply of services by HER to CUSTOMER in the future
through the execution of Service Contracts.
1.2 This Agreement shall enter into effect on execution by the Parties and
shall continue for a term of three years except to the extent that it is
extended in accordance with Clause 1.3, and provided that it has not been
terminated earlier in accordance with Clause 9.
1.3 The initial term of each Service Contract shall be expressly stated
therein. At the end of the initial term of a Service Contract, it shall
continue in accordance with the terms of this Agreement until terminated
by either party on 1 (one) year's written notice to expire at the end of
the initial term or at the end of the relevant month thereafter. If a
Service Contract is entered into for a term which extends beyond that
stated in Clause 1.2, the terms and conditions of this Agreement shall
continue in effect in relation to that Service Contract until the expiry
of its term.
2. HER SERVICE OFFERINGS
2.1 The services available from HER are set out in HER's Services Catalogue,
as published from time to time, and may be ordered in accordance with
Clause 3 below.
PAGE 3 OF 25
<PAGE> 4
FRAMEWORK AGREEMENT - FINAL VERSION
3. PROVISION OF SERVICES
3.1 CUSTOMER may order Transmission Services in accordance with the
provisioning process described in the Service Level Agreement by placing
orders. The Initial Service Contract is attached as Schedule 3.
3.2 Each Service Order Form is subject to acceptance by HER. Once an order is
signed by both parties, it shall constitute a binding Service Contract.
Under the terms of this Agreement CUSTOMER agrees that Service Contracts
may be entered into between HER and any of CUSTOMER Subsidiaries listed in
Appendix B. Customer further agrees that CUSTOMER shall remain liable at
all times for the performance of the obligations undertaken by the CUSTOMER
Subsidiaries under such Service Contracts without HER first having to seek
any recourse against the Subsidiaries. In particular, HER shall be
entitled to direct invoices for services rendered to those Subsidiaries to
CUSTOMER and CUSTOMER shall be liable to pay those invoices.
3.3 CUSTOMER agrees to purchase and HER agrees to provide the Transmission
Services identified in each Service Contract, on the terms and conditions
of this Agreement.
3.4 All Service Contracts shall be governed by the terms and conditions of
this Agreement provided that in the event of inconsistency the Service
Contract shall prevail in relation to the Services to which that Service
Contract relates.
3.5 CUSTOMER may state on each Service Order a Requested Delivery Date. HER
shall not be obliged to provide a Committed Delivery Date until two months
prior to the Requested Delivery Date. The Committed Delivery Date shall
then bind HER and HER's failure to meet that date shall, subject to Clause
6.6, entitle the CUSTOMER to Credits in accordance with Clause 6.3(a).
4. CUSTOMER OBLIGATIONS
4.1 CUSTOMER agrees:
(a) to pay the Charges provided for in each Service Contract in
accordance with the provisions of Clause 5.
(b) to provide HER and its contractors with all reasonable access to its
POPs and any other premises to enable HER to carry out its obligations
under this Agreement and Service Contracts.
(c) to comply with all relevant local, national and supranational laws in
each jurisdiction in which HER provides Transmission Services to
CUSTOMER.
5. CHARGES AND BILLING
5.1 Charges may include both a non-recurring element and a recurring element.
The Charges will be set out in each Service Contract.
5.2 Non-recurring Charges (where applicable) are due and payable within 10
working days of the Actual Service Delivery Date.
5.3 The recurring Charges are due and payable in twelve equal installments
following receipt of the relevant invoices from HER. The first such payment
is due and payable on the date of service commencement under the relevant
Service Contract. Subsequent payments are due and payable at calendar
monthly intervals, on the first day of the relevant month. Where in
PAGE 4 OF 25
<PAGE> 5
FRAMEWORK AGREEMENT - FINAL VERSION
any calendar month the Transmission Services are to be provided for a
period less than a full calendar month, the monthly recurring Charges
shall be pro-rated accordingly.
5.4 Charges are exclusive of VAT and other consumption taxes, unless otherwise
stated.
5.5 All payments are to be made net of charges and in the currency specified
in the Service Contract and are to be made to the Bank specified by HER.
Any change in the specified Bank will be communicated to CUSTOMER no later
than ten working days prior to the due date of the next payment.
5.6 Where any payment is expressed to be "due and payable" on a particular
date, payment shall be credited to HER's bank account by that date.
Payments shall only be deemed to have been made on the Value Date in
respect of such payment.
5.7 HER represents to CUSTOMER that all Transmission Services provided by HER
to CUSTOMER under this Agreement are provided at prices and upon terms
that are no less favourable to CUSTOMER than the prices and terms offered
by HER to its most favoured customers for substantially similar services,
subject to volume discounts, payment conditions, contract duration,
service levels, flexibility and other terms which materially affect
pricing. HER will adjust its prices as necessary to remain in compliance
with this commitment on a going forward basis.
5.8 If CUSTOMER fails to pay any Charges due within 30 days of the due date
for payment, HER shall, without prejudice to any other rights or remedies
it might have, be entitled to charge CUSTOMER interest on all sums due at
the rate of 1.5 per cent per month. Such interest shall be charged from the
date payment becomes due until the Value Date (both before and after
judgement) and shall accrue on a daily basis.
5.9 If CUSTOMER should terminate a Service Contract prior to the end of the
initial term specified therein, CUSTOMER shall pay HER in addition to any
Charges outstanding a cancellation charge equal to 25% of the Charges which
would have been payable on that Service Contract had it run its full term.
6. SERVICE QUALITY
6.1 Transmission Services shall be provided in accordance with the Service
Level Guarantees in Schedule 1. HER shall use reasonable endeavours to
provide the Transmission Services in accordance with the Service Level
Agreement in Schedule 2.
6.2 HER may from time to time vary the technical parameters applicable to
services, whether specified in the Service Level Agreement or otherwise, so
long as quality of service or the Service Level Guarantees are not
adversely affected.
6.3 (a) If Transmission Services fail to meet guaranteed Service Level
Guarantees during any billing month, subject to 6.3(b), CUSTOMER
shall be eligible for a credit against the Charges otherwise payable
in respect of the relevant Link. The Service Level Guarantees and
credits are detailed in Schedule 1.
(b) In the event that Customer cancels a Service Contract under Clause
9.7.1, no credits shall be payable in respect of that Service
Contract.
6.4 In no event shall the total credits payable under Clause 6.3 in respect of
any single circuit exceed, in any given month, the Monthly Circuit Charges
payable in respect of that circuit.
6.5 HER shall issue a credit note for any Credits to which the CUSTOMER is
eligible within 30 days following the month in which the credit arose.
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FRAMEWORK AGREEMENT - FINAL VERSION
6.6 The Credits provided for in this Clause shall not apply to the extent that
deviation from service levels or failure to meet a delivery date is due to:
(a) an event of Force Majeure;
(b) an act or omission of CUSTOMER which constitutes a breach of this
Agreement, including in the case of failure to comply with a delivery
date, CUSTOMER's failure to cooperate in the timely completion of
Acceptance Tests or CUSTOMER's inability to accept service.
6.7 Except in the case of Persistent Service Failures, CUSTOMER's only
remedies for deviation from the Service Levels by HER or for failure by HER
to meet a delivery date are the credits provided for in this Clause.
6.8 HER shall have the right from time to time to modify, extend, repair or
replace any part of the Network, provided that, after completion of the
work, the modification or replacement does not materially impair the
provision of Transmission Service to CUSTOMER. The process for carrying out
service affecting works is set out in the Service Level Agreement.
6.9 Save that there shall be no degradation in service quality, HER may route
CUSTOMER traffic through facilities provided by a third party at its
discretion and in particular, to connect CUSTOMER's POPs, to HER's POPs or
to maintain service levels.
7. LIABILITY
7.1 Except in the case of death or personal injury, the maximum aggregate
liability of either party to the other for any loss sustained by the other
party (whether as a result of negligence or otherwise) in connection with
anything done or omitted to be done under this Agreement or any Service
Contract shall be ECU 200,000 per link affected in respect of any single
incident or series of related incidents; subject to a maximum liability of
HER under this Agreement or any Service Contract of ECU 1,000,000 for all
incidents in any twelve-month period.
7.2 Neither party shall be liable to the other for any indirect or
consequential loss or damage. For these purposes, "indirect or
consequential loss or damage" includes, but is not limited to, loss of
revenue, profit, anticipated savings, business or goodwill, loss or
corruption or destruction of data.
8. FORCE MAJEURE
8.1 Subject to Clauses 8.2 ad 8.3, a party shall not be held liable for
failure in performing any of its obligations under this Agreement or a
Service Contract if such failure is caused by or arises as a result of an
event of Force Majeure.
8.2 The affected party shall promptly notify the other party in writing of the
occurrence of an event of Force Majeure and the estimated extent and
duration of its inability to perform its obligations.
8.3 Upon the cessation of the event of Force Majeure, the affected party shall
promptly notify the other party in writing of such cessation and shall
resume performance of tis obligations.
8.4 Both parties shall use reasonable endeavours to minimise the effects of an
event of Force Majeure.
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FRAMEWORK AGREEMENT - FINAL VERSION
9. SUSPENSION AND EARLY TERMINATION
9.1 If a party (referred to herein as the "defaulting party") commits any
material breach of a Service Contract (or a provision of this Agreement
pertaining to a Service Contract) which, in the case of a breach capable
of remedy, shall not have been remedied within thirty days (30) of a
written request to do so being received from the other party, then the
other party may terminate this Agreement and the relevant Service
Contract immediately by giving the defaulting party notice in writing
to that effect.
9.2 If a party (referred to herein as the "affected party") has ceased to
perform its obligations under a Service Contract as a result of an event
of Force Majeure for a period greater than thirty (30) days, the other
party may terminate the relevant Service Contract immediately by giving
the affected party notice in writing to that effect.
9.3 Either party may terminate this Agreement and the Service Contracts
immediately upon giving notice to the other party in the event that the
other party becomes bankrupt or insolvent; has sought protection from its
creditors under any statute or legal process; has suffered or permitted a
trustee, liquidator, receiver, receiver-manager or similar custodian to be
appointed or to take possession of its property or assets; has voluntarily
or involuntarily commenced proceedings for dissolution, liquidation or
winding up; or has ceased to carry on business in the ordinary course.
9.4 On termination of this Agreement and/or any Service Contract, HER may
require CUSTOMER, at one month's notice, to disconnect all or any customer
facilities from the Network. If the termination occurs as a result of
breach of this agreement by CUSTOMER, HER may carry out at CUSTOMER's own
expense all remedial work necessary to restore the Network and POPs to full
working order, to remove cables and apparatus from HER lands or premises
and to make good any damage caused by so doing.
9.5 HER reserves the right to suspend the provision of services, and/or to
disconnect customer facilities from the Network if, in HER's reasonable
judgement, CUSTOMER's use of the Network may damage or disrupt the Network.
9.6 If CUSTOMER is at any time in breach of Clauses 4.1(a) or 4.1(c) and has
failed to remedy such breach within 30 (thirty) days of written notice to
do so, HER may suspend the performance of its obligations under any
relevant Service Contract forthwith upon written notice to CUSTOMER without
prejudice to its rights under this agreement and the relevant Service
Contract, including its rights to payment. Notwithstanding any other
provision of this Agreement, HER shall have no liability to CUSTOMER for
any loss or damages it suffers as a consequence of such suspension.
9.7 If:
9.7.1 the commencement of the Transmission Services under a Service
Contract have been delayed beyond 6 weeks; or
9.7.2 the Transmission Services provided under a Service Contract are
subject to a Persistent Service Failure:
CUSTOMER shall have the right to terminate the relevant Service Contract
immediately, without incurring a cancellation charge or other penalty, by
giving HER notice in writing to that effect.
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10. CONFIDENTIALITY
10.1 Each party shall promptly supply to the other such information and
assistance which the other may reasonably request to enable it to perform
its obligations under this Agreement. Each party shall ensure that
information provided to the other party in accordance or in connection with
this Agreement is correct to the best of its knowledge at the time it is
provided.
10.2 Each party shall keep in confidence all Confidential Information and will
not (and will use its reasonable endeavours to ensure that its directors,
employees, officers, servants, agents, Associates and professional advisers
will not) disclose such information to any third party other than in
accordance with this Agreement. Each party shall exercise no lesser degree
of care in relation to Confidential Information than it would apply to its
own confidential information.
10.3 The following disclosures shall not constitute a breach of Clause 10.2:
(a) a disclosure authorised in writing;
(b) a publication of Confidential Information in accordance with a
statutory or other regulatory requirement or pursuant to an order of
a competent court or tribunal;
(c) a disclosure made to any regulator or any expert or arbitrator
appointed in accordance with the provisions of this Agreement to the
extent that such disclosure is a legal requirement; or
(d) a disclosure made to professional advisors or persons bona fide
considering investing in either party whether by capital investment,
loans or other means provided that the recipient has agreed to be
bound by the restrictions contained in Clauses 10.2, 10.3 and 10.4 in
the same manner as if it were a party to this Agreement.
10.4 The provisions of Clause 10.2 do not apply to any Confidential Information
which:
(a) enters into the public domain other than by reason of a breach of
this Agreement;
(b) is known to the party to which it is disclosed at the time of its
disclosure;
(c) is independently generated, developed or discovered at any time by or
for the party to which it is disclosed;
(d) is disclosed by a third party without any restriction on further
disclosure; or
(e) is necessary for the purposes of permitting a party to perform its
obligations under this Agreement or a Service Contract provided that
any third party which receives Confidential Information pursuant to
this provision has agreed to be bound by the restrictions contained in
Clauses 10.2, 10.3 and 10.4 (a)-(e) in the same manner as if it were a
party to this Agreement.
(f) Is required to be disclosed to any stock exchange, regulator or
similar authority
10.5 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 or a Service Contract.
10.6 The obligations of confidentiality in this Clause 10 shall continue for 5
years following the termination of this Agreement.
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FRAMEWORK AGREEMENT - FINAL VERSION
10.7 Neither party shall make any press announcements concerning this Agreement
or a Service Contract or publicise this Agreement or a Service Contract in
any way without the prior written consent of the other party.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Nothing in this Agreement or a Service Contract shall be construed as
conferring any licence to intellectual property or as an assignment of the
intellectual property rights of one party to the other party.
11.2 CUSTOMER shall indemnify and save HER harmless from any loss, damage,
liability or expense incurred by HER arising out of any infringement of the
intellectual property rights of third parties related to CUSTOMER's use of
the Network or of the services provided by HER pursuant to this Agreement.
11.3 HER shall indemnify and save CUSTOMER harmless from any loss, damage,
liability or expense incurred by CUSTOMER arising out of any infringement
of the intellectual property rights of third parties by HER related to
HER's operation of the Network or the provision of services to CUSTOMER
pursuant to this Agreement.
12. ASSIGNMENT
12.1 This Agreement and the Service Contracts are personal to the parties
hereto and neither party shall without the prior consent in writing of the
other assign, charge or otherwise deal with the whole or any part of this
Agreement or a Service Contract or its rights or obligations under this
Agreement or a Service Contract without the consent to the other party.
12.2 In the event of an assignment under Clause 12.1, the assignor shall
provide not less than fourteen days prior notice in writing of such
assignment to the other party and the assignee shall enter into an
agreement with the other party whereby the assignee shall agree to be bound
by the terms of this Agreement or the relevant Service Contract, as
appropriate, and if required by the other party the assignor shall
guarantee the performance of this Agreement or the relevant Service
Contract, as appropriate, by the assignee.
12.3 Notwithstanding Clause 12.1, either party may assign this Agreement or any
Service Contract to an Associate without the consent of the other, or to a
lender as security for the repayment of loans or an Associate, but in the
case of such an Assignment the original party shall remain liable for
performance of the terms of this Agreement and the relevant Service
Contract, unless otherwise agreed in writing.
13. DEFINITION AND INTERPRETATION
13.1 In this Agreement and Service Contracts, words and expressions shall have
the meanings ascribed to them in Appendix A.
13.2 All documentation exchanged between the parties pursuant to this Agreement
shall be in English.
13.3 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:
(a) the Service Contracts entered into pursuant to this Agreement,
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(b) the main body of this Agreement and Appendix A but excluding the
Schedules,
(c) the Service Level Guarantees (Schedule 1), and
(d) other Schedules.
13.4 References in this Agreement to HER and CUSTOMER shall include their
respective employees, agents, successors (whether by operation of law or
otherwise) and permitted assigns.
13.5 Headings are included in this Agreement for ease of reference only and
shall not affect the interpretation or construction of this Agreement.
14. ENTIRE CONTRACT
This Agreement represents the entire understanding between the parties in
relation to the provision of the Services and supersedes all other
agreements and representations, whether oral or in writing.
15. VARIATION
No variation, modification or addition to or cancellation of any provision
of this Agreement or a Service Contract shall be effective unless agreed in
writing by a duly authorised representative of HER and CUSTOMER.
16. NO WAIVER
16.1 Failure by either party at any time to enforce any of the provisions of
this Agreement or a Service Contract shall neither be construed as a waiver
of any rights or remedies hereunder nor in any way affect the validity of
this Agreement or a Service Contract or any part of them, and no waiver of
a breach of this Agreement or a Service Contract shall constitute a waiver
of any subsequent breach.
16.2 Termination of this Agreement or a Service Contract shall not operate as a
waiver of any breach by a party of any of the provisions thereof and shall
be without prejudice to any rights or remedies of either party which may
arise as a consequence of such breach or which may have accrued hereunder
up to the date of such termination.
16.3 No waiver of a breach of this Agreement or a Service Contract shall be
effective unless given in writing.
17. NO PARTNERSHIP
Nothing in this Agreement or a Service Contract shall be deemed to
constitute a partnership or joint venture between the parties or to
constitute one party the agent of the other for any purpose whatsoever.
18. SURVIVAL
Notwithstanding anything in Clause 1.2, the provisions of this Clause and
Clauses 6.8, 7.8, 9.4, 9.6, 10.6, 19, 20 and 21 shall survive termination
of this Agreement.
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19. SEVERABILITY
19.1 The invalidity of unenforceability for any reason of any part of this
Agreement or of any Service Contract shall not prejudice or affect the
validity or enforceability of the remainder of this Agreement.
19.2 If further lawful performance of this Agreement or any Service Contract
or any part of them shall be made impossible by the final judgement or
final order of any court of competent jurisdiction, commission or
government agency or similar authority having jurisdiction over either
party, the parties shall forthwith use their best endeavours to agree
amendments to this Agreement or the relevant Service Contract so as to
comply with such judgement or order or resume performance.
20. NOTICES
20.1 Except in cases where the Service Level Agreement makes express provision
otherwise, 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:
o facsimile transmission, in which case it will be deemed received when
sent;
o hand (including courier), in which case it will be deemed received
when delivered;
o air mail (where appropriate), in which case it will be deemed received
5 days after posting; or
o ordinary first class mail (where the recipient is within the same
jurisdiction as the sender) in which case it will be deemed received
2 days after posting.
20.2 Any notice or communication sent by post shall be deemed to have been
delivered on the second day following posting on which postal delivery is
available and in proving posting it shall be sufficient to show that the
envelope containing such notice or communication was properly addressed,
stamped and posted.
20.3 Either party may amend its address and facsimile number specified in
Clause 20.1 by written notice to the other party.
21. DISPUTE RESOLUTION AND GOVERNING LAW
21.1 Any dispute, controversy or claim arising under, out of or relating to
this Agreement or any Service Contract, including any questions regarding
its existence, or termination shall first be referred for resolution in
accordance with the escalation procedure set out in the Service Level
Agreement.
21.2 This Agreement and Service Contracts shall be governed by and construed
in accordance with English law.
21.3 The parties hereby submit to the exclusive jurisdiction of the English
Courts and waive any objection to proceedings in such courts on the
grounds of venue or on the grounds that proceedings have been brought in
an inconvenient forum.
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AS WITNESS the hands of the duly authorised representatives of the parties
at on the date first above written.
-----------------------
/s/ PETER MAGNUS
--------------------------------) for and on behalf of
) HERMES EUROPE RAILTEL B.V.
)
PETER MAGNUS )
--------------------------------)
/s/ PAUL W. CHISHOLM
--------------------------------) for and on behalf of
) COLT TELECOM GROUP PLC
)
PAUL W. CHISHOLM )
--------------------------------)
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APPENDIX A
In this Agreement, including the Schedules, words and expressions shall have
the meanings ascribed to them below:
"Actual Service Delivery
Date" as defined in Schedule 2, paragraph 3.
"Associate" in relation to any body corporate, any Holding
Company or Subsidiary of such body corporate or
other subsidiary of any such Holding Company.
"Charges" the Charges set out in each Service Contract.
"Committed Delivery Date" the dated provided by HER for the provision of
Transmission Services and set out in each Service
Contract.
"Confidential Information" all information of any nature, provided by one
party to the other in connection with this
Agreement save for information which the
originating party has expressly identified
as being non-confidential.
"Credits" the credits calculated in accordance with the
Service Level Guarantees.
"Force Majeure" any cause beyond a party's reasonable control
affecting its performance of its obligations
hereunder including but not limited to acts of
God, insurrection or civil disorder, war or
military operations, national or local emergency,
acts or omissions of Government or regulatory
authority, industrial disputes of any kind (not
involving that party's employees), fire, flood,
lightning, explosion, subsidence, inclement
weather, acts or omissions of persons or bodies
for whom the affected party is not responsible.
"HER Points of Presence
or POPs" nodes or cable terminating points on the Network
which are designated by HER.
"Holding Company" a holding company as defined in Sections 736 and
736A Companies Act 1985 (England).
"Initial Service Contract" the Service Contract entered into on the date of
this Agreement between HER and COLT
Telecommunications (a Subsidiary of CUSTOMER) and
attached at Schedule 3.
"Link" a transmission path between two termination
points identified in a Service Contract.
"Monthly Circuit Charges" the recurring charges set out in each Service
Contract.
"Network" the Hermes Europe Railtel TransEuropean SDH
Network.
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"Persistent Service Failure" a failure to perform in accordance with the
guaranteed Service Level for three consecutive
months.
"Service Contract" a contract created by the acceptance of HER of
Service Order.
"Service Level Guarantees" quality of service levels for Transmission
Services as defined in Schedule 1.
"Service Order" an order placed by CUSTOMER in accordance with
the terms of this Agreement.
"Services Catalogue" the document describing the services available
from HER as published by HER from time to time.
"Subsidiary" a subsidiary as defined in section 736 and
736A Companies Act 1985 (England).
"Transmission Services" The services provided by HER in accordance
with each Service Contract, which at the time
of entering into this Agreement may include,
Ring Service, Basic, Standard, Premium or VIS
Services as those terms are defined in the
Services Catalogue.
"Value Date" the date upon which the transfer of the Charges
is completed: that is, the Charges appear as a
credit on HER's bank account.
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APPENDIX B
CUSTOMER SUBSIDIARIES
1. COLT Telecommunications
2. COLT Telecom GmbH
3. COLT Telecommunications France SAS
4. COLT Telecom Espana S.A.
5. COLT Telecom A.G.
6. COLT Telecom S.A.
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FRAMEWORK AGREEMENT - FINAL VERSION
SCHEDULE 1
SERVICE LEVEL GUARANTEES
1. DELIVERY OF SERVICE
1.1 Service Delivery Guarantees
<TABLE>
<CAPTION>
Service Level Guarantee Credits Calculation if service level is
not met
- ----------------------------------------------------------------------------------------
<S> <C> <C>
Service Delivery Date By Committed Delivery 5% of Non-Recurring Charge per
Date week delay
- ----------------------------------------------------------------------------------------
</TABLE>
The committed delivery date is stated in each Service Contract. HER is
considered to have met this date if on or before then HER has issued the "HER
BIS Test Report" to customer as part of the handover procedure (see schedule 2).
HER shall be entitled to revise the committed delivery date after it has
provided a signed service order to the customer if HER is unable to access
CUSTOMER POP in a timely manner during either installation or BIS testing
processes.
For the avoidance of doubt if BIS testing performed by CUSTOMER is
unsuccessful, and this is verified as a problem caused by HER, then the Actual
Delivery Date will be revised accordingly.
1.2 Cancellation rights
If HER has not delivered the Transmission Service within 6 weeks of the
Committed Delivery Date, CUSTOMER is entitled to cancel the Service Contract,
in lieu of Credits but without any cancellation charge applying.
2. SERVICE AVAILABILITY
HER offers guarantees on the availability of Ring Service as set out below.
<TABLE>
<CAPTION>
Service Level Guarantee Credits Calculation if service level is
not met
- ----------------------------------------------------------------------------------------
<S> <C> <C>
Availability 99.9 - 99.5 10% of monthly Ring Charges
(monthly) Below 99.5 - 99.0 20% of monthly Ring Charges
Below 99.0 - 97.5 40% of monthly Ring Charges
Below 97.5 100% of monthly Ring Charges
- ----------------------------------------------------------------------------------------
</TABLE>
The Ring Service is considered unavailable if two or more VC4 paths on the Ring
are not available and availability is measured accordingly.
Availability is calculated on a monthly basis as follows:
(Total time - Sum of all events of unavailable
time as agreed during fault clearance) x 100
---------------------------------------------
Total time.
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Per event, unavailable time begins at time of CUSTOMER problem reporting, or
HER problem detection, whichever is earlier. Unavailable time ends as agreed
between HER and CUSTOMER during fault clearance; this is documented in the
"Fault Clearance Report". (see schedule 2) Unavailable time is measured between
HER demarcation of responsibility points as defined on HER Service Order.
