<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1998
REGISTRATION NO. 333-57283
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
CROWN CASTLE INTERNATIONAL CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 4899 76-0470458
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD (I.R.S. EMPLOYER
OF INCORPORATION OR INDUSTRIAL IDENTIFICATION NUMBER)
ORGANIZATION) CLASSIFICATION NUMBER)
510 BERING DRIVE
SUITE 500
HOUSTON, TEXAS 77057
(713) 570-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
MR. CHARLES C. GREEN, III
EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
CROWN CASTLE INTERNATIONAL CORP.
510 BERING DRIVE
SUITE 500
HOUSTON, TEXAS 77057
(713) 570-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
STEPHEN L. BURNS, ESQ. KIRK A. DAVENPORT, ESQ.
CRAVATH, SWAINE & MOORE LATHAM & WATKINS
825 EIGHTH AVENUE 885 THIRD AVENUE
NEW YORK, NEW YORK 10019 NEW YORK, NEW YORK 10022
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
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(c)
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. [_]
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is a table of the registration fee for the Securities and
Exchange Commission, the filing fee for the National Association of Securities
Dealers, Inc., the listing fee for the New York Stock Exchange and estimates
of all other expenses to be incurred in connection with the issuance and
distribution of the securities described in the Registration Statement, other
than underwriting discounts and commissions:
<TABLE>
<S> <C>
SEC registration fee............................................. $88,500
NASD filing fee.................................................. 30,500
NYSE listing fee................................................. *
Printing and engraving expenses.................................. *
Legal fees and expenses.......................................... *
Accounting fees and expenses..................................... *
Transfer agent and registrar fees................................ *
Miscellaneous.................................................... *
-------
Total.......................................................... $
=======
</TABLE>
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* To be completed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware ("DGCL")
provides that a corporation has the power to indemnify any director or
officer, or former director or officer, who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) against the expenses
(including attorney's fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by them in connection with the defense of any
action by reason of being or having been directors or officers, if such person
shall have acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, provided that such person had no reasonable
cause to believe his conduct was unlawful, except that, if such action shall
be in the right of the corporation, no such indemnification shall be provided
as to any claim, issue or matter as to which such person shall have been
judged to have been liable to the corporation unless and to the extent that
the Court of Chancery of the State of Delaware (the "Court of Chancery"), or
any court in such suit or action was brought, shall determine upon application
that, in view of all of the circumstances of the case, such person is fairly
and reasonably entitled to indemnify for such expenses as such court shall
deem proper.
Accordingly, the Certificate of Incorporation and the amendments thereto
dated July 2, 1996, February 19, 1997, June 16, 1997, and October 31, 1997 of
the Company (filed herewith as Exhibits 3.1 through 3.5) provide that the
Company shall, to the maximum extent permitted from time to time under the
DGCL indemnify and upon request shall advance expenses to any person who is or
was a party or is threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason or the fact that he is or was or
has agreed to be a director, officer of the Company or while a director or
officer is or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of any corporation, partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefits plans, against any and all expenses (including attorney's
fees and expenses), judgments, fines, penalties and amounts paid in settlement
or incurred in connection with the investigation, preparation to defend or
defense of such action, suit, proceeding or claim; provided, however, that the
foregoing shall not require the Company to indemnify or advance expenses to
any person in connection with any action, suit, proceeding, claim or
counterclaim initiated by or on behalf of such person. Such indemnification
shall not
II-1
<PAGE>
be exclusive of other indemnification rights arising under any by-law,
agreement, vote of directors or stockholders or otherwise and shall inure to
the benefit of the heirs and legal representatives of such person.
Furthermore, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that such exemption from liability or
limitation thereof is not permitted under the DGCL as currently in effect or
as the same may hereafter be amended.
The Company's By-laws provide that the Company shall indemnify any person
who was or is party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Company) by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit
or proceeding if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
The Company's By-laws further provide that the Company shall similarly
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Court of Chancery or such other court
shall deem proper.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In each of the sales described below, unless otherwise indicated, the
Company (or the relevant predecessor) relied on Section 4(2) of the Securities
Act of 1933 for exemption from registration. No brokers or underwriters were
used in connection with any of such sales. The recipients of securities in
each such transaction represented their intention to acquire the securities
for investment only and not with a view to or for sale in connection with any
distribution thereof and appropriate legends were affixed to the share
certificates, warrants and notes issued in such transactions. All recipients
had adequate access, through their relationship with the Company, to
information about the Company.
Through May 31, 1998, the Company had raised approximately $367.0 million
through private sales of debt and equity securities in a series of private
placements with various institutional and other accredited investors and
certain employees of the Company as described below.
CTC Investment. On January 11, 1995, CTC, a predecessor to CCIC, sold (i) to
Ted B. Miller, Jr. and Edward C. Hutcheson, Jr. (collectively, the "Initial
Stockholders") 270,000 shares of Class A Common Stock, par value $.01 per
share, of CTC for $270,000 and (ii) to Centennial Fund IV, Berkshire Fund III,
A Limited Partnership (via Berkshire Fund III Investment Corp.) and certain
trusts and natural persons that are now members of Berkshire Investors LLC
(collectively, the "Berkshire Fund III Group") and J. Landis Martin
(collectively, the "CTC Purchasers"), (A) 270,000 shares Class B Common Stock,
par value $.01 per share, of CTC for $270,000, (B) 730,380 shares of Series A
Convertible Preferred Stock, par value $.01 per share, of CTC for $4,382,280
and (C) $3,867,720 principal amount of Convertible Secured Subordinated Notes
of CTC (the "CTC Notes") for $3,867,720. As of February 1997, all the CTC
Notes had been converted into 644,620 shares of Series A Convertible Preferred
Stock of the Company. The proceeds received on January 11, 1995 were used by
CTC for the acquisition of towers and ancillary assets from PCI and for
working capital.
II-2
<PAGE>
Pursuant to a Securities Exchange Agreement (the "Securities Exchange
Agreement"), dated as of April 27, 1995, among the Company, CTC, the Initial
Stockholders and the CTC Purchasers, such parties effectively made CCIC the
holding company of CTC and converted some of the obligations of CTC into
capital stock of CCIC. Transactions pursuant to the Securities Exchange
Agreement included (i) Centennial Fund IV transferring 208,334 shares of CTC
Series A Convertible Preferred Stock to Berkshire Fund III Group in exchange
for $1,250,004 principal amount of CTC Notes, (ii) Berkshire Fund III Group
and J. Landis Martin converting all remaining CTC Notes held by them ($742,452
principal amount) into 123,742 shares of CTC Series A Convertible Preferred
Stock, (iii) all the outstanding shares of capital stock of CTC being
exchanged for similar stock of CCIC and (iv) the remaining CTC Notes
($3,125,268 principal amount) becoming convertible into shares of Series A
Convertible Preferred Stock (all of which CTC Notes were subsequently
converted in February 1997).
As a result of the exchange of CTC capital stock for CCIC capital stock,
each Initial Stockholder received 135,000 shares of existing Class A Common
Stock, Centennial Fund IV received 216,000 shares of Class B Common Stock and
145,789 shares of Series A Preferred Stock, Mr. Martin received 41,666 shares
of Series A Preferred Stock and Berkshire Fund III Group received 54,000
shares of Class B Common Stock and 666,667 shares of Series A Preferred Stock.
In July 21, 1995, Robert F. McKenzie became a party by amendment to the
Securities Exchange Agreement and received 8,333 shares of Series A Preferred
Stock.
1996 Investors Investment. Pursuant to a Securities Purchase Agreement,
dated as of July 15, 1996, among the Company, Berkshire Fund III Group,
Centennial Fund IV, J. Landis Martin, Edward C. Hutcheson, Jr. and Robert F.
McKenzie, the Company privately placed 864,568 shares of its Series B
Convertible Preferred Stock, par value $.01 per share ("Series B Convertible
Preferred Stock"), for an aggregate purchase price of $10,374,816. Berkshire
Fund III Group paid $6,000,000 for 500,000 shares, Centennial Fund IV paid
$3,724,812 for 310,401 shares, Mr. Martin paid $500,004 for 41,667 shares, Mr.
Hutcheson paid $99,996 for 8,333 shares and Mr. McKenzie paid $50,004 for
4,167 shares. The proceeds received on July 15, 1996 were used for (i) the
purchase of the towers and microwave and SMR businesses from Motorola in
Puerto Rico, (ii) an option payment relating to the acquisition of TEA and
TeleStructures and (iii) working capital.
Berkshire Fund IV Investment. Pursuant to a Securities Purchase Agreement,
dated as of February 14, 1997, among the Company, Centennial Fund V and
Centennial Entrepreneurs Fund V, L.P. (collectively, the "Centennial Fund V
Investors" and, together with Centennial Fund IV, the "Centennial Group"),
Berkshire Fund IV, Limited Partnership (via Berkshire Fund IV Investment
Corp.), and certain trusts and natural persons which are members of Berkshire
Investors LLC (collectively, the "Berkshire Fund IV Group" and, together with
Berkshire Fund III Group, the "Berkshire Partners Group"), PNC Venture Corp.,
Nassau Capital Partners II L.P. ("Nassau Capital"), NAS Partners I L.L.C.
("NAS Partners" and, together with Nassau Capital, the "Nassau Group"), Fay,
Richwhite Communications Limited ("Fay Richwhite"), J. Landis Martin and
Robert F. McKenzie, the Company privately placed 3,529,832 shares of its
Series C Convertible Preferred Stock, par value $.01 per share ("Series C
Convertible Preferred Stock"), for an aggregate purchase price of $74,126,472.
Centennial Fund V Investors paid $15,464,001 for 736,381 shares, Berkshire
Fund IV Group paid $21,809,991 for 1,038,571 shares, PNC Venture Corp. paid
$6,300,000 for 300,000 shares, Nassau Group paid an aggregate of $19,499,991
for 928,571 shares, Fay Richwhite paid $9,999,990 for 476,190 shares, Mr.
Martin paid $999,999 for 47,619 shares and Mr. McKenzie paid $52,500 for 2,500
shares. The proceeds received on February 14, 1997 were used by the Company to
fund a portion of its investment in CTI.
Hutcheson Investment. In March 1997, Edward C. Hutcheson, Jr. exercised
stock options for 69,000 shares of Class B Common Stock. The Company
repurchased these shares and 61,687 shares of his existing Class A Common
Stock for $3,422,118.
TEA Investment. In May 1997, in connection with the Company's acquisition of
the stock of TeleStructures, TEA and TeleShare, Inc. (the "TEA Companies"),
the Company issued 107,142 shares of Class B Common Stock to the shareholders
of the TEA Companies: 48,214 shares to Bruce W. Neurohr, 48,214 shares to
Charles H. Jones and 10,714 shares to Terrel W. Pugh.
II-3
<PAGE>
Crown Investment. In August 1997, Robert A. Crown and Barbara Crown sold the
assets of Crown Communications to, and merged CNSI and CMSI with, subsidiaries
of the Company. As partial consideration for these transactions, the Crowns
received 1,465,000 shares of Class B Common Stock. Robert A. Crown and Barbara
Crown are both parties to the Stockholders Agreement and are subject to its
restrictions.
AHA Investment. Pursuant to a Securities Purchase Agreement, dated as of
August 13, 1997, among the Company, American Home Assurance Company ("AHA"),
New York Life Insurance Company ("New York Life"), The Northwestern Mutual
Life Insurance Company ("Northwestern Mutual"), PNC Venture Corp., J. Landis
Martin and affiliates of AHA, the Company privately placed of 292,995 shares
of its Senior Convertible Preferred Stock for an aggregate purchase price of
$29,299,500, together with warrants to purchase 117,198 shares of Class B
Common Stock at $37.54 per share (subject to adjustment, including weighted
average antidilution adjustments). AHA and its affiliates paid $15,099,500 for
150,995 shares and warrants to purchase 60,338 shares of Class B Common Stock.
New York Life and Northwestern Mutual each paid $6,000,000 for 60,000 shares
and warrants to purchase 24,000 shares of Class B Common Stock. PNC Venture
Corp. paid $2,000,000 for 20,000 shares and warrants to purchase 8,000 shares
of Class B Common Stock. Mr. Martin paid $200,000 for 2,000 shares and
warrants to purchase 800 shares of Class B Common Stock. The proceeds received
on August 13, 1997 were used by the Company to fund a portion of the Crown
Merger and working capital.
Harvard Investment. Pursuant to a Securities Purchase Agreement, dated as of
October 31, 1997, among the Company, Berkshire Partners Group, Centennial Fund
V Investors, Nassau Group, Fay Richwhite, Harvard Private Capital Holdings,
Inc. ("Harvard"), Prime VIII, L.P. ("Prime") and the prior purchasers of
Senior Convertible Preferred Stock (other than affiliates of AHA), an
additional 364,500 shares of Senior Convertible Preferred Stock were issued
for an aggregate purchase price of $36,450,000, together with warrants to
purchase 145,800 shares of Class B Common Stock at $37.54 per share (subject
to adjustment, including weighted average antidilution adjustments). Berkshire
Partners Group paid $3,500,000 for 35,000 shares and warrants to purchase
14,000 shares of Class B Common Stock. Centennial V Investors paid $1,000,000
for 10,000 shares and warrants to purchase 4,000 shares of Class B Common
Stock. Nassau Group and Fay Richwhite each paid $2,500,000 for 25,000 shares
and warrants to purchase 10,000 shares of Class B Common Stock. Harvard paid
$14,950,000 for 149,500 shares and warrants to purchase 59,800 shares of Class
B Common Stock. Prime paid $5,000,000 for $50,000 shares and warrants to
purchase 20,000 shares of Class B Common Stock. AHA paid $1,500,000 for 15,000
shares and warrants to purchase 6,000 shares of Class B Common Stock. New York
Life paid $300,000 for 3,000 shares and warrants to purchase 1,200 shares of
Class B Common Stock. Northwestern Mutual paid $4,000,000 for 40,000 shares
and warrants to purchase 16,000 shares of Class B Common Stock. PNC Venture
Corp. paid $1,000,000 for 10,000 shares and warrants to purchase 4,000 shares
of Class B Common Stock. J. Landis Martin paid $200,000 for 2,000 shares and
warrants to purchase 600 shares of Class B Common Stock.
Employee Purchases. On October 30, 1995, in connection with an employment
agreement, an employee of the Company purchased 16,666 shares of Class B
Common Stock from the Company at $6.00 per share. On October 1, 1996, David L.
Ivy purchased 10,000 shares of Class B Common Stock from the Company at $12.00
per share. On February 3, 1997, John L. Gwyn purchased 500 shares of Class B
Common Stock from the Company at $21.00 per share. On June 12, 1997, an
employee of the Company purchased 500 shares of Class B Common Stock from the
Company at $21.00 per share.
Option Exercises. On July 30, 1997, Robert F. McKenzie, a director of the
Company, exercised options for 1,250 shares of Class B Common Stock at an
exercise price of $6.00 per share and on August 8, 1997, exercised options for
2,375 shares of Class B Common Stock at an exercise price of $21.00 per share.
10 5/8% Senior Discount Notes due 2007. On November 20, 1997, the Company
privately placed under Rule 144A and Regulation S of the Securities Act $251.0
million principal amount at maturity ($150,010,150 initial accreted value) of
its 10 5/8% Senior Discount Notes due 2007, yielding net proceeds to the
Company of approximately $143.7 million after deducting discounts and
estimated fees and expenses. Lehman Brothers Inc. and Credit Suisse First
Boston Corporation were the initial purchasers of such securities.
II-4
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
*1.1 --Form of Underwriting Agreement.
**2.1 --Asset Purchase and Merger Agreement among Crown Network Systems,
Inc., Crown Mobile Systems, Inc., Robert A. Crown, Barbara Crown and
Castle Acquisition Corp. I, Castle Acquisition Corp. II, Castle Tower
Holding Corp. dated July 11, 1997.
**2.2 --First Amended and Restated Asset Purchase and Merger Agreement among
Crown Network Systems, Inc., Crown Mobile Systems, Inc., Robert A.
Crown, Barbara Crown and Castle Acquisition Corp. I, Castle
Acquisition Corp. II, Castle Tower Holding Corp. dated July 11, 1997,
as amended and restated on August 14, 1997.
**2.3 --Stock Purchase Agreement by and between Castle Tower Holding Corp.,
Bruce W. Neurohr, Charles H. Jones, Ronald J. Minnich, Ferdinand G.
Neurohr and Terrel W. Pugh dated May 12, 1997 ("TEA Stock Purchase
Agreement").
*2.4 --Share Exchange Agreement among Castle Transmission Services
(Holdings) Ltd., Crown Castle International Corp., TeleDiffusion de
France International S.A., Digital Future Investments B.V. and
certain shareholders of Castle Transmission Services (Holdings) Ltd.
dated as of April 24, 1998.
**3.1 --Certificate of Incorporation of Castle Tower Holding Corp. dated
April 26, 1995.
**3.2 --Certificate of Amendment of Certificate of Incorporation of Castle
Tower Holding Corp. dated July 2, 1996.
**3.3 --Certificate of Amendment of Certificate of Incorporation of Castle
Tower Holding Corp. dated February 19, 1997.
**3.4 --Certificate of Amendment of Certificate of Incorporation of Castle
Tower Holding Corp. dated June 16, 1997.
**3.5 --Certificate of Amendment of Certificate of Incorporation of Castle
Tower Holding Corp. dated October 31, 1997.
**3.6 --Amended and Restated Bylaws of Castle Tower Holding Corp. dated
February 24, 1997.
*3.7 --Form of Restated Certificate of Incorporation of Crown Castle
International Corp.
*3.8 --Form of Amended and Restated Bylaws of Crown Castle International
Corp.
**4.1 --Indenture between Crown Castle International Corp. and United States
Trust Company of New York, as trustee (including exhibits).
**4.2 --Amended and Restated Stockholders Agreement among Castle Tower
Holding Corp., Edward C. Hutcheson, Jr., Ted B. Miller, Jr., Robert
A. Crown and Barbara Crown and the persons listed on Schedule I
thereto dated August 15, 1997.
*4.3 --Article Fourth of Certificate of Incorporation of Castle Tower
Holding Corp. (included in Exhibits 3.1 through 3.5).
**4.4 --Trust Deed related to (Pounds)125,000,000 9 per cent. Guaranteed
Bonds due 2007 among Castle Transmission (Finance) PLC, as Issuer,
Castle Transmission International Ltd and Castle Transmission
Services (Holdings) Ltd., as Guarantors, and The Law Debenture Trust
Corporation p.l.c., as Trustee, dated May 21, 1997.
**4.5 --First Supplemental Trust Deed related to (Pounds)125,000,000 9 per
cent. Guaranteed Bonds due 2007 among Castle Transmission (Finance)
PLC, as Issuer, Castle Transmission International Ltd and Castle
Transmission Services (Holdings) Ltd, as Guarantors and The Law
Debenture Trust Corporation p.l.c., as Trustee, dated October 17,
1997.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
-------- ----------------------
<C> <S>
*4.6 --Specimen Certificate of Common Stock.
*5. --Opinion of Cravath, Swaine & Moore with respect to the legality of
the Common Stock.
**10.1 --Registration Rights Agreement by and among Crown Castle
International Corp. and Lehman Brothers Inc. and Credit Suisse First
Boston Corporation dated as of November 25, 1997.
**10.2 --Loan Agreement by and among Castle Tower Corporation, KeyBank
National Association (formerly known as "Society National Bank") and
certain lenders dated April 26, 1995 ("KeyBank Loan Agreement").
**10.3 --First Amendment to KeyBank Loan Agreement dated June 26, 1996.
**10.4 --Second Amendment to KeyBank Loan Agreement dated January 17, 1997.
**10.5 --Third Amendment to KeyBank Loan Agreement dated April 3, 1997.
**10.6 --Fourth Amendment to KeyBank Loan Agreement dated October 31, 1997.
**10.7 --Fifth Amendment to KeyBank Loan Agreement dated November 24, 1997.
**10.8 --Amended and Restated Limited Holdco Guaranty by Crown Castle
International Corp., in favor of KeyBank National Association, as
Agent, dated November 25, 1997.
**10.9 --Memorandum of Understanding regarding Management and Governance of
Castle Tower Holding Corp. and Crown Communications, Inc. dated
August 15, 1997.
+**10.10 --Site Commitment Agreement between Nextel Communications, Inc. and
Castle Tower Corporation dated July 11, 1997.
**10.11 --Independent Contractor Agreement by and between Crown Network
Systems, Inc. and Sprint Spectrum L.P. dated July 8, 1996, including
addendum dated November 12, 1997.
+**10.12 --Independent Contractor Agreement between Crown Network Systems,
Inc. and Powerfone, Inc. d/b/a Nextel Communications dated September
30, 1996.
+**10.13 --Independent Contractor Agreement by and between APT Pittsburgh
Limited Partnership and Crown Network Systems, Inc. dated December
3, 1996.
+**10.14 --Master Lease Agreement between Sprint Spectrum, L.P. and Robert
Crown d/b/a/ Crown Communications dated June 11, 1996 ("Sprint
Master Lease Agreement").
*10.15 --First Amendment to Sprint Master Lease Agreement, dated July 5,
1996 (included in Exhibit 10.14).
*10.16 --Second Amendment to Sprint Master Lease Agreement, dated January
27, 1997 (included in Exhibit 10.14).
+**10.17 --Master Lease Agreement between Powerfone, Inc. d/b/a/ Nextel
Communications and Robert A. Crown d/b/a Crown Communications dated
October 3, 1996.
+**10.18 --Master Lease Agreement between APT Pittsburgh Limited Partnership
and Robert Crown d/b/a Crown Communications dated December 3, 1996.
+**10.19 --Master Tower Lease Agreement between Cellco Partnership d/b/a/ Bell
Atlantic NYNEX Mobile, Pittsburgh SMSA, L.P. and Pennsylvania RSN
No. 6 (II) and Robert A. Crown d/b/a/ Crown Communications dated
December 29, 1995, as amended by a letter agreement dated as of
October 28, 1997.
+**10.20 --Master Tower Lease Agreement between Cellco Partnership d/b/a/ Bell
Atlantic NYNEX Mobile, Pittsburgh SMSA, L.P. and Pennsylvania RSN
No. 6 (II) and Robert A. Crown d/b/a/ Crown Communications dated
December 29, 1995, as amended by a letter agreement dated as of
October 28, 1997.
**10.21 --Castle Tower Holding Corp. 1995 Stock Option Plan (Third
Restatement).
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
-------- ----------------------
<C> <S>
**10.22 --Services Agreement between Castle Transmission International Ltd
(formerly known as Castle Transmission Services Ltd) and Castle
Tower Holding Corp. dated February 28, 1997.
**10.23 --Shareholders' Agreement among Berkshire Fund IV Investment Corp.,
Berkshire Investors LLC, Berkshire Partners LLC, Candover
Investments PLC, Candover (Trustees) Limited, Candover Partners
Limited (as general partner for 4 limited partnerships), Castle
Tower Holding Corp., Telediffusion de France International S.A., and
Diohold Limited (now known as Castle Transmission Services
(Holdings) Ltd) dated January 23, 1997.
**10.24 --First Amendment to Amended and Restated Stockholders Agreement by
and among Crown Castle International Corp., Edward C. Hutcheson,
Jr., Ted B. Miller, Jr., Robert A. Crown and Barbara Crown and the
persons listed as Investors dated January 28, 1998.
**10.25 --Third Amendment to Sprint Master Lease Agreement, dated February
12, 1998.
*10.26 --Form of Stockholders Agreement between Crown Castle International
Corp. and certain stockholders listed on Schedule 1 thereto.