Planned works and outages prolonged by inability to access CUSTOMER POP are
excluded.
Months are calendar months.
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SCHEDULE 2
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
Transmission Services provided by HER to CUSTOMER.
This agreement also sets out measurable entities that allow periodic reviews
of the quality of provisioning and operations of HER transmission services.
2. DEFINITIONS & ABBREVIATIONS
Access Network Network between HER PoP and CUSTOMER PoP
ADM Add/Drop Multiplexer
Backbone HER network between two HER PoPs
BIS Bringing-Into-Service
CS Customer Services
CSC Customer Services Centre
ES Errored Seconds
SES Severely Errored Seconds
G.826 ITU-T Recommendation G.826
HER Hermes Europe Railtel
ITU International Telecommunications Union
M.2100 ITU-T Recommendation M.2100
M.2101 ITU-T Recommendation M.2101
M.2120 ITU-T Recommendation M.2120
NOC Network Operations Centre
OPS Operations
PDH Plesiochronous Digital Hierarchy
SDH Synchronous Digital Hierarchy
POP Point of Presence
SLA Service Level Agreement
Definitions contained in the Framework Agreement also apply.
3. SERVICE DELIVERY
3.1 General Principles
This section covers the period between receipt of HER Service Order Form and
handover of acceptance-tested operational service. This process will be managed
through single points of contact from both CUSTOMER and HER.
3.2 Specific Customer Design
A Customer Design will be prepared by HER in cooperation with CUSTOMER; this
will be coordinated through single points of contact. The agreed design will be
annexed to Schedule 3.
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3.3 INSTALLATION
HER will co-ordinate with CUSTOMER-specified contact persons all installation
activities, and CUSTOMER is responsible to provide building access in a timely
manner to ensure on-time service delivery. Depending on the contracted service,
this may include:
o Equipment installation in HER POP
o Cabling to agreed demarcation point
3.4 ACCEPTANCE TESTING AND COMMISSIONING
HER acceptance tests are in accordance with ITU recommendations M.2100 and
M.2101.
Before handing over the circuit to the customer, a 24 hours Bringing-Into-
Service (BIS) test will be performed.
This BIS test is performed with a test equipment (TE) at each end. These TE are
connected at the demarcation points of the service (including all cabling).
For STM-1/VC4 services, the errors and alarms of the STM-1 interconnecting
sections are measured, as well as of the VC-4 path.
Following parameters are measured:
Errored Seconds(ES)
Severely Errored Seconds (SES)
Unavailable Seconds (US)
In addition the round trip delay is measured.
The following values are taken for the BIS performance limits of the VC4 path,
based on 2% allocation (Backbone service):
<TABLE>
<CAPTION>
-------------------------------------------------------------------------
S1 S2
-------------------------------------------------------------------------
Allocation ES SES ES SES
-------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LON-PAR 2% 9 0 26 3
-------------------------------------------------------------------------
FRA-PAR 3% 16 0 36 4
-------------------------------------------------------------------------
FRA-LON 3% 16 0 36 4
-------------------------------------------------------------------------
</TABLE>
If the measurement indicates values below S1, the BIS is considered successful
and the path accepted.
If the measurement indicates values between S1 and S2, the test is extended to 7
days (thresholds x 7).
If the measurement indicates values above S2, the BIS is not successful and
corrective action is taken.
3.5 HANDOVER
Upon successful results from HER BIS testing, a certificate with detailed
measurements as per M.2100, M.2101, and M.2110 including the measured round-trip
network added delay will be provided to CUSTOMER (see Appendix 1 for format and
BIS target values).
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FRAMEWORK AGREEMENT - FINAL VERSION
CUSTOMER shall have 72 hours, measured from the "Actual Service Delivery Date"
to perform its internal testing. On customer acceptance or at end of this
period, (whichever is earlier), billing of the recurring charges shall commence
unless CUSTOMER notifies HER that CUSTOMER'S tests have failed, and this is due
to a problem with the Transmission Service. In this case HER will investigate
the problem and restart the Acceptance Testing and Commissioning procedure.
3.6 SERVICE DELIVERY ESCALATION
If the stated delivery standards in sections 3.1-3.8 of this document are not
met, the following escalation sequence should be used to find a satisfactory
solution:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
CONTACT NAME TEL. NO. FAX NUMBER TEL. NO. AFTER
LEVEL HOURS
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1st Level Bruno Mahieux 32-2-658-5219 32-2-658-5107 32-2-658-5252
CS Manager
- -------------------------------------------------------------------------------------------------------
2nd Level John Shearing 32-2-658-5260 32-2-658-5107 32-2-658-5252
Operations Director
- -------------------------------------------------------------------------------------------------------
3rd Level Jan Loeber 32-2-658-5205 32-2-658-5108 32-2-658-5252
Managing Director
- -------------------------------------------------------------------------------------------------------
</TABLE>
4. FAULT MANAGEMENT
4.1 24 Hrs/7 Days Fault Reporting Contact
HER will log all faults in its Problem Management System within 5 minutes of the
fault being detected by the HER Network Operations Centre or reported by
CUSTOMER.
All faults shall be reported by phone to the HER Customer Service Centre. When
the local access network is provided by HER, either through "Integrated" or
"One-Stop Shop" service, note that local access providers must not be contacted
directly. This to ensure a single point (the HER CSC) controls all activities.
Phone: 32-2-658-5252
Toll free from NL: 060-22-93-09
Toll free from BE: 0800-966-88
Toll free from UK: 0800-96-91-91
Fax: 32-2-658-5105
All faults detected by HER shall be reported to a single CUSTOMER point of
contact being:
Network Control Centre (NCC)
COLT Telecommunications
Bishopsgate Court
Norton Folgate
London E1 6DQ
United Kingdom
Tel. (UK freephone) - 0800 390 151
Tel. (Other) - 44/171 390 39 50
Fax. 44/171 390 13.
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FRAMEWORK AGREEMENT - FINAL VERSION
The fault management procedure will be discussed with the customer prior to
service activation and may be subject to fine tuning, depending also on the
specific technical network management capabilities of the CUSTOMER and Access
Networks.
4.2 Fault Reporting Procedure/Information
4.2.1 HER to CUSTOMER
HER will phone CUSTOMER 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 to repair (if problem is still not solved)
4.2.2 CUSTOMER to HER
CUSTOMER will contact HER CSC; for expediency purposes, phone contact
is preferable. CUSTOMER should provide the following details:
o contact details
o CUSTOMER 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?
HER will immediately log the report in a trouble-ticket, provide the
trouble-ticket reference number, and begin fault localisation. HER
will contact CUSTOMER within 15 minutes with a problem description,
and an estimated time to repair (if problem is still not solved).
4.3 Fault Repair
Fault repair will be done using the non-service degrading tests to diagnose and
correct the problem; service degrading tests will be done after consent from
CUSTOMER. These may include:
o service interruption
o intrusive tests to CUSTOMER equipment
HER will update CUSTOMER every 30 mins. or as otherwise agreed until problem is
repaired.
4.4 CUSTOMER Site Access for fault management
In case the demarcation point of the service (as specified in the Service
Contract and/or the Customer Design) is within the customer premises, the
customer must provide 24-hour access to its premises to HER and/or Local Access
Provider personnel in order to perform tests. They will follow the security
procedures specified by the Customer before service activation. HER will
provide the Customer with identification details of the person(s) arriving, and
tests to be performed.
PAGE 21 OF 25
<PAGE> 22
FRAMEWORK AGREEMENT - FINAL VERSION
4.5 Fault Clearance Procedure
After service is repaired, HER will monitor for 10 mins. If service is stable,
HER will report fault clearance to CUSTOMER within 5 minutes. Upon CUSTOMER
agreement, the trouble-ticket will be cleared, and HER will provide CUSTOMER
with a written Fault Clearance Notification within 24 hours (see Appendix 2).
This will contain:
o fault ticket number
o time of fault clearance
o cause of the fault
o agreed outage duration
o agreed performance degradation
o corrective action taken
Fault clearance details are included in the monthly performance report, and are
used to calculate the service availability. If the service is reported as
being degraded, and HER and CUSTOMER agreed to take the service down for
testing, the duration of the outage for testing shall not count as downtime in
the monthly availability calculation, unless otherwise agreed by HER.
4.6 Escalation
4.6.1 CUSTOMER Escalation
If the problem is not being addressed in a satisfactory manner, an escalation
procedure with 4 contact levels is available for the customers. The sequence
should be the one specified in the following table; the timing is left to the
Customer discretion; the Customer should however take into consideration the
timing of the HER internal escalation procedure as described in 4.6.2.
Out of office hours, the Customer may request escalation through the CSC.
<TABLE>
<CAPTION>
==============================================================================
CONTACT CONTACT FUNCTION TEL. NUMBER FAX NUMBER TEL. NO. AFTER
LEVEL & NAME(S) HOURS
- --------- ------------------- ------------- ------------- --------------
<S> <C> <C> <C> <C>
1st Level Shift Leader 32-2-658-5252 32-2-658-5107 32-2-658-5252
- --------- ------------------- ------------- ------------- -------------
2nd Level Bruno Mahieux 32-2-658-5219 32-2-658-5107 32-2-658-5252
CSC Manager
- --------- ------------------- ------------- ------------- -------------
3rd Level John Shearing 32-2-658-5260 32-2-658-5107 32-2-658-5252
Operations Director
- --------- ------------------- ------------- ------------- -------------
4th Level Jan Loeber 32-2-658-5205 32-2-658-5108 32-2-658-5252
Managing Director
==============================================================================
</TABLE>
4.6.2 HER internal
The following escalation/awareness sequence will be used by HER as governed by
duration of CUSTOMER service interruption.
PAGE 22 OF 25
<PAGE> 23
FRAMEWORK AGREEMENT - FINAL VERSION
<TABLE>
<CAPTION>
====================================================
CONTACT CONTACT FUNCTION TIME SINCE
LEVEL FAULT LOGGED
--------- ------------------- ------------
<S> <C> <C>
1st Level Shift Leader Immediate
--------- ------------------- ------------
2nd Level NOC/CSC Manager 2 hrs.
--------- ------------------- ------------
3rd Level Operations Director 4 hrs.
--------- ------------------- ------------
4th Level Managing Director 12 hrs.
====================================================
</TABLE>
5. PLANNED WORKS NOTIFICATION PROCEDURE
HER and Access Network providers will from time to time undertake scheduled
service-affecting works. HER will inform CUSTOMER by fax containing the
proposed time and date, duration, and description of any such works. If the
proposed time and date are not acceptable, CUSTOMER must reply within 1 working
day with a preferred alternative. If agreement cannot be reached, HER will
decide the time and date at its discretion, but with the objective to minimise
CUSTOMER inconvenience. CUSTOMER can choose to provide HER with preferred
downtime windows within which HER will use reasonable endeavours to schedule
service-affecting planned works (see Appendix 2).
Planned works scheduled with less than 15 days notice are considered as
unavailable time unless otherwise agreed by CUSTOMER, and are included in the
monthly service availability calculations. Planned works that exceed scheduled
time are (insofar as the excess time is concerned) also included in the monthly
service availability calculations.
CUSTOMER contact for planned works is:
Network Control Centre (NCC)
COLT Telecommunications
Bishopsgate Court
Norton Folgate
London E1 6DQ
United Kingdom
Tel. (UK freephone) - 0800 390 151
Tel. (Other) - 44/171 390 39 50
Fax. 44/171 390 30 13.
6. REPORTING
This section details which measurable items will be reported in the monthly
"Service Report." The individual items and their definitions are listed
below. And example is provided in Appendix 3.
6.1 Service Performance
6.1.1 Service Availability
6.1.2 Time To Repair (per event)
PAGE 23 OF 25
<PAGE> 24
FRAMEWORK AGREEMENT - FINAL VERSION
HER will also provide CUSTOMER from time to time with historical data on
time to repair. At the date of signing this Agreement the mean time to
repair a network fault (equipment failure or fibre cut) is 4 hours. Such
network faults should not be service affecting (unless no other path is
available), but HER offers no guarantees in this regard other than set out
in Schedule I.
6.2 Service Provisioning
6.2.1 Actual Service Delivery Date
The Actual Service Delivery Date is defined as after successful service
acceptance test by HER and initial 'handover' to the customer.
6.3 Planned works notification
Notice provided (actual days of notice provided in each case)
Duration (actual duration of planned works versus expected duration)
HER will report the notice provided per instance of planned works, and whether
the expected duration was exceeded. The targets for the provided notice is
specified in chapter 5.
6.4 Performance Reporting Procedure
Performance reports containing all measures in this section, including detailed
description of any faults, will be provided on a monthly basis to CUSTOMER
contacts as specified by CUSTOMER.
APPENDICES:
1. BIS Test Results
2. Planned Works Notification
3. Service Report
PAGE 24 OF 25
<PAGE> 25
[LOGO]
HERMES EUROPE RAILTEL SERVICES REPORT
Terhulpsesteenweg 6A
1560, Hoelaart, Belgium CUSTOMER
- --------------------------------------------------------------------------------
REPORTING MONTH MONTH/'97
1. SERVICE INFORMATION
1.1. REFERENCES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Circuit
Service Type of Demarcation Local Circuit Capacity Demarcation Local Capacity and Delivery
Order service HER Circuit ID Point A Access A ld and interface/A Point B Access B ld interface/B Date
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
1.2. HER AND CUSTOMER LOCATIONS
<TABLE>
<CAPTION>
- ---------------------------------------------------
Company Site Code Address City
- ---------------------------------------------------
<S> <C> <C> <C>
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
- ---------------------------------------------------
</TABLE>
<PAGE> 26
[LOGO]
HERMES EUROPE RAILTEL SERVICES REPORT
Terhulpsesteenweg 6A
1560, Hoelaart, Belgium CUSTOMER
- --------------------------------------------------------------------------------
2. SERVICE LEVEL AGREEMENT PARAMETERS
2.1. END TO END AVAILABILITY
<TABLE>
<CAPTION>
- -----------------------------------------------------
End to End Availability
Service -----------------------
Order HER Circuit ID July '97 YTD
- -----------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------
- -----------------------------------------------------
</TABLE>
Availability is rounded to the 2nd decimal digit.
2.2. SERVICE DELIVERY PERFORMANCE: MILESTONES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
Service Order Customer
Service HER Receipt Requested HER Commitment HER Committed Actual Delivery
Order HER Circuit ID Date Date Date Delivery Date Date Billing Start Date
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
3.
<PAGE> 27
[LOGO]
HERMES EUROPE RAILTEL SERVICES REPORT
Terhulpsesteenweg 6A
1560, Hoelaart, Belgium CUSTOMER
- --------------------------------------------------------------------------------
TICKET REPORTING
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Cust HER End to End
Ticket ticket HER Problem Date/Time Date/Time Unavailable Unavailable
nr nr Circuit ID Description Occurred Solved Time(1) Time(2) Cause
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) HER Unavailable time HER BackBone
(2) End-to-end Unavailable time Local Access A + HER BackBone Local Access b
HER Backbone fibre cut events
<TABLE>
<CAPTION>
- -----------------------------------------
Number of Within
HER Circuit ID events target (8b)
- -----------------------------------------
<S> <C> <C>
- -----------------------------------------
- -----------------------------------------
</TABLE>
<PAGE> 28
[LOGO]
HERMES EUROPE RAILTEL SERVICES REPORT
Terhulpsesteenweg 6A
1560, Hoelaart, Belgium CUSTOMER
- --------------------------------------------------------------------------------
4. PLANNED WORKS
<TABLE>
<CAPTION>
- ----------------------------------------------------------------
Performed Planned Works reported month
- ----------------------------------------------------------------
Expected Actual
HER Planned Works Downtime Downtime
Reference HER Circuit id (hh:mm) (hh:mm)
- ----------------------------------------------------------------
<S> <C> <C> <C>
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------
Forthcoming Planned Works (Reminder)
- ----------------------------------------------------------------
Expected Expected
HER Planned Works Date/Time Downtime
Reference HER Circuit id (UTC) (hh:mm)
- ----------------------------------------------------------------
<S> <C> <C> <C>
- ----------------------------------------------------------------
- ----------------------------------------------------------------
- ----------------------------------------------------------------
</TABLE>
<PAGE> 29
FRAMEWORK AGREEMENT - FINAL VERSION CONFIDENTIAL
SCHEDULE 3
RING SERVICE CONTRACT
(SEE ATTACHED)
PAGE 25 OF 25
<PAGE> 30
CONFIDENTIAL TREATMENT
[HERMES EUROPE RAILTEL LOGO] SERVICE ORDER FORM
- --------------------------------------------------------------------------------
Service Order ID COL01
------
1. SERVICE TYPE
RING SERVICE SERVICE LEVEL
Integrated [X] Premium [ ]
One-Stop Shop [ ] Standard [ ]
2. SERVICE CONFIGURATION
<TABLE>
<CAPTION>
Bandwidth 'A' end configuration 'B' end configuration Framing
--------- --------------------- --------------------- -------
<S> <C> <C> <C>
2 [ ] Interface & Connector Interface & Connector Framed [ ]
--------------------- ----------------------
34 [ ] STM-1 - Electrical STM-1 - Electrical Unframed [X]
--------------------- ----------------------
45 [ ]
140 [X}
</TABLE>
Details of the Service Levels and Service type are documented in the "HER
Services catalogue". Additional details are annexed to this Service Order as
"Service Design".
3. SERVICE DELIVERY
<TABLE>
<S> <C> <C>
Requested Service Delivery Date 15/11/97
----------
Committed Service Delivery Date (to be filled by HER)
----------
</TABLE>
<TABLE>
<CAPTION>
Termination details 'A' end Termination details 'B' end
- ----------------------------- ----------------------------
<S> <C> <C>
COLT DDF Pt. of demarcation NTU - HER
------------------------------
COLT Telecom Address COLT Telecommunications France
- ----------------------------- ------------------------------
City Forum 24 rue de chazelles
- ----------------------------- ------------------------------
250 City Road
- ----------------------------- ------------------------------
Floor & room number 2nd basement
- ----------------------------- ------------------------------
London Postcode & City 75015 Paris
- ----------------------------- ------------------------------
United Kingdom Country France
- ----------------------------- ------------------------------
Des Cample Contact Person Sylvain Lambert
- ----------------------------- ------------------------------
+44 171 390 36 34 Phone number +33 1 44 29 55 96
- ----------------------------- ------------------------------
+44 171 390 36 34 Fax number +33 1 44 29 56 66
- ----------------------------- ------------------------------
[email protected] E-mail
- ----------------------------- ------------------------------
</TABLE>
4. PAYMENT TERMS
<TABLE>
<CAPTION>
Non-Recurring Charge Recurring Charge Billing period
- -------------------------------- -------------------------------- --------------------------------
<S> <C> <C>
## MATERIAL OMITTED AND ## MATERIAL OMITTED AND ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT FOR CONFIDENTIAL TREATMENT FOR CONFIDENTIAL TREATMENT
- -------------------------------- -------------------------------- --------------------------------
<CAPTION>
Contract Term Currency VAT ra
- -------------------------------- -------- ------
<S> <C> <C>
3 years from 15/11/97 XEU
- -------------------------------- ------------------------------------------------------------------
</TABLE>
The charges quoted do not include VAT.
<PAGE> 31
[HERMES EUROPE RAITEL LOGO] SERVICE ORDER FORM
- -------------------------------------------------------------------------------
Service Order ID COL01
--------------
<TABLE>
<CAPTION>
5. CUSTOMER CONTACTS AND INFORMATION
Commercial Billing
---------- -------
<S> <C> <C>
COLT Telecommunications Company name COLT Telecommunications
- ----------------------------------- ------------------------------
Bishopsgate Court Address Bishopsgate Court
- ----------------------------------- ------------------------------
4 Norton Folgate 4 Norton Folgate
- ----------------------------------- ------------------------------
- ----------------------------------- ------------------------------
London E1 6DQ Postcode & City London E1 6DQ
- ----------------------------------- ------------------------------
United Kingdom Country United Kingdom
- ----------------------------------- ------------------------------
Hugh Wilson Contact Person
- ----------------------------------- ------------------------------
+44 171 390 39 00 Phone number
- ----------------------------------- ------------------------------
+44 171 390 39 01 Fax number
- ----------------------------------- ------------------------------
E-mail
- ----------------------------------- ------------------------------
VAT number
------------------------------
6. HER CONTACTS
Commercial Service Delivery
---------- ----------------
Arthur de Vries Contact Person David Halcro
- ----------------------------------- ------------------------------
+32 2 658 51 33 Phone number +44 171 531 60 74
- ----------------------------------- ------------------------------
+32 2 658 51 11 Fax number +44 171 531 60 73
- ----------------------------------- ------------------------------
+32 75 46 85 04 GSM number +32 75 97 43 56
- ----------------------------------- ------------------------------
[email protected] E-mail [email protected]
- ----------------------------------- ------------------------------
</TABLE>
7. SPECIAL CONDITIONS
This service contract and service contracts COL02 and COL03 form part of
the same agreement. A breach of any of these service contracts by a party
shall allow the other party to terminate all of these service contracts.
Payment under the service contract will vary upon implementation of
service contracts COL02 and COL03 respectively.
No credit under schedule 1 of the Framework Agreement (see below) is
applicable until the implementation of the full ring service i.e. delivery
under service contract COL03.
Up to 28 days prior to the implementation of this service contract, COLT
may propose an alternative ring configuration by written notice (provided
the minimum number of connection points is 3). HER will consider the
renewed configuration in good faith and notify COLT within 14 days of the
adjustment in timescales and pricing required to fulfil this request. If
COLT agrees to HER's response it shall confirm to HER within 7 days and
the Service Contract will be amended accordingly.
<PAGE> 32
[LOGO]
HERMES EUROPE RAILTEL SERVICE ORDER FORM
- --------------------------------------------------------------------------------
SERVICE ORDER ID COL01
---------
8. CUSTOMER DECLARATION & SIGNATURE
No contractual commitment under this Service Order will arise until the
Customer has provided written acceptance of the Committed Service Delivery
Date by signing below. The Customer accepts that the terms and conditions
of the Framework Agreement for the Provision of Transmission Services dated
24-11-97 between COLT Telecom Group plc and HER apply to this Service
Order.
<TABLE>
<S> <C>
Signed by a duly authorised representative Signed by a duly authorised representative
of the Customer of HER
Signature /s/ PAUL W. CHISHOLM Signature /s/ PETER MAGNUS
-------------------------------- --------------------------------
Name PAUL W. CHISHOLM Name Peter Magnus
-------------------------------- --------------------------------
Date 24-11-97 Date 24-11-97
-------------------------------- --------------------------------
</TABLE>
<PAGE> 33
CONFIDENTIAL TREATMENT
[HERMES EUROPE RAILTEL LOGO] SERVICE ORDER FORM
- --------------------------------------------------------------------------------
Service Order ID COL02
------
1. SERVICE TYPE
RING SERVICE SERVICE LEVEL
Integrated [X] Premium [ ]
One-Stop Shop [ ] Standard [ ]
2. SERVICE CONFIGURATION
<TABLE>
<CAPTION>
Bandwidth 'A' end configuration 'B' end configuration Framing
--------- --------------------- --------------------- -------
<S> <C> <C> <C>
2 [ ] Interface & Connector Interface & Connnector Framed [ ]
--------------------- ----------------------
34 [ ] STM-1 - Electrical STM-1 - Electrical Unframed [X]
--------------------- ----------------------
45 [ ]
140 [X}
</TABLE>
Details of the Service Levels and Service type are documented in the "HER
Services catalogue". Additional details are annexed to this Service Order as
"Service Design".
3. SERVICE DELIVERY
<TABLE>
<S> <C> <C>
Requested Service Delivery Date 1/3/98
----------
Committed Service Delivery Date (to be filled by HER)
----------
</TABLE>
<TABLE>
<CAPTION>
Termination details 'A' end Termination details 'B' end
- ----------------------------- ----------------------------
<S> <C> <C>
Pt. of demarcation NTU - HER
- ----------------------------- ------------------------------
Full details will be Address COLT Telecommunications France
provided before
- ----------------------------- ------------------------------
the implementation 25 rue de Chazelles
- ----------------------------- ------------------------------
- ----------------------------- ------------------------------
Floor & room number 2nd basement
- ----------------------------- ------------------------------
Frankfurt Postcode & City 75017 Paris
- ----------------------------- ------------------------------
Germany Country France
- ----------------------------- ------------------------------
Contact Person Sylvain Lambert
- ----------------------------- ------------------------------
Phone number +33 1 44 29 55 96
- ----------------------------- ------------------------------
Fax number +33 1 44 29 56 66
- ----------------------------- ------------------------------
E-mail
- ----------------------------- ------------------------------
</TABLE>
4. PAYMENT TERMS
<TABLE>
<CAPTION>
Non-Recurring Charge Recurring Charge Billing period
- -------------------------------- -------------------------------- --------------------------------
<S> <C> <C>
## MATERIAL OMITTED AND ## MATERIAL OMITTED AND ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT FOR CONFIDENTIAL TREATMENT FOR CONFIDENTIAL TREATMENT
- -------------------------------------------------------------------------------------------------------
<CAPTION>
Contract Term Currency VAT [ILLEGIBLE]
- -------------------------------- -------- ------
<S> <C> <C>
3 years from 15/11/97 XEU
- -------------------------------------------------------------------------------------------------------
</TABLE>
The charges quoted do not include VAT.
*The recurring charges incorporate the recurring charges under service contract
COL01.