*10.27 --Agreement among Castle Transmission Services (Holdings) Ltd.,
Digital Future Investments B.V., Berkshire Partners LLC and certain
shareholders of Castle Transmission Services (Holdings) Ltd. for the
sale and purchase of certain shares of Castle Transmission Services
(Holdings) Ltd., for the amendment of the Shareholders' Agreement in
respect of Castle Transmission Services (Holdings) Ltd. and for the
granting of certain options dated April 24, 1998.
*10.28 --Form of Governance Agreement among Crown Castle International
Corp., Telediffusion de France International S.A. and Digital Future
Investments B.V.
*10.29 --CTI Operating Agreement
*10.30 --Form of Shareholders' Agreement among Crown Castle International
Corp., Telediffusion de France International S.A. and Castle
Transmission Services (Holdings) Limited.
*10.31 --Site Sharing Agreement between National Transcommunications Limited
and The British Broadcasting Corporation dated September 10, 1991.
+10.32 --Transmission Agreement between The British Broadcasting Corporation
and Castle Transmission Services Limited dated February 27, 1997.
+10.33 --Digital Terrestrial Television Transmission Agreement between The
British Broadcasting Corporation and Castle Transmission
International Ltd. dated February 10, 1998.
+10.34 --Agreement for the Provision of Digital Terrestrial Television
Distribution and Transmission Services between British Digital
Broadcasting plc and Castle Transmission International Ltd. dated
December 18, 1997.
*10.35 --Loan Amendment Agreement among Castle Transmission International,
Castle Transmission Services (Holdings) Ltd. and certain lenders
dated May 21, 1997.
*10.36 --First Amendment to 1995 Stock Option Plan dated April 1, 1998.
+10.37 --Contract between British Telecommunications PLC and Castle
Transmission International Inc. for the Provision of Digital
Terrestrial Television Network Distribution Service dated May 13,
1998.
+10.38 --Site Marketing Agreement dated June 25, 1998 between BellSouth
Mobility Inc. and Crown Communication Inc.
*11 --Computation of net loss per common share.
*21 --Subsidiaries of Crown Castle International Corp.
***23.1 --Consent of KPMG Peat Marwick LLP.
***23.2 --Consent of Ernst & Young LLP.
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
23.3 --Consent of Cravath, Swaine & Moore (included in Exhibit 5).
*24. --Powers of Attorney.
**27.1 --Financial Data Schedule for the period ended December 31, 1996.
**27.2 --Financial Data Schedule for the period ended September 30, 1997.
**27.3 --Financial Data Schedule for the period ended December 31, 1997.
*27.4 --Financial Data Schedule for the period ended March 31, 1998.
***99.1 --Consent of Michel Azibert.
***99.2 --Consent of Bruno Chetaille.
***99.3 --Consent of William A. Murphy.
</TABLE>
- --------
* To be filed by amendment.
** Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-4 previously filed by the
Registrant (Registration no. 333-47873).
*** Previously filed.
+ Indicates that portions of the exhibit have been omitted pursuant to a
request for confidential treatment and such portions have been filed with
the Commission separately.
(b) Financial Statement Schedules
Schedule I--Condensed Financial Information of Registrant
All other schedules are omitted because they are not applicable or because
the required information is contained in the financial statements or notes
thereto included in this Registration Statement.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Securities Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities 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 by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on this day of , 1998.
Crown Castle International Corp.,
/s/ Charles C. Green, III
By: ----------------------------------
NAME: CHARLES C. GREEN, III
TITLE: EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this day of , 1998.
SIGNATURE TITLE
Chief Executive
* Officer and Vice
- ------------------------------------- Chairman of the
TED B. MILLER, JR. Board (Principal
Executive Officer)
President and
* Director
- -------------------------------------
DAVID L. IVY
Executive Vice
/s/ Charles C. Green, III President and Chief
- ------------------------------------- Financial Officer
CHARLES C. GREEN, III (Principal
Financial Officer)
Vice President,
* Chief Accounting
- ------------------------------------- Officer and
WESLEY D. CUNNINGHAM Corporate
Controller
(Principal
Accounting Officer)
Chairman of the
* Board
- -------------------------------------
CARL FERENBACH
II-9
<PAGE>
SIGNATURE TITLE
Director
*
- -------------------------------------
ROBERT A. CROWN
Director
- -------------------------------------
GARTH H. GREIMANN
Director
*
- -------------------------------------
RANDALL A. HACK
Director
*.
- -------------------------------------
DAVID C. HULL, JR.
Director
*
- -------------------------------------
EDWARD C. HUTCHESON, JR.
Director
*
- -------------------------------------
J. LANDIS MARTIN
Director
*
- -------------------------------------
ROBERT F. MCKENZIE
Director
*
- -------------------------------------
JEFFREY H. SCHUTZ
*By: /s/ Charles C. Green, III
---------------------------------
CHARLES C. GREEN, III ATTORNEY-IN-
FACT
II-10
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
*1.1 --Form of Underwriting Agreement.
**2.1 --Asset Purchase and Merger Agreement among Crown Network
Systems, Inc., Crown Mobile Systems, Inc., Robert A. Crown,
Barbara Crown and Castle Acquisition Corp. I, Castle
Acquisition Corp. II, Castle Tower Holding Corp. dated July
11, 1997.
**2.2 --First Amended and Restated Asset Purchase and Merger
Agreement among Crown Network Systems, Inc., Crown Mobile
Systems, Inc., Robert A. Crown, Barbara Crown and Castle
Acquisition Corp. I, Castle Acquisition Corp. II, Castle Tower
Holding Corp. dated July 11, 1997, as amended and restated on
August 14, 1997.
**2.3 --Stock Purchase Agreement by and between Castle Tower Holding
Corp., Bruce W. Neurohr, Charles H. Jones, Ronald J. Minnich,
Ferdinand G. Neurohr and Terrel W. Pugh dated May 12, 1997
("TEA Stock Purchase Agreement").
*2.4 --Share Exchange Agreement among Castle Transmission Services
(Holdings) Ltd., Crown Castle International Corp.,
TeleDiffusion de France International S.A., Digital Future
Investments B.V. and certain shareholders of Castle
Transmission Service (Holdings) Ltd. dated as of April 24,
1998.
**3.1 --Certificate of Incorporation of Castle Tower Holding Corp.
dated April 26, 1995.
**3.2 --Certificate of Amendment of Certificate of Incorporation of
Castle Tower Holding Corp. dated July 2, 1996.
**3.3 --Certificate of Amendment of Certificate of Incorporation of
Castle Tower Holding Corp. dated February 19, 1997.
**3.4 --Certificate of Amendment of Certificate of Incorporation of
Castle Tower Holding Corp. dated June 16, 1997.
**3.5 --Certificate of Amendment of Certificate of Incorporation of
Castle Tower Holding Corp. dated October 31, 1997.
**3.6 --Amended and Restated Bylaws of Castle Tower Holding Corp.
dated February 24, 1997.
*3.7 --Form of Restated Certificate of Incorporation of Crown Castle
International Corp.
*3.8 --Form of Amended and Restated Bylaws of Crown Castle
International Corp.
**4.1 --Indenture between Crown Castle International Corp. and United
States Trust Company of New York, as trustee (including
exhibits).
**4.2 --Amended and Restated Stockholders Agreement among Castle
Tower Holding Corp., Edward C. Hutcheson, Jr., Ted B. Miller,
Jr., Robert A. Crown and Barbara Crown and the persons listed
on Schedule I thereto dated August 15, 1997.
*4.3 --Article Fourth of Certificate of Incorporation of Castle
Tower Holding Corp. (included in Exhibits 3.1 through 3.5).
**4.4 --Trust Deed related to (Pounds)125,000,000 9 per cent.
Guaranteed Bonds due 2007 among Castle Transmission (Finance)
PLC, as Issuer, Castle Transmission International Ltd and
Castle Transmission Services (Holdings) Ltd., as Guarantors,
and The Law Debenture Trust Corporation p.l.c., as Trustee,
dated May 21, 1997.
**4.5 --First Supplemental Trust Deed related to (Pounds)125,000,000
9 per cent. Guaranteed Bonds due 2007 among Castle
Transmission (Finance) PLC, as Issuer, Castle Transmission
International Ltd and Castle Transmission Services (Holdings)
Ltd, as Guarantors, and The Law Debenture Trust Corporation
p.l.c., as Trustee, dated October 17, 1997.
*4.6 --Specimen Certificate of Common Stock.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
-------- ----------- ----
<C> <S> <C>
*5. --Opinion of Cravath, Swaine & Moore with respect to the
legality of Common Stock.
**10.1 --Registration Rights Agreement by and among Crown Castle
International Corp. and Lehman Brothers Inc. and Credit
Suisse First Boston Corporation dated as of November 25,
1997.
**10.2 --Loan Agreement by and among Castle Tower Corporation,
KeyBank National Association (formerly known as "Society
National Bank") and certain lenders dated April 26, 1995
("KeyBank Loan Agreement").
**10.3 --First Amendment to KeyBank Loan Agreement dated June 26,
1996.
**10.4 --Second Amendment to KeyBank Loan Agreement dated January 17,
1997.
**10.5 --Third Amendment to KeyBank Loan Agreement dated April 3,
1997.
**10.6 --Fourth Amendment to KeyBank Loan Agreement dated October 31,
1997.
**10.7 --Fifth Amendment to KeyBank Loan Agreement dated November 24,
1997.
**10.8 --Amended and Restated Limited Holdco Guaranty by Crown Castle
International Corp., in favor of KeyBank National
Association, as Agent, dated November 25, 1997.
**10.9 --Memorandum of Understanding regarding Management and
Governance of Castle Tower Holding Corp. and Crown
Communications, Inc. dated August 15, 1997.
+**10.10 --Site Commitment Agreement between Nextel Communications,
Inc. and Castle Tower Corporation dated July 11, 1997.
+**10.11 --Independent Contractor Agreement by and between Crown
Network Systems, Inc. and Sprint Spectrum L.P. dated July 8,
1996, including addendum dated November 12, 1997.
+**10.12 --Independent Contractor Agreement between Crown Network
Systems, Inc. and Powerfone, Inc. d/b/a Nextel Communications
dated September 30, 1996.
+**10.13 --Independent Contractor Agreement by and between APT
Pittsburgh Limited Partnership and Crown Network Systems,
Inc. dated December 3, 1996.
+**10.14 --Master Lease Agreement between Sprint Spectrum, L.P. and
Robert Crown d/b/a/ Crown Communications dated June 11, 1996
("Sprint Master Lease Agreement").
10.15 --First Amendment to Sprint Master Lease Agreement, dated July
5, 1996 (included in Exhibit 10.14).
10.16 --Second Amendment to Sprint Master Lease Agreement, dated
January 27, 1997 (included in Exhibit 10.14).
+**10.17 --Master Lease Agreement between Powerfone, Inc. d/b/a/ Nextel
Communications and Robert A. Crown d/b/a Crown Communications
dated October 3, 1996.
+**10.18 --Master Lease Agreement between APT Pittsburgh Limited
Partnership and Robert Crown d/b/a Crown Communications dated
December 3, 1996.
+**10.19 --Master Tower Lease Agreement between Cellco Partnership
d/b/a/ Bell Atlantic NYNEX Mobile, Pittsburgh SMSA, L.P. and
Pennsylvania RSN No. 6 (II) and Robert A. Crown d/b/a/ Crown
Communications dated December 29, 1995, as amended by a
letter agreement dated as of October 28, 1997.
+**10.20 --Master Tower Lease Agreement between Cellco Partnership
d/b/a/ Bell Atlantic NYNEX Mobile, Pittsburgh SMSA, L.P. and
Pennsylvania RSN No. 6 (II) and Robert A. Crown d/b/a/ Crown
Communications dated December 29, 1995, as amended by a
letter agreement dated as of October 28, 1997.
**10.21 --Castle Tower Holding Corp. 1995 Stock Option Plan (Third
Restatement).
**10.22 --Services Agreement between Castle Transmission International
Ltd (formerly known as Castle Transmission Services Ltd) and
Castle Tower Holding Corp. dated February 28, 1997.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
-------- ----------- ----
<C> <S> <C>
**10.23 --Shareholders' Agreement among Berkshire Fund IV Investment
Corp., Berkshire Investors LLC, Berkshire Partners LLC,
Candover Investments PLC, Candover (Trustees) Limited,
Candover Partners Limited (as general partner for 4 limited
partnerships), Castle Tower Holding Corp., Telediffusion de
France International S.A., and Diohold Limited (now known as
Castle Transmission Services (Holdings) Ltd) dated January
23, 1997.
**10.24 --First Amendment to Amended and Restated Stockholders
Agreement by and among Crown Castle International Corp.,
Edward C. Hutcheson, Jr., Ted B. Miller, Jr., Robert A. Crown
and Barbara Crown and the persons listed as Investors dated
January 28, 1998.
**10.25 --Third Amendment to Sprint Master Lease Agreement, dated
February 12, 1998.
*10.26 --Form of Stockholders Agreement between Crown Castle
International Corp. and certain stockholders listed on
Schedule 1 thereto.
*10.27 --Agreement among Castle Transmission Services (Holdings)
Ltd., Digital Future Investments B.V., Berkshire Partners LLC
and certain shareholders of Castle Transmission Services
(Holdings) Ltd. for the sale and purchase of certain shares
of Castle Transmission Services (Holdings) Ltd., for the
amendment of the Shareholders' Agreement in respect of Castle
Transmission Services (Holdings) Ltd. and for the granting of
certain options, dated April 24, 1998.
*10.28 --Form of Governance Agreement among Crown Castle
International Corp., Telediffusion de France International
S.A. and Digital Future Investments B.V.
*10.29 --CTI Operating Agreement.
*10.30 --Form of Shareholders' Agreement among Crown Castle
International Corp., Telediffusion de France International
S.A. and Castle Transmission Services (Holdings) Ltd.
*10.31 --Site Sharing Agreement between National Transcommunications
Limited and The British Broadcasting Corporation dated
September 10, 1991.
+10.32 --Transmission Agreement between the British Broadcasting
Corporation and Castle Transmission Services Limited dated
February 27, 1997.
+10.33 --Digital Terrestrial Television Transmission Agreement
between the British Broadcasting Corporation and Castle
Transmission International Ltd. dated February 10, 1998.
+10.34 --Agreement for the Provision of Digital Terrestrial
Television Distribution and Transmission Services between
British Digital Broadcasting plc and Castle Transmission
International Ltd. dated December 18, 1997.
*10.35 --Loan Amendment Agreement among Castle Transmission
International Ltd., Castle Transmission Services (Holdings)
Ltd. and certain lenders dated May 21, 1997.
*10.36 --First Amendment to 1995 Stock Option Plan dated April 1,
1998.
+10.37 --Contract between British Telecommunications PLC and Castle
Transmission International Ltd. for the Provision of Digital
Terrestrial Television Network Distribution Service dated May
13, 1998.
+10.38 --Site Marketing Agreement dated June 25, 1998 between
BellSouth Mobility Inc. and Crown Communication Inc.
*11 --Computation of net loss per common share.
*21 --Subsidiaries of Crown Castle International Corp.
***23.1 --Consent of KPMG Peat Marwick LLP.
***23.2 --Consent of Ernst & Young LLP.
23.3 --Consent of Cravath, Swaine & Moore (included in Exhibit 5).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
-------- ----------- ----
<C> <S> <C>
**24 --Powers of Attorney.
**27.1 --Financial Data Schedule for the period ended December 31,
1996.
**27.2 --Financial Data Schedule for the period ended September 30,
1997.
**27.3 --Financial Data Schedule for the period ended December 31,
1997.
*27.4 --Financial Data Schedule for the period ended March 31, 1998.
***99.1 --Consent of Michel Azibert.
***99.2 --Consent of Bruno Chetaille.
***99.3 --Consent of William A. Murphy.
</TABLE>
- --------
* To be filed by amendment.
** Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-4 previously filed by the
Registrant (Registration no. 333-43873).
*** Previously filed.
+ Indicates that portions of the exhibit have been omitted pursuant to a
request for confidential treatment and such portions have been filed with
the Commission separately.
<PAGE>
EXHIBIT 10.32
DATED 27th FEBRUARY 1997
(1) THE BRITISH BROADCASTING CORPORATION
and
(2) CASTLE TRANSMISSION SERVICES LIMITED
TRANSMISSION AGREEMENT
HOME SERVICE
LINKLATERS & PAINES
Barrington House
59-67 Gresham Street
London EC2V 7JA
Tel: 0171-606 7080
Ref: RMDB/MSH C00018678
<PAGE>
<TABLE>
<CAPTION>
Contents
- ---------------------------------------------------------------------------------------
Clause Heading Page
<S> <C>
1 Definitions................................................................ 1
2 Duration and Contract Management........................................... 19
3 Services................................................................... 19
3.1 Transmission of BBC's Programmes........................................... 19
3.2 Other Services............................................................. 24
3.3 Third Party Services....................................................... 30
3.4 Control of the Services.................................................... 30
3.5 Monitoring at the Interface................................................ 31
3.6 Compliance with Site Sharing Agreements.................................... 34
4 BBC's Obligations.......................................................... 34
4.1 Operational Obligations.................................................... 34
4.2 Obtaining Consents/Licensing............................................... 36
4.3 Use of the Services........................................................ 37
4.4 Payment.................................................................... 38
4.5 Access..................................................................... 40
4.6 Maintenance of MBN Core Network and Other BBC Telecommunications Networks.. 42
4.7 Radio Frequency Planning Services.......................................... 42
4.8 Ownership of the Equipment................................................. 42
4.9 Access to Records and Software............................................. 42
4.10 BBC Affiliates............................................................. 44
5 Provision for Changes/Modifications........................................ 44
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Contents
- ---------------------------------------------------------------------------------------
Clause Heading Page
<S> <C>
5.1 Changes by TxCo............................................................ 44
5.2 Changes requested by the BBC............................................... 48
5.3 Modifications to this Agreement including Charges and Payment.............. 49
6 Engineering Performance Standards.......................................... 50
6.1 Maintenance of the Engineering Performance Standards....................... 50
6.2 Compliance with the Engineering Performance Standards...................... 50
7 Performance Monitoring..................................................... 52
7.1 Performance Database....................................................... 52
7.2 Fault Reporting............................................................ 52
7.3 Performance Reporting...................................................... 53
8 Customer Complaints........................................................ 54
9 Licensing.................................................................. 54
10 Continuity of Provision of Services........................................ 55
10.1 Routine Maintenance, Fault Repairs and Permitted Interruptions............. 55
10.2 Emergency Fault Repair..................................................... 57
10.3 Service Priorities......................................................... 58
11 Review of Performance Requirements......................................... 59
12 Charges, Payment and Billing............................................... 60
12.1 Charges and Payment for the Services....................................... 60
12.2 Invoices................................................................... 61
12.3 Interest on Late Payment................................................... 61
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Contents
- ---------------------------------------------------------------------------------------
Clause Heading Page
<S> <C>
12.4 Failure to Meet Service Obligations - Service Credits...................... 62
12.5 Calculation of Service Credits............................................. 63
13 Termination................................................................ 64
13.1 The Services............................................................... 64
13.2 Force Majeure.............................................................. 66
13.3 Emergency Services......................................................... 67
13.4 Termination for Breach..................................................... 68
13.5 Termination on Change in Control........................................... 68
13.6 Consequences of Termination................................................ 74
13.7 Details of Relevant Employees.............................................. 75
13.8 Transfer Regulations....................................................... 76
14 Third Party Services....................................................... 80
15 Warranties and Undertakings................................................ 81
16 Liability and Insurance.................................................... 82
17 Assignment and Sub-Contracting............................................. 88
18 Force Majeure.............................................................. 88
19 Amendments to this Agreement............................................... 89
20 Information and Confidentiality............................................ 89
21 Intellectual Property Rights............................................... 91
22 Employees.................................................................. 94
22.1 Terms of employment of existing Employees.................................. 94
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Contents
- ---------------------------------------------------------------------------------------
Clause Heading Page
<S> <C>
22.2 Changes in numbers and total cost of Employees............................. 95
23 Notices.................................................................... 95
24 Non-Solicitation........................................................... 97
25 Restrictive Trade Practices................................................ 97
26 Whole Agreement............................................................ 98
27 Value Added Tax............................................................ 98
28 Parent Company Guarantee................................................... 99
29 Jurisdiction............................................................... 99
</TABLE>
iv
<PAGE>
THIS AGREEMENT is made the 27th day of February 1997 BETWEEN
(1) THE BRITISH BROADCASTING CORPORATION, a corporation incorporated under
Royal Charter, whose principal office is at Broadcasting House, Portland
Place, London W1A 1AA ("the BBC"); and
(2) CASTLE TRANSMISSION SERVICES LIMITED (registered number 3196207) whose main
place of business is Warwick Technology Park, Heathcote Lane, Warwick CV34
5DS ("TxCo")
WHEREAS
(A) The BBC has vested in TxCo, whose registered office is at Barrington House,
59-67 Gresham Street, London EC2V 7JA, substantially all of the assets of
the BBC's Transmission division other than the part of the business known
as World Service Transmission Operations.
(B) TxCo owns pursuant to the Transfer Scheme and operates transmitting
stations for wireless telegraphy and apparatus for the purposes of
broadcasting, inter alia, throughout the United Kingdom, the Isle of Man
and the Channel Islands.
(C) The BBC is incorporated under the Charter and required under the Charter
and Agreement to provide radio and television broadcasts.
(D) TxCo will hold the necessary licences under the WTA and the Telecoms Act to
perform the Services contemplated by this Agreement.
(E) The Services to be performed under this Agreement are substantially the
same as the BBC's Transmission division has been performing pursuant to an
existing intra-group trading arrangement up to the date on which the
Transfer Scheme comes into force.
(F) The parties do not consider that the arrangement set out in this Agreement
is a new procurement but rather the formalization of an existing
arrangement the duration of which is proportionate to the BBC's need for
the continuity of existing arrangements to facilitate the vesting of TxCo.
IT IS HEREBY AGREED AS FOLLOWS:
1
<PAGE>
1. DEFINITIONS
In this Agreement:
"ACCEPTED" in relation to the DAB Services and the DAB Construction
Services shall mean acceptance by the BBC of a Station in accordance with
the agreed acceptance specification and the DAB Project Plan set out in
Schedule 1.1
"ACCOUNTABLE FAULT" means a fault of the kind defined in Schedule 5 Part 4.
"AFFILIATE" means any undertaking in respect of which a participating
interest is held by TxCo, the BBC or another subsidiary undertaking of the
BBC, or its parent undertaking or any subsidiary undertaking of its parent
undertaking (as such terms are defined in sections 258 to 260 and Schedule
9 of the Companies Act 1985, as amended by the Companies Act 1989).
"AGREEMENT" means the Agreement between the Secretary of State and the BBC
dated 25 January 1996.
"AMS" means the Automatic Messaging Service.
"ANCILLARY ACCOMMODATION" means Deferred Facilities comprising buildings,
which are both ancillary accommodation and DF Assets, and the equipment in
such buildings, which are BBC DF.
"ANCILLARY SERVICES" means all vertical blanking interval ("VBI") services,
such as the existing teletext service, Audetel, subtitling and Signal-3,
VBI talk back, radio data services and DAB programme-associated data and
any other similar services provided by the BBC from time to time.
"AUTOMATIC FAULT REPORTING EQUIPMENT" means equipment located at Stations
which monitors the status of other equipment, including, but not limited
to, whether transmitters are operating at reduced power, and sends data
back to the TOC allowing it to monitor remotely the status of the
transmitter.
"AVERAGE EARNINGS INDEX" means the average earnings index for the whole
United Kingdom economy as published from time to time by the Office of
National Statistics or, if such index shall cease to be published or if
there is a material change in the basis of the index, such other average
earnings index as is an equivalent replacement, or if there is not a
replacement, as the BBC may, after consultation with TxCo, reasonably
determine to be appropriate in the circumstances.
2
<PAGE>
"1996 ACT" means the Broadcasting Act 1996.