<PAGE> 34
[HERMES EUROPE RAITEL LOGO] SERVICE ORDER FORM
- -------------------------------------------------------------------------------
Service Order ID COL02
--------------
5. CUSTOMER CONTACTS AND INFORMATION
<TABLE>
<CAPTION>
Commercial Billing
---------- -------
<S> <C> <C>
COLT Telecommunications Company name COLT Telecommunications
- ----------------------------------- ------------------------------
Bishopsgate Court Address Bishopsgate Court
- ----------------------------------- ------------------------------
4 Norton Folgate 4 Norton Folgate
- ----------------------------------- ------------------------------
- ----------------------------------- ------------------------------
London E1 6DQ Postcode & City London E1 6DQ
- ----------------------------------- ------------------------------
United Kingdom Country United Kingdom
- ----------------------------------- ------------------------------
Hugh Wilson Contact Person
- ----------------------------------- ------------------------------
+44 171 390 39 00 Phone number
- ----------------------------------- ------------------------------
+44 171 390 39 01 Fax number
- ----------------------------------- ------------------------------
E-mail
- ----------------------------------- ------------------------------
VAT number
------------------------------
6. HER CONTACTS
Commercial Service Delivery
---------- ----------------
Arthur de Vries Contact Person David Halcro
- ----------------------------------- ------------------------------
+32 2 658 51 33 Phone number +44 171 531 60 74
- ----------------------------------- ------------------------------
+32 2 658 51 11 Fax number +44 171 531 60 73
- ----------------------------------- ------------------------------
+32 75 46 85 04 GSM number +32 75 97 43 56
- ----------------------------------- ------------------------------
[email protected] E-mail [email protected]
- ----------------------------------- ------------------------------
</TABLE>
7. SPECIAL CONDITIONS
This service contract and service contracts COL01 and COL03 form part of
the same agreement. A breach of any of these service contracts by a party
shall allow the other party to terminate all of these service contracts.
Payment under the service contract will vary upon implementation of
service contracts COL01 and COL03 respectively.
No credit under schedule 1 of the Framework Agreement (see below) is
applicable until the implementation of the full ring service i.e. delivery
under service contract COL03.
Up to 28 days prior to the implementation of this service contract, COLT
may propose an alternative ring configuration by written notice (provided
the minimum number of connection points is 3). HER will consider the
renewed configuration in good faith and notify COLT within 14 days of the
adjustment in timescales and pricing required to fulfil this request. If
COLT agrees to HER's response it shall confirm to HER within 7 days and
the Service Contract will be amended accordingly.
<PAGE> 35
[LOGO]
HERMES EUROPE RAILTEL SERVICE ORDER FORM
- --------------------------------------------------------------------------------
SERVICE ORDER ID COL02
---------
8. CUSTOMER DECLARATION & SIGNATURE
No contractual commitment under this Service Order will arise until the
Customer has provided written acceptance of the Committed Service Delivery
Date by signing below. The Customer accepts that the terms and conditions
of the Framework Agreement for the Provision of Transmission Services dated
24-11-97 between COLT Telecom Group plc and HER apply to this Service
Order.
<TABLE>
<S> <C>
Signed by a duly authorised representative Signed by a duly authorised representative
of the Customer of HER
Signature /s/ PAUL W. CHISHOLM Signature /s/ PETER MAGNUS
-------------------------------- --------------------------------
Name PAUL W. CHISHOLM Name Peter Magnus
-------------------------------- --------------------------------
Date 24-11-97 Date 24-11-97
-------------------------------- --------------------------------
</TABLE>
<PAGE> 36
CONFIDENTIAL TREATMENT
[HERMES EUROPE RAILTEL LOGO] SERVICE ORDER FORM
- --------------------------------------------------------------------------------
Service Order ID COL03
------
1. SERVICE TYPE
RING SERVICE SERVICE LEVEL
Integrated [X] Premium [ ]
One-Stop Shop [ ] Standard [ ]
2. SERVICE CONFIGURATION
<TABLE>
<CAPTION>
Bandwidth 'A' end configuration 'B' end configuration Framing
--------- --------------------- --------------------- -------
<S> <C> <C> <C>
2 [ ] Interface & Connector Interface & Connnector Framed [ ]
--------------------- ----------------------
34 [ ] STM-1 - Electrical STM-1 - Electrical Unframed [X]
--------------------- ----------------------
45 [ ]
140 [X}
</TABLE>
Details of the Service Levels and Service type are documented in the "HER
Services catalogue". Additional details are annexed to this Service Order as
"Service Design".
3. SERVICE DELIVERY
<TABLE>
<S> <C> <C>
Requested Service Delivery Date 1/6/98
----------
Committed Service Delivery Date (to be filled by HER)
----------
</TABLE>
<TABLE>
<CAPTION>
Termination details 'A' end Termination details 'B' end
- ----------------------------- ----------------------------
<S> <C> <C>
Pt. of demarcation COLT DDF
------------------------------
Full details will be Address COLT Telecom
provided before
- ----------------------------- ------------------------------
the implementation City Forum
- ----------------------------- ------------------------------
250 City Road
- ----------------------------- ------------------------------
Floor & room number
- ----------------------------- ------------------------------
Frankfurt Postcode & City London
- ----------------------------- ------------------------------
Germany Country United Kingdom
- ----------------------------- ------------------------------
Contact Person Des Cample
- ----------------------------- ------------------------------
Phone number +44 171 390 36 34
- ----------------------------- ------------------------------
Fax number +44 171 390 36 34
- ----------------------------- ------------------------------
E-mail [email protected]
- ----------------------------- ------------------------------
</TABLE>
4. PAYMENT TERMS
<TABLE>
<CAPTION>
Non-Recurring Charge Recurring Charge Billing period
- -------------------------------- -------------------------------- --------------------------------
<S> <C> <C>
## MATERIAL OMITTED AND ## MATERIAL OMITTED AND ## MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT FOR CONFIDENTIAL TREATMENT FOR CONFIDENTIAL TREATMENT
- -------------------------------------------------------------------------------------------------------
<CAPTION>
Contract Term Currency VAT ra
- -------------------------------- -------- ------
<S> <C> <C>
3 years from 15/11/97 XEU
- -------------------------------------------------------------------------------------------------------
</TABLE>
The charges quoted do not include VAT.
*The recurring charges incorporate the recurring charges under service contracts
COL01 and COL02
<PAGE> 37
[LOGO]
HERMES EUROPE RAITEL SERVICE ORDER FORM
- -------------------------------------------------------------------------------
Service Order ID COL03
--------------
5. CUSTOMER CONTACTS AND INFORMATION
<TABLE>
<CAPTION>
Commercial Billing
---------- -------
<S> <C> <C>
COLT Telecommunications Company name COLT Telecommunications
- ----------------------------------- ------------------------------
Bishopsgate Court Address Bishopsgate Court
- ----------------------------------- ------------------------------
4 Norton Folgate 4 Norton Folgate
- ----------------------------------- ------------------------------
- ----------------------------------- ------------------------------
London E1 6DQ Postcode & City London E1 6DQ
- ----------------------------------- ------------------------------
United Kingdom Country United Kingdom
- ----------------------------------- ------------------------------
Hugh Wilson Contact Person
- ----------------------------------- ------------------------------
+44 171 390 39 00 Phone number
- ----------------------------------- ------------------------------
+44 171 390 39 01 Fax number
- ----------------------------------- ------------------------------
E-mail
- ----------------------------------- ------------------------------
VAT number
------------------------------
</TABLE>
6. HER CONTACTS
<TABLE>
<CAPTION>
Commercial Service Delivery
---------- ----------------
<S> <C> <C>
Arthur de Vries Contact Person David Halcro
- ----------------------------------- ------------------------------
+32 2 658 51 33 Phone number +44 171 531 60 74
- ----------------------------------- ------------------------------
+32 2 658 51 11 Fax number +44 171 531 60 73
- ----------------------------------- ------------------------------
+32 75 46 85 04 GSM number +32 75 97 43 56
- ----------------------------------- ------------------------------
[email protected] E-mail [email protected]
- ----------------------------------- ------------------------------
</TABLE>
7. SPECIAL CONDITIONS
This service contract and service contracts COL01 and COL02 form part of
the same agreement. A breach of any of these service contracts by a party
shall allow the other party to terminate all of these service contracts.
Payment under the service contract will vary upon implementation of
service contracts COL01 and COL02 respectively.
No credit under schedule 1 of the Framework Agreement (see below) are
applicable until the implementation of the full ring service.
Up to 28 days prior the implementation of this service contract, COLT may
propose an alternative ring configuration by written notice (provided the
minimum number of connection points is 3). HER will consider the renewed
configuration in good faith and notify COLT within 14 days of the
adjustment in timescales and pricing required to fulfil this request. If
COLT agrees to HER's response it shall confirm to HER within 7 days and
the Service Contract will be amended accordingly.
<PAGE> 38
[LOGO]
HERMES EUROPE RAILTEL SERVICE ORDER FORM
- --------------------------------------------------------------------------------
SERVICE ORDER ID COL03
---------
8. CUSTOMER DECLARATION & SIGNATURE
No contractual commitment under this Service Order will arise until the
Customer has provided written acceptance of the Committed Service Delivery
Date by signing below. The Customer accepts that the terms and conditions
of the Framework Agreement for the Provision of Transmission Services dated
24-11-97 between COLT Telecom Group plc and HER apply to this Service
Order.
<TABLE>
<S> <C>
Signed by a duly authorised representative Signed by a duly authorised representative
of the Customer of HER
Signature /s/ PAUL W. CHISHOLM Signature /s/ PETER MAGNUS
-------------------------------- --------------------------------
Name PAUL W. CHISHOLM Name Peter Magnus
-------------------------------- --------------------------------
Date 24-11-97 Date 24-11-97
-------------------------------- --------------------------------
</TABLE>
<PAGE> 39
CONFIDENTIAL TREATMENT
Schedule 3-1: SERVICE DESIGN FOR COLT RING SERVICE
LONDON-PARIS-FRANKFURT VERSION 1.0
- ---------------------------------------------------------------------------
1. TOPOLOGY
[MAP]
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##
2. CABLE ROUTING
Following characteristics are valid for the cable routing:
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##
Routes to Frankfurt: Complete cable diversity and diverse building
entry.
-1-
Limited distribution
<PAGE> 40
CONFIDENTIAL TREATMENT
Schedule 3-1: SERVICE DESIGN FOR COLT RING SERVICE
LONDON-PARIS-FRANKFURT VERSION 1.0
- ---------------------------------------------------------------------------
3. ARCHITECTURE
3.1 PHASE 1: STM-1/VC4 LONDON - PARIS
[MAP]
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##
3.2 PHASE IB AND 2: ADD STM-1/VC4 FRANKFURT - PARIS
[MAP]
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST
FOR CONFIDENTIAL TREATMENT ##
-2-
Limited distribution
<PAGE> 41
CONFIDENTIAL TREATMENT
SCHEDULE 3-1: SERVICE DESIGN FOR COLT RING SERVICE LONDON-PARIS-FRANKFURT
VERSION 1.0
- --------------------------------------------------------------------------------
3.3 PHASE 3: ADD STM-1/VC4 FRANKFURT-LONDON
>CREATE "RING" SERVICE LON-PAR-FRA
[MAP]
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT##
4. INTERFACES
All interfaces will be G.703 STM-1 electrical.
5. EPS
The HER ADMs will have 1:4 EPS protection of the STM-1 electrical
tributary cards.
6. DEMARCATION POINTS
The demarcation points (including connectors), are the commonly
agreed demarcation points in the HER POPs:
LON2: COLT DDF
PAR2: HER DDF
FRA2: Tbd
7. REMARKS
A more detailed design will be provided during the implementation
phase.
Optionally a full diversity could be created by using the two HER POPs
I each city. In this case care should be given to the choice of the
initial POPs to guarantee end-to-end diversity without having to
reconfigure the circuits.
-3-
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--------------------------
<PAGE> 42
SCHEDULE 3-1: SERVICE DESIGN FOR COLT RING SERVICE LONDON-PARIS-FRANKFURT
VERSION 1.0
- --------------------------------------------------------------------------------
-4-
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Limited distribution
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<PAGE> 1
EXHIBIT 10.17
Dated 3 April, 1998
(1) HERMES EUROPE RAILTEL (IRELAND) LIMITED
(2) AT&T-UNISOURCE COMMUNICATIONS
SERVICES v.o.f.
TRANSMISSION CAPACITY AGREEMENT
Final Version
DC200107
<PAGE> 2
CONTENTS
--------
<TABLE>
<S> <C> <C>
1. Scope and Term of the Agreement...........................................1
2. Transmission Capacity.....................................................2
3. Provision of Transmission Capacity........................................2
4. Obligations...............................................................2
5. Charges and Billing.......................................................3
6. Service Quality...........................................................4
7. Liability.................................................................5
8. Force Majeure.............................................................5
9. Suspension and Early Termination..........................................6
10. Information and Confidentiality...........................................7
11. Intellectual Property Rights..............................................8
12. Assignment................................................................9
13. Definition and Interpretation.............................................9
14. Entire Contract..........................................................10
15. Variation................................................................10
16. No Waiver................................................................10
17. No Partnership...........................................................10
18. Survival.................................................................10
19. Severability.............................................................10
20. Notices..................................................................11
21. Dispute Resolution and Governing Law.....................................12
SCHEDULE 1: SERVICE LEVEL GUARANTEES..........................................15
1. Delivery.................................................................15
2. Availability Guarantees..................................................16
SCHEDULE 2: SERVICE MANAGEMENT PROCESSES......................................17
SCHEDULE 3: CAPACITY ORDER FORMS (SAMPLE).....................................18
SCHEDULE 4: PRICING...........................................................19
PART I: INITIAL COMMITMENT....................................................19
PART II: PRICE REVIEW AND FURTHER ORDERING....................................20
</TABLE>
<PAGE> 3
TRANSMISSION CAPACITY AGREEMENT
This Agreement made this 3rd day of April 1998
BETWEEN:
HERMES EUROPE RAILTEL (IRELAND) LIMITED, a company incorporated with limited
liability under the laws of the Republic of Ireland with company number 276431
and whose registered office is 2 Harbourmaster Place, Custom House Dock,
Dublin 1, Ireland,
(hereinafter referred to as "HER");
and
AT&T-UNISOURCE COMMUNICATIONS SERVICES V.O.F., a general partnership,
incorporated under the laws of the Netherlands and having its registered office
at Spicalaan 1-59, 2123 JG Hoofddorp, the Netherlands,
(hereinafter referred to as "AT&T-Unisource"),
WHEREAS
A. HER leases Transmission Capacity to telecommunications operators and other
service providers as a "carriers' carrier";
B. AT&T-Unisource is a telecommunications operator desiring to procure such
capacity from HER;
NOW THEREFORE the parties hereto HAVE AGREED AS FOLLOWS:
1. SCOPE AND TERM OF THE AGREEMENT
1.1 HER agrees to lease Transmission Capacity to AT&T-Unisource, subject to
the terms and conditions set out below.
1.2 This Agreement shall enter into effect on execution by the Parties and
shall continue for a term of five (5) years except to the extent that it
is extended in accordance with Clause 1.3 for specific Capacity Orders,
and provided that it has not been terminated earlier in accordance with
Clause 9.
1.3 Transmission Capacity shall be provided pursuant to Capacity Orders agreed
between the Parties. Such Capacity Orders shall state the initial term for
which any Transmission Capacity shall be provided. On expiry of such
initial term in respect of any Transmission Capacity, such Transmission
Capacity shall continue to be provided in accordance with the terms of this
Agreement until terminated by either party giving to the other, thirty (30)
days prior written notice. If the term for which any Transmission Capacity
is to be provided, extends beyond that stated in Clause 1.2, the terms and
conditions of this Agreement shall continue in effect in relation to the
provision of such Transmission Capacity until the expiry of that term.
PAGE 1 of 23
<PAGE> 4
CONFIDENTIAL TREATMENT
TRANSMISSION CAPACITY AGREEMENT
2. TRANSMISSION CAPACITY
2.1 Transmission Capacity shall be available from HER in any of the service
formats described in the Services Catalogue, as published by HER from time
to time. A copy of the current Services Catalogue is attached hereto for
reference purposes only.
2.2 Transmission Capacity shall include, if mutually agreed between the
parties, Connections provided between HER PoPs and AT&T-Unisource PoPs if
specified in the relevant Capacity Orders.
3. PROVISION OF TRANSMISSION CAPACITY
3.1 Transmission Capacity shall be ordered in accordance with the provisioning
process described in Schedule 2. Customer will purchase at lease ##MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT##
Transmission Capacity under this Agreement in accordance with Schedule 4
(the "Initial Commitment") unless it is entitled to prematurely terminate
this Agreement under the conditions set out in Clause 9. Capacity Order
Forms must be used in the format as attached as Schedule 3 (the "Capacity
Order Form Sample") or such other format as HER shall provide to AT&T
Unisource from time to time provided that any new format does not
materially modify the terms of this Agreement.
3.2 For additional requirements beyond those set out in Schedule 4,
AT&T-Unisource and HER shall agree the Transmission Capacity to be provided
pursuant to a Capacity Order. Except to the extent expressly agreed
otherwise in the relevant Capacity Order, such Transmission Capacity shall
be provided on the terms and conditions of this Agreement.
3.3 HER is entitled to route AT&T-Unisource traffic through facilities
provided by a third party only in any of the following cases:
3.3.1 to connect AT&T-Unisource PoPs to HER, in which case HER shall
consult AT&T-Unisource prior to finalising its choice of local
access provider, as detailed in Schedule 2; or
3.3.2 in cases of emergency to maintain the agreed Service Level
Guarantees set out in Schedule 1. In the event that the exercise
of HER's rights in this Clause 3.3.2 result in a material adverse
change to the 'customer design' of a Circuit, HER shall restore
the original design as soon as the reason for the exercise of the
right has been resolved, unless the parties agree otherwise.
3.4 Nothing in this Agreement or any Capacity Order gives AT&T-Unisource any
right to exclusive possession of any part of the Network.
4. OBLIGATIONS
4.1 AT&T-Unisource agrees:
(a) to pay the agreed Charges set out in each relevant Capacity Order in
accordance with the provisions of Clause 5;
PAGE 2 of 23
<PAGE> 5
(b) to provide HER and, its sub-contractors with access to its PoPs and
any other premises, required to enable HER to carry out its
obligations under this Agreement.
(c) to comply with all relevant local, national and supranational laws in
each jurisdiction in which HER provides Transmission Capacity to
AT&T-Unisource.
4.2 HER AGREES
(a) to provide Transmission Capacity in accordance with this Agreement and
the Schedules forming part thereof;
(b) that HER will comply with all safety and security requirements
notified to HER when accessing AT&T-Unisource PoPs or other premises
in order to fulfill its obligations hereunder;
(c) to comply with all relevant local, national and supranational laws in
each jurisdiction in which it provides, either directly or through
sub-contractors, Transmission Capacity to AT&T-Unisource.
(d) not withstanding the other provisions of this Agreement that, the HER
backbone network will be designed to be used during and after the
calendar year 2000 A.D.
(e) not withstanding the other provisions of this Agreement that, prior to
31 December 1999, HER will use best endeavours to procure that the
access networks under this Agreement will be designed to be used
during and after the calendar year 2000 A.D.
5. CHARGES AND BILLING
5.1 Charges may include both a non-recurring element and a recurring element.
The Charges for the Initial Commitment are set out in Schedule 4. Charges
for Capacity Orders made after the Initial Commitment shall be agreed and
set out in the applicable Capacity Order.
5.2 Non-recurring Charges (where applicable) are due and payable within twenty
(20) working days of the Actual Delivery Date;
5.3 Recurring Charges shall be payable monthly in advance; the first payment of
recurring Charges is due and payable on date of acceptance of the relevant
circuit(s) as set out in Schedule 2; Subsequent payments of recurring
Charges are due and payable at calendar monthly intervals, on the first day
of the relevant month. Where in any calendar month the Transmission
Capacity is to be provided for a period less than a full calendar month,
the monthly recurring charges shall be pro-rated accordingly;
5.4 Charges are exclusive of VAT and other consumption taxes, unless otherwise
stated.
5.5 All payments are to be made net of charges and in the currency specified in
the Capacity Order and are to be made to Bank of Ireland or any bank of
similar standing, specified by
PAGE 3 OF 23
<PAGE> 6
HER. Any change in the specified bank will be communicated to
AT&T-Unisource no later than ten working days prior to the due date of the
next payment.
5.6 Where any payment is due and payable on a particular date, payment shall be
credited to HER's bank account by that date. Payment shall only be deemed
to have been made on the Value Date in respect of such payment.
5.7 If AT&T-Unisource fails to pay any Charges due within seven (7) working
days of the due date for payment, HER shall, without prejudice to any other
rights or remedies it might have, be entitled to charge AT&T-Unisource
interest on all sums due at the rate of 1.5% per month. Such interest shall
be charged from the date payment becomes due until the Value Date (both
before and after judgment) and shall accrue on a daily basis.
5.8 In the event that any Charges have not been paid in full to HER within 20
working days of their due date, AT&T-Unisource shall accrue no Credits
under Clause 6.3 in any month in which such charges remain outstanding. For
the avoidance of doubt, subsequent payment of overdue Charges shall not
entitle AT&T-Unisource to Credits which would otherwise have been due to
it.
5.9 If AT&T-Unisource should terminate a Capacity Order prior to the end of the
initial term specified therein for reasons other than set out in Clause 9,
AT&T-Unisource shall pay HER in addition to any outstanding Charges, a
cancellation charge equal to twenty five per cent (25%) of the Charges
which would have been payable on that Capacity Order had it run its full
term.
5.10 HER and AT&T-Unisource shall review the Charges in accordance with the
principles set out in Schedule 4.
6. SERVICE QUALITY
6.1 Transmission Capacity shall be provided in accordance with Schedule 1 (the
"Service Level Guarantees"). Both parties shall use best endeavours to
comply with the provisions of Schedule 2.
6.2 HER may from time to time vary the technical parameters applicable to the
provision of Transmission Capacity (or any service format), whether
specified in Schedule 2 or otherwise, so long as quality of service as set
out in Schedule 1 and the charges therefor are not adversely affected.
6.3 If a Circuit fails to meet the Service Level Guarantees set out in Schedule
1, during any billing month, subject to Clause 6.4, AT&T-Unisource shall be
eligible for Credits against the Charges otherwise payable in respect of
the relevant Circuit, as set out in Schedule 1.
6.4 In accordance with Clause 6.3, AT&T-Unisource is entitled to Credits for
late delivery of Transmission Capacity, as set out in Schedule 1, provided
that, in the event that AT&T-Unisource cancels a Capacity Order under
Clause 9.7.1, no Credits shall be payable in respect of that Capacity
Order.
PAGE 4 OF 23
<PAGE> 7
TRANSMISSION CAPACITY AGREEMENT
6.5 In no event shall the total Credits payable under Clause 6.3 in respect of
any Circuit exceed, in any given month, the monthly Charges payable in
respect of that Circuit.
6.6 HER shall issue a Credit note for any Credits to which AT&T-Unisource is
eligible within 20 working days following the month in which the Credit
arose. Except as stated in Clause 6.4, any Credits outstanding at the
expiry or earlier termination of the Term of a Capacity Order shall be
paid to AT&T-Unisource within 20 working days of demand.
6.7 The Credits provided for in this Clause shall not apply to the extent that
deviation from the Service Levels Guarantees is due to:
(a) an event of Force Majeure
(b) for reasons attributable to AT&T-Unisource, an act or omission of
AT&T-Unisource, whether or not such act or omission constitutes a
breach of this Agreement, including, in the case of failure to comply
with a delivery date, AT&T-Unisource's failure to cooperate in the
timely completion of Acceptance Tests, or AT&T-Unisource's inability to
accept service.
6.8 Except in the case of Persistent Service Failures, AT&T-Unisource's only
remedies for deviation from the service levels as set out in Schedule 1 by
HER or for failure by HER to meet a delivery date are the Credits provided
for in this Clause.
6.9 HER shall have the right from time to time to modify, extend, repair or
replace any part of the Network, provided that, after completion of the
work such modification or replacement does not materially impair the
provision of Transmission Capacity to AT&T-Unisource. The process for
carrying out service affecting works is set out in the Schedule 2.
7. LIABILITY
7.1 In the event of 'direct damages' (that is, damages other than those
excluded by Clause 7.3 below), death and personal injury HER shall not be
liable for an amount greater than ECU 100,000 per Circuit affected in
respect of any single incident or series of related incidents, subject to
a maximum of ECU 500,000 for all incidents in any twelve month period.
7.2 Notwithstanding Clause 7.1, HER's liability to the extent that it results
from the gross negligence or wilful misconduct of HER's managerial
personnel, shall be limited to a maximum amount of ECU 2,000,000 for all
incidents in any twelve month period.
7.3 Neither party shall be liable to the other for any indirect or
consequential loss or damage. For these purposes, "indirect or
consequential loss or damage" includes, but is not limited to, loss of
revenue, profit, anticipated savings, business or goodwill, loss or
corruption or destruction of data.
8. FORCE MAJEURE
PAGE 5 OF 23
<PAGE> 8
8.1 Subject to Clauses 8.2 and 8.3, neither party shall be held liable by the
other for failure in performing any of its obligations under this Agreement
or a Capacity Order is such failure is caused by or arises as a result of
an event of Force Majeure.
8.2 The affected party shall promptly notify the other party in writing of the
occurrence of an event of Force Majeure and the estimated extent and
duration of its inability to perform its obligations.