"BBC ASSIGNEE" means any wholly owned subsidiary of the BBC to whom the BBC
has assigned this Agreement pursuant to Clause 17.2.
"BBC DF" means any equipment or structures or circuits owned or rented by
the BBC and used for the purposes of providing DF Services.
"BBC EQUIPMENT" means any equipment at the TxCo Sites (not being TxCo
Equipment) owned by or leased to the BBC including, but not limited to,
radio car base equipment, OB equipment and the test DTT multiplexers, or
equipment run by a third party used by the BBC or any provider of services
to the BBC, including any BBC Nominated Contractor in relation to the
Services which Equipment is included in a Site Sharing Agreement with the
BBC or excluded from transfer to TxCo in the Transfer Scheme.
"BBC NOMINATED CONTRACTOR" means a contractor engaged by the BBC who is
from time to time permitted access by TxCo to the Stations to install,
maintain, repair and replace BBC Equipment including BBC DF.
"BBC'S PROGRAMMES" means any national radio and television services,
regional broadcasting services, local radio services, Teletext and other
ancillary services (including any Emergency Announcements) provided by the
BBC consisting of programmes and ancillary material intended for
transmission by wireless telegraphy and made by or on behalf of the BBC in
accordance with the terms of the Charter and Agreement.
"BBC REPRESENTATIVE" means a person or persons nominated in writing to TxCo
by the BBC from time to time to be its contractual point of contact, in
accordance with the notice provisions of this Agreement.
"BBC SHARED EQUIPMENT" means any equipment, other than TxCo Equipment, at a
BBC Site which is also used by TxCo or other BBC Equipment to which TxCo
has access pursuant to a Site Sharing Agreement.
"BBC SITE" means any property owned, or occupied under lease or license, by
the BBC, other than properties leased or licensed to the BBC by TxCo
pursuant to a Site Sharing Agreement.
"BILLING INFORMATION" means the information to accompany TxCo's invoiced
Charges to the BBC for the Services including the information set out, and
in the form described, in Schedule 2.
3
<PAGE>
"BROADCAST DUTY MANAGER" means the radio presentation manager, the current
radio Operational Point of Contact.
"BROADCASTING ACT" means the Broadcasting Act 1990.
"BT" means British Telecommunications pic.
"CHARGES" means the charges payable from time to time by the BBC to TxCo
for the Services and under any Site Sharing Agreements calculated in
accordance with Schedules 2 and 7.
"CHARTER" means the Charter granted to the BBC by Her Majesty the Queen in
Council on 13 March 1996.
"CHARTER AND AGREEMENT" means the Charter granted tot he BBC by Her Majesty
the Queen in Council on 13 March 1996 and the Agreement between the
Secretary of State and the BBC dated 25 January 1996 both of which came
into force on 1 May 1996, as such Charter and Agreement may from time to
time be amended or replaced.
"COMMENCEMENT DATE" means the date on which the Transfer Scheme comes into
effect.
"DAB CONSTRUCTION SERVICES" means the provisions of services as set out in
Schedule 1, which services relate to the installation by TxCo of digital
audio broadcasting facilities to 27 transmitter sites.
"DAB MULTIPLEX" means the system by which the DAB Services are conveyed
from their point of origin to the listeners' receiving apparatus.
"DAB SERVICES" means the transmission by wireless telegraphy of a
multiplexed signal which contains a range of BBC audio and data services.
"DEFERRED FACILITIES" means the assets owned by TxCo and the BBC and used
in providing the DF Services as set out in Schedule 9, as that Schedule may
be amended from time to time.
"DF ASSETS" means those assets owned by TxCo and listed in Schedule 9 from
time to time and used in providing the DF Services.
"DF SERVICES" means the services described in Schedule 9 to be performed by
TxCo.
"DF STATIONS" means the Sites at which the Deferred Facilities described in
Schedule 9 are located.
4
<PAGE>
"DF TRANSMITTED SERVICES" means the services transmitted using the Deferred
Facilities, which Services form part of the DF Services.
"DUTY ENGINEER" means the person of that title from time to time on duty at
the TOC.
"EFFECTIVE RADIATED POWER" in a given direction, means the measure which is
the product of the power supplied to an antenna and its gain in that
direction relative to a half-wave dipole.
"EMERGENCY ANNOUNCEMENTS" means the provision by the BBC as required by
Clause 8.1 of the Agreement of announcements or other matter from all or
any of the Stations.
"EMERGENCY POWERS" means a power exercisable by a Minister of the Crown
pursuant to any legislation enacted or made to deal with a public emergency
including the Emergency Powers Act 1920 and any regulations made under it.
"EMERGENCY SERVICES" means the services described in Clause 3.2.4,
including the Transmission Network being taken over pursuant to any
direction by the Secretary of State or any other Minister of the Crown and
used for Her Majesty's Service. The Emergency Services include the DF
Transmitted Services.
"EMPLOYEES" means the employees of TxCo (or any sub-contractor of TxCo)
from time to time principally employed for the purposes of performing
TxCo's obligations under this Agreement or the employees of any TxCo
Assignee from time to time principally employed for the purposes of
performing TxCo's obligations under this Agreement.
"ENERGIS" means Energis Communications Limited.
"ENGINEERING PERFORMANCE STANDARDS" means the technical performance
parameters to be applied by TxCo in its performance of the Services as set
out in Schedule 4.
"FORCE MAJEURE EVENT" means any events or circumstances beyond the
reasonable control of the defaulting party which shall include but not be
limited to Act of God, war, civil disturbance, statutory prohibition,
Government intervention, order or act of Government or local/public
authority, acts of terrorism, fire, lightning, flood, adverse propagation
conditions, and any other adverse weather conditions, explosion, accident,
theft or vandalism, national strike action or industrial action taken by a
union or interruption caused by a third party station owner or the BBC
provided that neither party can rely on strikes, industrial action, theft
or acts of vandalism where it
5
<PAGE>
could reasonably have been expected to have prevented them or the
industrial action or strike is by its own employees only.
"GENERAL SERVICES AGREEMENT " means the agreement of even date between the
parties to this Agreement;
"HMG" means any Minister of the Crown and/or government department,
including the Cabinet Office, or the nominated representative of any of
them.
"HOME OFFICE" means such government department as carries out the
governmental functions relevant to the DF Services referred to in this
Agreement from time to time, as the context permits, and which is currently
headed by the Secretary of State for the Home Office.
"INDEX" or "RPI" means the general retail price index (all items) as
published in the monthly Digest of Statistics by the UK Office of National
Statistics, as amended from time to time, or any equivalent replacement.
"INSERTION TEST SIGNAL" means a test signal, as defined in the BBC R&D
Technical Memorandum S1199(91), inserted into the vertical blanking
interval of a television signal.
"INTERFACE" means the network termination points between the BBC's
distribution and contribution systems and the Transmission Network for each
of Network Television, Network Radio and Regional Broadcasting as set out
in Schedule 3.
"LF RADIO DATA" means radio data on low frequency transmissions.
"LOCAL RADIO" means regional radio services other than national radio
services.
"LOSSES" means all losses, liabilities, costs (including without limitation
legal costs), expenses and damages.
"MANAGED BROADCAST CORE NETWORK" means the distribution and contribution
network provided to the BBC by Energis (including circuits sub-contracted
from BT) and used to carry part of the signals comprising the BBC's
Programmes to and from the source of the BBC Programmes and the Interface,
including for the purposes of this Agreement all SHF Circuits and OB inject
points retained by the BBC. The Managed Broadcast Core Network excludes
the Self Provided Network.
6
<PAGE>
"MAINTENANCE SERVICES" means:
(i) the maintenance of radio car base equipment, OB inject points
and SHF Circuits as set out in Schedule 1 para 2; and
(ii) maintenance of contribution circuits comprised in the Self
Provided Network.
"MINIMUM PERIOD" means the period from the Commencement Date until 31 March
2007.
"MONITORING SERVICES" means the monitoring by TxCo of the Transmission
Network and the Self Provided Network.
"NETWORK MANAGEMENT CENTRE" means the unit within the BBC to be established
to monitor the Managed Broadcast Core Network, the BBC's internal
telecommunications networks and IT infrastructure.
"NETWORK RADIO SERVICES" means broadcast transmission services for BBC
Network Radio programmes including programmes broadcast on the channels
known as Radios 1, 2, 3, 4 and 5 Live and DAB Services and any broadcast
data services using the frequencies reserved for Radios 1, 2, 3, 4 and 5
Live and DAB.
"NETWORK TELEVISION SERVICES" means broadcast transmission services for the
transmission of BBC1 and BBC2 network television programmes and other
programmes (including Ceefax) provided by the BBC and using the same
frequencies as BBC1 and BBC2.
"NEW SERVICES" means the new services which the BBC requests TxCo to
undertake as agreed, such as new UHF or MF transmitters or FM fillers, DAB
Phase 2, DTT and new RDS equipment. Once a new service is agreed between
the parties it shall become a New Service from that time.
"NEWS" means the News directorate of the BBC.
"NEW STATIONS" means additional and replacement Stations, whether on an
existing or new site installed by TxCo pursuant to this Agreement or the
General Services Agreement.
"NICAM STEREO" means a digital stereo sound service broadcast as part of
the BBC1 and BBC2 signal from some Stations.
"NTL" means National Transcommunications Limited.
"NTL AGREEMENT" means the master Site Sharing Agreement of 10 September
1991 between the BBC and NTL which will be transferred to TxCo pursuant to
the Transfer Scheme.
7
<PAGE>
"NTL SITES" means all sites owned by, leased or licensed to NTL and dealt
with under the NTL Agreement.
"OB" means outside broadcast.
"OPERATIONAL POINT OF CONTACT" for television means the Presentation
Engineering Co-ordinator, for network radio the Broadcast Duty Manager and
for regional radio the Head of Production Services or such other post as is
notified to TxCo by the BBC from time to time in writing in accordance with
the provisions of this Agreement. The Operational Point of Contact will be
available on a 24 hour a day basis, unless the Operational Point of Contact
is responsible only for regional radio.
"OPERATOR" means the BBC and/or any Successor Operator.
"PERFORMANCE DATABASE" means the database used for calculating Performance
Measures, maintained and supported by the TOC.
"PERFORMANCE MEASURES" means the numerical indications of TxCo's overall
performance, calculated as set out in Schedule 10 part 1.
"PERFORMANCE STANDARDS" means the overall performance parameters to be
applied by TxCo in its performance of the Transmission Service as set out
in Schedule 10.
"PLANNED INTERRUPTIONS" means any interruptions of the kind described in
Clauses 10.1.1 and 10.1.2.
"PLANNED WORK MESSAGE" means a message sent using the AMS where there is a
Planned Interruption to the Transmission Service or periods of reduced
power working.
"PRESENTATION ENGINEERING CO-ORDINATOR" means the engineer on duty at
Television Centre of that title or any replacement engineer designated by
the BBC in accordance with the notice provisions of this Agreement, the
current television Operational Point of Contact.
"PRIORITY STATIONS" means those stations described as Priority Stations in
Schedule 3 part 1 as amended from time to time.
"PROPOSED SALE AGREEMENT" means the agreement for the proposed disposal by
the BBC of all of its interest in TxCo.
8
<PAGE>
"PTO" means a telecommunications operator designated as a public
telecommunications operator under the Telecoms Act.
"R&D SERVICES AGREEMENT" means the call-off agreement of even date between
TxCo and the BBC's Research & Development department relating to services
to be supplied to TxCo by the BBC such as service planning, testing,
technical consultancy for HF/UHF control systems, development of digital
audio broadcasting technology, digital terrestrial television technology
and services to be provided by TxCo to the BBC such as advice on the
construction and equipping of New and existing Stations and the provision
of facilities for testing equipment.
"RDS" means radio data service, included with the signal of Network and
Regional Radio.
"RF" means radio frequency.
"RADIO REGULATIONS" means the Radio Regulations of the International
Telecommunications Union or any replacement for such regulations and
includes all related regional agreements.
"RADIO SERVICE PLANNING NOTE" means the partial requirement specification
for a radio transmitting station, containing all details except the antenna
radiation patterns.
"RADIO STATION DESIGN PROPOSAL" mans the supplement to the Radio Service
Planning Note containing the antenna radiation patterns.
"REGION" means the national and English regions of the BBC, being Northern
Ireland, Wales, Scotland, Northern England, the Midlands and East England,
and Southern England.
"REGIONAL BROADCASTING SERVICES" means broadcast transmission services of
the BBC comprising Regional Radio and Television programmes using the same
frequencies as Network Television and Network Radio and those of Regional
Radio.
"REGIONAL RADIO" means each of the local and national radio stations listed
below:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
REGION RADIO STATION LOCATION
===========================================================================================
<S> <C> <C>
Scotland Radio Scotland Glasgow
___________________________________________________________________________________________
Scotland BBC Radio Nan Gaidheal Isle of Lewis
___________________________________________________________________________________________
Scotland BBC Radio Orkney Orkney
___________________________________________________________________________________________
Scotland BBC Radio Shetland Shetland
___________________________________________________________________________________________
Northern Ireland Radio Ulster Belfast
___________________________________________________________________________________________
Northern Ireland Radio Foyle Londonderry
___________________________________________________________________________________________
</TABLE>
9
<PAGE>
<TABLE>
<S> <C> <C>
_________________________________________________________________________________________________________
Wales Radio Wales Cardiff
_________________________________________________________________________________________________________
Wales Radio Cymru Cardiff
_________________________________________________________________________________________________________
England (South) BBC Radio Bristol Bristol
_________________________________________________________________________________________________________
England (South) BBC Somerset Sound Bristol
_________________________________________________________________________________________________________
England (South) BBC Radio Gloucestershire Gloucester
_________________________________________________________________________________________________________
England (South) BBC Wiltshire Sound Swindon
_________________________________________________________________________________________________________
England (South) BBC Radio Devon Plymouth
_________________________________________________________________________________________________________
England (South) BBC Radio Cornwall Cornwall
_________________________________________________________________________________________________________
England (South) BBC Radio Guernsey Guernsey
_________________________________________________________________________________________________________
England (South) BBC Radio Jersey Jersey
_________________________________________________________________________________________________________
England (South) BBC Radio Solent Southampton
_________________________________________________________________________________________________________
England (South) Southern Counties Radio Guildford
_________________________________________________________________________________________________________
England (South) Greater London Radio London
_________________________________________________________________________________________________________
England (South) BBC Thames Valley FM Oxford
_________________________________________________________________________________________________________
England (South) BBC Radio Kent Kent
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio West Midlands Birmingham
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Stoke Stoke-on-Trent
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Shropshire Shrewsbury
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio CWR Coventry
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Hereford & Worcester Worcester
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Nottingham Nottingham
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Leicester Leicester
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Derby Derby
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Lincolnshire Lincoln
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Norfolk Norfolk
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Cambridgeshire Cambridge
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Suffolk Ipswich
_________________________________________________________________________________________________________
England (Midlands & East) BBC Radio Northampton Northampton
_________________________________________________________________________________________________________
England (Midlands & East) Three Counties Radio Luton
_________________________________________________________________________________________________________
England (Midlands & East) BBC Essex Chelmsford
_________________________________________________________________________________________________________
England (North) Greater Manchester Radio Manchester
_________________________________________________________________________________________________________
England (North) BBC Radio Lancashire Blackburn
_________________________________________________________________________________________________________
England (North) BBC Radio Merseyside Liverpool
_________________________________________________________________________________________________________
England (North) BBC Radio Leeds Leeds
_________________________________________________________________________________________________________
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
- ---------------------------------------------------------------------------------------------------------
England (North) BBC Radio Sheffield Sheffield
_________________________________________________________________________________________________________
England (North) BBC Radio York York
_________________________________________________________________________________________________________
England (North) BBC Radio Humberside Hull
_________________________________________________________________________________________________________
England (North) BBC Radio Newcastle Newcastle upon Tyne
_________________________________________________________________________________________________________
England (North) BBC Radio Cleveland Middlesborough
_________________________________________________________________________________________________________
England (North) BBC Radio Cumbria Carlisle
- --------------------------------------------------------------------------------------------------------_
</TABLE>
"RELEVANT EMPLOYEES" means all Employees employed immediately before the
Transfer Date (whether employed by TxCo or otherwise) whose contract of
employment has been or is to be transferred to the BBC or, as the case may
be, a Successor Operator by virtue of the operation of law (including the
Transfer Regulations) or any other person so employed in respect of whom
liabilities arising from a contract of employment or employment
relationship have or will be transferred by virtue of the operation of law
(including the Transfer Regulations).
"RELEVANT EMPLOYER" means an employer of any of the Employees or the
Relevant Employees.
"REVIEW COMMITTEE" means the committee described in Clause 11.
"ROUTINE MAINTENANCE" means work that is planned by TxCo to minimize faults
on either TxCo Equipment or BBC Equipment (if such Equipment is required by
the BBC to be maintained by TxCo under this Agreement) and to ensure that
such Equipment operates safely, complies with all applicable statutory
requirements and meets the Engineering Performance Standards.
"THE SECRETARY OF STATE" means one of Her Majesty's Principal Secretaries
of State.
"SELF PROVIDED NETWORK" or
"SPN" means the microwave links owned from time to time by TxCo and used by
it as part of the Transmission Network.
"THE SERVICE AREA" means the current service areas of Stations as
identified and held by the BBC's Research & Development department.
"THE SERVICES" means, either collectively or individually as appropriate,
the Network Television Services, the Network Radio Services, the Regional
Broadcasting Services, the Ancillary Services, the Emergency Services, the
Monitoring Services, the Maintenance Services, the DF Transmitted Services,
the DF Services, the DAB Construction Services and any New Services agreed
to be provided by TxCo by terrestrial wireless telegraphy transmission to
the BBC.
11
<PAGE>
"SERVICE CREDITS" means credits against Charges in respect of TxCo failing
to meet the relevant Performance Measure in accordance with Clause 12.4.
"SERVICE MESSAGE" means a message of the kind described in Schedule 5 part
5.2.
"SHF CIRCUITS" means the remotely controlled antennas, transmitters and
receivers owned by the BBC and used by the BBC for contribution, including
circuits used for OB and electronic newsgathering.
"SHARED TELECOMMUNICATIONS AGREEMENT" means the agreement of even date
between TxCo and the BBC relating to TxCo's use of the BBC's internal
telecommunications networks.
"SITE SHARING AGREEMENT" means the agreement between TxCo and the BBC in
the form set out in Schedule 6 relating to TxCo's access, use and
occupation of BBC Sites, an agreement in the form set out in Schedule 9
Annex 2 making provision for access, use and occupation of each relevant
WSCo Site or TxCo Site by the BBC or TxCo for Deferred Facilities, and an
agreement in the form set out in Schedule 7 for each relevant TxCo Site for
BBC's access, occupation and use in relation to BBC Equipment shared
equipment or otherwise.
"STATIONS" means the wireless telegraphy stations (including related
equipment) listed in Annex 1.
"SUCCESSOR OPERATOR" means a contractor succeeding TxCo in the provision or
operation of all or any of the Services.
"TALK AGREEMENT" means the agreement of 28 March 1995 between the BBC and
Talk Radio UK Limited.
"TARGET PERFORMANCE MEASURE" means the Performance Measure which is
required for each of BBC1, BBC2, Radio 2, Radio 3, Radio 4 FM, Radio 4 MF,
Radio 5 Live, DAB and Regional, National and Local Radio.
"TELECOMS ACT" means, in relation to the UK, the Telecommunications Act
1984 or such equivalent statutes as are from time to time in force in the
Channel Islands or the Isle of Man.
"TELETEXT" means Ceefax or any other data service transmitted using lines
in the vertical blanking interval of the vision element of the television
signal directed to the general public.
"TELESWITCHING AGREEMENT" means the agreement of even date between
TxCo and the BBC relating, inter alia, to performance of the contract
of 9 February 1996 between the BBC and the
12
<PAGE>
Electricity Association and the contract of 21 July 1994 between the BBC
and the Norfolk County Council.
"TELETEXT EQUIPMENT" means the teletext equipment owned by TxCo installed
at Stations used to enhance the provision of Teletext as such equipment is
more particularly described in Schedule 12 para 4.
"TELEVISION SERVICE PLANNING NOTE" means the full requirement specification
for a television transmitting Station.
"TERM" means the term of this Agreement set out in Clause 2.2, subject to
earlier termination in accordance with Clause 13.
"TOC" means the Technical Operations Centre operated and maintained by TxCo
at Warwick including the back-up centre at Sutton Coldfield or such other
site or sites to which it may be moved.
"TRANSFER DATE" means close of business on the date when this Agreement
terminates.
"TRANSFER REGULATIONS" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981.
"TRANSFER SCHEME" means the transfer scheme to be made by the BBC in favour
of TxCo pursuant to the 1996 Act.
"TRANSMISSION FAULTS" means such breaks, discontinuances or other
impairments of the radiation of the BBC's Programmes as are related solely
to one or more faults in the Transmission Network which shall include Major
Faults and Minor Faults as defined in Schedule 5, Part 4.
"TRANSMISSION NETWORK" means all or such part of the transmission system
operated and/or provided by TxCo (including the Stations listed in Annex 1
as that list may be amended from time to time in accordance with this
Agreement), the transmission apparatus installed at the TxCo Sites from
time to time (including the TxCo Equipment) and the Self Provided Network,
in each case used to provide the Transmission Service.
"TRANSMISSION SERVICE" means the transmission by terrestrial wireless
telegraphy of the BBC's Programmes on the frequencies and at the power
described in Annex 1 from the Stations by means of the Transmission Network
in accordance with the Engineering Performance Standards.
13
<PAGE>
"TXCO ASSIGNEE" means any person, firm or company to whom TxCo has assigned
this Agreement pursuant to Clause 17.2.
"TXCO EQUIPMENT" means any apparatus or equipment other than BBC Equipment
used by TxCo to provide the Transmission Service to the BBC from time to
time under the terms of this Agreement, including but not limited to, all
apparatus and equipment transferred to TxCo under the Transfer Scheme and
also including any New Stations or transmitters and additional equipment
required for this purpose from time to time and TxCo-owned equipment on BBC
Sites.
"TXCO LICENCES" means the Telecoms Act licences held by TxCo which
authorise the provision by TxCo of the Services and the WTA licences held
by TxCo which authorises use and installation of wireless telegraphy
equipment.
"TXCO REPRESENTATIVE" means a person or persons nominated in writing from
time to time by TxCo to the BBC to be TxCo's contract representative.
"TXCO SITE" means any property owned, or occupied under lease or licence,
by TxCo, other than pursuant to a Site Sharing Agreement entered into
pursuant to this Agreement.
"TXCO SUB-CONTRACTOR" has the meaning given in Clause 13.8.2.
"VAT" means value added tax as currently charged under the Value Added Tax
Act 1994 and any successor or replacement thereof and any similar tax
chargeable under the laws of the United Kingdom or any other jurisdiction.
"VIRGIN AGREEMENT" means the agreement dated 26 November 1992 between the
BBC and Independent Music Radio Limited, now known as Virgin Radio Limited.
"WSCO" means the company into which the assets relating to the transmission
of BBC World Service radio transmission are to be vested pursuant to the
1996 Act.
"WSCO EQUIPMENT" means equipment owned, or to be owned, by WSCo.
"WSCO SITE" means any property owned, or occupied under lease or licence,
by WSCo, other than a lease or licence granted by TxCo.
"WTA" means the Wireless Telegraphy Acts 1949-1967 and any amendments to
such Acts and any other legislation of equivalent effect in force from time
to time in the Channel Islands or the Isle of Man.
14
<PAGE>
"YEAR" means the period from the Commencement Date to 31 March 1997 (which
constitutes the first Year), and each subsequent complete period of twelve
months, or in respect of the second Year the period beginning on 1 April
1997 and concluding on 31 March 1998 and each subsequent Year beginning on
1 April.
1.1 The expressions "the BBC" and "TxCo" include their respective permitted
assigns, employees and agents.
1.2 Other than in Clause 13.5, any reference to any Act of Parliament will be
deemed to include any replacement or re-enactment for the time being in
force and to include any by-laws, statutory instruments, licences, rules,
regulations, orders, notices, directions, consents or permissions made
under such Act and any condition attaching thereto.
1.3 The headings in this Agreement are for ease of reference only and will not
be taken into account in the construction or interpretation of any
provision to which they refer.
1.4 The invalidity or unenforceability of any individual provision(s) of this
Agreement shall not affect any other provision herein or render this
Agreement invalid or unenforceable.
1.5 This Agreement is made between principals and it shall not be deemed to
create any partnership between the parties and neither shall hold itself
out as agent or partner of the other except as specifically contemplated
under this Agreement.
1.6 In the event of any inconsistency between the general provisions of this
Agreement and any of the provisions contained in any of the Schedules and
Annexes to this Agreement the provisions of this Agreement shall take
precedence.
1.7 Failure by either party to exercise any right conferred by this Agreement
will not be deemed to be a waiver of any such right nor operate so as to
bar the exercise or enforcement thereof or of any right on any other
occasion.
1.8 Except to the extent that the context otherwise requires, words and
expressions defined in Article 1 of the Radio Regulations shall have the
same meanings in this Agreement.
2. DURATION AND CONTRACT MANAGEMENT
2.1 The operation of this Agreement shall be kept under continuous review by
the parties, including the regular meetings provided for in Clauses 3.2.7
and 11 below. The provisions as to payments under all Site Sharing
Agreements between the parties shall be reviewed no later than 31
15
<PAGE>
December 2001 and if the NTL Agreement is amended, or amounts payable under
it changed, in any material respect prior to that date, such review shall
take place within three (3) months of that amendment having been made.
2.2 This Agreement will be deemed to have come into force on the Commencement
Date and, subject to Clause 13, shall continue in force until either party
gives to the other not less than 12 months' prior written notice of
termination expiring at the end of any Year on or after the end of the
Minimum Period ("the Term").
2.3 Whilst TxCo shall have no rights to apply the BBC's name to any goods, or
use it in relation to any services without the prior written permission of
the BBC, TxCo shall have the right to state that it provides transmission
and other services to the BBC in accordance with this and other agreements
and to represent itself as a successor to part of the BBC's business.
3. SERVICES
3.1 TRANSMISSION OF BBC'S PROGRAMMES
3.1.1 Subject to Clause 3.1.5, TxCo shall provide the Network Radio
Services, the Network Television Services, the Regional Broadcasting
Services and the DAB Services and, subject to Clause 3.1.5 shall
transmit the BBC's Programmes in the form in which such signals are
received at the Interfaces from the Managed Broadcast Network or
otherwise as indicated in this Agreement on the frequencies and at
the power level set out in Annex 1 for the Term. TxCo shall ensure
that it does not unreasonably operate any Station at reduced power.
In transmitting the BBC's Programmes TxCo shall use the Stations and
provide the Services as a free to air terrestrial broadcast service,
that being the manner it currently provides the Services. Such
Services shall comprise the Transmission Service.
(i) Subject to Clause 12.4, in particular, TxCo will ensure that
the Transmission Service:
(a) conforms to the Engineering Performance Standards;
(b) is performed in accordance with the standard of care to
be expected of a provider of radio and television
broadcast transmission services.
16
<PAGE>
(ii) TxCo will repair or otherwise attend to all Transmission
Faults as soon as practicable, but in any event in
accordance with Schedule 5, Part 5.
(iii) Failure to comply with the obligations described in (i)
and (ii) above may entitle the BBC to recover Service
Credits in accordance with the provisions of Clause 12.4.
3.1.2 TxCo shall not be liable for failure to provide the Transmission
Service:
(i) in respect of any failure or degradation of the signal or
message comprising the BBC's Programmes which arises
during transmission from the source of the BBC's
Programmes' signals to the Interface ;
(ii) (except as provided in (i) above) where it is temporarily
unable to provide all or part of the Transmission Service
due to a Force Majeure Event;
(iii) where any of the Transmission Network is requisitioned,
taken over or used pursuant to Clause 8 of the Charter
and Agreement, any Emergency Powers, including for the
making of Emergency Announcements, the performance of
Emergency Services or use of the Deferred Facilities or
pursuant to any direction under section 94 of the
Telecoms Act.
3.1.3 TxCo shall maintain the Re Broadcast Standby (RBS) facilities which
were in place on the Commencement Date, as listed in Schedule 12,
Part 1. These facilities shall continue to be available to provide
the BBC's Programmes as far as they comprise Network Radio and
Network Television Programmes which TxCo will automatically select
on failure of the normal source of the BBC's Programmes. The quality
of signals provided by the RBS facilities shall be determined by the
practical limitations of each facility and TxCo shall not be
required to ensure that these facilities meet the Engineering
Performance Standards. RBS facilities are intended only to provide a
usable source of the BBC's Network Television Programmes and Network
Radio Programmes, where feasible, in order to avoid total loss of
signal. TxCo shall not be required to ensure that RBS facilities
will provide usable sources at all times. TxCo shall not be required
to ensure that usable signals are radiated if a major failure of the
normal distribution network operated by the BBC to the Interface
results in programme distribution passing through a chain of several
TxCo RBS facilities.
17
<PAGE>
3.1.4 The permitted use of the contribution circuits comprised in Self
Provided Network (listed in Schedule 12, Part 5) shall be limited to
use by TxCo for the performance of this Agreement and not the
provision of any other third party service without the prior written
consent of the BBC (which consent may, in the BBC's discretion, be
granted subject to the negotiation of any necessary modifications to
this Agreement (including modifications to the charges). For the
avoidance of doubt, the BBC requires immediate access to the Self
Provided Network contribution circuits on demand 24 hours a day, 365
days a year (or 366 days in a leap year).
The performance and availability limits for the Self Provided
Network contribution circuits shall be those applying at the
Transfer Date as set out in the Managed Broadcast Network handbook.
3.1.5 TxCo hereby undertakes not to interfere with, modify or adjust in
any way the BBC's Programmes or in any other way affect the BBC's
editorial control of its Programmes whether before or after their
transmission through the Transmission Network, other than:
(i) as is necessary to process the signals for the purposes of
transmission by the transmitters comprised in the
Transmission Network;
(ii) where automatic protection systems are in place; or
(iii) as directed by the BBC in writing.
TxCo may also interfere with, modify or adjust such signal where
necessary in order to comply with the Engineering Performance
Standards subject in any such case to the agreement of the
Operational Point of Contact prior to carrying out any such
interference, modification or adjustment at a Priority Station. To
the extent that the BBC does not agree to the interference,
modification or adjustment, or delays the time at which it may take
place, TxCo shall not be liable for Service Credits. TxCo may
interfere with, modify or adjust such signals at Stations, other
than Priority Stations, subject to immediately notifying the BBC's
Operational Point of Contact as soon as it has carried out such
interference, modification or adjustment. It may also replace the
signal if requested by the Operational Point of Contact with an
alternative source of the BBC's Programmes.
18
<PAGE>
3.1.6 The BBC may from time to time during the Term request that TxCo
either:
(i) adjusts the operating frequency or power output of the
transmitters at one or more of the Stations; or
(ii) provides the Transmission Services by the use of New Stations
in the United Kingdom, the Channel Islands or the Isle of Man
(including in accordance with the General Services Agreement),
and TxCo agrees that it shall use all reasonable endeavours to
do so in accordance with the provisions of this Agreement
subject to any necessary adjustments to the Engineering
Performance Standards, the Charges, any other relevant parts
of this Agreement and subject to any of the TxCo Licences and
subject to the BBC providing TxCo with information as to the
population/location to be served by any New Station or
transmitter operating at a different frequency or power and
any other information reasonably required by TxCo.
3.1.7 All negotiations required to agree any amendments needed to this
Agreement, including amendments to accommodate any such New Stations
or any adjustment to operating frequencies or power output or to
adjust the Engineering Performance Standards or Charges shall be
conducted in good faith by both parties.
3.2 OTHER SERVICES
3.2.1 MONITORING SERVICES
(i) TxCo shall monitor 24 hours per day 365 days per year (or 366
days in a Leap Year) the Transmission Network using Automatic
Fault Reporting Equipment at the locations where they
currently exist. The present locations of Automatic Fault
Reporting Equipment are listed in Schedule 1, Part 3. Changes
in location or the provision of additional Automatic Fault
Reporting Equipment will be subject to an amendment in the
Charges. The remaining sites which transmit the BBC's
Programmes shall be monitored on an ad hoc basis by members of
the public who volunteer to assist. TxCo will use its
reasonable endeavours to establish and maintain such contacts.
(ii) As part of its Monitoring Services TxCo will notify the BBC
whenever it is aware of a Transmission Fault, whether by
reason of Automatic Fault Reporting Equipment
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or otherwise notified to it. TxCo will, whenever it is
practicable to do so, inform the BBC of the likely duration
of such Transmission Fault and of the steps being taken to
rectify it.
(iii) TxCo shall report to the Operational Point of Contact and, if
requested in writing by the BBC, the Network Management
Centre, all material faults of which it is aware which occur
on all PTO-provided broadcast circuits which distribute the
signals comprising the BBC's Programmes to the Interface.
3.2.2 DF SERVICES
TxCo's obligations in relation to Deferred Facilities and the
provision of DF Services shall be as set out in Schedule 9.
3.2.3 MAINTENANCE SERVICES
TxCo's obligations in relation to the maintenance of BBC Equipment
shall be as set out in Schedule 1, Part 2. To the extent necessary
to perform the Maintenance Services, the BBC will procure access to
any premises TxCo does not otherwise have access to.
3.2.4 EMERGENCY SERVICES
(i) In the event that the BBC notifies TxCo that the BBC's
Programmes include any Emergency Announcements, TxCo will
transmit such Emergency Announcements from all Stations
notified to it by the BBC, using, where required, the Self
Provided Network and the TxCo Equipment, notwithstanding any
planned or routine maintenance relating to such Stations, and
to halt, to the extent that it would otherwise prevent the
transmission of such Emergency Announcements, any emergency
fault repair. In the event that the BBC notifies TxCo that it
has been requested by the Secretary of State to refrain from
broadcasting or transmitting any matter or class of matter,
the BBC will prevent such matter from being sent to the
Interface. The BBC will pay all of TxCo's reasonable costs of
performance of the Emergency Services, including, but not
limited to, all costs related to powering up TxCo's
generators, unless such costs are covered by any payment to
TxCo by Her Majesty's Government.
(ii) The BBC will act as required, requested or directed by the
Secretary of State, any Minister of Her Majesty's Government,
the Home Office or the Channel Islands' authorities in
providing any Emergency Announcement, requiring the cessation
of
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any transmission or taking possession of any of the Stations
other than on NTL Sites or any TxCo Equipment. The BBC agrees
to use its reasonable endeavors to provide as much notice as
possible of any requirements for an Emergency Announcement or
any of the Emergency Services, including DF Transmitted
Services. Subject to the terms of any direction given to TxCo
by Her Majesty's Government, the BBC and TxCo will work
together when required by the BBC to plan the procedures for
transmitting Emergency Announcements, at the BBC's cost, such
cost to be agreed prior to such planning work being
undertaken. In the event of any dispute between TxCo and the
BBC, acting on behalf of the Secretary of State, any Minister,
the Home Office or the Channel Islands' authorities, the
requirements of the BBC shall prevail.
(iii) In the event that the Secretary of State, or any Minister of
the Crown, or official of the Secretary of State authorized to
act on his or her behalf, has concluded that an emergency has
arisen as contemplated by Clause 8.3 of the Agreement, then
TxCo agrees to permit the Secretary of State to exercise her
or his powers to take control of the transmission of the BBC's
Programmes or any of them or to do any of the other acts
contemplated by Clause 8.3 of the Agreement. The Secretary of
State or her or his nominee may enter any premises or sites
owned, leased or occupied by TxCo other than NTL Sites (unless
an order or direction is made by Her Majesty's Government
requiring this) in exercise of Emergency Powers and use all
TxCo equipment located at such premises or sites and may use
any spectrum licensed to TxCo for the BBC's Programmes under
its WTA Licenses. The BBC may act on behalf of the Secretary
of State in this regard. In the event that the powers of the
Secretary of State or any Minister of the Crown, or any
official of the Secretary of State authorized to act on his or
her behalf are invoked under this sub-clause (iii), the BBC
shall be responsible for the reimbursement of any operating
costs occasioned by the exercise of the powers and to make
good any loss or damage to any TxCo Equipment or other
equipment on TxCo Sites. The BBC shall not be liable in such
circumstances to make any other payment to TxCo.
(iv) Any provision of any Emergency Services or an Emergency
Announcement, either at the request of the BBC or pursuant to
any Emergency Powers, shall not constitute a
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breach of any other requirements of this Agreement and shall
not be a breach of any of the Engineering Performance
Standards or otherwise give rise to an obligation on TxCo to
make any payment or give any Service Credits to the BBC.
3.2.5 NEW SERVICES
If the BBC requires any new services it will have the right to go
out to tender for such services. TxCo shall, if eligible in
accordance with the relevant procurement rules and if invited by the
BBC, have the right to reply within the prescribed timescale to any
invitation to tender. Subject to TxCo's eligibility in accordance
with the relevant procurement rules, the BBC must invite TxCo to
tender for any work involving an extension to existing Services, and
also for future phases of DAB and for digital terrestrial
television. The terms for the implementation of any New Services
will be agreed between the parties should TxCo be awarded any
contracts for New Services by the BBC in accordance with the
tendering procedure. The New Services will not include any of the
Services referred to under the General Services Agreement. Any New
Services comprising only the construction and operation of New
Stations requested by the BBC will, unless otherwise agreed, be
charged for in accordance with Schedule 2 para 9.
3.2.6 SPECTRUM MANAGEMENT
(i) In the event that the Radiocommunications Agency wishes to
change any of the frequencies set out in Annex 1, or a New
Station or a new service requires changes to the use of the
spectrum currently licensed to TxCo, the BBC and TxCo will
discuss the required changes and TxCo agrees to implement them
in the most expeditious and cost-effective manner possible,
having regard to the BBC's requirements as set out in this
Agreement. TxCo and the BBC will agree on any necessary
changes to the Engineering Performance Standards and the
Charges (and any other relevant parts of this Agreement) and
Schedule 4 and Annex 1 shall be amended accordingly. The BBC
agrees to pay TxCo's costs of any work required in assessing
any changes required by the Radiocommunications Agency and
their implementation.
(ii) TxCo agrees at the request of the BBC and/or the
Radiocommunications Agency to investigate at its own cost any
instances of Interference which may be connected to the
Stations or the performance of the Transmission Services. In
the
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event that the instances of Interference are as a result of
changes authorised or requested by or acts or omissions of the
BBC, the BBC will meet TxCo's reasonable costs of so doing in
accordance with the daily man rates set out in Schedule 2.
3.2.7 CONTRACT MANAGEMENT
(i) The BBC Representative and the TxCo Representative will meet
once every 3 months, or more frequently at the reasonable
request of either party, to discuss the provision of the
Services. Such meetings shall be minuted and copies of such
minutes circulated to both parties. Any complaints or problems
relating to the provision of the Services of an engineering or
technical nature which cannot be satisfactorily resolved by
the BBC Representative and the TxCo Representative will be
escalated as set out below.
(ii) The parties will ensure that, for the BBC, either the Deputy
Director General or the Director of Policy and Planning, and
for TxCo, the Chief Executive Officer, will meet together with
a view to resolving the dispute. The parties will allow 30
days from the date of escalation of the dispute under Clause
3.2.7(i) above for such consultation or discussions to take
place before initiating any arbitration or other legal
proceedings.
(iii) Thereafter either party shall have the right to refer the
matter for adjudication to the President for the time being of
the Institution of Electrical Engineers, or his nominee. The
President or his nominee shall act as an expert, not an
arbitrator. The party referring any matter for adjudication
must deliver to the expert and the other party a notice
setting out the matters in dispute and any relevant supporting
evidence. The other party shall be entitled to reply to the
notice and such evidence, delivering such reply to the expert
and the party referring the matter. Otherwise, the expert
shall be entitled to decide on the procedure he or she wishes
to adopt. Any determination of the expert must be in writing
and shall be final and binding on both parties failing any
manifest error on the face of the decision. Unless the expert
determines otherwise, both parties will bear their own costs
of the determination.
(iv) As an alternative to adjudication, or in relation to matters
not of an engineering or technical nature, a dispute may be
referred to the Review Committee set up under Clause 11 below.
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3.3 THIRD PARTY SERVICES
Nothing in this Agreement shall be construed as preventing
TxCo from using the TxCo Sites and the Stations, or any of its
other assets including DF Assets (other than Ancillary
Accommodation and BBC DF) and TxCo Equipment at BBC sites, to
perform services for third parties subject always to its
obligations to the BBC under this Agreement and any Site
Sharing Agreement. TxCo shall be entitled to retain all income
it derives from such third party services. When any DF Assets
are used by TxCo, other than in performance of the DF
Transmitted Services, TxCo shall ensure that it complies with
Schedule 9 and that any Deferred Facilities so used are in the
SA condition and level of functionality subject to fair wear
and tear as before such use and that the use does not
prejudice the priority use of them that the BBC requires in an
emergency.
3.4 CONTROL OF THE SERVICES
Subject to Clause 3.2.7, in respect of the day-to-day
performance of each part of the Service TxCo will deal solely
with the Operational Point of Contact. Copies of all
correspondence including electronic correspondence between
TxCo and the Operational Point of Contact, shall also be sent
at the same time to the BBC Representative. In relation to the
performance of the Transmission Service, TxCo will have no
editorial control in relation to the BBC's Programmes and any
changes made to their transmission in the event of a Force
Majeure Event Transmission Fault shall be the responsibility
of the BBC unless the BBC gives instructions to TxCo to make
specified changes to the BBC's Programmes to circumvent the
Force Majeure Event or the Transmission Fault which TxCo shall
fail to make. In respect of the performance of the DF
Transmitted Services in the case of a national emergency, to
the extent to which it is able, the BBC will inform TxCo of
the arrangements for controlling the Transmission Services.
3.5 MONITORING AT THE INTERFACE
The following arrangements shall apply with respect to the
monitoring, reporting and resolution faults at each type of
Interface.
3.5.1 MBN CORE INTERFACES FOR TELEVISION SERVICES AT TXCO
SITES
Where there is existing Automatic Fault Reporting Equipment
and vision parameter measuring equipment, TxCo shall remotely
monitor the quality of the analog television signal comprising
the BBC's Programmes at the Interface with the MBN TxCo Sites,
using that equipment. If the quality, as indicated by the
Insertion Test Signal, falls below the limits set out in
Schedule 4 para 1, then TxCo shall report this fault to the
BBC's Operational Point of Contact who will be responsible for
procuring
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restoration of the signal at the Interface to the specified quality
set out in Schedule 4 para 1 in the column numbered 1.
3.5.2 SELF PROVIDED NETWORK INTERFACES AT BBC SITES FOR TELEVISION
SERVICES
No quality monitoring of the TV signal will be provided at the
input to the Self Provided Network where this is located at a
BBC Site. In this situation TxCo shall remotely monitor the
quality of the output of the Self Provided Network at TxCo
Sites. The monitoring will be by the use of existing Automatic
Fault Reporting Equipment and vision parameter measuring
equipment. If the quality of the signal at this point, as
measured using the Insertion Test Signals, falls below the
levels specified in Schedule 4 para 1 in the column numbered 1,
then TxCo will report this to the BBC's Operational Point of
Contact who shall then take all reasonably practicable steps to
ensure that the quality of the TV signal comprising the BBC's
Programmes at the Interface meets the quality specified in
Schedule 4 para 1 in the column numbered 1. If, so far as can
be reasonably ascertained, the quality of that signal at the
Interface is satisfactory, then TxCo agrees to despatch a
maintenance engineer to identify the cause of the fault and to
restore service so that it complies with the Engineering
Performance Standards. If requested to do so, the BBC's
Operational Point of Contact will arrange for TxCo staff to be
given emergency access to TxCo Equipment at the relevant BBC
Site.
3.5.3 MBN CORE NETWORK INTERFACE FOR RADIO SIGNALS AT TXCO SITES
The quality of the multiplexed bitstream comprising such of the
BBC's Programmes as are radio programmes delivered by the MBN
to the Interface will be monitored where it is currently
monitored by reference to the error rate of the multiplexed
bitstream by TxCo, TxCo will notify the Operational Point of
Contact and the Network Management Centre (when established) of
any faults. Action will be taken by the BBC's Operational Point
of Contact, or the Network Management Centre, following
notification by TxCo if the performance falls below the error
rate set out in Schedule 4 para 2.7.
3.5.4 SELF PROVIDED NETWORK INTERFACE FOR RADIO SIGNALS AT BBC SITES
The obligations of both TxCo and the BBC for the monitoring of
radio signals comprising part of the BBC's Programmes delivered
to the Interface with the Self Provided Network at BBC Sites
shall be as set out in Clause 3.5.2 above, except that the
signal will be a digital bitstream at the Interface point and
the quality of the bitstream will be remotely monitored where
it is currently monitored at the relevant
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TxCo Sites, and may be monitored at the relevant BBC Site, in
each case in accordance with Clause 3.5.3 above. Any faults
will be reported to the operational Point of Contact.
3.5.5 INTERFACE TO 1500 MHZ DIGITAL RADIO LINKS BETWEEN LOCAL RADIO
STUDIOS AND LOCAL RADIO TRANSMITTERS
The arrangements for monitoring at the Interface such of the
BBC's Programmes as comprise Local Radio will be as set out in
Clause 3.5.4 above but TxCo shall continue remotely to monitor
the presence or otherwise of that signal at the output of the
links connecting to the Interface, using supervisory tones, if
it does so currently. Any faults will be reported to the
Operational Point of Contact.
3.5.6 PTO CIRCUIT ANALOGUE INTERFACES FOR RADIO SERVICES AT TXCO
SITES
Arrangements for the monitoring at the Interface comprising, on
the BBC side, PTO provided analog circuits such of the BBC's
Programmes as comprise Local, Regional and National Radio shall
be the same as set out in Clause 3.5.1 above, except that only
the presence or otherwise of the circuit will be monitored, by
use of supervisory tones or other electronic means as set out
in Schedule 4 para 7. In addition to reporting any faults to
the Operational Point of Contact, faults shall also be reported
to the Network Management Centre, when established.
3.6 COMPLIANCE WITH SITE SHARING AGREEMENTS
TxCo agrees to comply with all Site Sharing Agreements with the BBC as
required by Clause 4.5.1 below. In the event of any inconsistency
between any of the Site Sharing Agreements and the terms of this
Agreement, this Agreement shall prevail.
4 BBC'S OBLIGATIONS
4.1 OPERATIONAL OBLIGATIONS
4.1.1 The BBC shall supply the BBC's Programmes to TxCo in any form
the BBC sees fit at each relevant part of the Interface for
transmission from the Interface in the form in which the BBC
currently de livers the BBC's Programmes, unless otherwise
agreed; provided that the form in which the BBC supplies the
--------
BBC's Programmes to TxCo at each relevant part of the Interface
is such form as permits TxCo to transmit those Programmes in
the form in which Tx Co currently transmits them, and; further
-------
provided, that TxCo does not change the equipment directly
--------
connected to the Interface without
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the BBC's agreement. The Interface will not be changed without
the agreement of both parties.