8.3 Upon the cessation of the event of Force Majeure, the affected party shall
promptly notify the other party in writing of such cessation and shall
resume performance of its obligations.
8.4 Both parties shall use reasonable endeavours to minimise the effects of an
event of Force Majeure.
9. SUSPENSION AND EARLY TERMINATION
9.1 If a party (referred to herein as the "defaulting party") commits any
material breach of this Agreement which, in the case of a breach capable of
remedy, shall not have been remedied within ten (10) days of a written
request to do so being received from the other party, then the other party
may terminate this Agreement and any relevant Capacity Orders immediately
be giving the defaulting party notice in writing to that effect.
9.2 If a party (referred to herein as the "affected party") has ceased to
perform its obligations under a Capacity Order as a result of an event of
Force Majeure for a period longer than thirty (30) days, the other party
may terminate the relevant Capacity Order immediately by giving the
affected party notice in writing to that effect.
9.3 Either party may terminate this Agreement and any Capacity Orders placed
hereunder immediately upon giving notice in writing to the other party in
the event that the other party becomes bankrupt or insolvent; has sought
protection from its creditors under any statue or legal process; has
suffered or permitted a trustee, liquidator, receiver, receiver-manager or
similar custodian to be appointed or to take possession of its property or
assets; has voluntarily or involuntarily commenced proceedings for
dissolution, liquidation or winding up; or has ceased to carry on business
in the ordinary course.
9.4 On termination of this Agreement and/or any Capacity Order under this
Clause 9, HER may require AT&T-Unisource to disconnect all or any customer
facilities from the Network. If the termination occurs as a result of an
act or omission of AT&T-Unisource, HER may carry out at AT&T-Unisource's
own expense all remedial work necessary to restore the Network and PoPs to
full working order, to remove cables and apparatus from HER lands or
premises and to make good any damage caused by so doing.
9.5 HER shall notify AT&T-Unisource if, in HER's reasonable judgement,
AT&T-Unisource is damaging or disrupting the Network and require
AT&T-Unisource to immediately rectify the situation. If AT&T-Unisource
does not immediately rectify the situation, HER reserves the right to
suspend the provision of those services affected, and/or to disconnect the
relevant AT&T-Unisource facilities from the Network. HER shall reconnect
the AT&T-Unisource facilities as soon as AT&T-Unisource has established to
HER's reasonable satisfaction that the cause or potential cause of the
damage or disruption has been rectified
PAGE 6 OF 23
<PAGE> 9
TRANSMISSION CAPACITY AGREEMENT
and the risk removed.
9.6 If either party is at any time in violation of its obligations set out in
Clauses 4.1(a), 4.1(c), and/or 4.2(c), respectively, the other party may
suspend the performance of its obligations hereunder forthwith upon
written notice to the party in violation of its obligations without
prejudice to its rights under this Agreement and any relevant Capacity
Orders, including its rights to payment. Notwithstanding any other
provision of this Agreement, neither party shall have liability towards
the other for any loss or damages the party in violation suffers as a
consequence of such suspension.
9.7 If the provision of Transmission Capacity in respect of any Circuit is:
9.7.1 delayed beyond the Committed Delivery Time excess period set
out in Schedule 1, paragraph 1,2; or
9.7.2 subject to Persistent Service Failure;
AT&T-Unisource shall have the right to terminate the relevant Capacity
Order immediately, without incurring a cancellation charge or other
penalty, by giving HER notice in writing to that effect.
10. INFORMATION AND CONFIDENTIALITY
10.1 Each party shall promptly supply to the other such information and
assistance which the other may reasonably request to enable it to perform
its obligations under this Agreement. Each party shall ensure that
information provided to the other party in accordance or in connection with
this Agreement is correct to the best of its knowledge at the time it is
provided.
10.2 Each party shall keep in confidence all Confidential Information and will
not (and will use its reasonable endeavours to ensure that its directors,
employees, officers, servants, agents, Associates, sub-contractors and
professional advisers will not) disclose such information to any third
party other than in accordance with this Agreement. Each party shall
exercise no lesser degree of care in relation to Confidential Information
than it would apply to its own confidential information.
10.3 The following disclosures shall not constitute a breach of Clause 10.2:
(a) a disclosure authorised in writing;
(b) publication of Confidential Information in accordance with a statutory
or other regulatory requirement or pursuant to an order of a court
having jurisdiction or tribunal;
(c) a disclosure made to any regulator or any expert or arbitrator
appointed in accordance with the provisions of this Agreement to the
extent that such disclosure is a legal requirement; or
(d) a disclosure made to a financial institutions, a lender of funds or a
financial advisor where such disclosure is required as part of an
arrangement for the financing or refinancing of such party; or
PAGE 7 OF 23
<PAGE> 10
TRANSMISSION CAPACITY AGREEMENT
(e) a disclosure to Associates of the party provided that any third party
which receives Confidential Information pursuant to this provision has
agreed to be bound by the restrictions contained in Clauses 10.2,
10.3 (a)-(e) and 10.4 (a)-(e) in the same manner as if it were a party
to this Agreement.
10.4 The provisions of Clause 10.2 do not apply to any Confidential Information
which:
(a) enters into the public domain other than by a breach of this
Agreement;
(b) is known to the party to which it is disclosed prior to its
disclosure;
(c) is independently generated, developed or discovered at any time by or
for the party to which it is disclosed;
(d) is disclosed by a third a party without any restriction on further
disclosure; or
(e) is necessary for the purposes of permitting a party to perform its
obligations under this Agreement or a Capacity Order provided that
any third party which receives Confidential Information pursuant to
this provision has agreed to be bound by the restrictions contained
in Clauses 10.2, 10.3 and 10.4 (a)-(e) in the same manner as if it
were a party to this Agreement.
10.5 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 or a Capacity Order.
10.6 The obligations of confidentiality in this Clause 11 shall continue for
five (5) years following the termination of this Agreement.
10.7 Should HER wish to publicise the existence of this Agreement for the
purpose of its marketing activities, it shall seek AT&T-Unisource's prior
written approval for the content and format of such publicity, which
consent shall not unreasonably be withheld. Subject to the foregoing,
neither party shall make any press announcements concerning this Agreement
or Capacity Order or publicise this Agreement or Capacity Order in any way
without the prior written consent of the other party.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Nothing in this Agreement or a Capacity Order shall be construed as
conferring any license to intellectual property or as an assignment of the
intellectual property rights of one party to the other party.
11.2 AT&T Unisource shall indemnify and save HER harmless from any loss,
damage, liability or expense incurred by HER arising out of any
infringement of the intellectual property rights of third parties related
to AT&T-Unisource's use of the Network or of the services provided by HER
pursuant to this Agreement.
11.3 HER shall indemnify and save AT&T-Unisource harmless from any loss,
damage, liability or expense incurred by AT&T-Unisource arising out of any
infringement of the intellectual property rights of third parties by HER
related to HER's operation of the Network or the provision of services to
AT&T-Unisource pursuant to this Agreement.
PAGE 8 OF 23
<PAGE> 11
12. ASSIGNMENT
12.1 This Agreement is personal to the parties hereto and neither party shall
without the prior written consent of the other assign, charge or otherwise
deal with the whole or any part of this Agreement or any Transmission
Capacity provided hereunder or its rights or obligations under this
Agreement, provided that such consent shall not be unreasonably withheld or
delayed in the case of an assignment to a Group Company.
12.2 In the event of an assignment under Clause 12.1, the assignor shall provide
at least fourteen (14) days prior written notice of such assignment to the
other party and the assignee shall enter into an agreement with the other
party whereby the assignee shall agree to be bound by the terms of this
Agreement or the relevant Capacity Order, as appropriate, and if required
by the other party the assignor shall guarantee the performance of this
Agreement or the relevant Capacity Order, as appropriate, by the assignee.
12.3 Notwithstanding Clause 12.1, HER may assign this Agreement to a Group
Company without the consent of AT&T-Unisource, or to a lender as security
for the repayment of loans by HER or a Group Company of HER, but in the
case of such an Assignment HER shall remain liable for performance of the
terms of this Agreement and the relevant Capacity Order.
13. DEFINITION AND INTERPRETATION
13.1 In this Agreement, words and expressions shall have the meanings ascribed
to them in Appendix A.
13.2 All documentation exchanged between the parties pursuant to this Agreement
shall be in English.
13.3 The following documents form part of this Agreement, and any
inconsistencies between them shall be resolved in the following,
decreasing, order of precedence,:
(a) the express terms of any Capacity Orders agreed under this Agreement;
(b) the main body of this Agreement and Appendix A;
(c) Schedule 1;
(d) Schedules 2, 3 and 4.
13.4 References in this Agreement to HER and AT&T-Unisource shall include their
respective employees, agents, successors (whether by operation of law or
otherwise) and permitted assigns.
13.5 Headings are included in this Agreement for ease of reference only and
shall not affect the interpretation or construction of this Agreement.
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TRANSMISSION CAPACITY AGREEMENT
14. ENTIRE CONTRACT
This Agreement and the Capacity Orders pursuant hereto represent the entire
understanding between the parties in relation to the leasing of
Transmission Capacity and supersedes all prior agreements and
representations, whether oral or in writing.
15. VARIATION
No variation, modification or addition to or cancellation of any provision
of this Agreement or any Capacity Order shall be effective unless agreed
in writing by a duly authorised representative of HER and AT&T-Unisource.
16. NO WAIVER
16.1 Failure by either party at any time to enforce any of the provisions of
this Agreement or any Capacity order shall neither be construed as a
waiver of any rights or remedies hereunder nor in any way affect the
validity of this Agreement or the Capacity Order or any part of them, and
no waiver of a breach of this Agreement or the Capacity Order shall
constitute a waiver of any subsequent breach.
16.2 Termination of this Agreement or a Capacity Order shall not operate as a
waiver of any breach by a party of any of the provisions thereof and shall
be without prejudice to any rights or remedies of either party which may
arise as a consequence of such breach or which may have accrued hereunder
up to the date of such termination.
16.3 No waiver of a breach of this Agreement or a Capacity Order shall be
effective unless given in writing.
17. NO PARTNERSHIP
Nothing in this Agreement or any Capacity Order shall be deemed to
constitute a partnership or joint venture between the parties or to
constitute one party the agent of the other for any purpose whatsoever.
18. SURVIVAL
Notwithstanding anything in Clause 1.2, the provisions of this Clause and
Clauses 6.5, 7, 8, 9.4, 9.6, 10.6, 19, 20 and 21 shall survive termination
of this Agreement.
19. SEVERABILITY
19.1 The invalidity or unenforceability for any reason of any part of this
Agreement shall not prejudice or affect the validity or enforceability of
the remainder of this Agreement.
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TRANSMISSION CAPACITY AGREEMENT
19.2 If further lawful performance of this Agreement or any Capacity Order or
any part of them shall be made impossible by the final judgement or final
order of any court having jurisdiction, commission or government agency or
similar authority having jurisdiction over either party, the parties shall
forthwith use their best endeavours to agree amendments to this Agreement
or the relevant Capacity Order so as to comply with such judgement or order
and resume performance.
20. NOTICES
20.1 Except in cases where Schedule 2 makes express provision otherwise, any
notice given under this Agreement shall be in writing and sent or
delivered:
in the case of AT&T-Unisource, to:
Spicalaan 1-59,
2123 JG Hoofddorp
the Netherlands,
Attn: Director, Network Transmission and Supplier Management
With a courtesy copy to General Counsel at the same address
or, in the case of HER, to:
Hermes Europe Railtel (Ireland) Limited
2 Harbourmaster Place
Custom House Dock
Dublin 1
Ireland
Attn: Managing Director
WITH A COPY TO:
Hermes Europe Railtel
Terhulpsesteenweg 6A
1560 Hoeilaart
Belgium
Attn: Managing Director
20.2 Any notice or communication shall be deemed to have been received:
o if sent by facsimile transmission, when sent;
o if delivered by hand (including courier) when delivered;
o if sent by air mail (where appropriate), five (5) working days after
posting; or
o if sent by ordinary first class mail (where the recipient is within
the same jurisdiction as the sender), two (2) working days after
posting.
PAGE 11 OF 23
<PAGE> 14
TRANSMISSION CAPACITY AGREEMENT
In proving posting it shall be sufficient to show that the envelope
containing such notice or communication was properly addressed, stamped and
posted.
20.3 Either party may amend its address and facsimile number specified in Clause
20.1 by written notice to the other party.
21. DISPUTE RESOLUTION AND GOVERNING LAW
21.1 Any dispute, controversy or claim arising under, out of or relating to this
Agreement, including any questions regarding its existence, or termination
shall first be referred for resolution in accordance with the escalation
procedure set out in the Schedule 2.
21.2 This Agreement shall be governed by and construed in accordance with Dutch
law.
21.3 The parties hereby submit to the non-exclusive jurisdiction of the Dutch
Courts and waive any objection to proceedings in such courts on the
grounds of venue or on the grounds that proceedings have been brought in an
inconvenient forum.
SIGNED in twofold by a duly authorised representative:
/s/ [ILLEGIBLE] for and on behalf of
--------------------------------- HERMES EUROPE RAILTEL
) (IRELAND) LIMITED
)
)
)
---------------------------------
/s/ [ILLEGIBLE] for and on behalf of
--------------------------------- AT&T-UNISOURCE
COMMUNICATIONS
SERVICES V.O.F.
)
)
)
)
)
---------------------------------
Chief Operations Officer
/s/ [ILLEGIBLE] for and on behalf of
--------------------------------- AT&T-UNISOURCE
) COMMUNICATIONS
) SERVICES V.O.F.
)
)
Chief Financial Officer
PAGE 12 OF 23
<PAGE> 15
APPENDIX A
In this Agreement, including the Schedules, words and expressions shall have the
meanings ascribed to them below;
"Actual Delivery Date" as defined in Schedule 2.
"AT&T-Unisource Points nodes on AT&T-Unisource's network which
of Presence or PoPs are designated as Termination Points.
"Capacity Order" the terms for the leasing of Transmission
Capacity as agreed between the parties
and recorded in a Capacity Order Form
signed by both Parties.
"Charges" the Charges set out in each Capacity Order.
"Circuit" a transmission path between two Termination
Points.
"Confidential Information" all information, of any nature, provided by
one party to the other in connection with
this Agreement save for information which
the originating party has expressly
identified as being non-confidential.
"Connections" the connections between AT&T-Unisource
PoPs and the Network which AT&T-Unisource
asks HER to provide pursuant to this
Agreement.
"Credits" the credits against Charges calculate in
accordance with Schedule 1.
"Force Majeure" any cause beyond a party's reasonable
control affecting its performance of its
obligations hereunder either affecting the
party itself or a subcontractor used for
the performance of its obligations
including but not limited to acts of God,
insurrection or civil disorder, war or
military operations, national or local
emergency, acts or omissions of Government
or regulatory authority, industrial
disputes of any kind (not involving that
party's employees), fire, flood, lightning,
explosion, subsidence, inclement weather,
interruptions to the provision of
electricity, acts or omissions of persons
or bodies for whom the affected party is
not responsible
"Group" an economic unit in which legal persons are
partnerships are united in one
organisation, as defined in section 2:24b
of the Dutch Civil Code (1992).
"Group Company" a legal person or partnership which is
united with one or more other legal persons
or partnerships in a group as defined in
section 2:24b of the Dutch Civil Code
(1992).
"HER Points of Presence"
or "PoPs" nodes on the Network which are so
designated by HER.
PAGE 13 OF 23
<PAGE> 16
"Network" the Hermes Europe Railtel TransEuropean SDH
Network operated by Hermes Europe Railtel
B.V.
"Persistent Service Failure" a failure to perform in accordance with the
Service Level Guarantees for three months
in any Calendar year.
"Service Level Guarantees" quality of service levels for the provision
of Transmission Capacity as defined in
Schedule 1.
"Services Catalogue" the document describing the service formats
in which Transmission Capacity is
available from HER as published by HER from
time to time.
"Termination Points" termination points, being either HER or
AT&T-Unisource PoPs, identified in a
Capacity Order.
"Transmission Capacity" bandwidth in the formats described in the
Service Catalogue provided by HER between
Termination Points.
"Value Date" the date upon which the transfer of the
Charges is completed; that is, the Charges
appear as a credit on HER's bank account.
PAGE 14 OF 23
<PAGE> 17
TRANSMISSION CAPACITY AGREEMENT
SCHEDULE I
SERVICE LEVEL GUARANTEES
HER offers guarantees on the delivery and availability of Transmission Capacity
as set out below. Please refer to the "HER Services Catalogue" for a description
of the service formats in which HER provides Transmission Capacity.
1. DELIVERY
1.1 Delivery Guarantees
<TABLE>
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
Service Level Guarantee Credits Calculation if service level is
not met
- ---------------------------------------------------------------------------------------------
Delivery Date By Committed Delivery 5% of Monthly Circuit Charge per
- Integrated Service Date week or part of week delayed
- ---------------------------------------------------------------------------------------------
</TABLE>
The Committed Delivery Date is stated in each Capacity Order. HER is considered
to have met this date if on or before then HER has issued the "HER BIS Test
Report" to Customer as part of the hand over procedure (see Schedule 2). HER
shall be entitled to revise the Committed Delivery Date after it has provided a
signed Capacity Order to the Customer if:
1. AT&T-Unisource does not sign and return the Capacity Order within 3 days;
2. HER is unable to access AT&T-Unisource PoP in a timely manner during either
installation or BIS testing processes.
If HER has problems accessing AT&T-Unisource PoPs HER will notify AT&T-Unisource
in accordance with the procedure set out in Schedule 2.
For the avoidance of doubt if BIS testing performed by AT&T-Unisource is
unsuccessful, and this is verified as a problem caused by HER, then the Actual
Delivery Date will be revised accordingly.
1.2 Cancellation rights
If HER is excessively late in providing the Transmission Capacity,
AT&T-Unisource is entitled to cancel the Capacity Order, in lieu of Credits but
without any cancellation charge applying. The timescales are:
1. Integrated Service - 4 weeks from Committed Delivery Date;
PAGE 15 OF 23
<PAGE> 18
TRANSMISSION CAPACITY AGREEMENT
2. AVAILABILITY GUARANTEES
2.1 Standard
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Service Level Guarantee Credits Calculation if service level is
not met
- --------------------------------------------------------------------------------
<S> <C> <C>
Availability 99.9-99.5 10% of monthly circuit Charges
(monthly) Below 99.5 - 99.0 20% of monthly circuit Charges
Below 99.0 - 97.5 40% of monthly circuit Charges
Below 97.5 100% of monthly circuit Charges
- --------------------------------------------------------------------------------
</TABLE>
Availability is calculated on a monthly basis as follows:
<TABLE>
<S> <C>
(Total time - Sum of all events of unavailable time as agreed during fault clearance) = 100
- --------------------------------------------------------------------------------------------
Total time.
</TABLE>
Per event, unavailable time begins at time of AT&T-Unisource problem reporting,
or HER problem detection, whichever is earlier. Unavailable time ends as agreed
between HER and AT&T-Unisource during fault clearance; this is documented in the
"Fault Clearance Report". (see Schedule 2) Unavailable time is measured between
HER demarcation of responsibility points as defined on Capacity Order. Outages
prolonged by inability to access AT&T-Unisource PoP are excluded.
Months are calendar months. Therefore, for the avoidance of doubt, the amount of
unavailable time, during a 30-day calendar month, before Credits are due is 43.2
minutes.
Where a circuit is partially unavailable (e.g. one VC-12 path is affected on a
34 Mb/s service), the credit calculation is pro-rated according to the
percentage bandwidth affected.
Effect of planned works on unavailability measurements
Planned works within the following criteria are excluded from availability
calculations:
Up to 2 instances of planned works per month each with a maximum duration of 2
hours. Planned works must be scheduled with at least 15 days notice to qualify
under these criteria. Subject to its other customer commitments HER will use
reasonable endeavours to carry out planned works within the preferred down-time
windows notified to HER by AT&T-Unisource. If agreement cannot be reached, HER
will decide the time and date at its discretion, but with the objective to
minimise AT&T-Unisource inconvenience.
Unless otherwise agreed by AT&T-Unisource, failure to meet the above criteria
will be included in the monthly service availability calculations. That is,
where planned works exceed their scheduled time or maximum time, the excess time
is considered as unavailable time. Where planned works are scheduled with less
than 15 days notice, or if there have been 2 prior planned works in the same
month, the actual planned works duration is considered as unavailable time.
PAGE 16 OF 23
<PAGE> 19
TRANSMISSION CAPACITY AGREEMENT
SCHEDULE 2
SERVICE MANAGEMENT PROCESSES
At the time of signature of the Agreement, the Service Management Process is
being finalised between the parties. Both parties undertake to negotiate the
Service Management Process in good faith and intend to incorporate it into this
Agreement within one month of the date hereof.
PAGE 17 OF 23
<PAGE> 20
TRANSMISSION CAPACITY AGREEMENT
SCHEDULE 3
CAPACITY ORDER FORMS (SAMPLE)
PAGE 18 OF 23
<PAGE> 21
CONFIDENTIAL TREATMENT
[HERMES EUROPE RAILTEL LOGO] CAPACITY ORDER FORM
- --------------------------------------------------------------------------------
Capacity Order ID
------
1. SERVICE TYPE
Point-to-point service SERVICE LEVEL
Integrated [ ] Premium [ ]
Backbone [ ] Standard [ ]
2. CAPACITY CONFIGURATION
<TABLE>
<CAPTION>
Bandwidth 'A' end configuration 'B' end configuration Framing
--------- --------------------- --------------------- -------
<S> <C> <C> <C>
2 [ ] Interface & Connector Interface & Connnector Framed [ ]
--------------------- ----------------------
34 [ ] Unframed [ ]
--------------------- ----------------------
45 [ ]
140 [ }
</TABLE>
Details of the service formats under which Transmission Capacity is provided are
documented in the "HER Services catalogue". If required, additional detail will
be annexed to this Capacity Order as "Customer Design".
3. CUSTOMER DELIVERY
Requested Delivery Date
----------
HER Committed Delivery Date
----------
<TABLE>
<CAPTION>
Termination details 'A' end Termination details 'B' end
- ----------------------------- ----------------------------
<S> <C> <C>
Pt. of demarcation
- ----------------------------- ------------------------------
Address
- ----------------------------- ------------------------------
- ----------------------------- ------------------------------
- ----------------------------- ------------------------------
Floor & room number
- ----------------------------- ------------------------------
Postcode & City
- ----------------------------- ------------------------------
Country
- ----------------------------- ------------------------------
Contact Person
- ----------------------------- ------------------------------
Phone number
- ----------------------------- ------------------------------
Fax number
- ----------------------------- ------------------------------
E-mail
- ----------------------------- ------------------------------
</TABLE>
4. PAYMENT TERMS
<TABLE>
<CAPTION>
Non-Recurring Charge Recurring Charge Billing period Initial Term Currency VAT rate
-------------------- ---------------- -------------- ------------ -------- --------
<S> <C> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------
</TABLE>
The charges quoted do not include VAT.
- -------------------
<PAGE> 22
[HERMES EUROPE RAILTEL LOGO] CAPACITY ORDER FORM
- --------------------------------------------------------------------------------
Capacity Order ID
--------------
<TABLE>
<CAPTION>
5. CUSTOMER CONTACTS AND INFORMATION
Commercial Billing
---------- -------
<S> <C> <C>
Company name
- ----------------------------------- ------------------------------
Address
- ----------------------------------- ------------------------------
- ----------------------------------- ------------------------------
- ----------------------------------- ------------------------------
Postcode & City
- ----------------------------------- ------------------------------
Country
- ----------------------------------- ------------------------------
Contact Person
- ----------------------------------- ------------------------------
Phone number
- ----------------------------------- ------------------------------
Fax number
- ----------------------------------- ------------------------------
E-mail
- ----------------------------------- ------------------------------
VAT number
------------------------------
6. HER CONTACTS
Commercial Delivery of Capacity
---------- --------------------
Contact Person
- ----------------------------------- ------------------------------
Phone number
- ----------------------------------- ------------------------------
Fax number
- ----------------------------------- ------------------------------
GSM
- ----------------------------------- ------------------------------
E-mail
- ----------------------------------- ------------------------------
7. SPECIAL CONDITIONS
8. CUSTOMER DECLARATION & SIGNATURE
No contractual commitment under this Capacity Order will arise until the Customer has provided written acceptance of the
Committed Delivery Date by signing below. The Customer accepts the terms and conditions attached to this Capacity Order.
Signed by a duly authorised representative of * Signed by a duly authorised representative of
Hermes Europe Railtel (Ireland) Ltd.
Signature Signature
----------------------------------- --------------------------------------
Name Name Gerard Caccappolo
----------------------------------- --------------------------------------
Position Position General Manager
----------------------------------- --------------------------------------
Date Date
----------------------------------- --------------------------------------
</TABLE>
- ----------------------------
* please insert full legal name of company
<PAGE> 23
CONFIDENTIAL TREATMENT
TRANSMISSION CAPACITY AGREEMENT
SCHEDULE 4
PART I: INITIAL COMMITMENT
AT&T-Unisource agrees to lease ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT## of Transmission Capacity on the following
terms:
1. The Transmission Capacity will be leased between the AT&T-Unisource
Points of Presence between any of the following cities: London, Amsterdam,
Frankfurt (From 20 April, 1998 only) Brussels and Paris. AT&T-Unisource and
HER are developing a detailed migration list for the ordering of the
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT##. Notwithstanding this, AT&T-Unisource undertakes to order the
E1's from HER as follows:
o ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## will be ordered no later than June 1998 for
requested delivery no later than 1 September 1998
o ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## will be ordered no later than October 1998
for requested delivery no later than 1 December 1998
2. Each E1 will be leased for a term of three years from its Actual Delivery
Date.