4.1.2 In the event of interruption or degradation to the signal
carrying the BBC's Programmes occurring prior to receipt of the
BBC's Programmes at the Interface the onus shall be upon the
BBC to establish and remedy the cause. For the avoidance of
doubt, TxCo shall not be held to be in breach of any of its
obligations under this Agreement as a result of interruption or
deterioration in the quality of transmission of the BBC's
Programmes in such circumstances unless that interruption or
degradation is as a direct result of the breach by TxCo of any
of its obligations under this Agreement. Notwithstanding the
above, TxCo will immediately notify the BBC's Operational Point
of Contact where such signal interruption or degradation comes
to its notice or is identified pursuant to Clause 3.5 or 7.2
and shall provide all assistance reasonably required by the
BBC, at the BBC's expense, in accordance with the daily man
rates set out in Schedule 2.
4.1.3 If a Transmission Fault is identified by either party that
party shall immediately pass details of the fault to the Duty
Engineer and the Operational Point of Contact. The cost of
identifying Transmission Faults shall be borne by the BBC, if
the Transmission Fault is with BBC Equipment, and by TxCo if
the Transmission Fault is with TxCo Equipment.
4.1.4 The BBC will ensure that the MBN Core Network, or such other
means of delivery of the signals comprising the BBC's
Programmes to the Interface as is used by it from time to time,
is regularly inspected and maintained as necessary, including
replacement of worn parts and repair of faults.
4.1.5 The BBC agrees to monitor the MBN Core Network and any
other PTO provided broadcast circuits.
4.2 OBTAINING CONSENTS/LICENSING
Without prejudice to any other provision of this Agreement, the BBC
will use its reasonable endeavours to obtain and comply at its cost
with any permission, license, consent, registration and approval
necessary or reasonably considered desirable by TxCo (including
without limitation any necessary approval under the Charter and
Agreement, the 1996 Act and/or the Broadcasting Act) for:
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4.2.1 provision of the Services and any New Services, including
any access required to the BBC's Sites, excluding any
planning and building consents required for all Sites other
than BBC Sites. The BBC can request TxCo to apply for such
planning and building consents, subject to TxCo being
reimbursed for its costs in doing so;
4.2.2 installation and maintenance of the BBC Equipment, the MBN
Core Network, any other PTO-provided broadcast circuits used
by it to deliver signals, comprising the BBC's Programmes,
to the Interface or for contribution purposes, the provision
of the Super High Frequency (SHF) OB Links and any other
means used for transmission of the BBC's Programmes to the
Interface;
4.2.3 connection of the BBC DF, the SHIF OB Links, other equipment
and any circuits used to deliver the BBC's Programmes to the
Interface to TxCo Equipment or the Transmission Network; and
4.2.4 subject to Clause 3.2.6(ii) above, compliance with any
obligation in the Charter and Agreement to investigate
instances of Interference notified to it by the
Radiocommunications Agency. The BBC will inform TxCo of all
such notifications relating to the Transmission Network.
4.3 USE OF THE SERVICES
4.3.1 The BBC will supply the BBC's Programmes in accordance with
this Agreement and such reasonable additional operating
instructions as may be notified in writing or orally (and
confirmed in writing) to the BBC by TxCo from time to time
which are necessary to permit TxCo to comply with the
relevant provisions of the WTA or the Telecoms Act and any
other licence which governs the running of the Transmission
Network.
4.3.2 Without limitation to the generality of Clause 4.3.1, the
BBC will not knowingly permit the BBC's Programmes to
contain any material:
(i) which is defamatory, offensive or abusive or of an
obscene or menacing character; or
(ii) which constitutes a violation or infringement of the
rights of any person (including but not limited to all
intellectual property rights such as moral rights,
rights of copyright or confidentiality) or infringement
of any law.
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4.3.3 The BBC will indemnify TxCo against all Losses in any
jurisdiction arising out of or in any way connected with the
matters referred to in Clause 4.3.2.
4.3.4 TxCo shall not be liable to the BBC in the event that a
pirated signal is injected to any of the Stations and
transmitted from them or if any Station picks up off air
signals not licensed for broadcasting in the UK and re-
transmits such signals. TxCo agrees that if it becomes aware
of the injection of any pirated signal it will reasonably
promptly inform each of the BBC and the Radiocommunications
Agency and will cooperate with any reasonable request of the
Radiocommunications Agency concerning that pirated signal.
TxCo will also use all reasonable efforts to minimize the
risk of pirated signals being injected to any of the
Stations but shall not be obliged to take any additional
action or measures to those currently taken.
4.3.5 The BBC shall permit TxCo to use its telecommunications
networks for the AMS and its Automatic Fault Reporting
Equipment and to use the BBC's internal telephone network in
accordance with the Shared Telecommunications Agreement.
4.4 PAYMENT
4.4.1 The BBC shall pay to TxCo during the term of this Agreement
the Charges in respect of each of the Services and pursuant
to the Site Sharing Agreements, less any Service Credits
calculated under Clause 12.4.1 together with all license
fees payable under the TxCo Licenses, in accordance with the
provisions of Schedule 2 and for the avoidance of doubt the
BBC shall be directly responsible for the following payments
in addition to the Charges:
(i) the charges for installing and connecting the BBC DF
to TxCo's Equipment at the Stations as set out in
Schedule 9; and
(ii) charges referred to in 3.3, 3.4 and 7 of Schedule 2;
and
(iii) the charges for the New Stations referred to in the
General Services Agreement, calculated in accordance
with Schedule 2 paras 8 and 9 of Schedule 2; and
(iv) all costs (whether direct or indirect) of
transmission of, the BBC's Programmes to the
Interface, and
(v) amounts payable by reason of any changes that are
made to this Agreement in accordance with its terms.
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4.4.2 TxCo agrees to provide the BBC promptly with copies of all
correspondence it receives from the Radiocommunications
Agency relating to license fees for the WTA licence held by
it for performance of the Transmission Services (or any
successor body with the same responsibilities as that
agency). The BBC agrees that it will not exercise its rights
under this Clause 4.4.2 in any manner which would jeopardise
the standing or existence of TxCo's WTA licenses.
4.4.3 For the avoidance of doubt, in the event that the list of
Stations is amended during the Term the BBC agrees to pay
any adjusted Charges, ascertained in accordance with the
relevant provisions of Clause 5, other than TxCo-initiated
changes, unless the BBC agrees, on a case by case basis, to
pay such Charges in respect of TxCo-initiated chances.
4.4.4 The parties confirm and agree that if the BBC wishes to
amend the list of Stations to include a non-TxCo-owned
Station, additional provisions will need to be agreed
between the parties whereby TxCo enters into a
lease/licensing agreement with the station owner permitting
access to such station and enabling TxCo to provide the
Services (insofar as it is lawful and able to do so) on
behalf of the BBC, and that the Charges will need to be
modified accordingly.
4.5 ACCESS
4.5.1 The BBC shall, where required in relation to the DF Services
and the SHF Circuits and OB inject points and the other BBC
Equipment, comply with the relevant Site Sharing Agreement
with TxCo in respect of each of the relevant Stations on or
before the date of this Agreement. It is agreed that no such
Site Sharing Agreement shall create the relationship of
landlord and tenant between the BBC and TxCo.
4.5.2 Subject to the provisions of Clauses 3.2.4, 4.5.4 and
Schedule 9 and to the terms in which TxCo is in occupation
of any of the Priority Stations, the BBC or the BBC's
Nominated Contractor(s) shall be permitted access to each of
the Priority Stations at least once per annum per Station
and to other Stations at other reasonable times having
regard to the availability of TxCo resources by prior notice
and by arrangement with TxCo for the purpose of conducting
routine checks of The Transmission Network in order to
ascertain whether it is meeting the Engineering Performance
Standards. Where access is sought by the BBC or the BBC's
Nominated Contractor(s) seeking to rectify
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any faults to the BBC DF, BBC Equipment and BBC Shared
Equipment, TxCo shall make access available to the relevant
Station as soon as reasonable in the circumstances and in
accordance with the provisions of the relevant Site Sharing
Agreement.
4.5.3 Where the BBC, or the BBC's Nominated Contractor(s) on
behalf of the BBC, exercises its rights to access to the
Stations, as provided in Clause 4.5.2 above, TxCo may
require that the BBC or the BBC's Nominated Contractor is
accompanied by one appropriate member of TxCo staff and TxCo
shall be entitled to recover as an additional charge from
the BBC the costs and expenses of such attendance,
calculated as a daily rate for any day or part of a day, at
the relevant Station, except when the access is required to
test whether the Transmission Network has met the
Engineering Performance Standards having previously failed
to meet such Standards in the previous twelve (12) months,
in which case the relevant costs shall be for TxCo. Such
daily rate shall be as set out in Schedule 2 subject to
annual review to reflect any increase in the staff, charges
subject to a cap equivalent to the variation in the Index in
the previous year. Such charges shall be in addition to and
not form part of the Charges but will be included in the
Billing Information.
4.5.4 The BBC shall comply with TxCo's regulations as notified to
it from time to time when entering onto and performing work
on TxCo's Sites and shall procure that the BBC's Nominated
Contractor shall do the same. The BBC shall reimburse TxCo
for any damage, Loss or expense which it may suffer or incur
as a result of the BBC's (or its Nominated Contractor's)
access to any of TxCo's Sites pursuant to this Clause 4.5.
4.6 MAINTENANCE OF MBN CORE NETWORK AND OTHER BBC TELECOMMUNICATIONS
NETWORKS
The BBC agrees to give TxCo as much notice as possible in the
circumstances of any planned or urgent maintenance of, and any
alterations made to the MBN Core Network and any other BBC
telecommunications network used by TxCo, which may affect TxCo. If the
BBC is unable to give such notice it shall not be in breach of this
Agreement and TxCo will in any event be relieved of any liability for
failure to perform to the extent such failure is directly attributable
to its inability to use either the MBN Core Network or any BBC
telecommunications network because of any such maintenance or
alterations.
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4.7 RADIO FREQUENCY PLANNING SERVICES
The BBC agrees to make available to TxCo, in accordance with the R&D
Services Agreement, the services of the service planning section of
its Research and Development department.
4.8 OWNERSHIP OF THE EQUIPMENT
The BBC will not remove or alter in any way any identification mark on
any part of the TxCo Equipment showing that it is owned by TxCo. TxCo
will not be obliged to remove the BBC logo from any equipment to which
it is permanently affixed which has become TxCo Equipment.
4.9 ACCESS TO RECORDS AND SOFTWARE
4.9.1 The BBC will have a reasonable right of access on reasonable
notice to any specifications or diagrams of any of the
current TxCo Equipment and the current Stations which are in
the possession or control of TxCo and can legally be
supplied.
4.9.2 In addition, the BBC has the right to audit any records on
which the Billing Information is based or which relate to
power consumption of the Stations or to the costs of
provision of the DAB Services or by the construction and
operation of any New Stations itself or by an independent
auditor (whose identity shall be reasonably approved by
TxCo), subject to the BBC's agreement to keep such records
confidential and not to use them for any other purpose. Such
audit may be conducted by the BBC or on the BBC's behalf by
an independent auditor, not more than twice in each year of
this Agreement and at the BBC's cost. In the event that such
audit reveals any discrepancy in any Billing Information or
in the Charges the BBC and TxCo agree to rectify such
discrepancy as soon as practicable. If TxCo disagrees on the
existence of a discrepancy then the matter shall be referred
to the Contract Review Committee without prejudice to TxCo's
other rights. In the event that any audit reveals
overpayment by the BBC of more than 10% of the Charges or
other amounts payable in any year of this Agreement, TxCo
shall be responsible for all direct costs of the BBC's
audit.
4.9.3 TxCo agrees to provide to the BBC a copy of the source code
and executable code of any software used to generate the
monthly performance review report referred to in Clause
7.3.1 and to license such software to the BBC. TxCo will not
charge the BBC for either the licence or the copy of the
software.
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4.9.4 TxCo agrees to notify the BBC of all changes it makes to
such software and, if required by the BBC and at the BBC's
cost, to license any modified software to the BBC, such
licence to include both source code and executable code.
4.9.5 The BBC agrees that such software shall be conclusive as
between it and TxCo for measuring performance pursuant to
this Agreement, unless otherwise agreed in writing.
4.10 BBC AFFILIATES
The BBC may permit its Affiliates to use the Services provided that
this use does not constitute a breach of TxCo's Licenses or of the
Talk or Virgin Agreements, subject to giving TxCo written notice a
reasonable period of time prior to such use and TxCo confirming within
a reasonable period of receipt that such use would not constitute a
breach of any TxCo Licence or any contractual commitment of TxCo. The
BBC will be responsible for any use by its Affiliates.
5 PROVISION FOR CHANGES/MODIFICATIONS
5.1 CHANGES BY TXCO
5.1.1 Subject to 5.1.5 below, TxCo shall not make any changes to
the Transmission Network or make any changes to the
configuration or height of any TxCo Equipment or to the
effective radiated power at any Station without the BDC's
prior written consent, such consent not to be unreasonably
withheld and to be given or refused within 30 days of a
request. Failure to respond within that period shall be
treated as assent on the part of the BBC, unless the parties
agree to an extension of time for consideration by the BBC
of the request. TxCo shall be entitled to add third party
equipment to any mast or tower provided it does not cause
interference to any TxCo Equipment or BBC Equipment.
5.1.2 Notwithstanding Clause 5.1.1 above, TxCo shall be entitled
to replace the TxCo Equipment (excluding antennas or parts
of antennas) with equipment of equivalent functionality (or
improved functionality) without prior written consent from
the BBC.
5.1.3 Subject to the provisions of the NTL Agreement, if TxCo
requests changes which affect an antenna configuration or an
antenna or part of an antenna at a Priority Station, TxCo
must demonstrate, at TxCo's cost, no loss in performance by
measuring field strength and calculating from this the
effective radiated power of the transmitter(s), in a manner
to be agreed with the BBC, prior to commencement of work and
by repeating the measurement on completion. In the event the
comparison indicates a loss in
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performance and/or if there are significant viewer or
listener complaints, TxCo will take any necessary action to
correct the loss and to deal with the complaints and repeat
the field strength measurements to demonstrate compliance
with the pre-work measured performance. If, notwithstanding
any work to be under-taken by TxCo, there is for any other
reason a change in the reception of the signal transmitted
from the Station, TxCo agrees to investigate all such
problems and where appropriate to take necessary action at
TxCo's cost. For the avoidance of doubt, TxCo shall not be
obliged to undertake any work on any viewer's or listener's
apparatus in any circumstances. TxCo will provide, at its
own cost, to the BBC Representative both sets of effective
radiated power calculations. In addition, TxCo will provide
the BBC with a copy of all new antenna specifications
showing all the intended radiaticn patterns of the antennas.
5.1.4 If TxCo has requested changes which affect antenna
configuration or an antenna or part of an antenna at a
Station which is not a Priority Station, if the BBC
reasonably requests it to do so, TxCo will following
implementation of the changes measure the field strength and
calculate from this the effective radiated power of the
transmitter(s), in a manner to be agreed with the BBC, at
the BBC's cost. If the effective radiated power so
calculated is significantly different from the original
requirement as documented in the Television Service Planning
Note or the Radio Service Planning Note, supplemented by the
Radio Station Design Proposal, as appropriate, TxCo, at its
own cost, will replace or modify the antenna to ensure that
the effective radiated power does conform in operation to
that specification and refund any amounts paid by the BBC
under this Clause. In addition, TxCo will provide the BBC
with a copy of all new antenna specifications, showing the
intended radiation patterns of the antenna.
5.1.5 The BBC's consent under Clause 5 shall not be required
where:
(i) TxCo is the tenant or licensee of the Site on which a
Station is located and its lease or license expires or
is otherwise terminated for grounds other than breach
by TxCo and either TxCo is unable to re-negotiate a
renewal on terms which it considers to be reasonable
terms or the BBC is unwilling to pay any increased
costs or charges which have been sought from TxCo; or
(ii) closure of a Station is necessitated by a Force
Majeure Event; or
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(iii) closure is required, either on a temporary or a
permanent basis, by reason of road building or other
civil works carried out by a government or public
sector body or any other person acting under a
concession granted by a government or a public sector
body; or
(iv) if the change is required by law, any national or
supranational regulatory authority, the Radio
Regulations, the Talk or Virgin Agreements, or any
statutory obligations, in such circumstances, the
parties agree to make all necessary consequential
amendments to this Agreement, including any necessary
amendments to a Site Sharing Agreement, or the
entering into of a further Site Sharing Agreement in
relation to the BBC's Equipment, on similar terms to
the existing Site Sharing Agreement.
5.1.6 In making any changes in accordance with this Clause
5, TxCo will have regard to the BBC's programme
scheduling requirements and give the BBC's
Representative as much written notice as reasonably
practicable, with sufficient details of any proposed
changes.
5.1.7 TxCo will inform the BBC Representative of any means
of which it is aware from time to time to improve the
reception of the BBC's Programmes and the coverage
area receiving the BBC's Programmes.
5.2 CHANGES REQUESTED BY THE BBC
5.2.1 If the BBC wishes to discontinue, modify, change or add to
any part of the Services, then the BBC and TxCo will discuss
such modifications, changes or additions with each other,
with a view to ascertaining and agreeing the Charges, and
other changes required to implement such changes to this
Agreement. For the avoidance of doubt an increase in the
broadcasting hours for any of the Services shall not be part
of the Services which TxCo is obliged to provide without an
appropriate increase in the Charges.
5.2.2 In the event that:
(i) the Charter or the Agreement are modified or any notice
is given under the Agreement by the Secretary of State;
or
(ii) the Secretary of State determines, following the review
as contemplated by s33 of the 1996 Act, that analog
broadcasting should cease in whole and in part;
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both parties agree to make all necessary changes to
this Agreement, including to the Charges. In the event
that any such change is likely to result in the
reduction of the Charges, the BBC will use its
reasonable endeavours to find other services for TxCo
to perform for it to make up the shortfall in the
Charges, provided that TxCo shall not be obliged to
--------
undertake additional obligations or liabilities (which
involve increased obligations and liabilities overall,
having regard to the obligations and liabilities of
which it has been relieved because of such a change)
without a consequent increase in the Charges. If the
BBC fails to find such other services in a reasonable
period of time, having regard to the nature of the
changes, TxCo agrees to use its reasonable endeavours
to secure additional work to make up any shortfall
using existing facilities. If TxCo is unable to obtain
such work within a reasonable period of time, having
regard to the nature of the changes, the BBC will make
up any shortfall so that TxCo shall receive the
Guaranteed Charges for the Minimum Period only. The
Guaranteed Charges as at the date of this Agreement are
246.83 million adjusted annually in accordance with
Schedule 2. In the event that the BBC has made up any
shortfall in the Guaranteed Charges pursuant to this
clause 5.2.2 and either pursuant to Clauses 8 and 9 of
Schedule 2 or subsequently the BBC wishes to obtain New
Services or New Stations from TxCo, TxCo agrees that
any additional charges otherwise payable for such New
Services or New Stations shall be reduced by the amount
of a payment or payments made to make up such shortfall
in the Guaranteed Charges.
5.2.3 If the BBC wishes to relocate any BBC Site on which any
TxCo Equipment is located, the BBC will use its
reasonable endeavours to provide a suitable replacement
site and meet all TxCo's reasonable costs of relocation
and re-engineering.
5.3 MODIFICATIONS TO THIS AGREEMENT INCLUDING CHARGES AND PAYMENT
All modifications or amendments to this Agreement must be in
writing and signed by both parties and must specify which
clauses, schedules and annexes are intended to be amended. All
such modifications or amendments must be agreed by the Review
Committee pursuant to Clause 11.
6 ENGINEERING PERFORMANCE STANDARDS
6.1 MAINTENANCE OF THE ENGINEERING PERFORMANCE STANDARDS
TxCo shall maintain the Engineering Performance Standards described in
Schedule 4 in the course of providing the Transmission Services.
6.2 COMPLIANCE WITH THE ENGINEERING PERFORMANCE STANDARDS
Engineering Performance Standards shall be checked under the following
circumstances:
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6.2.1 For transmitters comprising TxCo Equipment which, at the
Commencement Date, have a parallel configuration and can be
operated with one half delivering the BBC's Programmes and
the other half carrying test signals into a dummy load,
manual checks will be carried out by TxCo at six-monthly
intervals.
6.2.2 If the BBC reasonably believes that TxCo has failed to
comply with the Engineering Performance Standards as set out
in Schedule 4 or other impairments to the transmission of
the BBC's Programmes occur as set out in Schedule 5, Part
5.4.1, in respect of any of the Stations, it may give to
TxCo written notice to this effect, and TxCo shall carry out
checks in conjunction with the BBC within seven days of the
date of such notice to ascertain whether such failure has
taken place (provided that, in the event of any dispute
between the parties, that dispute shall be referred to the
BBC Representative and TxCo Representative and thereafter
dealt with according to the contract management procedure
set out in Clause 3.2.7 above). Where it is substantiated
(either by agreement or by arbitration) that such failure
has taken place, then the BBC shall be entitled to recover
Service Credits to the extent of a failure to meet the
Engineering Performance Standards in accordance with
Schedule 10.
6.2.3 For such of the BBC's Programmes as comprise radio signals,
performance measurement to ensure compliance with the
Engineering Performance Standards shall take place up to
twice a year at the request of the BBC or at other times by
mutual agreement between the BBC and TxCo. During such
tests, TxCo shall deploy staff at a sufficient number of
TxCo Sites and will carry out sufficient tests to ensure
that the Transmission Network as a whole performs in
accordance with the Engineering Performance Standards. In
order to perform these tests, the BBC may apply an agreed
set of test signals to the Transmission Network, in place of
normal programme material. Each of the BBC and TxCo shall
bear its own costs in respect of such tests. It is agreed
that RF power output, frequency and harmonic radiation do
not require any such interruption. If the network tests
described above reveal that the Engineering Performance
Standards are not being achieved, then TxCo and the BBC
shall endeavour to make the Transmission Network available
for repair work and for re-tests to take place. In
undertaking such re-tests, TxCo shall endeavour to minimise
disruption to the Services. TxCo shall be responsible for
all costs of such re-tests, including any reasonable costs
incurred by the BBC. Any disruption to the Services due to
network
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tests and subsequent repair shall not be deemed to be
Accountable Faults. If any network test reveals a failure to
comply with the Engineering Performance Standards or any
other impairment to the transmission of the BBC's
Programmes, provided such fault is repaired by TxCo as soon
as is reasonably practicable, TxCo shall not be liable to
pay Service Credits to the BBC in respect of that impairment
or other failure to comply with the Engineering Performance
Standards. Any subsequent repairs in respect of that fault
and any re-test in respect of that fault made in accordance
with this Clause 6.2.3 shall be an Accountable Fault. All
such network tests and re-tests will be organised as Planned
Interruptions.
7 PERFORMANCE MONITORING
7.1 PERFORMANCE DATABASE
Performance monitoring in relation to the Transmission Services shall
be by reference to the Performance Measures. All source material
relevant to performance monitoring shall be recorded by TxCo in the
Performance Database. The Performance Database will be archived on a
monthly basis, following production of the monthly report referred to
in Clause 7.3 and the data kept for 3 years from the end of the then
current Year. All other Services will be monitored by the BBC in
accordance with the terms of this Agreement, if any.
7.2 FAULT REPORTING
7.2.1 TxCo shall provide a fault Reporting information system
operating in accordance with Schedule 5 to notify the BBC il
it has failed to provide a Service and other-wise to test
compliance with the matters set out in Clause 6 above and
any matters comprised in the Services (which shall include
responsibility to advise the BBC of any failure to meet the
Engineering Performance Standards in accordance with
Schedule 5).
7.2.2 As part of its fault reporting information system, TxCo
shall maintain its existing Automatic Fault Reporting
Equipment.
7.3 PERFORMANCE REPORTING
7.3.1 TxCo will Produce a monthly performance review report in the
form set out in Schedule 10, Part 4 relating to Performance
Measures, together with information showing details of
actual performance which differs significantly from the
Target Performance Measures (or Outlyers), in data form, for
non-Priority Stations. The report shall be sent to the BBC
Representative within seven days of the end of each month.