3. A price of ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## per E1 (or E1 equivalent i.e. an E3 may be
purchased at ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## price) subject to review under paragraph 4 below.
4. The prices will be reviewed on 1 October 1999, and annually thereafter, in
accordance with Schedule 4 Part II. E1s forming part of this initial
commitment that have a requested delivery date falling after 1 September
1998 will not be reviewed on 1 October 1999 but will form part of the
future reviews.
5. Non-recurring installation charges for the ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## of
Transmission Capacity will be ##MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT## in total, payable on 1 April 1998
regardless of when these E1 circuits are to be installed by HER
6. A 1 month free of charge test period will be granted to AT&T-Unisource
after delivery of each of the ##MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT## equivalents forming part of this
initial commitment;
7. Notwithstanding Clause 5 of the main body of this Agreement, this first
year's Charges will be payable as follows:
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT##
Irrespective of when the Capacity Orders are placed.
For each E1 equivalent, charging on a monthly basis, in accordance with
Clause 5 of the main body of the Agreement shall commence, thirteen months
from the Actual Delivery Date of that E1 equivalent.
8. For tracking/administrative purposes, notwithstanding that the ##MATERIAL
OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT##
initial commitment is ordered by AT&T-Unisource under the terms hereof,
AT&T-Unisource undertakes to issue Capacity Orders for each of the E1s
forming part of the initial commitment. The Capacity Orders will be issued
by AT&T-Unisource as soon as possible but in any case, prior to the
Committed Delivery Dates.
PAGE 19 OF 23
<PAGE> 24
CONFIDENTIAL TREATMENT
PART II - PRICE REVIEW AND FURTHER ORDERING
1. Definitions of this Part
<TABLE>
- --------------------------------------------------------------------------------
<S> <C>
"Annual Value" The total Annual Value of Transmission Capacity leased by
Customer under Capacity Orders measured in kECUs of annual
expenditure.
- --------------------------------------------------------------------------------
"Competitor's An individual competitor's average prices for similar
Applicable services on the same routes as those which CUSTOMER has
Charges" under contract with HER at the time of review.
- --------------------------------------------------------------------------------
"HER Applicable The cost of Transmission Capacity between defined
Charges" Termination Points based on the average Charges for the
Capacity determined in accordance with the Table of Charges.
The average Charges are the Charges due when dividing the
Annual Value by 2.
- --------------------------------------------------------------------------------
"Table of The Table of Charges in section 1.2 below.
Charges"
- --------------------------------------------------------------------------------
"Thresholds" The applicable amount of the Annual Value of Capacity
Orders from time to time as calculated by HER.
- --------------------------------------------------------------------------------
</TABLE>
2. Table of Charges
2.1 Non-recurring Charges:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Presentation at Non-recurring
Customer POP Charge (kECU)
<S> <C>
G.703 @ 2 Mb/s ##MATERIAL OMITTED AND SEPARATELY FILED
G.703 @ 34 Mb/s UNDER A REQUEST FOR CONFIDENTIAL TREATMENT ##
G.703 @45 Mb/s
STM-1
- -------------------------------------------------------------------------------
</TABLE>
If there is available capacity from a previously implemented connection (ie.
STM-1 with only 1 VC-3 in use), then no non-recurring Charge will apply to
Capacity Orders that use this available capacity.
PAGE 20 OF 23
<PAGE> 25
CONFIDENTIAL TREATMENT
TRANSMISSION CAPACITY AGREEMENT
2.2 RECURRING CHARGES
The recurring Charge for Standard service level for Point-to-point transmission
capacity (Integrated Service) for ##MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT## is calculated using the following table
(all prices are in kECU/yr., excluding VAT):
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Annual Value E1 E1 E1 E3 E3 E3 VC3 VC3 VC3 VC4 VC4 VC4
(kECU/yr.) Zone 1 Zone 2 Zone 3 Zone 1 Zone 2 Zone 3 Zone 1 Zone 2 Zone 3 Zone 1 Zone 1 Zone 3
- ------------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------
</TABLE>
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT##
The following conditions apply when using this table:
a) To calculate the Charges for a new Capacity Order, HER shall establish the
Annual Value under contract at the time of Capacity ordering and apply the
Charges according to the relevant threshold.
b) If the Annual Value is on the cusp of Thresholds (e.g. exactly 10000) the
higher threshold is deemed to apply.
c) The Charges shown apply to incremental Transmission Capacity contracted
for once the Thresholds indicated have been reached; they are not overall
average prices.
d) In the event that multiple orders are placed at the same time HER
undertakes to calculate the Annual Value decreases, HER shall be entitled
to adjust the Charges of the remaining Capacity Orders in accordance with
the Table of Charges.
f) The Table of Charges applies to AUCS POPs within cities on the HER Rollout
Schedule. Other locations will be quoted separately.
3. Term Discount
Term discounts can be applied to each Capacity Order as per the following table:
<TABLE>
<S> <C>
Contract Discount
term percentage
(yrs)
##MATERIAL OMITTED AND ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER SEPARATELY FILED UNDER
A REQUEST FOR A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
</TABLE>
PAGE 21 OF 23
<PAGE> 26
CONFIDENTIAL TREATMENT
TRANSMISSION CAPACITY AGREEMENT
4. Capacity Definitions:
The Table of Charges is based on the following definitions:
<TABLE>
<CAPTION>
Capacity Bandwidth Presentation
(Mb/s)
<S> <C> <C>
El 2.048 G.703 @ 2 Mb/s
STM-1 / VC-12
E3 34 G.703 @ 34 Mb/s
VC-3 45 G.703 @ 45 Mb/s
STM-1 / VC-3
VC-4 140 STM-1 / VC-4
</TABLE>
5. Zoning Overview
Ring configurations will be provided upon request.
<TABLE>
<S><C>
AMS ANT BAR BER BRU COP DUS FRA GEN HAM LON LUX MAD MIL MUN PAR ROT STO STU ZUR
AMS
ANT
BAR ##MATERIAL OMITTED AND SEPARATELY
BER FILED UNDER A REQUEST FOR
BRU CONFIDENTIAL TREATMENT##
COP
DUS
FRA
GEN
HAM
LON
LUX
MAD
MIL
MUN
PAR
ROT
STO
STU
ZUR
</TABLE>
PAGE 22 OF 23
<PAGE> 27
CONFIDENTIAL TREATMENT
TRANSMISSION CAPACITY AGREEMENT
6. Review Of The Table Of Charges
a) HER undertakes to review the Charges set out in the Table of Charges, on
the date set out in Part 1 of this Schedule, and ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## thereafter,
at Customer request. After concluding the review the Table of Charges
shall be amended and applied to existing Capacity Orders with original
contract terms of 3 years or more, in accordance with the principles set
out in section 2.2 above.
b) If, after the review in a) above, AT&T-Unisource can demonstrate that the
HER Applicable Charges are more than ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## than a Competitor's
Applicable Charges then AT&T-Unisource shall be entitled to terminate the
applicable Capacity Order(s) with 30 days notice without penalty or
liability with respect to the Capacity Order(s) affected. If such
cancellation occurs, HER shall be entitled to adjust the Charges for
remaining Capacity Orders in accordance with section 2.2 above.
c) In the event of a dispute as to whether AT&T-Unisource has established
valid Competitor's Applicable Charges, either party may refer the matter to
an expert for resolution, in accordance with the following procedure:
i) The independent expert shall be agreed by the parties or, if the
parties do not find an agreement within 14 days, by the President of
the Rotterdam Chamber of Commerce;
ii) The expert shall accept written representations in English from both
parties;
iii) The expert shall render his opinion in English within two months of
being appointed, stating his reasons;
iv) The costs of the expert shall be borne equally between the parties;
v) The parties agree to be bound by the expert's opinion.
d) During the dispute resolution process, the Capacity Orders and the
obligations thereunder shall continue to exist and AT&T-Unisource shall
continue to pay the Charges established prior to the price review, Provided
That, if Charges are reduced as a result of the price review the reduction
shall apply retrospectively from the date of the price review and HER shall
issue a credit note accordingly.
PAGE 23 OF 23
<PAGE> 28
[LOGO]
HERMES EUROPE RAILTEL SERVICE CATALOGUE
Terhulpsesteenweg 6A
1560 Hoeilaart, Belgium
- --------------------------------------------------------------------------------
HERMES EUROPE RAILTEL (HER) IS THE PAN-EUROPEAN CARRIERS' CARRIER
HER is constructing and operating a fibre-optic network connecting major cities
in Europe. HER's objective is to become the leading pan-European provider of
high quality Trans-border managed capacity to telecommunications carriers. As
a single source for carriers requiring international transport services, our
promise is "Complexity Made Simple".
SERVICES TO WHERE YOU NEED THEM
We provide Trans-border clear bandwidth transmission services between any
customer-designated locations in all countries where HER operates. We achieve
this through the use of Access network providers who extend our service
offering to your location. Our services coverage is increasing as our network
is deployed (shaded areas indicate HER services availability):
1st Half '98
[MAP] The cities with HER node locations as
shown on the left are:
Amsterdam
Antwerp
Brussels
Dusseldorf
Frankfurt
Geneva
London
Munich
Paris
Rotterdam
Stuttgart
Zurich
End 1998
[MAP] The following cities will be added by
end 1998:
Barcelona
Berlin
Copenhagen
Gothenburg
Hamburg
Madrid
Milan
Stockholm
<PAGE> 29
[LOGO]
HERMES EUROPE RAILTEL SERVICE CATALOGUE
- --------------------------------------------------------------------------------
POINT-TO-POINT TRANSMISSION SERVICES
HER provides "Integrated" service as a superior alternative to International
Private Leased Circuits (IPLCs). IPLCs are formed by combining two or more
circuits generally without anyone being responsible for the end-to-end service
quality. There is also a limited range of bandwidths available, and
provisioning times are often very long.
"Integrated" service is an end-to-end service where HER is your sole contact
for all aspects of the service, and HER guarantees the end-to-end performance
of this circuit as shown in the diagram below:
Integrated Service
[CHART]
One-Stop Shop service is where HER customers prefer to contract with Access
providers directly. However, HER will again manage the service end-to-end,
providing customers with a single point of contact.
Bandwidth and interfacing combinations available to the Customer locations are:
<TABLE>
<CAPTION>
----------- ---------------------
Bandwidth Customer interfacing
----------- ---------------------
<S> <C>
1.984 Mb/s G.703 @ 2.048 Mb/s
2.048 Mb/s G.703 @ 2.048 Mb/s
V.35 @ 2.048 Mb/s
34 Mb/s G.703 @ 34 Mb/s
16*G.703 @ 2.048 Mb/s
45 Mb/s G.703(T3) @ 45 Mb/s
STM-1 / VC-3
140 Mb/s G.703 @ 140 Mb/s
STM-1 / VC-4
----------- ---------------------
</TABLE>
HER's services are offered under a tailored commercial arrangement that will be
price competitive no matter how large or small our customer requirement is. We
also offer a full range of options on contract term, payment plans, and
significant volume discounts. As a single supplier, customers can achieve
volume discounts not available in the current distributed IPLC market.
<PAGE> 30
[HERMES EUROPE RAILTEL LOGO] SERVICE CATALOGUE
- --------------------------------------------------------------------------------
VIRTUAL INFRASTRUCTURE SERVICE (VIS)
VIS is targeted at customers that require an international backbone network,
but are concerned about entering into long-term, inflexible commitments in
today's rapidly changing marketplace. It is a new network solution where
today's options are either a multitude of IPLCs or building one's own
infrastructure. VIS is a strategic supplier agreement offering commercial and
operational terms not available elsewhere.
VIS connect a set of customer locations with diversified, high capacity SDH
connections, but charges customers only for the actual bandwidth required.
[CHART]
This gives tremendous flexibility:
o rapid provisioning in that additional bandwidth can be provisioned in 24
hours. Capacity planning can be done with a "just-in-time" philosophy
thereby avoiding over and under-utilised channels.
o rearrangements at no cost can be effected remotely. Circuits can be moved
in the event that capacity requirements are reduced on a given route.
VIS implementation is co-ordinated by HER working with customers' operations
responsible, where VIS Access (connection of Customer location to the service)
and the initial set of VIS Bandwidth (actual bandwidth configured between
Customer locations) is agreed.
Standard design criteria for VIS Access include:
o diverse fibre entry at Customer location
o STM-1 interface to Customer equipment
o fully diverse routing
This is done separately for each Customer location. HER will then project manage
the delivery of VIS Access to each location to an agreed date.
Upon completion, customer is ready to order VIS Bandwidth between any Customer
locations connected to VIS. The combinations of VIS Access and VIS Bandwidth
that can be ordered and configured include:
[CHART]
<TABLE>
<CAPTION>
VIS Access VIS Bandwidth
- --------------- -------------
<S> <C>
STM-1 or higher n = VC-12
n = VC-3
VC-4
PDH combination
n*45 Mb/s n*45 Mb/s
n*34 Mb/s n*34 Mb/s
n*2 Mb/s n*2 Mb/s
</TABLE>
The commercial terms are simple: VIS Access comes with a non-recurring Charge,
and VIS Bandwidth has a fixed price per 2 Mb/s of bandwidth regardless of
routing, with a progressive volume discount scheme.
<PAGE> 31
[LOGO]
HERMES EUROPE RAILTEL SERVICE CATALOGUE
- --------------------------------------------------------------------------------
RING SERVICE
Customer leases one or multiple VC-4 rings of HER bandwidth, and a number of
Customer Access Points (CAP) from where the ring can be accessed.
[CHART]
Customer directly controls and manages the establishment of paths (VC-3, VC-12)
within a ring, and between rings. Any protection switching required must be
performed by the customer termination equipment, or at the application layer.
HER configures VC-4 point-to-point paths between CAPs. Each point-to-point VC-4
path is end-to-end physically diverse from other paths on the ring, but is not
configured with standby protection bandwidth. Additional Rings can be layered
on top of existing Rings, or new Rings can be created with different CAPs
connected.
The customer benefits from:
"VPN" functionality. Customer has direct control over the "SDH subnet" (i.e.
configuration of VC-3 and VC-12 paths) within the ring. Configuration changes
can be made directly, at any time, with no HER involvement.
Cost reduction. As HER is not required to configure "idle" protection
bandwidth, nor to manage lower order circuits, lower unit cost can be achieved.
Customer can optimise Ring usage depending on the volume and protection
requirements of individual applications.
Bandwidth and interfacing combinations available to Customer Access Points are:
<TABLE>
<CAPTION>
- ------------------------------------
Bandwidth Customer interfacing
- ------------------------------------
<S> <C>
n*VC-4 Mb/s n*STM-1
(electrical/optical)
- ------------------------------------
</TABLE>
Commercially, Ring Service can be a more attractive option for medium to large
capacity carrier backbones compared to leasing multiple point-to-point circuits.
An incremental discount scheme ensures that customers receive significant
volume benefits.
<PAGE> 32
[LOGO]
HERMES EUROPE RAILTEL SERVICE CATALOGUE
- --------------------------------------------------------------------------------
SERVICE QUALITY
HER clearly understands that international capacity is mission-critical to its
customers, and will demonstrate that this trust is well placed.
Availability is first priority
Service availability is guaranteed backed by credits in two ways:
o on-time service delivery
o monthly service availability of 99.9%
HER is confident that these parameters will be met due to a number of
preventive measures:
o a meshed network topology design where multiple routes exist between
endpoints
o standard service design that each individual circuit is configured with a
diversely routed standby protection circuit (except Ring Service)
o tight integration between the HER backbone network and those of its Access
network suppliers
o 24/7 NOC centrally monitoring and controlling a uniform SDH network
platform
o extensive security measures
An end-to-end managed service offering
HER will function as a true Single Point of Contact for all services aspects.
This can significantly reduce your international telecoms administration costs,
as HER will do the work for you. This also allows us to be more responsive to
your particular needs.
o a service design that is customisable is agreed prior to service contract
o a dedicated person is your single point of contact assigned to manage the
implementation of your service
o the results of an acceptance test according to M.2000 standards are
included at service "hand over"
o a monthly "Services Report" tracks how well your services and HER are doing
o billing and payment is fully customisable to fit in with your requirements
We are specialised in serving the carrier marketplace: come talk to us!
<PAGE> 1
EXHIBIT 10.18
CONFIDENTIAL TREATMENT
26 Red Lion Square
London
WC1R 4HQ
[LOGO]
Switchboard: 0171-528-2000
CABLE & WIRELESS E-Mail: @cwcom.co.uk
Website: http://www.cwcom.co.uk
Direct Tel: ++ 44 171 528 2112
Direct Fax: ++ 44 171 945 4190
Hermes Europe Railtel (Network) Limited
2 Custom House Plaza
Harbourmaster Place
Dublin 1
Ireland
29th October 1998
Dear Sir
The purpose of this letter is to confirm your order for ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## STM-1s on the
Gemini Submarine Cable System in accordance with the terms and conditions set
out herein and in the form of the Indefeasible Right of [ILLEGIBLE] Agreement
attached hereto as Appendix A (the "Agreement"). Save for the finalisation of
the selling entity to comprise the seller, the Agreement is in a form ready to
be signed by the parties. This letter shall be superseded by the completion
and execution of the Agreement, which the parties shall execute as soon as is
feasible. Pending execution, we and you agree to be bound by the agreement as
if Cable & Wireless Communications Services Limited were the selling entity.
We shall also invoice you and you agree to pay ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## in full
consideration for the first STM-1's purchase price, and following receipt of
such sum by us, in consideration of your accepting these terms, we agree to
indemnify you against any claim by such entity for that purchase price.
Please acknowledge your acceptance of this interim agreement by signing where
indicated below.
Yours faithfully
/s/ [ILLEGIBLE]
- ----------------------------------------
For Cable & Wireless Communications Services Limited
/s/ [ILLEGIBLE]
- ----------------------------------------
Agreed on behalf of Hermes Europe Railtel (Network) Limited
<PAGE> 2
APPENDIX A
DATED 1998
- --------------------------------------------------------------------------------
(1) CABLE & WIRELESS COMMUNICATIONS SERVICES LIMITED
(2) HERMES EUROPE RAILTEL (NETWORK) LIMITED
-------------------------------------------
INDEFEASIBLE RIGHT OF USE AGREEMENT
relating to the Gemini Cable System
-------------------------------------------
<PAGE> 3
CONTENTS
<TABLE>
<CAPTION>
PARA. NO. TITLE
<S> <C>
1 Definitions
2 Grant and Duration of IRU, Activation of Capacity
3 Purchase Price
4 Operation and Maintenance Charges
5 Conditions of Use and the Provision of Capacity
6 Operation of Equipment
7 Intellectual Property
8 Restoration
9 Reduction in System Capacity and Increase in
Communication Capability
10 Termination of Agreement
11 Liabilities
12 Force Majeure
13 Nature of Rights and Relationship
14 Assignment of Rights
15 Amendments, Waiver and Entire Agreement
16 Execution of Multiple Copies
17 Successors
18 Law and Jurisdiction
19 Notices
20 Confidentiality
21 Taxes and Late Payment Fees
SCHEDULE
1 The Cable System
2 Purchase Price, Operation and Maintenance Costs, and
Restoration Charges
APPENDIX
1 Technical Specification
</TABLE>
<PAGE> 4
CONFIDENTIAL TREATMENT
THIS AGREEMENT is made this day of 1998
PARTIES:
(1) CABLE & WIRELESS COMMUNICATIONS SERVICES LIMITED (registered number
3288998) whose registered office is at 26 Red Lion Square, London WC1R 4HQ
and
(2) HERMES EUROPE RAILTEL (NETWORK) LIMITED whose registered office is 2 Custom
House Plaza, Harbourmaster Place, Dublin 1, Ireland ("the Purchaser").
BACKGROUND:
(A) It is acknowledged that Gemini Submarine Cable System Limited, a company
(registered number EC22408) incorporated under the laws of Bermuda
("Gemini"), which expression shall include its successors or assigns, is to
provide, construct, operate and maintain an integrated submarine and
terrestrial optical fibre cable system, (the "Cable System") between the
Terminal Points (among several terminal points) as set out in Schedule 1.
(B) Gemini is allocating capacity in the Cable System in whole circuits
interconnecting the Terminal Points at the ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## level.
(C) C&W (as defined below) has acquired rights with respect to certain
capacity in the Cable System and Extension Links until the Retirement Date
(as defined below), and C&W is entitled to grant IRUs over such capacity
to authorised carriers.
(D) The Purchaser (or an Associated Company of the Purchaser) is or will be the
holder of valid Licences (as defined below) granted by the relevant
authorities in the United States and the United Kingdom prior to the first
activation date.
(E) The Purchaser wishes to acquire from C&W and C&W is willing to grant the
Purchaser an IRU over certain of its capacity in the Cable System subject
to the following terms and conditions.
1
<PAGE> 5
NOW IT IS AGREED AS FOLLOWS:
1 DEFINITIONS
1.1 In this Agreement, the following words and phrases shall have the
following meanings ascribed to them unless the context otherwise requires:
"ASSOCIATED COMPANY" means an entity that is, in respect of any one entity,
any other entity that controls, is controlled by, or is under common
control with that entity, control being defined as direct or indirect
ownership of more than 50% in value of the outstanding voting stock, or
other form of interest in the capital of, or of a partnership or other
interest in, an entity;
"CAPACITY" means the capacity in the Cable System and Extension Links to be
acquired by the Purchaser as detailed in Schedule 1;
"C&W" means Cable & Wireless Communications Services Limited or one of its
Associated Companies holding the licence to provide international
telecommunications services;
"COMMENCEMENT DATE" means the date defined as such in Schedule 1 for each
element of the Capacity;
"EXTENSION LINKS" mean the extension links specified in Section 2 of
Schedule 1;
"LICENCES" mean those consents, licenses, permits and other approvals
referred to in Clause 5.1(d);
"OPERATION AND MAINTENANCE CHARGES" OR "O&M Charges" mean the charges in
relation to the operation and maintenance of the Cable System and the
Extension Links to be paid by the Purchaser as set out in Schedule 2;
"OUT-OF-SYSTEM RESTORATION" means the provision of restoration on a cable
other than the Cable System as set forth in Clause 8;
"PURCHASER PARTY" means (i) the Purchaser, (ii) any permitted assignee of
the Purchaser using Capacity, or (iii) any customer of the Purchaser or of
any such permitted assignee using Capacity;
2
<PAGE> 6
"RETIREMENT DATE" means the date the Cable System is retired with
respect to the Capacity;
"STM-1" means a 155.220 Mbit/sec bi-directional digital line section
passing between two system interface points, (i.e., the Terminal Points
set out in Schedule 1), together with the interconnection interfaces
pertaining thereto (this supports end to end transport of a VC4), in
accordance with ITU-TS recommendations.
1.2 The index and headings are included for convenience only and shall not
affect the interpretation or construction of this Agreement.
1.3 In this Agreement, unless the context requires otherwise, any reference to:
(a) a "party" or "the parties" is to a party or the parties (as the case
may be) to this Agreement;
(b) a Recital, Clause or Schedule is to a recital of, clause of or a
schedule to this Agreement (as the case may be);
(c) "this Agreement" includes the Schedules, which form part of this
Agreement for all purposes.
2 GRANT AND DURATION OF IRU, ACTIVATION OF CAPACITY
2.1 C&W hereby grants to the Purchaser an IRU (indefeasible right of use) in
the Capacity over the length of the Cable System between the Terminal
Points with effect from the Commencement Date and continuing until the
Retirement Date, unless this Agreement is terminated earlier in accordance
with the provisions of Clause 10 hereof, whereupon such IRU shall
terminate automatically.
C&W will request Gemini to activate the Capacity within approximately
thirty (30) days after C&W receiving a written activation request from the
Purchaser. C&W warrants that the Capacity in the Cable System will be
provided and maintained in accordance with the C&MA and the Capacity in the
Extension Link will be provided and maintained in accordance with ITU-T
G.826.
This Agreement and the grant of the IRU in the Capacity herein does not
include any provision of or connection to any equipment or facilities that
may be required for signal conversion. In the event that C&W and the
Purchaser enter into a separate agreement for the provision of all or a
portion of such
3
<PAGE> 7
CONFIDENTIAL TREATMENT
equipment and/or facilities, only the terms of that separate agreement
shall govern the relevant equipment and/or facilities, and nothing therein
or with respect thereto shall affect this Agreement.
2.2 C&W hereby grants to the Purchaser capacity in the Extension Links detailed
in Schedule 1 from the date of activation until the Retirement Date. C&W
shall endeavour to activate the capacity by the dates proposed as set out
in Schedule 1, but the parties recognise that these dates are estimates
only. In the case of the first Extension Link, the agreed delivery date is
6th November 1998. If C&W fails to meet an agreed delivery date, the
Purchaser will be entitled to the service provision guarantees set out in
the service level agreement. The Purchaser has the option within six months
of the date of activation of the first STM-1 of Capacity to increase the
capacity of the Extension Links to create an ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## ring at a
cost of ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## million and an O&M Charge of ##MATERIAL OMITTED
AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## per
annum.
2.3 C&W shall notify the Purchaser promptly of the date on which its Capacity
is activated.
2.4 The technical specification prepared by the Purchaser and forming Appendix
1 to this Agreement outlines the proposed service parameters. C&W shall use
all reasonable endeavours to meet this technical specification when agreed
in writing by the parties but neither Gemini nor C&W warrants that the
Cable System shall comply with this technical specification. Both parties
will use reasonable efforts and apply appropriate human resources to agree
the further detail in the technical specification within 28 days of the
date of this Agreement.
2.5 The Purchaser is entitled to instigate dual node access as defined in the
technical specification at the US Terminal Points by prior notice in
writing to C&W. The Purchaser is responsible for any interconnect and
extension link charges that may be incurred at the US end. Subject to board
approval, C&W intends to provide dual node access to the Purchaser in the
UK by using its exchange at Thameside, at no additional cost to the
Purchaser so long as ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT##
3 PURCHASE PRICE
The Purchaser will pay to C&W the Purchase Price set out in Schedule 2 for
each STM-1 of Capacity in accordance with Schedule 2.
4
<PAGE> 8
4 OPERATION AND MAINTENANCE CHARGES
The Purchaser shall pay to C&W the O&M Charges set forth in Schedule 2
within thirty (30) days of the receipt of the relevant invoices.
5 CONDITIONS OF USE AND THE PROVISION OF CAPACITY
5.1 The Purchaser represents to and covenants with C&W as follows:
(a) The Purchaser is an entity, duly organised and validly existing under
the laws of its state or jurisdiction of organisation, is qualified to
do business in all jurisdictions (domestic and foreign) in which such
qualification is required by applicable law, and has the requisite
authority to execute this Agreement and to perform its obligations
hereunder;
(b) This Agreement constitutes a valid and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its
terms;
(c) There are no pending, or, to the Purchaser's knowledge, threatened
claims, actions, suits, audits, investigations or proceedings by or
against the Purchaser which could have a material adverse effect on
the Purchaser's ability to perform its obligations under this
Agreement;
(d) The Purchaser shall use all reasonable endeavours to obtain and
maintain in good standing, all necessary consents, licenses, permits
and other approvals, both governmental and private, as may be
necessary to permit the Purchaser to perform its obligations under
this Agreement and to acquire and use the Capacity;
(e) The Purchaser shall perform its obligations under this Agreement and
use the Capacity in a manner consistent with applicable law, and shall
not use, or knowingly permit the Capacity to be used, for any illegal
purpose or in any other unlawful manner;
5
<PAGE> 9
(f) The Purchaser shall not create or permit to exist, any liens,
encumbrances or charges to be placed upon the Capacity or the
Purchaser's rights under this Agreement;
(g) The Purchaser shall use the Capacity and cause each other Purchaser
Party using the Capacity to use such Capacity in such a manner so as
not to cause any interruption of, or interference to the Cable System
or the use of any other capacity on the Cable System.
5.2 C&W represents to and covenants with the "Purchaser" as follows:
(a) C&W is an entity, duly organised and validly existing under the laws
of its state or jurisdiction of organisation, is qualified to do
business in all jurisdictions (domestic and foreign) in which such
qualification is required by applicable law, and has the requisite
rights and authority to execute this Agreement and to grant the
rights and perform its obligations hereunder;
(b) This Agreement constitutes a valid and binding obligation of C&W,
enforceable against C&W in accordance with its terms;
(c) There are no pending, or, to C&W's knowledge, threatened claims,
actions, suits, audits, investigations or proceedings by or against
C&W which could have a material adverse effect on C&W's ability to
perform its obligations under this Agreement;
C&W confirms that:-
5.2 (d) Gemini is contractually obliged to use commercially reasonable efforts
to maintain in good standing, all necessary consents, approvals,
licences and permits, both governmental and private, as may be
necessary for the placement of the Cable System on the seabed, its
landing and placement on the shore, the crossing of existing pipelines
and cable, and the installation of ducts and manholes;
C&W covenants with the Purchaser that:-
5.2 (e) it shall pay charges due from it relating to the Capacity and comply
with other obligations placed upon it in relation to the Capacity and,
where
6
<PAGE> 10
required to ensure the Purchaser's quiet use and enjoyment of the
Capacity, shall take whatever steps are reasonable to enforce
obligations against the supplier of the Capacity;
5.2(f) C&W is not aware of any breaches of or departures from the C&MA
by Gemini, or any plans to make departures therefrom, that would
materially adversely affect the grant or use of the Capacity by the
Purchaser.
5.3 C&W's performance of this Agreement is contingent upon the provision and
continuing operation of the Cable System
5.4 The Capacity shall be made available to C&W, at such times as may be
required by Gemini and at such other times as are agreeable to both C&W and
the Purchaser, or to any duly authorised agent of C&W to make such tests
and adjustments as may be necessary for the maintenance of such Capacity.
C&W shall give the Purchaser as much notice as is reasonably practicable of
the proposed tests and adjustments (not less than 4 working days' notice
where reasonably practicable) and shall procure that they are performed at
such times and in such manner as shall minimise any interruption in or
interference with the Capacity.
6 OPERATION OF EQUIPMENT
6.1 The use and operation by the Purchaser or any other Purchaser Party of the
Capacity and any equipment associated with it shall be such as not to (i)
interrupt, interfere with or impair service over any of the facilities
comprising the Cable System or any other rights of use with respect to any
other capacity on the Cable System, (ii) impair privacy of any
communications over such facilities, (iii) cause damage to plant, (iv) be
hazardous to any person, or (v) prevent the use of similar or other
equipment by the other users of the Cable System. The Purchaser shall hold
harmless C&W and bear the cost of any additional protective apparatus
reasonably required to be installed because of the use and/or operation of
such Capacity and/or equipment by any Purchaser Party, and the cost of any
damages relating thereto. C&W has and will procure a similar obligation to
that contained in this Clause 6.1 from other C&W customers for IRUs on the
Cable System.
7
<PAGE> 11
6.2 C&W consents to the Purchaser using Alcatel 1664 SM equipment and any
equipment which confirms to the G703 or G709/8/9 standards to interface
with the Cable System. For any other equipment, the Purchaser shall obtain
the prior written consent of C&W before installing or using or permitting
any other Purchaser Party to install or use that equipment to interface
with the Cable System. C&W shall notify the Purchaser if, in C&W's
reasonable judgement, the Purchaser's use of the Cable System is damaging
or disrupting the Cable System and require the Purchaser to immediately
rectify the situation. If the Purchaser does not immediately rectify the
situation, C&W reserves the right to suspend the use of the Capacity.
C&W shall allow the Purchaser to reconnect the Capacity as soon as the
Purchaser has established to C&W's reasonable satisfaction that the cause
or potential cause of the damage or disruption has been rectified and the
risk removed.
7 INTELLECTUAL PROPERTY
No licence under patent or any other intellectual property right whatsoever
shall be granted by C&W to the Purchaser or other Purchaser Party pursuant
to this Agreement including without limit in connection with any Purchaser
Party's use of the Cable System.
8 RESTORATION
In the event of failure of one of the two transmission paths within the
Cable System, restoration of the Capacity will be provided initially using
Out-of-System Restoration until redundancy is provided in-system by use
of all or portion(s) of the other transmission path within the Cable
System automatically (less than 50 millisecs) at no charge to the
Purchaser.
9 REDUCTION IN SYSTEM CAPACITY AND INCREASE IN COMMUNICATION CAPABILITY
9.1 If the capacity of the Cable System is reduced as a result of physical
deterioration or for other reasons in connection with the operation of the
Cable System during the term of this Agreement and the capacity allocated
to C&W is reduced as a result thereof, then (i) upon notice to the
Purchaser, the Capacity shall also be reduced, with such reduction being in
the same proportion as the capacity of the Cable System is reduced in so
far as this is feasible as
8
<PAGE> 12
determined by C&W, and (ii) if the costs to C&W with respect to the O&M
Charges are reduced as a result thereof, the O&M Charges shall be equitably
reduced.
9.2 Subject to Clause 6, the Purchaser shall at its own expense have the right
to increase the communication capability of the Capacity by the use of
equipment which will increase the amount, or make more efficient use, of
the Capacity, or both, or by other means as it may from time to time
determine.
10 TERMINATION OF AGREEMENT
10.1 This Agreement shall terminate forthwith on the Retirement Date (including
circumstances in which Gemini decides to retire the Cable System from
service in accordance with appropriate national and international
regulations in accordance therewith) unless earlier terminated in
accordance with Clause 10.2 or 10.3 below.
10.2 This Agreement may be terminated by C&W if the Purchaser fails to make
payment when due or is in breach of any other material provision of this
Agreement, which, if remediable, has not been remedied within thirty (30)
days of notice thereof being given to the Purchaser. In this event, C&W
shall (i) be entitled to reclaim the Capacity, (ii) be relieved of any
liability arising to any Purchaser Party out of such termination and
reclamation, and (iii) be entitled to pursue any and all rights and legal
and equitable remedies (including its rights and remedies to enforce the
Purchaser's obligations under this Agreement).
10.3 This Agreement shall terminate forthwith in the event of any action by the
FCC or other applicable regulatory or governmental authority directing
either party to terminate this Agreement or declaring that this Agreement
is in any way inconsistent with FCC rules or other applicable laws, rules
and regulations.
In the event of such termination, all sums due and payable hereunder shall
immediately accrue and become due and payable and the Capacity shall be
immediately reclaimed by C&W without it being liable to the Purchaser or
any other Purchaser Party as a result thereof. The Purchaser shall have
no further liability to C&W in these circumstances.
10.4 This Agreement may be terminated by the Purchaser if C&W is in breach of
any
9
<PAGE> 13
material provision of this Agreement, which, if remediable, has not been
remedied within thirty (30) days of notice thereof be given to C&W.
10.5 The Purchaser may give C&W notice to terminate this Agreement (and, where
it has made a pre-payment of the Purchase Price, shall be entitled to
immediate repayment of that pre-payment) in the event that C&W has not
activated the first STM-1 of Capacity by 31st March 1999. Any such notice
shall be given within 10 days thereafter.
10.6 In the event that an STM-1 of Capacity (other than the first STM-1) is
not activated within 60 days of the end of the month in which it is due to
be activated and the Purchaser has given C&W sufficient notice to activate
that Capacity when due, then the Purchaser shall have the right to cancel
that STM-1 on giving C&W notice to that effect.
11 LIABILITIES
11.1 Except as expressly set forth in this Agreement, neither C&W nor any
company granting it capacity in the Cable System shall be liable to the
Purchaser or other Purchaser Party or any person or entity claiming through
or under any Purchaser Party, directly or indirectly, for any loss or
damage (whether direct, indirect, general, special or consequential)
sustained for any cause or reason whatsoever relating to or arising out of
the construction, operation, repair, maintenance or decommissioning of the
Cable System, or any facilities associated with the Cable System,
including, but not limited to, any damage sustained by reason of any delay
in, commencing or failure to commence operation of, or any failure in or
breakdown of the Cable System, or any facilities associated with the Cable
System, or for any interruption, and however long it shall last. In no
event shall C&W or any company granting it capacity in the Cable System be
liable to the Purchaser or any other Purchaser Party, or any person or
entity claiming through or under them,
(i) for any loss of business, anticipated savings or profits, or any loss
of value of equipment, including software, or
(ii) any indirect, incidental, special or consequential loss or damage,
however arising.
10
<PAGE> 14
11.2 The Purchaser shall indemnify, hold harmless and defend C&W and its
directors, employees, representatives and agents from and against all
claims, demands, actions, suits, proceedings, writs, judgements, orders
and decrees brought, made or rendered against them or any of them and
all damages, losses and expenses suffered or incurred by them or any of
them howsoever arising out of or related to any Purchaser Party's use of
the Capacity or any equipment used in connection therewith, or ownership of
the IRU interest in the Capacity, except where such claim arises directly
as a result of the negligence or wilful misconduct of C&W.
12 FORCE MAJEURE
Neither party shall be liable for the failure to perform any obligation
hereunder, or any loss or damage which may be suffered by the other party,
due to any cause beyond the first party's reasonable control, including
without limitation, any acts of God, inclement weather, failure or
shortage or power supplies, unavailability of materials, flood, drought,
lightning fire, strike, lockout, trade dispute or labour disturbance, the
act or omission of government, other telecommunications operators,
administrations or other competent authority, military operations, riot, or
difficulty, or delay or failure in manufacture, production or supply by
third parties.
13 NATURE OF RIGHTS AND RELATIONSHIP
13.1 All rights granted hereby and obligations entered into hereunder are purely
contractual. Other than the IRU interests in the Capacity as set out in
this Agreement, nothing herein contained shall have effect to grant any
ownership, proprietary or possessory rights in any of the subject-matter
hereof to the Purchaser or any other Purchaser Party.
13.2 The relationship between C&W and the Purchaser shall not be that of
partners and nothing contained herein shall be deemed to constitute a
partnership between them.
14 ASSIGNMENT OF RIGHTS
14.1 Neither party shall be entitled to assign, transfer, or otherwise dispose
of any of its rights or obligations hereunder to any third party without
the consent of the
11
<PAGE> 15
other party, such consent not to be unreasonably withheld except either
party shall be entitled to assign transfer or otherwise dispose of all of
its rights and obligations hereunder to an Associated Company on giving
prior notice to the other party.
14.2 The Purchaser may resell all or parts of its Capacity provided that the
buyer is contractually bound to comply with similar obligation in relation
to use of the capacity as set out in this Agreement.
15 AMENDMENTS, WAIVER AND ENTIRE AGREEMENT
15.1 This Agreement may only be amended with written consent(s) signed by duly
authorised signatories of both parties.
15.2 No failure or delay, by either party to exercise any of its rights
hereunder shall constitute a waiver of all or part of same, unless and to
the extent that such party gives written confirmation that it expressly
waives its rights. No waiver of rights in respect of any act or default
shall affect any other rights, or any future rights in respect of a similar
or other act or default.
15.3 This Agreement represents the entire agreement and understanding between
the parties in respect of the grant of the IRU by C&W to the Purchaser and
supersedes any previous agreement between the parties in relation to that
subject matter and each party confirms that it has not entered into this
Agreement in reliance upon any representation or promise other than those
expressly set out herein.
16 EXECUTION OF MULTIPLE COPIES
This Agreement may be executed by duly authorised signatories on behalf of
both parties in two (2) counterparts and in such event each such
counterpart when so executed and delivered shall be an original, and such
counterparts shall together (as well as separately) constitute one and the
same instrument.
17 SUCCESSORS
This Agreement shall be binding on the parties, their lawful successors and
their permitted assigns.
12
<PAGE> 16
18 LAW AND JURISDICTION
This Agreement shall be construed in accordance with English law and the
Parties irrevocably submit to the exclusive jurisdiction of the English
courts.
19 NOTICES
19.1 All notices to be given hereunder shall, if given to:
C&W, be sent or transmitted to:
Cable & Wireless Communications
26 Red Lion Square
London WC1R 4HQ
Facsimile No: +44 71 528 2073
For the attention of: Managing Director, International & Partner Services
Copies to: Company Secretary
The Purchaser, be sent or transmitted to the address detailed in Schedule
1.
Or shall be sent or transmitted to such other addresses as may be notified
in writing by either party to the other from time to time in accordance
with the provisions of this Clause.
19.2 Any notice given pursuant to this Agreement shall be in writing signed by
(or by some person duly authorised by) the person giving it and may be
served by leaving it or sending it by facsimile, by hand delivery or
prepaid recorded delivery to the address of the relevant party set out in
Clause 19.1 (or as otherwise notified from time to time hereunder). Any
notice so served by facsimile or post shall be deemed to have been
received:
(a) in the case of facsimile, twelve hours after time of receipt of the
appropriate electronic confirmation:
(b) in the case of recorded delivery the time of delivery recorded by the
postal service;
(c) in the case of by hand delivery, the actual time of delivery.
13
<PAGE> 17
20. CONFIDENTIALITY
The terms and provisions of this Agreement including details of the
charges shall not be disclosed by either party to another person or entity
without the other party's prior written consent in each instance except
that either party may disclose this information to professional advisers
and other Associated Companies which have a need to know this
information.
C&W may disclose to Gemini and any C&W affiliate with a need to know the
name, address, telephone number, facsimile number and e-mail address of the
Purchaser and the IRU interest in the Capacity granted herein for the
purpose of administering the Cable System.
21. TAXES AND LATE PAYMENT FEES.
The Purchase Price, O&M Charges, Restoration Charges and other amounts due
hereunder do not include any applicable sales taxes which the Purchaser
shall pay upon receipt of an itemised invoice therefor.
If the Purchaser fails to pay an invoice when due, then C&W may, in
addition to any other remedy available, assess a late payment fee. The
late payment fee shall be interest accruing daily on the unpaid invoice
from the due date at four per cent per annum above the rate for US dollar
LIBOR (London Interbank Offered Rate) for one month as quoted in the Wall
Street Journal on the first business day after payment is due until such
payment is received by C&W, and such amount of accrued interest will be
included in a subsequent invoice to the Purchaser.
EXECUTION
The parties have shown their acceptance of the terms of this Agreement by
executing it at the end of the Schedules.
14
<PAGE> 18
SCHEDULE 1
1. THE CABLE SYSTEM
Anticipated Retirement Date February 2023 This date is based on the
statement from Gemini that it intends to
operate and maintain the Cable System for 25
years from the date that the first
transmission path was activated, unless it
is extended or reduced for particular
reasons.
Terminal Points
15
<PAGE> 19
US End Cable System ADM at:
c/o Worldcom Inc
12th floor
76/9th Avenue
New York
NY 10011
c/o Worldcom Inc
4th floor
60 Hudson Street
New York
NY 10013
(C&W will have their own
terminal point at 60 Hudson
Street on activation of the
northern transmission path of
the Cable System)
UK End
Cable System ADM
c/o Cable & Wireless
Communications
Waterside House
Waterside Park
Longshot Lane
Bracknell
Berkshire RG12 1XL
The Purchaser may access their Capacity at any of the Terminal Points, however
at the Terminal Points in the United States, there are additional
interconnection charges.
16
<PAGE> 20
"CONFIDENTIAL TREATMENT"
Notices to Purchaser (per Clause 19.1) Hermes Europe Railtel (Network)
Limited
2 Custom House Plaza
Harbourmaster Place
Dublin 1
Ireland
For the attention of the
Managing Director
With a copy to
Hermes Europe Railtel
Terhulpsesteenweg 6A
1560 Hoeilaart
Capacity (between Terminal Points) Belgium
Quantity of STM-1s Proposed date for activation
##MATERIAL OMITTED AND SEPARATELY FILED ##MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT## TREATMENT##
The Commencement Date for each STM-1 shall be the date of activation of the
STM-1 except that if the Purchaser fails to give C&W prior notice sufficient
to allow activation by the end of the month stated above, the Commencement Date
shall be deemed to be the last day of the relevant month (giving C&W the right
to invoice for this Capacity). As a holder of capacity of a whole STM-1 or
greater, the Purchaser will be entitled to nominate one representative to
participate in the Gemini Users Consultative Committee.
Notes
*The Purchaser gave a written activation request for the first STM-1 to C&W on
4th September 1998. The first activation is dependent on Gemini making capacity
available on the northern transmission path of the Cable System.
For operational matters, the Purchaser shall contact the Gemini Network Control
Center.
17
<PAGE> 21
CONFIDENTIAL TREATMENT
2. EXTENSION LINKS
C&W shall provide the following Extension Links:-
Quantity Link Proposed date for activation
##MATERIAL OMITTED Bracknell - Telehouse ##MATERIAL OMITTED AND SEPARATELY
AND SEPARATELY FILED FILED UNDER A REQUEST FOR
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT##
CONFIDENTIAL
TREATMENT## Bracknell - City Forum ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT##
*This only applies to the ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A
REQUEST FOR CONFIDENTIAL TREATMENT## STM-1. (See Clause 2.2 in relation to the
first STM-1).
Notes:-
1. The Purchaser may cancel the Extension Links on giving C&W at least 30 days'
notice in writing. Where the Purchaser cancels all ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## STM-1s there shall
be no cancellation charge. Any O&M Charges paid in advance for the period after
the date of cancellation shall be credited by C&W to the Purchaser.
2. If the Purchaser uses a third party to provide its extension link, C&W shall
charge the Purchaser for interconnection charges per node.
3. The proposed date for activation of the link to City Forum is dependent on
the Purchaser providing C&W with access to City Forum.
4. The links shall be protected, subject to the Purchaser providing a second
access route for C&W at City Forum.
Addresses for the terminal points for the Extension Links:
Bracknell:- Waterside House
Waterside Park
Longshot Lane
Bracknell
Berkshire RG12 1XL
Telehouse:- Floor 3
Coriander Avenue
London E14 2AA
City Forum:- Unit 2
250 City Road
London EC1V 2PU
18
<PAGE> 22
CONFIDENTIAL TREATMENT
SCHEDULE 2
PURCHASE PRICE, O&M CHARGES, RESTORATION CHARGES,
AND INTERIM RESTORATION ARRANGEMENT
PURCHASE PRICE:
The Purchase Price per STM-1 for the capacity is ##MATERIAL OMITTED AND
SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT##
The Purchase Price for each STM-1 is due on the Commencement Date.
Where the activation date requested is after 31st March 1999, payment will be
made by the Purchaser on or before 31st March 1, 1999 of the following:-
##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT##
ANNUAL O&M CHARGES
The O&M Charge payable by the Purchaser shall be an annual charge, being in any
calendar year, the lesser of:-
(i) The total operational and maintenance costs in the Cable System as
determined in accordance with the C&MA pro-rated by the proportion that the
Purchasers' Capacity represents of the total activated capacity in the
Cable System in the relevant year together with a 10% administrative
charge; and
(ii) ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT## per STM-1 increased by ##MATERIAL OMITTED AND SEPARATELY FILED
UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## each calendar year commencing
on 1st January, 1999.
In the first year, the annual O&M Charge as calculated in (i) above shall be
calculated on the basis of the period from the activation date to the end of
that calendar year.
An estimate of the O&M Charge shall be payable in advance following receipt of
invoice on or about 1st January of each year except that the first payment
shall be due on the activation of the Capacity for the remainder of that
calendar year.
In the event that Gemini reduces the maximum operation and maintenance charge
payable by C&W, then C&W agrees to make a proportionate reduction in the figure
stated in (ii) above.
In addition, there is an annual O&M Charge of ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## for all the Extension Links.
19
<PAGE> 23
SIGNED by
[ ]
---------------------------
(Signature)
duly authorised signatory,
for and on behalf of
CABLE & WIRELESS
COMMUNICATIONS SERVICES
LIMITED
SIGNED by
---------------------------
(Signature)
duly authorised signatory,
for and on behalf of
HERMES EUROPE RAILTEL (NETWORK)
LIMITED
20
<PAGE> 24
INDEFEASIBLE RIGHT OF USE AGREEMENT
APPENDIX 1
TECHNICAL SPECIFICATION
<TABLE>
<CAPTION>
SECTION INDEX
<S> <C> <C>
1 DEFINITIONS
2A SERVICE DEFINITION - Gemini Network Capacity
2B SERVICE DEFINITION - UK Local Network Capacity
3A IMPLEMENTATION - Gemini Network Capacity
3B IMPLEMENTATION - UK Local Network Capacity
4A SERVICE LEVEL AGREEMENT - Gemini Network Capacity
4B SERVICE LEVEL AGREEMENT - UK Local Network Capacity
5A ACCEPTANCE PROCEDURES - Gemini Network Capacity
5B ACCEPTANCE PROCEDURES - UK Local Network Capacity
6A OPERATIONS AND MAINTENANCE - Gemini Network Capacity
6B OPERATIONS AND MAINTENANCE - UK Local Network Capacity
</TABLE>
<PAGE> 25
SECTION 1
DEFINITIONS
- --------------------------------------------------------------------------------
APS Automatic Protection Switching
- --------------------------------------------------------------------------------
DDF Digital Distribution Frame
- --------------------------------------------------------------------------------
Drop and Continue SDH interconnection method as
described in recommendation G842
ITU-T (04/97), 3.1
- --------------------------------------------------------------------------------
Dual Node Interconnection SDH interconnection method as
described in recommendation G842
ITU-T (04/97), 3.3
- --------------------------------------------------------------------------------
Gemini Network Capacity Means the Capacity connecting USA
1 & USA 2 to UK 1 and UK 2
- --------------------------------------------------------------------------------
Network Demarcation Point (NDP) - Means the point or points where the
Purchaser connects into the Network
Capacity
- --------------------------------------------------------------------------------
SSMB Synchronisation Status Message Bit
(ITU-T G.704, 2.3.4 Table 5C refers)
- --------------------------------------------------------------------------------
Termination Node SDH interconnection method as
described in recommendation G842
ITU-T (04/97), 3.15
- --------------------------------------------------------------------------------
UK Local Network Capacity Means the Capacity connecting UK1
with the Purchasers 'Telehouse'
location and UK 1 with the
Purchasers 'Colt' Location.
- --------------------------------------------------------------------------------
TBA To Be Advised
- --------------------------------------------------------------------------------
<PAGE> 26
SECTION 2A
SERVICE DEFINITION
GEMINI NETWORK CAPACITY
1 INTRODUCTION
This Section defines the Gemini Network Capacity being provided by C&W to the
Purchaser.
1.1 Both single & dual node interconnection are described in this section,
noting that provision of dual node interconnection is subject to clause 2.5
of the main agreement.
1.2 Electrical interfaces will be provided with the first STM-1 as described in
this section. Optical Interfaces are described in this section and may be
selected by the purchaser for subsequent STM-1's if available from C&W at
time of activation for no extra cost.
2 SCOPE
2.1 The Gemini Network Capacity includes all the fibre, hardware, software
provided to support STM-1 level connections between, initially a single NDP
in New York (USA 1) and a single NDP in the UK (UK 1) and ultimately dual
NDP's in New York and dual NDP's in the UK.