In addition, the BBC will be
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sent by TxCo an electronic copy of the Performance Database
showing performance over the immediately preceding month, on
a monthly basis, within two weeks of the end of the relevant
month.
7.3.2 The Performance Database shall be maintained by TxCo. The
BBC shall use the Performance Database and any information
or data supplied pursuant to this Agreement relating to
TxCo's compliance with this Agreement solely for the
purposes of this Agreement. The BBC will be provided with
copies of Service Messages produced, in accordance with
Schedule 5, electronically to the Operational Point of
Contact and the BBC Representative.
8 CUSTOMER COMPLAINTS
8.1 TxCo agrees that if it receives complaints from members of the public
about BBC reception problems or otherwise relating to the BBC's
Programmes, it will refer all such members of the public to the BBC's
Engineering Information Department. TxCo will only deal with specified
TV dealers and specified members of the public ringing its 0345 number
in relation to customer complaints and comments about the Transmission
Services and the BBC's Programmes.
8.2 The BBC agrees not to publish and to keep confidential all TxCo
telephone numbers other than those authorised in writing for
publication by TxCo.
9 LICENSING
9.1 TxCo shall be responsible for obtaining and/or complying with all
necessary planning and building regulations and statutes, civil
aviation clearances, consents, property title restrictions, superior
landlord's consents (other than in relation to BBC Sites where it
shall be the BBC's responsibility to obtain such consents), the NTL
Agreement and any other necessary licences and consents required under
the provisions of the Telecoms Act to enable TxCo to perform its
obligations under this Agreement.
9.2 The BBC shall be responsible for doing all that is necessary to assist
TxCo to obtain all necessary licences and consents under the WTA and
for digital radio or television multiplex licences and shall also
assist TxCo in ensuring as far as is possible that the relevant
government agency obtains all international frequency clearances as
are required in each of those cases 491791/3.2 to provide the
Services. TxCo will not be responsible for any failure to obtain such
clearances or licences.
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10 CONTINUITY OF PROVISION OF SERVICES
Subject to the provisions of this Clause 10, TxCo shall ensure the
provision of the Services on a continuous basis as set out in this
Agreement and comply with the Engineering Performance Standards at all
times when the BBC's Programmes are scheduled to be transmitted.
10.1 ROUTINE MAINTENANCE, FAULT REPAIRS AND PLANNED INTERRUPTIONS
10.1.1 ROUTINE MAINTENANCE, FAULT REPAIRS AND INTERRUPTIONS
TxCo shall only interrupt or reduce the Engineering
Performance Standards for the Transmission Network at any
one or more of the Stations for the purposes of access to
works, safety and routine maintenance requirements if it has
agreed such interruption or reduction with the BBC in
advance, in which case each interruption or reduction shall
be a Planned Interruption for the purposes of Clause 10.1.2.
No such agreement is needed for repairing faults on TxCo
Equipment or pursuant to the NTL Agreement or where TxCo is
obliged to carry out work because of any legal or regulatory
requirement. If a maintenance or fault repair is required
under the terms of any of the Talk or Virgin Agreements or
if any legal or regulatory requirement is not immediate,
TxCo shall agree any interruption or reduction of the
Engineering Performance Standards with the BBC and the BBC
agrees to consider such requests in good faith with a view
to ensuring that TxCo is not in breach of the Virgin or Talk
Agreements or any such legal or regulatory requirement. In
all such circumstances, such interruptions or reductions in
the Engineering Performance Standards shall not be an
Accountable Fault. If repairing faults for third party
customers (other than pursuant to the NTL Agreement or
either of the Talk or Virgin Agreements) results in any
interruption to the Transmission Services or any reduced
power operation, such an interruption or reduced power
operation will constitute an Accountable Fault, giving rise
to an entitlement by the BBC to Service Credits calculated
in accordance with Schedule 10. Where otherwise such access,
safety and routine maintenance works and/or repairs
constitute and cause Accountable Faults, the BBC shall be
entitled to recover Service Credits calculated in accordance
with Schedule 10. Without prejudice to Clause 5.1 above, in
the event of any routine maintenance, fault repairs or
Planned Interruptions, TxCo may provide the Transmission
Service by any means available whether permanently or
temporarily so as to enable it to achieve the standards of
the Service required by the relevant Engineering Performance
Standards.
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10.1.2 PLANNED INTERRUPTIONS
TxCo or any third parties authorised by TxCo or exercising
third party or other statutory rights may reduce or affect
the Engineering Performance Standards in order to carry out
inspections, alterations, renewal of or repairs to any
equipment at any Station forming part of the Transmission
Network, including any reduced power operation at any
Priority Station and any notified power outages, provided
TxCo shall not cause or otherwise permit such interruptions
without first giving reasonable advance notice to the BBC,
and shall obtain agreement from the BBC as to the dates and
times that such interruptions shall take place, such
agreement not to be unreasonably withheld or delayed. Such
interruptions shall be "Planned Interruptions", as defined
in Schedule 5. TxCo shall use all reasonable endeavours to
minimise such Planned Interruptions. Interruptions of
transmission of the BBC's Programmes for the purposes of
routine maintenance shall only take place at monitored
stations as Planned Interruptions. If any Planned
Interruption is a result of TxCo performing services for a
third party other than services relating to digital audio
broadcasting or digital terrestrial television broadcasting
or pursuant to the NTL Agreement or either the Talk or
Virgin Agreements, or as a result of any legal or regulatory
requirement, the interruption shall constitute an
Accountable Fault.
10.1.3 PERMITTED REMOVAL
The permitted removal of a Station in accordance with this
Agreement shall not constitute a breach of the Engineering
Performance Standards.
10.2 EMERGENCY FAULT REPAIR
10.2.1 In the event of any interruption to the provision of the
Services as a result of a Force Majeure Event, or an
imminent fault reasonably apparent to TxCo, TxCo may
interrupt the transmission of the BBC's Programmes for the
purposes of dealing with the emergency. TxCo will give the
Operational Point of Contact immediate notice of the event
and whenever possible shall give notice to the Operational
Point of Contact of the duration of the interruption.
10.2.2 TxCo shall use all reasonable endeavours to minimise the
duration and effect on the provision of the Services of any
unscheduled interruption or fault.
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10.2.3 In the case of an emergency when transmission of the BBC's
Programmes cannot be restored at full power, reduced power
will be employed.
10.3 SERVICE PRIORITIES
10.3.1 When all or any of the Services cannot be restored at full
power, reduced power operation of all or any of the Services
will be employed, if no other arrangements are available to
maintain the agreed coverage of the Services. If it is not
possible to restore all or any of the Services, the
following priorities will normally apply:
(i) if the Station is at a site owned by, or leased or
licensed (other than pursuant to the NTL Agreement) by,
NTL ("NTL Stations"):
television: [*]
radio: [*]
(ii) if the Station is at a TxCo Site ("TxCo Stations"):
television: [*]
radio: [*]
10.3.2 At radio-only Stations, BBC VHF takes priority over BBC MF.
10.3.3 At NTL Stations without a BBC R4 or national regional
equivalent service, BBC Local Radio will take first
priority.
10.3.4 During a state of national emergency, a different order of
priority may be introduced and TxCo will comply with the
instructions of the Operational Point of Contact or such
other person as may be nominated in writing by the
Operational Point of Contact.
10.3.5 If New Services are added at a Station, the priority set out
in 16.3.1 above shall not be altered.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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[*]
11 REVIEW OF PERFORMANCE REQUIREMENTS
TxCo and the BBC will establish a Review Committee to deal with all major
matters concerning the amendment, or the reviewing of the operation, of
this Agreement. It will consist of two or more representatives of each
party, including the TxCo Representative and the BBC Representative, the
BBC's Director of Policy and Planning and the Deputy Director General of
the BBC and the Chief Executive Officer of TxCo. Its remit will be as
follows:
11.1 to make recommendations to the parties regarding the need for and
implementation of changes to the Services, including changing the
designation of Stations as Priority Stations;
11.2 to attempt to resolve any disputes that may arise between the
parties which cannot be satisfactorily resolved between the TxCo
Representative and the BBC Representative, and which are referred to
it and to make recommendations to the parties regarding any such
dispute;
11.3 to monitor technological developments in telecommunications and
broadcasting which may affect the provision of the Services and to
make recommendations to the parties regarding the desirability of
improving the Services in light of such changes and to consider and
plan for the implementation of New Services;
11.4 to make recommendations on changes to this Agreement required by
reason of changes to the Charter and Agreement; and
11.5 any other matters on which the parties agree from time to time.
12 CHARGES, PAYMENT AND BILLING
12.1 CHARGES AND PAYMENT FOR THE SERVICES
The Charges for the first Year of this Agreement shall be as set out
in Schedule 2 and shall be payable in accordance with that Schedule.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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12.2 INVOICES
12.2.1 Each invoice rendered by TxCo will be accompanied by the
Billing Information set out in Schedule 2 and delivered in
accordance with that Schedule.
12.2.2 Except as set out in Schedule 2, all correct Charges on an
invoice submitted by TxCo under this Agreement will be
payable by the BBC on the 15th day of the month following
the date of TxCo's invoice (or, if later, the 15th day
following receipt of the relevant invoice) (the "due date")
(without any set-off, deductions or withholding other than
as set out below) by cheque, or by such other method as may
be agreed from time to time between the parties.
12.2.3 In the event that any Charges are disputed, the BBC shall
be entitled to withhold any disputed amounts, provided the
BBC shall have given reasonable notice to TxCo of the
dispute relating to the Charges, together with reasonable
written evidence to support the BBC's position. In the
event that any Charges are withheld by reason of a dispute,
TxCo and the BBC will both use their best endeavours to
resolve any such disputed amount prior to the time of
delivery of TxCo's next invoice.
12.3 INTEREST ON LATE PAYMENT
TxCo reserves the right to charge daily interest on outstanding
amounts, including amounts disputed by the BBC but later agreed to,
or found to be payable to TxCo, from the due date as defined in
Clause 12.2.2 and until payment in full is received by TxCo at a
rate equal to 2% above the Lloyds Bank Plc base lending rate as
current from time to time, whether before or after judgment.
Interest will continue to accrue on any unpaid amounts
notwithstanding termination of this Agreement for any cause.
12.4 FAILURE TO MEET SERVICE OBLIGATIONS - SERVICE CREDITS
12.4.1 The amount of compensation payable by TxCo to the BBC for
failing to comply with its obligations under this
Agreement, including the Engineering Performance Standards,
will be solely limited to Service Credits. TxCo shall not
be liable to pay Service Credits to the BBC in any Year in
excess of the Charges for the Year in respect of which the
Charges were incurred. Service Credits shall not be payable
in respect of DAB Services until the relevant Station has
been Accepted by the BBC at which time there shall be no
obligation to pay Service Credits in relation to such
Station.
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12.4.2 The Charges payable hereunder will be subject to Service
Credits in respect of failure by TxCo to meet the Engineering
Performance Standards, calculated by reference to the
Performance Measures as set out in Schedule 10. Any Service
Credits incurred will be set against the Charges payable
under the first invoice rendered by TxCo following the end of
the Year in which the obligation to give Service Credits is
determined in accordance with Schedule 10.
12.4.3 Without prejudice to Clause 13.2.2, Service Credits will not
be available to the BBC to the extent that the failure of
TxCo to meet all or any part of the Engineering Performance
Standards results directly from the BBC's act, fault or
omission or from any Force Majeure Event.
12.4.4 If there is a total failure to transmit any of BBC 1, BBC 2,
Radio 1 FM, Radio 2 FM, Radio 3 FM, Radio 4 FM, Radio 4
MF/LF, Radio 5 Live, DAB Services or Regional Broadcasting or
to transmit the DF Transmitted Services altogether in
circumstances where the failure to transmit is an Accountable
Fault or Clause 3.1.2 is not the sole reason for such
failure, rather than a partial failure to transmit any of the
services listed above, for anything other than an immaterial
period of time having regard to the nature of the relevant
BBC service, then TxCo shall not be entitled to make any
charge for the relevant service and, in addition, shall be
required to pay to the BBC up to 100% of the cost to the BBC
of obtaining the equivalent service elsewhere. The BBC shall
not be entitled to obtain such services elsewhere if TxCo is
able at any reasonable time to perform such services and
undertakes to do so, subject to any rights of termination
under Clause 13, and subject to a reasonable period following
notice of TxCo's intention to re-commence performance of the
Services. If TxCo pays any monies under this Clause, no
Service Credits shall be payable in respect of the period of
time for which there is a failure to perform compensated
under this Clause.
12.5 CALCULATION OF SERVICE CREDITS
12.5.1 The BBC will be entitled to Service Credits in respect of the
Performance Measure for each of BBC1, BBC2, Radio 1, Radio 2,
Radio 3, Radio 4 FM, Radio 4MF, Radio 5 Live, DAB and
Regional Radio and Local Radio in accordance with Schedule
10, subject to this Clause 12.
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12.5.2 Service Credits shall be calculated as set out in Schedule
10, Part 1. They are intended to act as an incentive to TxCo
to provide quality Services to the BBC.
13 TERMINATION
This Agreement may be terminated at any time by agreement between the
parties.
13.1 THE SERVICES
13.1.1 GENERALLY
If no notice of termination is given within one (1) year of
the expiry of the Term, this Agreement shall continue from
year to year until terminated on one (1) year's written
notice to expire at the end of any Year of this Agreement.
13.1.2 BY EITHER PARTY
Either party has the right to terminate this Agreement other
than the Site Sharing Agreements, which Agreements shall be
terminable in accordance with their terms, with immediate
effect by notice in writing in the event that:
(i) a liquidator, administrative receiver, administrator or
receiver is appointed (other than for the purpose of an
amalgamation or reconstruction the terms of which have
been previously approved by the party having the right
to terminate (such approval not to be unreasonably
withheld or delayed in the case of a solvent
amalgamation or reconstruction) in respect of the whole
or a material part of the assets and/or undertaking of
the other party; or
(ii) the other party enters into an arrangement or
composition with its creditors, or if it becomes unable
to pay its debts within the meaning of Section 123 of
the Insolvency Act 1986.
13.1.3 SUSPENSION/TERMINATION OF INDIVIDUAL SERVICES
(i) TxCo may suspend provision of the Services in whole or
in part until further notice on notifying the BBC
either orally (confirming such notification in
writing), or in writing with immediate effect if:
(a) TxCo is entitled to terminate this Agreement; or
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(b) TxCo is obliged to comply with an order,
instruction or request of any Government minister,
the Home Office, the Channel Islands authorities,
an emergency services organisation or other
competent administrative authority.
(ii) if TxCo exercises its right of suspension in respect of
an event referred to in Clause 13.1.3(i), this will not
exclude TxCo's right to terminate this Agreement later
in respect of that or any other event, nor will it
prevent TxCo from claiming damages from the BBC
resulting from such event if the BBC is in breach of
this Agreement.
(iii) Notwithstanding Clause 13.1.3(i)(b), it is acknowledged
that, in the event of an emergency, the respective
obligations of the BBC and TxCo will be governed by
special arrangements under the relevant Emergency
Powers and TxCo agrees that it will not suspend service
to the BBC other than on the instructions of the
relevant authorities in the event of an emergency.
13.2 FORCE MAJEURE
13.2.1 In the event of the occurrence of a Force Majeure Event
affecting either TxCo or the BBC, the affected party shall
give notice in writing thereof to the other party as soon as
possible and shall likewise give notice on the cessation of
the Force Majeure Event. The parties agree to discuss a
course of action and to comply with any agreed course of
action pursuant to Clause 13.2.2. Subject thereto, if the
Force Majeure Event continues for a period of more than 60
days following a failure to either agree a course of action
under Clause 13.2.2 or to comply with such a course of
action, then the non-defaulting party shall have the right to
terminate either:
(i) subject to Clause 13.3 below, in the case of any
affected Deferred Facilities, the Site Sharing
Agreement (if any) for the Station so affected by 30
days' written notice; or
(ii) the provision of the Services or any of the Services
from the Station so affected by 30 days' written
notice; or
(iii) where the Force Majeure Event affects all or
substantially the whole of the Stations comprised in
all or part of this Agreement, terminate all or that
part of this Agreement, in the case of (i) or (ii)
above upon giving 30 days' written notice of such
termination to the other party and in the case of this
paragraph giving to the other not less than 90 days'
prior written notice.
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13.2.2 Where a Force Majeure Event occurs, other than one affecting
delivery of the BBC's Programmes to TxCo for transmission
which causes suspension of the Services, the BBC and TxCo
shall discuss and agree on the most appropriate course of
action to be taken for a resumption of the Services and/or
the provision of a temporary service and the timescale within
which such action is to be taken. If, having agreed a
timescale for the resumption of any Service, TxCo shall fail
to comply with that timescale not having agreed any extension
of time, then the BBC shall be entitled to serve notice on
TxCo requiring that, unless the Services are resumed within a
period of seven working days for a non-Priority Station and
three working days for a Priority Station from the deemed
date of delivery of the notice (ascertained in accordance
with Clause 22), then the BBC shall be entitled to receive
Service Credits for the Charges for that Station from the end
of the seven day or three day period referred to above to the
date on which the Services are resumed or a temporary service
provided.
13.3 EMERGENCY SERVICES
To the extent that any Force Majeure Event relates to the provision
of either the Emergency Services, compliance with a direction under
Section 94 of the Telecoms Act or activation of the Deferred
Facilities, the provision of this Agreement relating to such Services
shall prevail and Clause 13.2 shall not take effect if it would only
have taken effect by reason of events giving rise to the need for
TxCo to perform the Emergency Services, in accordance with the
relevant direction or activation of the Deferred Facilities.
13.4 TERMINATION FOR BREACH
Either party will have the right to terminate this Agreement, without
prejudice to its other rights and remedies, by notice in writing
taking effect 30 days after the date of the notice, in the event that
the other party is in material breach of this Agreement, and, in the
case of a breach which is material or could amount to a material
breach if not remedied and which, in either case, is remediable,
fails to remedy the breach within a reasonable time (being not less
than 60 days) specified in the written notice to either TxCo and to
any person to whom TxCo has assigned the benefit of this Agreement in
accordance with Clause 17.1 or to the BBC, as appropriate, requesting
the breach to be remedied.
13.5 TERMINATION ON CHANGE OF CONTROL
13.5.1 The BBC will be entitled to terminate this Agreement if:
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(i) there is a Change of Control of a Relevant Company
other than on:
(a) the disposal of TxCo pursuant to the Proposed Sale
Agreement;
(b) a transfer of Shares between an existing
shareholder in a Relevant Company and an Associate
of such shareholder; or
(c) the creation of a mortgage, charge, encumbrance or
security interest over or in respect of any Shares
of a Relevant Company;
(ii) either of CTC or TDF or any Associate of either of them
breaches any of the undertakings contained in Clause 3
of the Commitment Agreement;
(iii) at any time before Listing there is a disposal of any
Shares in a Relevant Company to any UK broadcast
transmission operator.
13.5.2 TxCo shall notify the BBC as soon as possible after it or any
Relevant Company becomes aware of any Change of Control of a
Relevant Company, or of any potential Change of Control or in
other circumstances which would or might give rise to a
termination right under this Clause 13.5.
13.5.3 The BBC agrees that it will only exercise its right to
terminate pursuant to a Change of Control which arises in the
circumstances set out in paragraph (i) (a) or (iii) of the
definition of Change of Control if it reasonably considers
that the event giving rise to such right is contrary to the
BBC's corporate interests and/or those of Her Majesty's
Government and the BBC agrees that any notice of termination
(regardless of the period of notice set out in such notice)
will be given by the BBC within one month of receipt of
notice of the relevant event. The BBC agrees to consider in
good faith any request for the sale of any Relevant Company's
Shares or any other arrangement which might otherwise give
rise to such a termination right, having regard to the
reasonable interests of the BBC, TDF and CTC, and each
Relevant Company and those of Her Majesty's Government.
13.5.4 For the purposes of this Clause 13.5:
"Acting in Concert" has the meaning given to it in The City
Code on Takeovers and Mergers;
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"Associate" means, in relation to a person, (a) a subsidiary
or holding company (as those terms are defined by Section 736
of the Companies Act 1985) of that person or a subsidiary of
that person's holding company (a "Group Company"); or (b) any
limited partnership, the general partner of which is a Group
Company; (c) any limited partner in any limited partnership,
the general partner of which is a Croup Company; (d) any fund
managed or advised by a Group Company; (e) any employee of
such person or any Group Company; (f) who is a partnership,
that party's constituent partners, and (g) in the case of
Berkshire, Berkshire Fund IV, a limited partnership;
"Berkshire" means Berkshire Fund IV Investment Corp;
"Candover" means Candover Investments plc;
"Completion" means completion of the sale to Castle
Transmission Services (Holdings) Limited (formerly Dichold
Limited) of the whole of the issued share capital of TxCo
pursuant to the Proposed Sale Agreement;
"Commitment Agreement" means the agreement of even date
between the BBC, CTC, TeleDiffusion de France SA and TDF as
amended from time to time and as supplemented by any deed of
adherence to such agreement;
"Control" has the meaning given to it in Schedule 2, Part 1
paragraph (3)(b) of the Broadcasting Act 1990, as amended by
the 1996 Act; and "Controlled" has a corresponding meaning;
"Change of Control" means in relation to a Relevant Company:
(i) before a Listing, where a Third Party acquires, obtains
in any manner or in any circumstances comes to hold:
(a) Control of a Relevant Company;
(b) a Relevant interest in a Relevant Company's Share
capital; or
(c) such Interest in the Relevant Company's Share
capital as would, when taken with those already
held by such Third Party or by any Associate of,
or person Controlled by or Acting in Concert with,
such Third Party, amount to a Relevant Interest,
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PROVIDED THAT for the purposes of (a), (b), and (c) above,
any interest held by CTC or TDF or persons Acting in Concert
with CTC or TDF or any of their prospective Associates prior
to the relevant circumstances shall be disregarded for the
purpose of determining whether a Relevant Interest or Control
has been acquired, obtained or is held;
(ii) on or alter a Listing, where a Third Party acquires,
obtains in any manner or in any circumstances comes to
hold:
(a) a Relevant Interest in a Relevant Company's Share
capital; or
(b) such Interest in the Relevant Company's Share
capital as would, when taken with those already
held by such Third Party or by any Associate of,
or person Controlled by or Acting in Concert with,
such Third Party, amount to a Relevant Interest;
(iii) on or after a listing, a Third Party, by itself or
together with any persons Acting in Concert with it,
obtaining in any manner or in any circumstances coming
to hold an Interest in 25% or more of the Shares of a
Relevant Company and Control of the Relevant Company,
PROVIDED THAT any scheme of arrangement for the purpose of
reconstruction or reorganisation of the assets of a Relevant
Company shall not, without further alteration in Control,
constitute a Change of Control;
"CTC" means Castle Tower Holding Corporation;
"Interest" means, in relation to the Shares of a Relevant
Company, any legal or beneficial interest in them or any
right or power (whether conditional or unconditional and
whether legally enforceable or otherwise) to exercise control
(directly or indirectly) over the disposal of those Shares or
over the manner of exercise of any right to vote in a general
meeting attached to such Shares;
"Indirect Interest" means, where a company ("A") has an
interest (directly or through one or more intermediate
companies) in the Shares of a company ("B") which, in turn,
has an interest in the Shares of another company ("C") (in
which A is not directly interested), B's percentage interest
in the Shares of C multiplied by such percentages
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as represent each of the percentage interests in the Shares
of B held directly by A or through one or more intermediate
companies in which A has an Indirect Interest.
"Listing" means the first listing of any of the Shares of any
Relevant Company on any stock exchange or public dealings
facility and "listed" shall be construed accordingly;
"Relevant Interest" means, in relation to any Shares of a
Relevant Company:
(i) on or after a Listing an Interest in 30 per cent or
more of the Relevant Company's Shares; or
(ii) at any time before a Listing, any Interest (other than
any Interest of Candover or Berkshire or any of their
respective Associates) which taken together with any
other direct Interest or Indirect Interest in the
Shares of CTS exceeds the combined Indirect Interest of
TDF and CTC in the Shares of CTS at that time;
"Relevant Company" means TxCo or any holding company (as that
term is defined by Section 736 of the Companies Act 1985) of
TxCo;
"Relevant Person" means, in relation to a Relevant Company,
any person or any one of two or more persons Acting in
Concert who have Control of the Relevant Company;
"Shares" means, in relation to a Relevant Company, the shares
in the relevant share capital (as that expression is defined
in Section 198(2) of the Companies Act 1985) of that Relevant
Company and shall include any shares which have been allotted
(whether conditionally or unconditionally);
"TDF" means TeleDiffusion de France International; and
"Third Party" means any person other than a Relevant Person
or an Associate of a Relevant Person.
13.6 CONSEQUENCES OF TERMINATION
Upon termination of this Agreement for any reason the BBC will:
13.6.1 immediately cease to make use, and shall procure that any
Affiliate immediately ceases to make use, of the Services;
and
13.6.2 immediately cease to make use, and shall procure that any
Affiliate immediately ceases to make use, of the TxCo
Equipment.
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13.7 DETAILS OF EMPLOYEES
Six months before the termination or assignment of this Agreement, or
if the Agreement is terminated without notice for any reason as soon
as reasonably practicable, but in either case if requested to do so
by the BBC where there is a reasonable prospect that the Transfer
Regulations will apply to transfer the contracts of employment of
some or all of the Employees upon such termination or assignment of
this Agreement, TxCo will provide, and will procure that any Relevant
Employers will provide, to the BBC, or at the BBC's request to the
Successor Operator, the following particulars of the Employees
employed as at that date to the extent permitted by law:
13.7.1 name, sex and the date on which continuity of employment
began for each Employee for statutory purposes;
13.7.2 the terms and conditions of employment of each such Employee;
13.7.3 all payments, benefits or changes to terms and conditions of
employment promised to any such Employee;
together with particulars of:
13.7.4 dismissals of any other Employees or terminations of
employment effected within 12 months of the Transfer Date;
13.7.5 all agreements or arrangements entered into in relation to
any such Employee between TxCo or any other Relevant Employer
and any trade union or association of trade unions or
organisation or body of employees including elected
representatives; and
13.7.6 all strikes or other material industrial action taken by any
such Employee within 12 months of the Transfer Date.
13.8 TRANSFER REGULATIONS
13.8.1 On termination of this Agreement the Transfer Regulations may
transfer the Relevant Employees to the BBC or the Successor
Operator. If the Transfer Regulations have effect the
following provisions shall apply:
(i) the contract of employment of each of the Relevant
Employees (save insofar as such contract relates to any
occupational pension scheme) shall be transferred to
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the BBC or, as the case may be, the Successor Operator
with effect from the Transfer Date which shall be the
"time of transfer" under the Transfer Regulations;
(ii) TxCo shall perform and discharge all its obligations in
respect of all the Relevant Employees for its own
account up to and including the Transfer Date
including, without limitation, discharging all wages
and salaries of the Relevant Employees, all employer's
contributions to any relevant occupational pension
scheme and all other costs and expenses related to
their employment (including, without limitation, any
taxation, accrued holiday pay, accrued bonus,
commission or other sums payable in respect of service
prior to the close of business on the Transfer Date)
and shall indemnify the Successor Operator and keep the
Successor Operator indemnified against each and every
action, proceeding, liability (including, without
limitation, any taxation liability directly related to
the Relevant Employees), cost, claim, expense
(including, without limitation, reasonable legal fees)
or demand arising from, TxCo's failure so to perform
and discharge. The BBC shall, or, as the case may be,
shall procure that the Successor Operator shall perform
and discharge all its obligations from the Transfer
Date;
(iii) TxCo shall indemnify the Successor Operator (on an
after-tax basis) and keep the Successor Operator so
indemnified against each and every action, proceeding,
cost, claim, liability (including, without limitation,
any taxation liability directly related to the Relevant
Employees), expense (including, without limitation,
reasonable legal fees) or demand which relates to or
arises out of any act or omission by TxCo or any other
event or occurrence prior to the Transfer Date and
which the Successor Operator may incur in relation to
any contract of employment or collective agreement
concerning one or more of the Relevant Employees
pursuant to the provisions of the Transfer Regulations
or otherwise including, without limitation, any such
matter relating to or arising out of:
(a) TxCo's rights, powers, duties and/or liabilities
(including, without limitation, any taxation)
under or by virtue of any such contract of
employment or collective agreement, which rights,
powers, duties and/or liabilities (as the case may
be) are or will be transferred to the Successor
Operator in accordance with the Transfer
Regulations; or
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(b) anything done or omitted before the Transfer Date by or
in relation to TxCo in respect of any such contract of
employment or collective agreement or any Relevant
Employee, which is deemed by the Transfer Regulations
to have been done or omitted by or in relation to the
Successor Operator;
(iv) if any contract of employment or collective agreement
which is not in accordance with Clause 13.7 above
disclosed in writing to the BBC, or at its request to
the Successor Operator, by TxCo prior to the Transfer
Date shall have effect as if originally made between
the Successor Operator and any employee ("Undisclosed
Employee") or a trade union as a result of the
provisions of the Transfer Regulations (without
prejudice to any other right or remedy which may be
available to the Successor Operator):
(a) the Successor Operator may, upon becoming aware of
the application of the Transfer Regulations to any
such contract of employment or collective
agreement and in any event within 3 months of the
Transfer Date, terminate such contract or
agreement forthwith, and TxCo shall indemnify the
Successor Operator (on an after-tax basis) in
respect of any Undisclosed Employee so dismissed
on the same terms mutatis mutandis as TxCo has
indemnified the Successor Operator in respect of a
Relevant Employee pursuant to the terms of Clause
13.8.1 (ii) and 13.8.1 (iii); and
(b) TxCo shall indemnify the Successor Operator (on an
after-tax basis) against each and every action,
proceeding, cost, claim, liability (including,
without limitation, reasonable legal fees) or
demand relating to or arising out of such
termination and reimburse the Successor Operator
for all costs and expenses (including, without
limitation, any taxation) incurred in employing
such employee in respect of his employment
following the Transfer Date provided that if,
within 3 months of the Transfer Date, the Operator
has not dismissed such Undisclosed Employee, such
Undisclosed Employee shall be deemed for all
purposes of this Agreement to be and at all
relevant times to have been a Relevant Employee
and so that this Clause 13.8.1 (iv) shall not
apply in respect of such Undisclosed Employee; and
(v) TxCo shall indemnify the Successor Operator (on an
after-tax basis) and keep the Successor Operator so
indemnified against each and every action, proceeding,
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cost, claim, liability (including, without limitation,
any taxation), expense (including, without limitation,
reasonable legal fees) or demand which relates to or
arises out of any dismissal (including, without
limitation, constructive dismissal) by TxCo of any
employee (not being a Relevant Employee) which the
Successor Operator may incur pursuant to the provisions
of the Transfer Regulations.
13.8.2 If TxCo assigns this Agreement to the TxCo Assignee, or sub-
contracts its obligations under this Agreement in respect of
all or part of the Services to any firm, person or company
(the "TxCo Sub-Contractor"), TxCo shall procure that the TxCo
Assignee or, as the case may be, the TxCo Sub-Contractor will
indemnify the Successor Operator in the same terms, mutatis
mutandis, as TxCo has indemnified the Successor Operator in
Clause 13.8.1.
13.8.3 In Clause 13.8.1 the undertakings and indemnities given by
TxCo to the Successor Operator shall be given to the BBC for
itself and as trustee for any BBC Assignee or the Successor
Operator.
14 THIRD PARTY SERVICES
14.1 Nothing in this Agreement shall prevent or interfere with any
existing arrangements made by TxCo to transmit programmes or other
broadcast and non-broadcast signals made by or on behalf of third
parties or to provide telecommunication services to any third parties
from any of the Stations during the term of this Agreement or from
entering into any new arrangements with any third parties to provide
broadcasting, transmission and/or any other telecommunications
services from the Stations provided that such new arrangements shall
not detrimentally affect the existing contracted provision of the
Services to the BBC and further provided that TxCo agrees not to use
the frequencies set out in Annex A other than for performance of the
Transmission Services unless the BBC consents to such use or as TxCo
is contractually bound to do at the date hereof.
14.2 For the avoidance of doubt the parties hereto agree and confirm that
any exercise by TxCo of its rights described in Clause 14.1 hereof
shall not affect or otherwise entitle the BBC to require any
reduction or other adjustment to the Charges payable under this
Agreement at any time during the Term other than as set out in Clause
10.1 above.
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15 WARRANTIES AND UNDERTAKINGS
15.1 TxCo hereby warrants and undertakes that it holds and will continue
to hold during the Term all necessary licences and consents under the
Telecoms Act and the WTA and all consents and clearances of whatever
nature as is required to enable it to perform its obligations under
this Agreement and shall comply with the terms of all such licences
and consents and shall not do anything or omit to do anything which
would cause such licences or consents to be revoked or not renewed.
15.2 The BBC shall obtain at its own expense and hold during the currency
of this Agreement all necessary licences and consents under the
Charter and Agreement, the Broadcasting Act, the 1996 Act, the WTA
(which, for the avoidance of doubt will not include a broadcasting
services licence under the WTA) and all consents, clearances and
other rights of whatsoever nature which are required to permit the
BBC to perform its obligations under this Agreement and otherwise and
shall do all things necessary to comply with the terms of such
licences and consents and shall not do anything or omit to do
anything which would cause such licences and consents to be revoked
or not renewed.
15.3 TxCo shall do all things necessary to renew any leases or licences
for the Sites on which the Stations identified in the list contained
in Annex 1 or any substituted list inserted therein are located, so
that they subsist for the duration of this Agreement or any agreed
renewal of the same, provided that (subject to Clause 5.1 above) TxCo
shall not be required to renew such leases or licences on other than
reasonable terms.
16 LIABILITY AND INSURANCE
16.1 Both parties agree to maintain insurance against any loss, damages,
claims or actions arising from:
16.1.1 personal injury or death;
16.1.2 public liability; and/or
16.1.3 any other liability for which either is required by law to
insure,
arising out of the performance of this Agreement, the Site Sharing
Agreements, R&D Services Agreement, the Computer Services Agreement,
the General Services Agreement, the Teleswitching Agreement or the
Telecommunications Agreement (collectively, the "Contracts") or
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the ownership or occupation of the BBC Sites or the TxCo Sites. Where
TxCo engages a subcontractor, it shall ensure that its insurance
includes cover for its liabilities in respect of the acts and
omissions of its sub-contractors or that its sub-contractors have
their own insurance with appropriate cover in the light of the work
to be undertaken by the sub-contractors. TxCo agrees to maintain
insurance cover adequate to cover the risks which it is likely to
incur, with a minimum of primary public and products liability
insurance in a form reasonably acceptable to the BBC providing for
payment of a sum up to (Pounds)50 million for any one occurrence (or
in the annual aggregate for products liability) and, in the case of
third party property damage arising out of the use of private
vehicles, unlimited cover and, in the case of third party property
damage, arising out the use of commercial vehicles, (Pounds)5 million
in respect of one occurrence, and employers liability insurance
sufficient to meet its statutory requirements and sufficient to cover
any liabilities to past or present employees under the Transfer
Scheme. As at the Commencement Date the BBC confirms that it has been
informed of TxCo's insurance cover and considers it reasonable.
16.2 TxCo shall additionally effect and maintain all risks or loss or
damage to property and business interruption insurance in a form
reasonably acceptable to the BBC in respect of each of the Stations,
DF Assets, the TxCo Sites and all TxCo Equipment used to provide the
Services covering the full re-instatement value of all such assets
and the reasonable cost of any replacement Transmission Services from
the Stations or any other stations used to supply any part of the
Transmission Services.
16.3 Subject to Clauses 16.1 and 16.2 above, each of the BBC and TxCo
shall indemnify the other on an after-tax basis against all claims or
actions brought against the other by any third party for personal
injury or loss of, or damage to, property or any other loss
occasioned by Interference or denial of access caused as a result of
any wilful or negligent act or wilful or negligent omission by the
party from whom indemnification is sought (including but not limited
to the performance of any operations or the provision of services or
of equipment). The party from whom indemnification is sought shall
have the right to conduct or settle any proceedings brought by a
third party against the other party or subject to reimbursing the
other party any costs of such proceedings and any damages, costs and
expenses payable by the indemnified party arising out of those
proceedings. Both parties will notify the other as soon as possible
of the existence of a claim which is reasonably likely to give rise
to a claim for indemnification under this Clause.
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16.4 Subject to Clauses 16.1 and 16.3 above, each of the BBC and TxCo will
indemnify the other on an after-tax basis against any loss incurred
by the relevant party resulting from damage to that party's property
or injury to its employees or the employees of its agents or sub-
contractors arising out of any breach of any of its obligations,
warranties or undertakings contained in any of the Contracts or any
other agreements between the parties or any other negligent or wilful
act or omission of the party from whom an indemnity is sought. The
party from whom indemnification is sought shall have the right to
conduct any proceedings brought by a third party against the other
party or to settle any such proceedings subject to reimbursing the
other party any costs of such proceedings and any damages, costs and
expenses payable by the indemnified party arising out of those
proceedings.
16.5 Neither TxCo nor the BBC shall be held responsible for the
consequences of any act or omission or misconduct of any third party,
unless:
16.5.1 such third parties are in the employment of or providing sub-
contracted services to either TxCo or the BBC at the time the
incident takes place; or
16.5.2 the party claimed against has recovered damages in respect of
such act, omission or misconduct directly from the relevant
third party or otherwise where it has recovered insurance
(and in each such case to the extent of such recovery or
insurance claim) provided that where such party is entitled
to claim damages and/or recover under such insurance policy
it shall use all reasonable endeavours to do so as soon as
reasonably practicable, in which circumstances the provisions
of Clauses 16.3 and 16.4 above shall apply.
16.6 TxCo shall not be liable to the BBC for loss of profits or for any
indirect, special, incidental or consequential loss whatsoever
arising out of its performance of or failure to perform any of the
Contracts or otherwise. For the avoidance of doubt, TxCo is liable to
pay to the BBC any Service Credits payable in accordance with
Schedule 10, subject to the provisions of Clause 12.
16.7 The BBC shall not be liable to TxCo for loss of profits or for any
indirect, special, incidental or consequential loss whatsoever
arising out of its performance of or failure to perform any of the
Contracts or otherwise provided that this Clause is not intended to
operate nor shall it operate to deprive TxCo of damages comprising
the direct profit and any other direct losses which it would
otherwise have recovered from the BBC for breach of any of the
Contracts.
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16.8 TxCo agrees to maintain insurance covering professional indemnity of
at least ,5 million per year, commensurate with the nature of the
risks undertaken in that year, including all risks assumed under the
General Services Agreement.
16.9 Without prejudice to Clause 16.6, TxCo's aggregate liability in any
one Year to the BBC for any loss suffered by the BBC and caused or
contributed to by TxCo shall not exceed [*].
16.10 In the event of loss or damage to any of the BBC DF caused by the
negligence or wilful act of any employee or agent or subcontractor
of TxCo, TxCo may (without prejudice to the BBC's other rights and
remedies), at its own expense and as soon as practicable, and
recognising that time is of the essence, either restore such BBC DF
substantially to the condition that they were in immediately before
such damage, or, at its own election, replace such of the damaged
BBC DF with equipment in a condition similar to or better than that
of the BBC DF immediately before such loss or damage.
16.11 Neither party excludes or restricts liability for death or personal
injury resulting from its own negligence or from liability arising
under the Health and Safety at Work Act 1974 or any regulations made
pursuant to that Act.
16.12 Save to the extent that monies are recovered via any third party
insurance policy or policies effected by third party contractors, no
liability under this Agreement shall attach to TxCo, its employees
or contractors in respect of the performance, safety or suitability
for its purpose of any of the BBC DF except where the installation
of the same was supervised or carried out by, or on behalf of, TxCo
and except insofar as TxCo is in breach of its maintenance
obligations as set out in Schedule 9.
16.13 The BBC shall be legally responsible for insuring or procuring the
insurance of the BBC DF (insofar as it is able) against fire and
such other usual commercial risks as the BBC may reasonably decide
for full replacement cost and for the purposes of any third party
claim for the duration of this Agreement.
16.14 Where requested by the BBC, TxCo agrees to provide the BBC with a
copy of the relevant policy or policies or evidence of such
insurance and its material terms referred to in this Clause 16,
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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which shall be treated by the BBC as confidential information
belonging to TxCo. TxCo will also notify the BBC of any substantive
chance to the insurance programme maintained by it and referred to
in this Clause 16 or the risks covered.
16.15 Subject to Clause 16.1 above, the BBC's liability for all matters
under the Contracts, other than for payment of the Charges under
this Agreement and any charges under any other of the Contracts or
in respect of the repudiatory breach of any of the Contracts, shall
be limited to [*].
16.16 This Agreement sets out the full extent of each party's obligations
and liabilities relating to the Services whether in contract, tort,
negligence, breach of statutory duty or otherwise. In particular,
there are no conditions, warranties or other terms, express or
implied, as to satisfactory quality, fitness for purpose or of any
other kind whatsoever that are binding on TxCo except as
specifically set out in this Agreement. Any other condition,
warranty or other term relating to the provision of the Services
which might otherwise have been implied into this Agreement by
statute, common law or otherwise is hereby excluded.
16.17 TxCo shall discuss and comply, where any BBC disaster recovery plan
covers the Services or any part of the Services, with the BBC
disaster recovery plan or any other emergency procedures which may
be developed from time to time and notified to TxCo by the BBC, and
develop, test and use its own disaster recovery Plan or other
emergency procedures, to ensure that the provision of the Services
to the BBC are sustained to TxCo's best ability in the event of any
disaster or emergency. The BBC will reimburse TxCo for any
reasonable additional costs incurred by TxCo at the request of the
BBC in complying with, or testing, the BBC disaster recovery plan or
any other emergency procedures.
17 ASSIGNMENT AND SUB-CONTRACTING
17.1 This Agreement is personal to the parties hereto and they shall not
assign, transfer, charge or deal in any other manner with this
Agreement other than as expressly set out below except that TxCo
shall be entitled to assign its rights to payments under this
Agreement by way of security to any person providing finance to it
or its holding company(ies).
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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17.2 Each of TxCo and the BBC shall be entitled to transfer this
Agreement to any of its wholly owned subsidiaries provided that:
17.2.1 each party procures that the transferee is bound by a direct
covenant with the other party to observe all the terms of
this Agreement and the covenants and obligations by the
transferor contained in the Site Sharing Agreements and this
Agreement; and
17.2.2 if any transferee ceases to be a wholly owned subsidiary of
either the BBC or TxCo, as the case may be, this Agreement
will be transferred back to TxCo or the BBC, or to one of
their wholly owned subsidiaries.
18 FORCE MAJEURE
18.1 Neither party shall be liable to the other for any failure to
perform its obligations hereunder which shall be caused by a Force
Majeure Event, except to the extent that the Force Majeure Event
requires performance of any of the Emergency Services or the DF
Transmitted Services and except that the Force Majeure Event shall
not excuse payment by the BBC of any of the charges for Services
received.
18.2 Subject to Clause 18.1 above and without prejudice to its rights
under Clause 13.2 above, TxCo shall nevertheless use its reasonable
endeavours to carry cut the Services while the Force Majeure Event
subsists.
19 AMENDMENTS TO THIS AGREEMENT
No amendment to this Agreement shall be effective unless it is in writing
and signed by the BBC's Director of Policy and Planning and the TxCo
Representative on behalf of both parties.
20 INFORMATION AND CONFIDENTIALITY
20.1 The BBC will as soon as possible provide TxCo (free of charge) with
all such information and cooperation that TxCo may reasonably
require in accordance with any agreements for the sharing of
services, including under the R&D Services Agreement and the
Telecommunications Agreement, and which the BBC is able to provide
from time to time to enable TxCo to perform its obligations under
this Agreement.
20.2 Subject to the terms of any other agreement between the parties,
each party agrees and undertakes that during the term of this
Agreement, and thereafter, it will keep confidential and will
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not use for its own purposes or, without the prior written consent
of the other, disclose to any third party the terms of this
Agreement or any information of a confidential nature which is
supplied to it under this Agreement or of which it becomes aware in
the performance of this Agreement unless:
20.2.1 such information is required to be disclosed to TxCo's
bankers, TxCo's holding company and any shareholders of its
holding company (subject in each case to such companies or
individuals agreeing that the information shall be
confidential in terms substantially similar to this Clause
20.2); or
20.2.2 such information is public knowledge, or subsequently
becomes public knowledge, other than by breach of this
Agreement; or
20.2.3 such information subsequently comes lawfully into the
possession of the party in question from a third party; or
20.2.4 the disclosure of such information is required by any court
of competent jurisdiction or any regulatory authority,
including any recognised stock exchange or any taxation
authority.
20.3 To the extent that it is necessary to disclose confidential
information pursuant to the provisions of this Clause 20 or
otherwise as necessary to implement the provisions of this
Agreement, either party may disclose any confidential information
concerning this Agreement, including any information contained in
the Annexes hereof, to such, of its employees or, in the case of the
BBC, to such of the BBC's Nominated Contractor(s) as may be
reasonably necessary on a "need-to-know basis", provided that before
any such disclosure such party shall make such persons aware of its
obligations of confidentiality under this Agreement and shall at all
times procure compliance by such persons therewith.
20.4 The obligations of confidentiality hereunder shall not apply to
prevent the supply of confidential information to the Department of
National Heritage, the Home Office, the Cabinet Office, the Foreign
and Commonwealth Office, the Office of Fair Trading, the
Radiocommunications Agency, the Department for Trade and Industry,
the Radio Authority, the Independent Television Commission, the
Office of Telecommunications or such other similar regulatory body.
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21 INTELLECTUAL PROPERTY RIGHTS
21.1 If, in the course of or as a result of any Services provided by TxCo
to the BBC, any of TxCo's employees or agents create any document or
other material protected by copyright or other intellectual property
right, it is agreed that all legal and beneficial rights in it will
be owned by TxCo and the BBC will have no rights in it beyond a non-
exclusive licence to make copies for internal use of any document or
other material necessary for the purpose of making use of the
Services provided that where such material consists of software the
BBC will maintain not more than one backup copy or reproduction of
the software and will ensure that such copies are kept in a locked
cabinet at all times when not in use and do not pass outside the
BBC's control. The BBC's Representative will sign any assignment or
other instrument which may be reasonably necessary to give effect to
this provision.
21.2 If, as a result of any assistance provided by the BBC to TxCo under
this Agreement, any of the BBC's employees or agents create any
document or other material protected by copyright or other
intellectual property right, it is agreed that all legal and
beneficial rights in it will be owned by the BBC and TxCo will have
no rights in it beyond a non-exclusive licence to make copies for
internal use of any document or other material necessary for the
purpose of providing the Services provided that where such material
consists of software TxCo will maintain not more than one backup
copy or reproduction of the software and will ensure that such
copies are kept in a locked cabinet at all times when not in use and
do not pass outside TxCo's control. The TxCo Representative will
sign any assignment or other instrument which may be reasonably
necessary to give effect to this provision.
21.3 In the event that during the performance of their respective
obligations under this Agreement any employees or agents of the BBC
and TxCo jointly create any document or other material protected by
copyright or other intellectual property right, BBC and TxCo will
negotiate in good faith to agree the terms and conditions of
ownership of all the legal and beneficial rights in and use of it.