2.2 The provision of second NDP's in New York and the UK is subject to the
approval of the C&W board. A decision on this issue is expected by early
October 1998.
2.3 Reference should also be made to Section 2B - SERVICE DEFINITION - UK
Local Network Capacity, which describes the UK Local Network Capacity,
which will be interconnected to the Gemini Network Capacity to form the
London - New York Network Capacity.
<PAGE> 27
3 NETWORK DEMARCATION POINT (NDP) LOCATIONS
The NDP's for the Gemini Network Capacity are, subject to Clause 2.2, located as
follows:-
USA 1
- --------------------------------------------------------------------------------
Name C&W - USA
- --------------------------------------------------------------------------------
Street 60 Hudson Street
- --------------------------------------------------------------------------------
ZIP NY 10013
- --------------------------------------------------------------------------------
City New York City
- --------------------------------------------------------------------------------
County New York
- --------------------------------------------------------------------------------
Room TBA
- --------------------------------------------------------------------------------
Floor 16th Floor
- --------------------------------------------------------------------------------
Suite
- --------------------------------------------------------------------------------
Rack
- --------------------------------------------------------------------------------
DDF Position
- --------------------------------------------------------------------------------
NOTE FOR INFORMATION ONLY: The Worldcomm Gemini Cable System ADM will be
located in a facility on the 4th floor of 60 Hudson Street & the C&W Gemini
Cable System ADM will be located on the 16th floor as described above
USA 2
- --------------------------------------------------------------------------------
Name C&W - USA
- --------------------------------------------------------------------------------
Street 76/9th Avenue
- --------------------------------------------------------------------------------
ZIP NY 10011
- --------------------------------------------------------------------------------
City New York City
- --------------------------------------------------------------------------------
County New York
- --------------------------------------------------------------------------------
Room TBA
- --------------------------------------------------------------------------------
Floor 12
- --------------------------------------------------------------------------------
Suite
- --------------------------------------------------------------------------------
Rack
- --------------------------------------------------------------------------------
DDF Position
- --------------------------------------------------------------------------------
NOTE FOR INFORMATION ONLY: This location is more generally known as 111 Street
and 8 Avenue. The Gemini Cable System ADM will be located on the 12th floor of
this building.
<PAGE> 28
UK 1
- --------------------------------------------------------------------------------
Name C&W - UK
- --------------------------------------------------------------------------------
Street Waterside Park, Longshot Lane
- --------------------------------------------------------------------------------
ZIP RG12 1XL
- --------------------------------------------------------------------------------
City Bracknell
- --------------------------------------------------------------------------------
County Berkshire
- --------------------------------------------------------------------------------
Room Comms
- --------------------------------------------------------------------------------
Floor Ground
- --------------------------------------------------------------------------------
Suite
- --------------------------------------------------------------------------------
Rack
- --------------------------------------------------------------------------------
DDF Position
- --------------------------------------------------------------------------------
UK 2
- --------------------------------------------------------------------------------
Name C&W - UK
- --------------------------------------------------------------------------------
Street 100 Prestons Road
- --------------------------------------------------------------------------------
ZIP E14 9QL
- --------------------------------------------------------------------------------
City Thamesside
- --------------------------------------------------------------------------------
County London
- --------------------------------------------------------------------------------
Room Comms
- --------------------------------------------------------------------------------
Floor Ground
- --------------------------------------------------------------------------------
Suite
- --------------------------------------------------------------------------------
Rack
- --------------------------------------------------------------------------------
DDF Position
- --------------------------------------------------------------------------------
NOTE, ACCESS TO THIS NODE IS CONDITIONED BY CLAUSE 2.5 OF THE MAIN AGREEMENT
<PAGE> 29
4 GEMINI DESCRIPTION
A technical description of the Gemini Network Capacity is given in Annex 1 to
this Section. A network schematic drawing of the Gemini Network Capacity is
given Annex 2 to this Section.
5 INTERFACE DEFINITIONS
5.1 PHYSICAL CONNECTIONS
The NDP for the Gemini Network Capacity, will be the designated DDF at the
locations identified in Clause 3.
5.2 INTERFACE SPECIFICATIONS
Electrical STM-1 interfaces only will be available at the NDP, DDF.
ELECTRICAL TRIBUTARY INTERFACE SPECIFICATION
The STM-1 electrical interface shall be compliant with ITU-T G 703 and G.825.
5.3 STM-1 FRAME STRUCTURE
The STM-1 frame structure shall be compliant with ITU-T G.707, 708, 709.
6 PROTECTION
6.1 PROTECTION SCHEME
The protection scheme shall be SNC-P.
SWITCHING TIME
The switch time shall be compliant with G.783 (within 50 msec.)
6.2 SINGLE NODE ACCESS - INTRA-NODE INTERCONNECTION PROTECTION
The protection on the intra-node connection will be as follows:
6.2.1 OPTICAL INTERFACES
The linear multiplex section between STM-1 tributaries shall be protected with a
1+1 single ended APS.
6.2.2 ELECTRICAL INTERFACES
The linear multiplex section between STM-1 tributaries shall be protected with a
1+1 single ended APS.
6.2.3 SWITCHING TIME
The switch time shall be compliant with G.783 (within 50 msec.)
<PAGE> 30
6.3 DUAL NODE ACCESS - INTRA-NODE INTERCONNECTION PROTECTION
The protection on the intra-node connection will include Ring Interconnection
and Tributary Interconnection will be as follows:
6.3.1 RING INTERCONNECTION
The ring interconnection between the Gemini Network Capacity and the Purchasers
UK Local Network Capacity shall be based on Dual Node Interconnection by Drop
and Continue (ITU-T G.842).
6.3.2 TRIBUTARY PROTECTION
The STM-1 electrical tributaries shall be protected N:1 in the case of no
interconnection protection.
6.3.3 SWITCHING TIME
The switching time shall be within 100 msec.
7 SYNCHRONISATION DISTRIBUTION
The synchronization of the signal at the STM-1 interface at Gemini Network
Capacity side of the interface shall be G.811 traceable.
The SSMB output is desirable but not mandatory.
<PAGE> 31
SECTION 2A
ANNEX 1
GEMINI NETWORK CAPACITY - TECHNICAL DESCRIPTION
1 INTRODUCTION
The Gemini submarine cable system comprising 3 interconnected SDH rings
interconnected using WDM with no single point of electrical or physical failure
to provide a highly resilient telecommunications service between New York and
London Gemini is owned within a 50/50 joint venture between WorldCom Inc. and
Cable & Wireless plc and is being constructed during 1997/98 with a 25 year
design life.
Gemini's standards are designed to exceed the basic ITU SDH and WDM standards.
2 INSTALLATION
The ring system of 30 Gbs is being constructed in a number of phases. The first
leg of the circuit, operating at 5 GBit/s, was completed in January, and
connected Porthcurno landing station in Land' End UK with Manasquan landing
station in New Jersey USA. From here, bandwidth is connected to two nodes in and
around London, namely Bracknell and Aylesbury Street. In New York the two nodes
are at 60 Hudson Street and 111/8th. C&W is currently only be able to provide
direct access to the Gemini system, in the UK, from the Bracknell node.
Phase 2
Planned for completion by the end of October 1998 will see the ring gain full
resilience when the "northern leg" of the system is completed. This will see the
second submarine 30 GBit link completing the loop, with connections between the
Oxwich Bay landing station in Wales. UK and the Charlestown landing station in
Rhode Island USA. As with phase 1, links will be established between the two
existing nodes. C&W will only be able to provide HER with access in the UK from
the Bracknell node during this phase
Phase 3
Upgrades the ring to 20 GBit/s and introduces C&W USA accesses at 60 Hudson. It
will be available from October 98.
<PAGE> 32
Phase 4
Which is currently under review inside C&W and is targeted for completion around
June 1999 will see further nodes connected in London and possibly New York.
These nodes are not yet confirmed but they will add extra resilience to the
system, particularly for access points for customer's local tails. This is still
subject to board approval on a presentation from C&W USA Inc. and C&W in the UK.
Should phase 4 be approved, the likely new C&W nodes would be Thameside (London
Docklands) in the UK and another floor of the 111/8th Ave. or 60 Hudson Street
building in New York.
3 NETWORK TOPOLOGY
3.1 INTRODUCTION
To achieve the required resilience and availability performance objective
guaranteed of 99.9999 % (excluding failures due to external aggression), the
Gemini system has no single point of failure, and comprises three dual
interlinked SDH rings.
a) A 'terrestrial' UK ring linking London with the two UK cable landing
sites (Lands End and Oxwich Bay)
b) A 'wet' ring linking two UK cable stations with the two US cable
stations.
c) A 'terrestrial' USA ring linking New York with the 2 USA cable
stations (Mannesquan and Charlestown).
Each of the SDH rings has an equipped capacity of 20 Gbit/s made up of 8
individual 2.5 Gbit/s optical paths using WDM techniques. The 'wet' ring has a
design capacity of 30 Gbit/s and the 'dry' rings are expandable to a similar
level. The provision of 2 cable stations in both USA and UK has enabled a
geographic separation of typically 500 kms between the two transatlantic cables.
This is a particular significance in the shallow water approaches, where it is
not unknown for a vessel to damage several cables in a small area (e.g. by
dragging its anchor in a storm).
Gemini differs from all other known existing and planned transatlantic cable
systems in that it employs SDH loop technology to interlink the three rings
using Drop and Continue, Add Drop Multiplexers (ADM). The ADM's broadcast the
signal from the entry point both ways round the ring, At both exit points, the
best of two received signals is transferred across onto the next ring. As a
result, the network is resilient and could be subjected to multiple cable and
node failures without loss to service to customer traffic. At the same time, the
simplicity of the protection arrangement affords very fast switching (under 50
mSec) without the need for complex path monitoring.
<PAGE> 33
As a result of this high level of resilience, the Gemini engineers calculate
that the downtime (owing to electrical failure) of the network, totalled over
the 25 years of its design life, will be less than 15 minutes, an availability
of better than 99.9999%.
The overall system is managed on an end to end basis by Gemini Network
Operations Centre (GNOC) which is located at Manasquan, New Jersey.
3.2 LAND BASED RINGS IN THE USA & UK.
The terrestrial infrastructure is provided by Cable & Wireless Communications in
the UK and Worldcom Inc. in the USA. Both parties use WDM technology to provide
multiple 2.5GB/s optical paths, some of which are dedicated to Gemini. The
performance of the 2.5GB/s optical pipes is specified to enable the Gemini
end-to-end performance objectives to be achieved.
The 2.5 Gbit/s optical pipes terminate on Alcatel 1664 SM ADM's at the cable
stations and City Offices. The ADM's enable network access at VC4 level, and
also provide network resilience through Drop and Continue capability at each
network node.
The USA & UK Backhaul transmission paths are geographically diverse and totally
independent in order to minimise the risk of simultaneous failure of multiple
transmission paths, and shall be at a minimum.
- - use commercially reasonable efforts to maintain horizontal separation
between transmission paths of not less than 100 metres (except to the
extent necessary to enter a Backhaul Interface Point facility or Cable
Station;
- - not cross any other backhaul transmission path;
- - maintain route diverse entrance facilities to Backhaul interface point
facilities and Cable stations, including risers and interior cable /
conduit routing to terminal equipment.
3.3 THE WET RING
The two transatlantic links (Gemini South and Gemini North) use submarine cable
technology supplied by Alcatel Submarine Networks.
Gemini South runs from Porthcurno, Cornwall in the UK to Manasquan, New Jersey
in the USA, and is approximately 6,250 kms in length.
Gemini North runs from Oxwich Bay, South Wales in the UK to Charlestown, Rhode
Island in the USA, and is approximately 5,850 kms in length.
<PAGE> 34
Linking the cable stations to complete the rings are two terrestrial links
between Porthcurno and Oxwich Bay in the UK, and similarly between Charlestown
and Mannesquan in the USA.
The submarine cable is Alcatel OAL 21.5mm slotted core cable comprising of a
central copper core enclosing 4 non-dispersion shifted optical fibres operating
in the 1560 km window. (attenuation typically around 0.2 Db/KM). The fibres are
loosely held in a slotted core former, with slack to provide protection in the
event of strain. The slotted core is encased in a special compound which
prevents significant water penetration up to the copper tube in the unlikely
event of a cable break. The central copper tube provides several functions:
a) electrical conductor to feed power from the terminal stations to the
submerged amplifiers.
b) resistance to the hydrostatic pressure (up to 4 tonnes/square inch)
c) prevention of the ingress of hydrogen.
Also within the copper tube are torsionally balanced high tensile steel wires,
which provide the cables tensile strength, which is critical during laying and
recovery. The copper tube is surrounded by a polythene screen that acts as an
electrical insulator. The overall diameter is just over 2cms.
In shallow waters (less than 2000 meters) armouring wires are applied to
provide greater protection against external damage (e.g. trawlers). The amount
of armouring used reflects the risk of damage. Too much armour leads to
excessive cost and weight. Too little armour could lead to excessive downtime
due to external hits.
To compensate for the optical attenuation of the fibres, it is necessary to
incorporate optical amplifiers periodically along the route. The spacing of the
optical amplifiers is determined by the signal to noise requirements of the
system, and hence the ultimate bandwidth. Gemini south uses Alcatel R1 submerged
repeaters, spaced approximately 60 kms apart and Gemini north uses Alcatel R3
submerged repeaters, spaced approximately 70 k.s apart. This will enable a
capacity of at least 30 Gbit/s, comprising 6 x 2.5 Gbit/s paths (line rate 2.7
Gbit/s including FEC) assembled using WDM techniques. The amplifiers are
assembled in ultra clean conditions, using specially screened components, to
achieve the system specification of no more than 3 electronic failures in 25
years. Electrical power is fed into the amplifiers using approx. 1.2 Amps
constant current generators in the terminal stations. End to end system voltage
is just under 1OKv.
The terminal equipment uses Alcatel Wave Division Multiplex (WDM) Submarine Line
Terminal Equipment (SLTE) (N."B"- South is initially installed as a 1+1 5GB/s
system, but will be upgraded to WDM late 1998/early 1999)
<PAGE> 35
Alcatel Power Feed Equipment (PFE) is used to provide constant current to the
submerged repeaters. PFE is used to power the submerged section of the system
which includes the optical amplifiers.
5 NETWORK MANAGEMENT
The Gemini network is managed from the Gemini Network Operations Centre (GNOC)
in Manasquan. The GNOC is staffed 7 x 24 and also provides the fault reporting
point (FRP) and restoration control office (RCO).
Network Management is achieved using an Alcatel platform and integrates:
i) 1353 SN to monitor the submarine link
ii) 1353 SH to monitor the network elements SDH paths
iii) 1354 RM to provide traffic management
The network management system is based on a UNIX platform using HP Open View
products. Amongst its end to end management functions are:
- - configuration management
- - fault management
- - city office to city office performance management
- - security management
6 OPERATIONS AND MAINTENANCE
The Gemini submerged plant will be maintained within the Atlantic Cable
Maintenance Agreement (ACMA). This agreement currently provides access for cable
owners to 6 cableships equipped for cable repairs. The cable ships are based in
the UK, France, Spain, Bermuda, USA and Caribbean to provide maximum geographic
spread. The ships can be equipped with remote submersibles that assist with
recovery and reburial should failures occur in plough buried sections. We have a
target burial depth of 60cms and have endeavored to bury down to water depths of
1500 metres on European shelf and 1000 metres on USA shelf (the difference is
due to the softness and gradients of the two shelves).
<PAGE> 36
RESTORATION
Since Gemini has a self-healing ring architecture, the first choice restoration
path is in-system.
Prior to loop completion (late 1998) Gemini has negotiated external restoration
capacity with the owners of TAT 12/13 and CANTAT-3/CANUS cable systems. C&W will
provide the funding for this out-of system restoration until internal
restoration of Gemini is fully up and running.
Gemini is investigating possible emergency restoration arrangements in the
unlikely event of simultaneous failure of both submarine links.
7 GEMINI CAPACITY SPECIFIC TO THE PURCHASER
The Purchaser has access rights to the 1st STM-1 capacity as defined in
Section 2A, 3.
<PAGE> 37
SECTION 2A
ANNEX 2
NETWORK SCHEMATIC FOR THE GEMINI NETWORK CAPACITY
[MAP]
<PAGE> 38
SECTION 2B
SERVICE DEFINITION
UK LOCAL NETWORK CAPACITY
1 INTRODUCTION
This Section defines the UK Local Network Capacity being provided by C&W to the
Purchaser
1.1 Electrical interfaces will be provided with the first STM-1 as described in
this section. Optical Interfaces are described in this section and may be
selected by the purchaser for subsequent STM-1's at time of activation for
no extra cost.
1.2 1+1 protection is not available at time of activation of the first STM-1,
however it will be provided by C&W at no extra cost by:-
o 30-Nov-98 for ccts activated as optical interfaces
o 28-Feb-98 for ccts activated as electrical interfaces
2 SCOPE
2.1 The UK Local Network Capacity includes all the fibre, hardware, software
provided to support STM1 level connections between a single NDP in
Bracknell (UK 1) and a single NDP in the Purchasers London "Telehouse"
location and a single NDP in Bracknell (UK 1) and a single NDP location in
the Purchasers London "COLT" location.
2.2 The provision of a second NDP at the UK end of the Gemini Network Capacity
is subject to the approval of the C&W board. A decision on this issue is
expected by early October 1998.
2.3 Reference should also be made to Section 2A - SERVICE DEFINITION - Gemini
Network Capacity, which describes the Gemini Network Capacity, which will
be interconnected to the UK Local Network Capacity to form the London - New
York Network Capacity.
<PAGE> 39
3 NETWORK DEMARCATION POINT (NDP) LOCATIONS
The NDP's for the UK Local Network Capacity are, subject to Clause 2.2, located
as follows:-
UK 1
- --------------------------------------------------------------------------------
Name C&W - UK
- --------------------------------------------------------------------------------
Street Waterside Park, Longshot Lane
- --------------------------------------------------------------------------------
ZIP RG12 1XL
- --------------------------------------------------------------------------------
City Bracknell
- --------------------------------------------------------------------------------
County Berkshire
- --------------------------------------------------------------------------------
Room Comms
- --------------------------------------------------------------------------------
Floor Ground
- --------------------------------------------------------------------------------
Suite
- --------------------------------------------------------------------------------
Rack
- --------------------------------------------------------------------------------
DDF Position
- --------------------------------------------------------------------------------
LON 1 - TELEHOUSE
- --------------------------------------------------------------------------------
Name Telehouse
- --------------------------------------------------------------------------------
Street Coriander Avenue
- --------------------------------------------------------------------------------
ZIP E14 2AA
- --------------------------------------------------------------------------------
City London
- --------------------------------------------------------------------------------
County -
- --------------------------------------------------------------------------------
Room TFM 10
- --------------------------------------------------------------------------------
Floor 3rd
- --------------------------------------------------------------------------------
Row 10F
- --------------------------------------------------------------------------------
Rack A4
- --------------------------------------------------------------------------------
Subrack 1
- --------------------------------------------------------------------------------
DDF Position (Working) 9 (Please leave enough spare cable
within rack to reach all positions)
- --------------------------------------------------------------------------------
DDF Position (Protection) 11 (Please leave enough spare cable
within rack to reach all positions)
- --------------------------------------------------------------------------------
Connector Type (Provided by C&W) 1.6/5.6 Female Connectors
- --------------------------------------------------------------------------------
<PAGE> 40
LON 2 - COLT
- --------------------------------------------------------------------------------
Name Colt - City Forum
- --------------------------------------------------------------------------------
Street 250 City Road
- --------------------------------------------------------------------------------
ZIP EC1V 2PU
- --------------------------------------------------------------------------------
City London
- --------------------------------------------------------------------------------
County -
- --------------------------------------------------------------------------------
Room City Forum Unit 2
- --------------------------------------------------------------------------------
Floor Ground
- --------------------------------------------------------------------------------
Suite TBA
- --------------------------------------------------------------------------------
Rack TBA
- --------------------------------------------------------------------------------
DDF Position TBA
- --------------------------------------------------------------------------------
<PAGE> 41
4 UK LOCAL NETWORK DESCRIPTION
A technical description of the UK Local Network Capacity is given in Annex 1 to
this Section. A network schematic drawing of the UK Local Network Capacity is
given Annex 2 to this Section-
NOTE:
o UNDER PHASE 1,
THE FIRST STM-1 BETWEEN UK1 AND TELEHOUSE IS PROVIDED IN ACCORDANCE WITH THE
TECHNICAL DESCRIPTION PROVIDED IN ANNEX 1 OF THIS SECTION. UNDER PHASE 2, THE
INFRASTRUCTURE FOR FUTURE STM-1'S BETWEEN UK1 AND COLT IS PROVIDED IN
ACCORDANCE WITH THE TECHNICAL IN ANNEX 1 OF THIS SECTION.
5 INTERFACE DEFINITIONS
5.1 PHYSICAL CONNECTIONS
The NDP for the UK Local Network Capacity will be the designated DDF at the
locations identified in Clause 3.
5.2 INTERFACE SPECIFICATIONS
Both Optical and Electrical STM-1 interfaces will be available at the NDP, DDF.
OPTICAL TRIBUTARY INTERFACE SPECIFICATION
The STM-1 optical interface shall be compliant with ITU-T G 957 and G.825. The
following types shall be available upon request:
--------------
TYPES
--------------
STM-1 S-1.1
--------------
STM-1 L-1.1
--------------
STM-1 L-1.2
--------------
ELECTRICAL TRIBUTARY INTERFACE SPECIFICATION
The STM-1 electrical interface shall be compliant with ITU-T G 703 and G.825.
5.3 STM-1 FRAME STRUCTURE
The STM-1 frame structure shall be compliant with ITU-T G.707, 708, 709 and
ETSI.
<PAGE> 42
6 PROTECTION
6.1 PROTECTION SCHEME
The protection scheme shall be SNC-P.
SWITCHING TIME
The switch time shall be compliant with G.783 (within 50 msec.)
6.2 SINGLE NODE ACCESS - INTRA-NODE INTERCONNECTION PROTECTION
The protection on the intra-node connection will be as follows:
6.2.1 OPTICAL INTERFACES
The linear multiplex section between STM-1 tributaries shall be protected with a
1+1 single ended APS.
6.2.2 ELECTRICAL INTERFACES
The linear multiplex section between STM-1 tributaries shall be protected with a
1+1 single ended APS.
6.2.3 SWITCHING TIME
The switch time shall be compliant with G.783 (within 50 msec.)
6.3 DUAL NODE ACCESS - INTRA-NODE INTERCONNECTION PROTECTION
The protection on the intra-node connection will include Ring Interconnection
and Tributary Interconnection will be as follows:
6.3.1 RING INTERCONNECTION
The ring interconnection between the Gemini Network Capacity and the Purchasers
UK Local Network Capacity shall be based on Dual Node Interconnection by Drop
and Continue (ITU-T G.842).
6.3.2 TRIBUTARY PROTECTION
The STM-1 electrical tributaries shall be protected N:1 in the case of no
interconnection protection.
6.3.3 SWITCHING TIME
The switching time shall be within 100 msec.
7 SYNCHRONISATION DISTRIBUTION
The synchronization delivered at the STM-1 interface at UK Local Network
Capacity side of the interface shall be G.811 traceable.
The SSMB output is desirable but not mandatory.
<PAGE> 43
CONFIDENTIAL TREATMENT
SECTION 2B
ANNEX I
NETWORK SCHEMATIC FOR THE UK LOCAL NETWORK CAPACITY
INTRODUCTION
The UK Local Capacity is a 1 + 1 diversely protected STM-1 connecting the Gemini
Capacity at Bracknell to the Purchasers DDF at Telehouse. FOR CLARITY, 1 + 1
DIVERSELY PROTECTED CIRCUIT INDICATES THAT TWO CIRCUITS WILL BE ALLOCATED ON
COMPLETELY SEPARATE AND PHYSICALLY DIVERSE CABLE ROUTES WITH NO CROSSINGS. THE
PRACTICAL MEANS OF ACHIEVING THIS IS DESCRIBED BELOW:-
NETWORK TOPOLOGY
The hardware used across the local Network Capacity will be a combination of
Nortel & Alcatel equipment.
Nortel TN4X will be used to close the protection loop between Telehouse and
Bracknell, and it will pass through Nortel TN16X equipment at the two SDN nodes
being used, (likely to be Thamesside and Chart Street). All Nortel equipment is
remotely managed out of our National Transmissions Operations Centre at
Birmingham (NTOC).
At Bracknell, the traffic will be routed through our 4/3/1 Cross-Connect
(Marconi MSH-84). The reason for this is to provide a testing and flexibility
point and is the natural interface between CWC network and the Gemini network.
The Marconi MSH84 is also managed indirectly by the NTOC - who have visibility
via the International Transmission Operations Centre (ITOC) systems at
Bracknell, giving them full management capability and flexibility of all the
international backhaul traffic.
SYNCLINK PREMIER
The ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR CONFIDENTIAL
TREATMENT## STM-1's will be provided under the standard "Synclink Premier"
product banner. Synclink is a synchronous digital hierarchy (SDH) private
circuit service, offering a significant improvement in capacity, reliability,
flexibility and manageability compared to standard PDH circuits.
Circuit availability is guaranteed at 99.99% per annum. Data streams can be
added or dropped without demultiplexing and remultiplexing all the streams on
the bearer, making reconfiguration rapid and free from disruption. Synclink also
has sophisticated end-to-end management and advanced performance monitoring
facilities.
<PAGE> 44
A Synclink private circuit is a dedicated, permanently open digital transmission
channel of defined capacity between two points in the UK. Cable & Wireless
provides a permanently open channel through the SDH network, and local loop
connections from the nearest distribution node to each of the two connected
sites.
Access is dual diverse (i.e. with two fibre pairs in separate ducts joining the
network at separate nodes). Synclink circuits are open-port presented conforming
to ETSI standards, equivalent to G.703.
The C&W SDH network is self-healing, and this is provided either on the trunk or
end-to-end. In addition the C&W SDH network is designed in an interconnecting
ring configuration.
No single point of failure exists, up to the ADM in your premises. FOR CLARITY
1 + 1 MEANS THAT EACH CIRCUIT WILL BE ALLOCATED ON COMPLETELY SEPARATE AND
PHYSICALLY DIVERSE CABLE ROUTES WITH NO CROSSINGS.
<PAGE> 45
SECTION 2B
ANNEX 2
NETWORK SCHEMATIC FOR THE UK LOCAL NETWORK CAPACITY
[MAP]
<PAGE> 46
CONFIDENTIAL TREATMENT
SECTION 3A
IMPLEMENTATION
GEMINI NETWORK CAPACITY
1 INTRODUCTION
This Section sets out the implementation phases and time-scales for the Gemini
Network Capacity being provided by C&W to the Purchaser.
2 PHASES
The Phases relate to the basic network design, Phase 1 having only a single NDP
in the USA and UK and Phase 2 having dual NDP's in both the USA and UK.
2.1 PHASE 1
Phase 1 provides for a single NDP in the UK (UK 1) and a single NDP in the USA
(USA1 or USA2, to be confirmed within 14 days of contract signature).
KEY MILESTONES
- --------------------------------------------------------------------------------
ACTIVITY DATE
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY On contract signature
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
2.2 PHASE 2
Phase 2 is not applicable for the Gemini Network Capacity, only the UK Local
Network Capacity.
2.3 PHASE 3
Phase 3 provides for second NDP's in the UK (UK 1 & UK2) and second NDP's in the
US (US1 and US2).
- --------------------------------------------------------------------------------
ACTIVITY DATE
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
<PAGE> 47
CONFIDENTIAL TREATMENT
3 CALL OFF OF CAPACITY
(APPLICABLE ONLY IF THE ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR CONFIDENTIAL TREATMENT## STM-1 CONTRACT IS,
ENTERED INTO)
3.1 GENERAL
Following the Acceptance of the first STM1 connection, further STM-1s, up to a
total of ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## can be called-off irrespective of the
completion status of Phase 3.
3.2 CALL-OFF PROCESS
The call-off process and leadtimes are given in the following table:
- --------------------------------------------------------------------------------
ACTIVITY TIMING
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## In accordance with Section 5A
- --------------------------------------------------------------------------------
3.3 ANTICIPATED CALL-OFF ORDERS (BETWEEN NDP's)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
CAPACITY TYPE QUANTITY PROPOSED ACTIVATION
DATE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
3.4 CALL-OFF ORDERING POINT
Richard Mountford
Cable & Wireless Communications Services Ltd.
26 Red Lion Square
London
WC1R 4HQ
Tel: + 44 171 528 3662
Fax + 44 171 528 3007
4 RE-CONFIGURATION OF STM-1 CONNECTIONS
4.1 RE-CONFIGURATION
The STM-1 Capacity can be re-configured between the NDP's in the USA and the
NDP's in the UK on 24 hours notice.
<PAGE> 48
4.2 RE-CONFIGURATION ORDER POINT
Richard Mountford
Cable & Wireless Communications Services Ltd.
26 Red Lion Square
London
WClR 4HQ
Tel: + 44 171 528 3662
Fax: + 44 171 528 3007
<PAGE> 49
CONFIDENTIAL TREATMENT
SECTION 3B
IMPLEMENTATION
UK LOCAL NETWORK CAPACITY
1 INTRODUCTION
This Section sets out the implementation phases and time-scales for the UK Local
Network Capacity being provided by C&W to the Purchaser.
2 PHASES
The Phases relate to the basic network design.
2.1 PHASE 1
Phase 1 provides for Local Network Capacity between an NDP in UK 1 and an NDP
in the Purchaser's 'Telehouse' site.
KEY MILESTONES
- --------------------------------------------------------------------------------
ACTIVITY DATE
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
2.2 PHASE 2
Phase 2 provides for the provision of infrastructure between an NDP in UK1 and
an NDP in the Purchaser's 'COLT' site, ready for activation of subsequent
STM-1s.
- --------------------------------------------------------------------------------
ACTIVITY DATE
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
2.3 PHASE 3
Phase 3 relates to the Gemini Network Capacity only and provides for second
NDP's in the UK (UK 1 & UK2) and second NDP's in the US (US1 and US2).
<PAGE> 50
CONFIDENTIAL TREATMENT
3 CALL-OFF (APPLICABLE ONLY IF THE ##MATERIAL OMITTED AND SEPARATELY FILED UNDER
A REQUEST FOR CONFIDENTIAL TREATMENT## X STM-1 CONTRACT IS ENTERED INTO)
3.1 GENERAL
Following the Acceptance of the first STM1 connection, further STM-1s, up to a
total of ##MATERIAL OMITTED AND SEPARATELY FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT##, can be called-off irrespective of the completion
status of Phase 2.
3.2 CALL-OFF PROCESS
The order process and leadtimes are given in the following table:
- --------------------------------------------------------------------------------
ACTIVITY TIMING
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------
3.3 ANTICIPATED CALL-OFF ORDERS (BETWEEN NDP'S)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
CAPACITY TYPE QUANTITY PROPOSED ACTIVATION
DATE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY ##MATERIAL OMITTED AND SEPARATELY
FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR FILED UNDER A REQUEST FOR
CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT## CONFIDENTIAL TREATMENT##
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
3.4 CALL-OFF ORDERING POINT
Richard Mountford
Cable & Wireless Communications Services Ltd.
26 Red Lion Square
London
WC1R 4HQ
Tel: + 44 171 528 3662
Fax: + 44 171 528 3007
4 RE-CONFIGURATION OF STM-1 CONNECTIONS
4.1 RE-CONFIGURATION
The STM-1 Capacity can be re-configured between the NDP's in the USA and the
NDP's in the UK, on 24 hours notice.
<PAGE> 51
4.2 RE-CONFIGURATION ORDERING POINT
Richard Mountford
Cable & Wireless Communications Services Ltd.
26 Red Lion Square
London
WC1R 4HQ
Tel: + 44 171 528 3662
Fax: + 44 171 528 3007
<PAGE> 52
SECTION 4A
SERVICE LEVEL AGREEMENT
GEMINI NETWORK CAPACITY
1 INTRODUCTION
This Section sets out the performance and availability expected of the Gemini
Network Capacity.
2 AVAILABILITY
The availability performance objective of the Gemini Network Capacity, is
99.9999% (excluding failures due to external aggression). Expected availability
will be in accordance with ITU-T G826.
3 UNAVAILABLE TIME
Unavailable Time begins at the onset of 10 consecutive SES events, including the
10 second observation period, in accordance with ITU-T G826.
4 ALLOCATED PERFORMANCE OBJECTIVE
The Allocated Performance Objective for the Gemini Network Capacity is
calculated in accordance with ITU-T M2101
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
CAPACITY PATH DPL (24HOURS) UPL (15 MINUTES)
ALLOCATION
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
% ES SES BBE ES SES BBE
- --------------------------------------------------------------------------------
VC4/STM1 8% 415 5 N/A 58 1 N/A
- --------------------------------------------------------------------------------
</TABLE>
5 HAND BACK FOR PROBLEM CORRECTION
When the performance of the Gemini Network Capacity drops below the agreed
Service Levels set-out in this Section and associated ITU specifications, the
Purchaser shall notify C&W accordingly. C&W will immediately use its best
endeavors to rectify the problem and bring the Gemini Network Capacity back to
the agreed services levels.
The Gemini Network Capacity is defined as being below the agreed Services Levels
when:
The Gemini Network Capacity is unavailable as defined in Clause 3 of this
schedule, or
The performance of the Gemini Network Capacity drops below the Allocated
Performance Objectives defined in Clause 4 of this Schedule.
<PAGE> 53
Where C&W are providing end to end capacity which includes the UK Local Network
Capacity and Gemini Network Capacity if the end to end Service Levels drop below
that of either the Gemini or UK Local Capacity, the conditions of this Clause 5
shall apply.
4 RESTORATION
The Availability and Performance figures given in this Section assume
restoration within the Gemini Network Capacity. The Gemini Network Capacity is
as described in Section 2A
<PAGE> 54
SECTION 4B
SERVICE LEVEL AGREEMENT
UK LOCAL NETWORK CAPACITY
1 INTRODUCTION
This Section sets out the performance and availability expected of the UK Local
Network Capacity.
2 AVAILABILITY
The expected availability performance of the UK Local Network Capacity, is
99.99%, calculated on a calendar month basis and in accordance with ITU-T G826.
3 UNAVAILABLE TIME
Unavailable Time begins at the onset of 10 consecutive SES events, including the
10 second observation period, in accordance with ITU-T G826.
4 ALLOCATED PERFORMANCE OBJECTIVE
The Allocated Performance Objective for the UK Local Network Capacity is
calculated in accordance with ITU-T M2101
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
CAPACITY PATH DPL (24HOURS) UPL (15 MINUTES)
ALLOCATION
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
% ES SES BBE ES SES BBE
- --------------------------------------------------------------------------------
VC4/STM1 2% 103 1 N/A 14 1 N/A
- --------------------------------------------------------------------------------
</TABLE>
5 HAND BACK FOR PROBLEM CORRECTION
When the performance of the Local Network Capacity drops below the agreed
Service Levels set-out in this Section and associated ITU specifications, the
Purchaser shall notify C&W accordingly. C&W will immediately use its best
endeavors to rectify the problem and bring the UK Local Network Capacity back to
the agreed services levels.
The UK Local Network Capacity is defined as being below the agreed Services
Levels when:
The UK Local Network Capacity is unavailable as defined in Clause 3 of this
schedule, or
The performance of the UK Local Network Capacity drops below the Allocated
Performance Objectives defined in Clause 4 of this Schedule.
<PAGE> 55
Where C&W are providing end to end capacity which includes the UK Local Network
Capacity and Gemini Network Capacity if the end to end Service Levels drop below
that of either the Gemini or UK Local Capacity, the conditions of this Clause 5
shall apply.
6 RESTORATION
The Availability and Performance figures given in this Section assume
restoration within the UK Local Network Capacity. The UK Local Network Capacity
is as described in Section 2A
<PAGE> 56
SECTION 5A
ACCEPTANCE PROCEDURES
GEMINI NETWORK CAPACITY
1 INTRODUCTION
This Section sets out the key acceptance principals to be observed for the
initial capacity provision and for the provision of subsequent STM-1 capacity.
The parties agree to work together, retaining the principals setout in this
Section, to produce and agree a set of Acceptance Procedures and Acceptance
Criteria for the Gemini Network Capacity, within 14 days from the date of
signature of this agreement.
2 ACCEPTANCE PROCEDURE
2.1 At least five working days prior to the date C&W intends to present an
STM-1 for acceptance by the Purchaser, C&W shall inform the Purchaser of
the Presentation Date and relevant interface information.
2.2 On presentation of the STM-1 capacity, C&W conducts and the Purchaser
witnesses, the agreed Acceptance Tests. If the tests are successful the
Purchaser will sign the Acceptance Certificate and return a copy to C&W,
within five working days of the Presentation Date.
2.3 If the STM-1 capacity fails to meet the agreed Acceptance Criteria, C&W
takes back the STM-1 capacity for rectification.
2.4 In the event of the circumstances outlined in 2.3, C&W will proceed to
rectify the problem and re-present the STM-1 Capacity for acceptance, as
setout in this Section 2 within a further 5 working days.
2.5 Following failure of an initial Stability Test, the Purchaser can demand a
further 7 days Stability Test for the second and subsequent Acceptance
Tests.
2.6 The signing of the Acceptance Certificate is the trigger for the payment
process for the relevant STM-1 Capacity.
2.7 If the Purchaser fails to return the signed Acceptance Certificate or
notify C&W that the STM-1 Capacity does not meet the agreed standards,
within five working days of the Presentation Date, the Network capacity is
deemed to have been Accepted by the Purchaser and the relevant payments
become due.
<PAGE> 57
3 KEY ACCEPTANCE CRITERIA
Successful achievement of the following key Acceptance Criteria will constitute
Acceptance by the Purchaser of STM-1 Capacity.
3.1 QUALITY CHECK
Include as a minimum: Checks that the C&W interface equipment being interfaced
and its installation meets accepted industry standards for physical and
electrical safety and quality.
3.2 FUNCTIONAL TESTS
Include as a minimum the following tests:
o Interface standards
o Proper working of the protection scheme
o Switching time
o Alarm Generation
o Round trip delay
o Synchronisation compliance
3.3 STABILITY TEST (BIS TEST)
Include as a minimum the following tests:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
BRINGING INTO SERVICE (BIS) (ITU REC G.826) 7 DAYS
- --------------------------------------------------------------------------------
CAPACITY PATH S1 S2
ALLOCATION
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
% ES SES ES SES
- --------------------------------------------------------------------------------
STM1 8% 37 1 39 2
- --------------------------------------------------------------------------------
</TABLE>
The results of any BIS test shall be interpreted as follows:
Better than S1 - Acceptable
Between S1-S2 - To be retested
Worse than S2 - Not acceptable
4 ACCEPTANCE CERTIFICATE
The Form of Acceptance Certificate to be used in respect of Acceptance of
Network Capacity is attached to this Section as Annex 1.
<PAGE> 58
ANNEX 1
FORM OF ACCEPTANCE CERTIFICATE
C&W/HERMES EUROPE RAILTEL
Acceptance Certificate
Introduction:
A. On [ ] HER and C&W entered into an Agreement in respect of STM-1
Capacity.
B. C&W notified HER on [ ] that the STM-1 Capacity would be ready for
Acceptance Testing on [ ]
C. This said STM-1 Capacity was actually made ready for Acceptance Testing on
[ ]
D. HER has completed a satisfactory Acceptance Test.
E. This Certificate is being provided in accordance with the terms and using
the definitions of the above mentioned agreements.
HER HEREBY CERTIFIES THAT, subject to any qualifications set out below, it has
tested capacity and has demonstrated to the satisfaction of HER that:
1. The Equipment, the Software and the [ ] have been supplied and
completed in all respects in accordance with the [ ] and the
[ ];
2. All requirements and performance levels required under any part of the
Technical Specification are met; and
3. In all respects, the capacity performed in accordance with the agreed
Acceptance Test and is formally Accepted for us by HER.
Qualification:
EITHER:
This Certificate is not qualified
OR
This Certificate is qualified in the following respects:
a)
b)
c)
Signed by Received and approved by
- ----------------------- ------------------------
For HER For C&W
Date: Date:
------------------ -------------------
<PAGE> 59
SECTION 5B
ACCEPTANCE PROCEDURES
UK LOCAL NETWORK CAPACITY
1. INTRODUCTION
This Section sets out the key acceptance principals to be observed for the
initial capacity provision and for the provision of subsequent STM-1
capacity.
The parties agree to work together, retaining the principals setout in this
Schedule, to produce and agree a set of Acceptance Procedures and
Acceptance Criteria for the UK Local Network Capacity, within 14 days from
the date of signature of this agreement.
2. ACCEPTANCE PROCEDURE
2.1 At least five working days prior to the date C&W intends to present an
STM-1 for acceptance by the Purchaser, C&W shall inform the Purchaser
of the Presentation Date and relevant interface information.
2.2 On presentation of the STM-1 capacity, C&W conducts and the Purchaser
witnesses, the agreed Acceptance Tests. If the tests are successful
the Purchaser will sign the Acceptance Certificate and return a copy
to C&W, within five working days of the Presentation Date.
2.3 If the STM-1 capacity fails to meet the agreed Acceptance Criteria,
C&W takes back the SMT-1 capacity for rectification.
2.4 In the event of the circumstances outlined in 2.3, C&W will proceed to
rectify the problem and re-present the STM-1 Capacity for acceptance,
as setout in this Section 2 within a further 5 working days.
2.5 Following failure of an initial Stability Test, the Purchaser can
demand a further 7 days Stability Test for the second and subsequent
Acceptance Tests.
2.6 The signing of the Acceptance Certificate is the trigger for the
payment process for the relevant STM-1 Capacity.
2.7 If the Purchaser fails to return the signed Acceptance Certificate or
notify C&W that the STM-1 Capacity does not meet the agreed standards,
within five working days of the Presentation Date, the Network
capacity is deemed to have been Accepted by the Purchaser and the
relevant payments become due.
<PAGE> 60
3. KEY ACCEPTANCE CRITERIA
Successful achievement of the following key Acceptance Criteria will constitute
Acceptance by the Purchaser of STM-1 Capacity.
3.1 QUALITY CHECK
Include as a minimum:-Checks that the C&W interface equipment being interfaced
and its installation meets accepted industry standards for the physical and
electrical safety and quality.
3.2 FUNCTIONAL TESTS
Include as a minimum the following tests:-
*Interface standards
*Proper working of the protection scheme
*Switching time
*Alarm Generation
*Round trip delay
*Synchronisation compliance
3.4 STABILITY TEST (BIS TEST)
Include as a minimum the following tests:
BRINGING INTO SERVICE (BIS) (ITU REC G.826) 7 DAYS
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
CAPACITY PATH S1 S2
ALLOCATION
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
% ES SES ES SES
- --------------------------------------------------------------------------------
STM1 2% 4 1 5 1
- --------------------------------------------------------------------------------
</TABLE>
The results of any BIS test shall be interpreted as follows:
Better than S1 -Acceptable
Between S1-S2 -To be retested
Worse than S2 -Not acceptable
4. ACCEPTANCE CERTIFICATE
The Form of Acceptance Certificate to be use in respect of Acceptance of Network
Capacity is attached to this Section as Annex 1.
<PAGE> 61
ANNEX 1
FORM OF ACCEPTANCE CERTIFICATE
C&W/HERMES EUROPE RAILTEL
Acceptance Certificate
Introduction:
A. On [ ] HER and C&W entered into an Agreement in respect of STM-1
Capacity.
B. C&W notified HER on [ ] that the STM-1 Capacity would be ready for
Acceptance Testing on [ ]
C. This said STM-1 Capacity was actually made ready for Acceptance Testing on
[ ]
D. HER has completed a satisfactory Acceptance Test.
E. This Certificate is being provided in accordance with the terms and using
the definitions of the above mentioned agreements.
HER HEREBY CERTIFIES THAT, subject to any qualifications set out below, it has
tested capacity and has demonstrated to the satisfaction of HER that:
1. The Equipment, the Software and the [ ] have been supplied and
completed in all respects in accordance with the [ ] and the
[ ];
2. All requirements and performance levels required under any part of the
Technical Specification are met; and
3. In all respects, the capacity performed in accordance with the agreed
Acceptance Test and is formally Accepted for us by HER.
Qualification:
EITHER:
This Certificate is not qualified
OR
This Certificate is qualified in the following respects:
a)
b)
c)
Signed by Received and approved by
- ----------------------- ------------------------
For HER For C&W
Date: Date:
------------------ -------------------
<PAGE> 62
SECTION 6A
OPERATIONS AND MAINTENANCE PROCEDURES
GEMINI NETWORK CAPACITY
1 INTRODUCTION
This Section sets out the key O&M principals to be observed for the initial
capacity provision and for subsequent STM-1 capacity.
The parties agree to work together, retaining the principals setout in this
Schedule, to produce and agree a set of O&M procedures for the Gemini Network
Capacity, within 14 days from the date of signature of this agreement.
2 C&W / PURCHASER INTERACTION
2.1 INTRODUCTION
This section describes how C&W and the Purchaser will interact for maintenance
of Gemini Network Capacity.
2.2 FAULT REPORTING
Upon detection of a problem on one of the STM-1's the Purchasers NOC will
contact the C&W NOC and request their follow-up. The following information will
at least be exchanged:
o Circuit identification
o Description of the fault
o Time of occurrence
o Section involved - if known
o HER and C&W fault reference number
o Contact names and telephones
As confirmation the Purchasers NOC will fax the C&W NOC a description of the
problem.
2.3 PROBLEM STATUS UPDATES
During the fault resolution process the C&W NOC will endeavour to inform the
Purchasers NOC at least every 60 minutes about the progress on the problem
resolution.
<PAGE> 63
2.4 FAULT CLEARANCE
After a problem is solved, C&W will fax the Purchasers NOC=within one working
day - a Trouble Closure report which will contain at least the following
information:
o HER and C&W Trouble Ticket numbers
o Description of the problem and the actions taken
o A BERT printout STM-1 Capacity - if Possible
o Any documentation / reports issued by Gemini
If there are any discrepancies in this closure report C&W will fax these within
one working day to the Purchasers NOC.
2.5 FAULT HISTORY
At both the Purchasers and C&W's history records of maintenance activities will
be stored in their own problem database. Retention periods for fault history
will be one year.
2.6 ESCALATION
In case the progress on the repair is inadequate the Purchaser can escalate this
within the C&W organisation. At least 3 Escalation contacts are available and
kept informed 24 hrs/day. The following escalation levels and timers will be
used:
1st level NOG Supervisor 1 hour
2nd level Manager International Operations 4 hour
3rd level Manager Transmission Operations 8 hours
4th level Director Network Operations 24 hours
5th level Director Operations 48 hours
2.7 INCIDENT REPORTS
If one of the STM-1 Capacities was unavailable for longer than 8 hours a
post-mortum report will be issued by C&W describing the nature of the problem,
the solution and actions to be taken to prevent re-occurrence.
The report will be issued within three working days after the problem occurred.
<PAGE> 64
2.8 PLANNED WORKS
All information related to the planned activities are exchanged between the
Purchasers NOC and the C&W NOC.
The following timing will be respected:
1. Advance notice given by fax 30 days in advance for service
affecting works
2. The Purchaser will confirm notification within 1 working day
3. On the day of the planned activities, at least 1 hour before the
start, the C&W NOC will contact the Purchasers NOC and will
reconfirm the activities to continue as planned.
Emergency planned works with notification less than 30 days will be
accepted if the reason for the works are beyond C&W's reasonable
control.
<PAGE> 65
SECTION 6B
OPERATIONS AND MAINTENANCE PROCEDURES
UK LOCAL NETWORK CAPACITY
1 INTRODUCTION
This Section sets out the key O&M principals to be observed for the initial
capacity provision and for subsequent STM-1 capacity.
The parties agree to work together, retaining the principals setout in this
Section, to produce and agree a set of O&M procedures for the UK Local Network
Capacity, within 14 days from the date of signature of this agreement:
2 C&W/PURCHASER INTERACTION
2.1 INTRODUCTION
This section describes how C&W and the Purchaser will interact for maintenance
of UK Local Network Capacity.
2.2 FAULT REPORTING
Upon detection of a problem on one of the STM-1 the Purchasers NOC will contact
the C&W NOC and request their follow-up. The following information will at least
be exchanged:
o Circuit identification
o Description of the fault
o Time of occurrence
o Section involved - if known
o HER and C&W fault reference number
o Contact names and telephones
As confirmation the Purchasers NOC will fax the C&W NOC a description of the
problem.
2.3 PROBLEM STATUS UPDATES
During the fault resolution process the C&W NOC will endeavour to inform the
Purchasers NOC at least every 60 minutes about the progress on the problem
resolution.
<PAGE> 66
2.4 FAULT CLEARANCE
After a problem is solved, the C&W Customer Care Department will fax the
Purchasers NOC - within one working day - a Trouble Closure report which will
contain at least the following information:
o HER and C&W Trouble Ticket numbers
o Description of the problem and the actions taken
o A BERT printout STM-1 Capacity - If Possible
o Any documentation / reports issued by Gemini
If there are any discrepancies in this closure report C&W will fax these within
one working day to the Purchasers NOC.
2.5 FAULT HISTORY
At both the Purchasers and C&W's history records of maintenance activities will
be stored in their own problem database. Retention periods for fault history
will be one year.
2.6 ESCALATION
In case the progress on the repair is inadequate the Purchaser can escalate this
within the C&W organisation. At least 3 Escalation contacts are available and
kept informed 24 hrs/day. The following escalation levels and timers will be
used:
1st level NOC Supervisor 1 hour
2nd level Manager International Operations 4 hour
3rd level Manager Transmission Operations 8 hours
4th level Director Network Operations 24 hours
5th level Director Operations 48 hours
2.7 INCIDENT REPORTS
If one of the STM-1 Capacities was unavailable for longer than 8 hours a post
mortum report will be issued by C&W describing the nature of the problem, the
solution and actions to be taken to prevent re-occurrence.
The report will be issued within three working days after the problem occurred.
<PAGE> 67
2.8 PLANNED WORKS
All information related to the planned activities are exchanged between the
Purchasers NOC and the C&W NOC.
The following timing will be respected:
1. Advance notice given by fax 30 days in advance for service
affecting works
2. The Purchaser will confirm notification within 1 working day
3. On the day of the planned activities, at least 1 hour before the
start, the C&W NOC will contact the Purchasers NOC and will
reconfirm the activities to continue as planned.
Emergency planned works with notification less than 30 days will be
accepted if the reason for the works are beyond C&W's reasonable
control.
END OF TECHNICAL SPECIFICATION