21.4 Without prejudice to Clause 4.3.3, the BBC will, subject to a limit
on its liability of [*] in respect of any one such claim or related
series of claims or [*] for all such claims arising in any
jurisdiction in any 12 month period, indemnify TxCo against any
claims, proceedings and expenses arising from infringement (or
alleged infringement) of any patent, design, copyright or other
intellectual property right by reason of:
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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21.4.1 work carried out by TXCO, its agents or employees in
accordance with directions or specifications given by the
BBC where and to the extent that such infringement (or
alleged infringement) results only from any negligent act or
default of the BBC or where the BBC does not inform TxCo of
any limitation on the use of such intellectual property
right;
21.4.2 the connection of any BBC DF to the Transmission Network or
the use of any BBC DF in conjunction with the Transmission
Network where, in either case, the infringement is
attributable solely to the connection or use of BBC DF; or
21.4.3 the connection of the MBN Core Network and other BBC
Equipment to the Transmission Network where, in any case,
the infringement is attributable to the connection, use or
maintenance of BBC Equipment or the equipment comprised in
the MBN Core Network.
21.5 TxCo will, subject to a limit on its liability of [*] in respect of
any one such claim or related series of claims or [*] for all such
claims arising in any jurisdiction in any 12 month period, indemnify
the BBC on an after-tax basis against any claims, proceedings and
expenses arising in any jurisdiction from infringement (or alleged
infringement) of any patent, design, copyright or other intellectual
property right arising from the connection of any TxCo Equipment to
the BBC DF or the BBC's use thereof in conjunction with the
Transmission Network where in either case the infringement is
attributable solely to the connection or use of TxCo Equipment.
21.6 In respect of the indemnities given by each party in this Clause 21,
the party entitled to claim under the indemnity (the "indemnified")
will notify the other party (the "indemnifier") within seven days in
writing of any allegation of infringement and the indemnified:
21.6.1 will make no admission relating to the infringement;
21.6.2 will allow the indemnifier full discretion to conduct or
settle all negotiations and proceedings, subject to
receiving reasonable security for costs and damages; and
21.6.3 will give the indemnifier all reasonable assistance in
respect thereof.
21.7 Both parties will endeavour not to interfere with or otherwise
jeopardise the intellectual property rights of the other.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
65
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22 EMPLOYEES
22.1 TERMS OF EMPLOYMENT OF EXISTING EMPLOYEES
TxCo shall not, and shall procure that any other Relevant Employer
shall not, without the prior consent of the BBC (which shall not be
unreasonably withheld or delayed), vary, or purport or promise to
vary, the terms or conditions (as amended from time to time) of
employment of any Employee (including a promise to make any
additional payment or provide any additional benefit) where such
variation or addition:
22.1.1 takes effect at any time after either party has served
notice pursuant to Clause 2.2 of this Agreement unless it is
in the ordinary course of business and, when aggregated with
any other variation or addition which takes effect during
such period, represents an increase in the remuneration of
the Employee of no more than the percentage increase in the
level of the Average Earnings Index between the month for
which such index was last Published at the time the
variation or addition is made or proposed and the month
falling 12 months before such month; or
22.1.2 first takes effect in whole or in part after this Agreement
has terminated; or
22.1.3 results in any such employment not being terminable by the
Relevant Employer within six months after the Agreement has
terminated; or
22.1.4 relates to a payment or the provision of a material benefit
triggered by termination of employment after the Agreement
has terminated, or
22.1.5 relates to the provision of a benefit (but excluding base
salary) which takes effect at any time after either party
has served notice pursuant to Clause 2.2 of this Agreement
or which any such Employee will or may have a contractual
right to first receive after the Agreement has terminated;
or
22.1.6 prevents, restricts or hinders any such Employee after the
Agreement has terminated from working for the BBC or the
Successor Operator or from per-forming the duties such
Employee performed for TxCo.
22.2 CHANGES IN NUMBERS AND TOTAL COST OF EMPLOYEES
Subject to and excluding any increase in the remuneration of
Employees permitted under Clause 22.1, TxCo shall not, and shall
procure that any other Relevant Employer shall not, without the
prior consent of the BBC (which shall not be unreasonably withheld
or delayed), increase or
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decrease at any time after either party has served notice pursuant
to Clause 2.2 the number of Employees either such that the total
number of Employees or the total cost per annum to TxCo and each
other Relevant Employer of employing all Employees is increased or
such that the total number of Employees is decreased, in each case,
by more than 5 per cent during any period of 12 months.
23 NOTICES
23.1 Any notice to be served by either party shall be in writing and
shall be sent to the following addresses:
TxCo Chief Executive Officer
Castle Transmission Services Ltd
Warwick Technology Park
Heathcote Lane
Warwick CV34 5DS
Fax No: 01926 416441.
BBC Director of Policy and Planning
British Broadcasting Corporation
Broadcasting House
London W1A 1AA
Fax No: 0171 436 0393
23.2 Any notice, invoice or other document which may be given by either
party under this Agreement will be deemed to have been duly given if
left at or sent by post (whether by letter or, where the parties
agree in writing, in any other form) or facsimile transmission to
the address set out above or to any other address notified to each
other in writing in accordance with this Clause as an address to
which notices, invoices and other documents may be sent. Any such
communication will be deemed to have been made to the other party:
23.2.1 if sent by hand, when delivered;
23.2.2 if sent by post, 72 hours after the envelope containing such
notice was posted; or
23.2.3 if sent by facsimile, when the transmission of the facsimile
is confirmed delivered complete, if delivered on a business
day, or, if not, at 9.30 a.m. (British Standard Time) on the
next business day.
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For the purposes of this Clause, "business day" means 9 a.m. to 5 p.m.
Monday to Friday every week of the year except for English public holidays,
It is further agreed that notices sent by facsimile will also be confirmed
by sending a signed copy by post, the copy to be posted within 24 hours of
sending the facsimile.
24 NON-SOLICITATION
Neither the BBC nor TxCo shall solicit or endeavour in any way to solicit
the services of or offer employment or engage any employee of the other
involved in the provision or monitoring of the Services or the services
provided under the R&D Services Agreement while, engaged, or within 12
months of his ceasing to be engaged, in carrying out any obligations under
this Agreement without the prior written consent of the other. This
prohibition shall not prevent either party advertising for staff in the
national, local or industry press, or, whilst TxCo remains a subsidiary of
the BBC, recruiting or endeavouring to recruit staff in accordance with the
internal recruitment procedures of the BBC. If any BBC or TxCo employee
responds to such advertisement or in accordance with the relevant BBC
internal recruitment procedure, the relevant party can, if it wishes,
employ such person.
25 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no provision of this
Agreement which is of such a nature as to make this Agreement liable to
registration under the Restrictive Trade Practices Act 1976 shall take
effect until the day after that on which particulars thereof have been duly
furnished to the Director General of Fair Trading.
26 WHOLE AGREEMENT
This Agreement supersedes any previous written or oral agreement between
the parties in relation to the matters dealt with in this Agreement and,
together with its Schedules and Annexes and the Teleswitching Agreement,
contains the whole agreement between the par-ties relating to the subject
matter of this Agreement at the date hereof to the exclusion of any terms
implied by law which may be excluded by contract. Each of the parties
acknowledges that it has not been induced to enter into this Agreement by a
representation, warranty or undertaking not expressly incorporated into it.
So far as permitted by law and except in the case of fraud, the parties
agree and acknowledge that their only rights and remedies in relation to
any representation, warranty or undertaking made or given in connection
with this Agreement shall be for breach of the terms of
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this Agreement, to the exclusion of all other rights and remedies
(including those in tort, or arising under statute).
27 VALUE ADDED TAX
27.1 All sums due to either party under this Agreement are exclusive of
VAT thereon, if any, which shall be charged in addition thereto in
accordance with the relevant law in force at the time of making the
relevant taxable supply and shall be payable by the paying party
only against receipt from the other of a valid VAT invoice in
respect thereof.
27.2 Where under this Agreement one party has agreed to reimburse or
indemnify the other in respect of any payment made or cost incurred
by the other, then the first party shall also reimburse any VAT paid
by the other which forms part of its payment or costs incurred to
the extent that such VAT is not available for credit for the other
or for the representative member of the other's VAT group under
Sections 25 and 26 of the Value Added Tax Act 1994 (or any
replacement or equivalent provision).
28 PARENT COMPANY GUARANTEE
Cable Transmission Services (Holdings) Limited will enter into a guarantee
in the form set out in Schedule 11.
29 JURISDICTION
This Agreement will be governed by and construed and interpreted in
accordance with English law, and the parties hereby submit to the non-
exclusive jurisdiction of the English courts.
In witness whereof this document has been executed as a Deed the day and
year first before written.
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In witness whereof this document has been executed as a Deed the day and year
first before written.
THE COMMON SEAL of the BRITISH
BROADCASTING CORPORATION was
hereunto affixed in the presence of:
Director
Recorder Officer
THE COMMON SEAL of CASTLE
TRANSMISSION SERVICES LIMITED
was hereunto affixed in the presence of:
Director
Secretary
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SCHEDULE 1
[*] (represents pages 1-23)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 2
[*] (represents pages 24-30)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 3
[*] (represents pages 31-40)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 4
[*] (represents pages 41-109)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 5
Fault Reporting and Planned Interruptions
Page No.
1. Introduction 111
2. Services Messages 111
3. Planned Work Messages 112
4. Classification of Faults 113
5. Response Times 114
6. Interleaved DAB and VHF Antennas 115
7. Service Codes 115
<PAGE>
SCHEDULE 5
[*] (represents pages 111-121)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 6
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 7
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 8
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 10
[*] (represents pages 144-189)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
SCHEDULE 11
Dated February 1997
CASTLE TRANSMISSION SERVICES (HOLDINGS) LIMITED
and
THE BRITISH BROADCASTING CORPORATION
DEED OF GUARANTEE
LINKLATERS & PAINES
Barrington House
59-67 Gresham Street
London EC2V 7JA
Tel: 0171-606 7080
JMC/KMTM
<PAGE>
THIS DEED OF GUARANTEE ("GUARANTEE") is made the day of February
1997 BETWEEN:
(1) CASTLE TRANSMISSION SERVICES (HOLDINGS) LIMITED, a company
incorporated on 27 August 1996 (with registration number 3242381) and
whose registered office is at Kempson House, Camomile Street, London
EC3A 7AN (the "GUARANTOR"); and
(2) THE BRITISH BROADCASTING CORPORATION, a corporation incorporated under
Royal Charter, whose principal office is at Broadcasting House,
Portland Place, London W1A 1AA (the "BBC").
WHEREAS:
(A) Castle Transmission Services Limited ("CTS") is a company incorporated
on 9 May 1996 (with registration number 3196207) and whose registered
office is at Barrington House, 59-67 Gresham Street, London EC2V 7JA.
(B) By an agreement (the "SALE AGREEMENT") of 23 January 1997 and made
between the BBC as seller and Castle Transmission Services (Holdings)
Limited as purchaser, the BBC has agreed to sell and Castle
Transmission Services (Holdings) Limited agreed to buy the entire
share capital of CTS.
(C) By an agreement (the "TRANSMISSION AGREEMENT") of February 1997
between the BBC and CTS, CTS has agreed to provide certain
transmission and related services to the BBC.
(D) CTS is a wholly owned subsidiary company of the Guarantor as defined
in the Companies Act 1985.
(E) In consideration, inter alia, for the entry of the BBC into the Sale
Agreement, the Guarantor has agreed to guarantee (upon and subject to
the terms set out in this Guarantee) the due performance and
observance by CTS of all its obligations under the Transmission
Agreement.
IN CONSIDERATION of the BBC having agreed to enter into the Sale Agreement,
IT IS HEREBY AGREED as follows:
1 DEFINITIONS
In this Guarantee terms and expressions defined in the Transmission
Agreement shall, save where the context otherwise requires, have the same
meanings herein.
2 GUARANTEE OF PERFORMANCE
2.1 The Guarantor hereby unconditionally and irrevocably guarantees to the BBC
the due and punctual performance and observance by CTS of all the
obligations of CTS under and pursuant to the Transmission Agreement and
agrees to indemnify the BBC (on an after tax basis) against all losses,
liabilities, costs, charges, expenses, actions, proceedings, claims and
demands which the BBC may suffer through or arising from any breach by CTS
of its obligations under and pursuant to the Transmission Agreement.
Without prejudice to the provisions of Clause 3 of this Guarantee, the
amount which the BBC shall be entitled to recover from the Guarantor
hereunder in respect of or arising from any breach or default by CTS in the
performance of its obligations or liabilities under or pursuant to the
Transmission Agreement shall not exceed the amount for which CTS itself is
or would be liable in respect of such breach or default, save that the
foregoing limitation does not apply in respect of costs and expenses
incurred by the BBC in enforcing the Guarantor's obligations under this
Guarantee.
2.2 If and whenever CTS defaults for any reason whatsoever in the performance
of any obligation or liability undertaken or expressed to be undertaken by
it under or pursuant to the Transmission Agreement, the Guarantor shall
upon demand perform (or procure performance of) and satisfy (or
1
<PAGE>
procure the satisfaction of) the obligation or liability in regard to which such
default has been made in the manner prescribed in the Transmission Agreement and
so that the same benefits shall be conferred on the BBC as it would have
received if such obligation had been duly performed and satisfied by CTS.
3 PRIMARY OBLIGATION
3.1 The Guarantor is deemed to be a principal debtor in respect of its
obligations under this Guarantee and not merely a surety and accordingly
shall not be discharged nor shall its liability be affected by any act,
omission or means whereby it would not have been discharged or its
liability would not have been affected if it had been a principal debtor.
3.2 The BBC shall not be obliged, before enforcing this Guarantee, to have:
3.2.1 taken any action or proceedings against CTS; or
3.2.2 obtained any judgment against CTS; or
3.2.3 proven in any winding-up of CTS or agreed with CTS (or any
administrator, liquidator, receiver or similar person) the amount of
any liability of CTS, to the BBC; or
3.2.4 enforced any other security held by it in respect of the obligation
of CTS under the Transmission Agreement; or
3.2.5 exercised, levied or enforced any distress, diligence or other
process of execution against CTS.
3.3 This Guarantee shall be in addition to, and not in substitution for, any
rights or remedies that the BBC may have against CTS, arising under or in
respect of the Transmission Agreement or otherwise and may be enforced
without first having recourse to any such rights.
3.4 The liability of the Guarantor under this Guarantee shall not be diminished
by any matter (including without limitation any amendment to or variation
of the Transmission Agreement, or any assignment of this Guarantee or any
administration or winding-up order) that might restrict the ability of the
BBC to bring any action or proceedings against CTS.
4 CONTINUING GUARANTEE
4.1 This Guarantee shall be a continuing guarantee and shall continue in force
and effect irrespective of the enforceability of any other provision of
the Transmission Agreement.
4.2 Neither the winding-up, liquidation, dissolution, bankruptcy or any other
disability, limitation, incapacity, event or circumstance in relating to
the Guarantor or CTS nor any change in their respective certificates of
incorporation, memorandum and articles of association, status, function,
control or ownership shall terminate the liability under this Guarantee.
4.3 This Guarantee shall terminate when all obligations to be performed or
discharged by CTS under the Transmission Agreement have been irrevocably
performed or discharged.
4.4 This Guarantee is in addition to and without prejudice to and not in
substitution for or derogation of any other rights or security held by the
BBC or any person for whose benefit this Guarantee is given in respect of
the performance and observance of the obligations of CTS under the
Transmission Agreement and shall extend to any costs, charges and expenses
reasonably incurred by the BBC in enforcing or seeking to enforce this
Guarantee.
2
<PAGE>
5 REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the BBC that:
5.1 it has an issued and fully paid-up share capital of at least (pounds) 102
million;
5.2 it has the power to enter into, perform and comply with all of its
obligations under this Guarantee;
5.3 the execution and performance of this Guarantee does not breach its
constitutional documents or any agreement by which it is bound;
5.4 this Guarantee has been duly authorised by it and all necessary consents
and authorisations required by it in relation to this Guarantee have been
obtained and are in force; and
5.5 all other actions, conditions and things required to be taken, fulfilled
and done in order to enable it lawfully to enter into and exercise its
rights and perform and comply with its obligations under this Guarantee,
have been taken, fulfilled and done.
6 ASSIGNMENT AND SUCCESSORS
6.1 The BBC shall be entitled to assign the benefit of this Guarantee to any
firm, person or company to whom or to which the BBC shall make an
assignment of its interest under the Transmission Agreement;
6.2 The Guarantor shall not assign or otherwise transfer, dispose of or part
with any of its rights or obligations under this Guarantee to any person or
deal in any other manner with this Guarantee without the prior written
consent of the BBC. Any purported assignment in violation of this sub-
Clause 6.2 shall be ineffective.
7 JURISDICTION
7.1 Other than as set out above this Guarantee will be governed by and
construed and interpreted in accordance with English law, and the parties
will be subject to the non-exclusive jurisdiction of the English courts.
8 NOTICES
8.1 Any notice to be served by either party shall be in writing and shall be
sent to the following addresses:
Guarantor Castle Transmission Services (Holdings) Limited
c/o Castle Tower Corporation
510 Bering Drive, Suite 310
Houston
Texas 77057
USA
Fax: + 1 713 974 1926
Attention: Ted B. Miller Jr
with a copy to:-
3
<PAGE>
Norton Rose
Kempson House
P O Box 750
Camomile Street
London EC3A 7AN
Fax: 0171 283 6500
Attention: Alan Crookes
BBC British Broadcasting Corporation
Broadcasting House
Portland Place
London W1A 1AA
Fax: 0171 765 3500
Attention: Bob Phillis - Deputy Director General
with a copy to:-
British Broadcasting Corporation
Broadcasting House
Portland Place
London W1A 1AA
Fax: 0171 765 4381
Attention: Gareth Roscoe - Legal Adviser
8.2 Any notice, invoice or other document which may be given by either party
under this Guarantee will be deemed to have been duly given if left at or
sent by post (whether by letter or, where the parties agree in writing, in
any other form) or facsimile transmission to the address set out above or
to any other address notified to each other in writing in accordance with
this clause as an address to which notices, invoices and other documents
may be sent. Any such communication will be deemed to have been made to the
other party.
8.2.1 if sent by hand, when delivered;
8.2.2 if sent by post, 72 hours after the envelope containing such notice
was posted; or
8.2.3 if sent by facsimile, when the transmission of the facsimile is
confirmed delivered complete (if delivered on a business day) or if
not at 9:30 a.m. (British Standard Time) on the next business day.
For the purposes of this Clause business day means 9 a.m. to 5 p.m. Monday
to Friday every week of the year except for English public holidays. It is
further agreed that notices sent by facsimile will also be confirmed by
sending a signed copy by post, the copy to be posted within 24 hours of
sending of the facsimile.
4
<PAGE>
IN WITNESS whereof this document has been executed as a deed on the day and
year first before written.
SIGNED AS A DEED BY )
CASTLE TRANSMISSION SERVICES )
(HOLDINGS) LIMITED ACTING BY )
Director )
and )
Director/Secretary
SIGNED BY
for and on behalf of )
THE BRITISH BROADCASTING )
CORPORATION )
5
<PAGE>
SCHEDULE 12
[*] (represents pages 192-285)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
ANNEX 2
[*] (represents pages 1-12)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
Appendix 1
Population Coverage Figures for the UHF Television
Transmission Network
[*] (represents pages 1-11)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
Appendix 2
Population Coverage Figures for the FM Radio
Transmission Network
(National, Regional and Local Services)
[*] (represents pages 1-7)
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
Appendix 3
Population Coverage Figures for the DAB
Transmission Network
(27-Station Plan)
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
Appendix 4
Population Coverage Figures for the LF/MF Radio
Transmission Network for Radio 4
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
Appendix 5
Population Coverage Figures for the MF Radio
Transmission Network for Radio 5 Live
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
<PAGE>
EXHIBIT 10.33
DATED 10 February 1998
(1) THE BRITISH BROADCASTING CORPORATION
and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD
DIGITAL TERRESTRIAL TELEVISION
TRANSMISSION AGREEMENT
LINKLATERS & PAINES
One Silk Street
London EC2Y 8Q
Tel: 0171-456 2000
Ref: RMBD/MSHC
<PAGE>
THIS AGREEMENT is made on 10 February 1998 BETWEEN:
(1) THE BRITISH BROADCASTING CORPORATION, a corporation incorporated under
Royal Charter, whose principal office is at Broadcasting House, Portland
Place, London W1A 1AA ("THE BBC"); and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD (registered number 3196207), a
company incorporated under the laws of England and Wales whose principal
place of business is Warwick Technology Park, Gallows Hill, Heathcote
Lane, Warwick CV34 6TN ("CTI").
RECITALS
(A) The BBC is incorporated under the Charter and required under the Charter
and DNH Agreement to provide radio and television broadcasts.
(B) Clause 2.4 of the DNH Agreement allows for the BBC to provide multiplex
facilities for digital terrestrial television.
(C) The BBC wishes to launch its digital terrestrial television services
concurrently with the launch of digital terrestrial television services by
other multiplex operators.
(D) The BBC has decided that it wishes to obtain from CTI the Services,
including:
(i) The DTT Transmission Services using:
(a) terrestrial transmitters operated by CTI which radiate DVB-T
Specification compliant signals;
(b) links provided by or to CTI to enable distribution of the BBC
multiplexed signal to terrestrial transmitter sites from nominated
BBC broadcast centers;
(c) multiplexers provided by CTI, to enable configuration of the BBC
Multiplex at certain transmitter sites;
(ii) modifications to the transmission characteristics of existing analogue
transmitters to permit the introduction of the BBC Multiplex and the
simultaneous transmission of analogue services;
(iii) representation of the BBC on industry bodies; and
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(iv) liaison with the analogue returning contractor.
(F) CTI has agreed to provide the Services on the terms and conditions set out
in this Agreement.
The parties agree to comply with the following terms and conditions.
2
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PART A - DEFINITIONS AND INTERPRETATION
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
"ACCEPTANCE TESTS" means the tests carried out to test the installation and
implementation of a Station (which may include type approval tests) in
accordance with Clause 2.7 and Schedule 6.
"ACCEPTED" shall mean acceptance by the BBC or deemed acceptance by the BBC
of a Station in accordance with the Acceptance Test procedure.
"ACCOUNTABLE INCIDENT" means a fault, failure or incident of the kind
defined in Schedule 8, paragraph 3.1.4.2.
"ACTUAL IN-SERVICE DATE" means the date, regardless of the Roll-out Plan,
when a Station commences service other than for testing.
"AFFILIATE" means any undertaking in respect of which a participating
interest is held by the BBC, or a subsidiary undertaking of the BBC, or its
parent undertaking or any subsidiary undertaking of its parent undertaking
(as such terms are defined in sections 258 to 260 and Schedule 9 of the
Companies Act 1985, as amended by the Companies Act 1989).
"AVERAGE EARNINGS INDEX" means the average earnings index for the whole
United Kingdom economy as published from time to time by the Office of
National Statistics or, if such index shall cease to be published or if
there is a material change in the basis of the index, such other average
earnings index as is an equivalent replacement, or if there is not a
replacement, as the BBC may, after consultation with CTI, reasonably
determine to be appropriate in the circumstances.
"1996 ACT" means the Broadcasting Act 1996.
"BBC ASSIGNEE" means any wholly-owned subsidiary of the BBC to whom the BBC
has assigned this Agreement pursuant to Clause 17.2.
"BBC MULTIPLEX" means the multiplex for digital terrestrial television
allocated to the BBC by the Secretary of State.
"BBC OPERATIONAL POINT OF CONTACT" means a person or persons nominated to
CTI by the BBC from time to time as the operational point(s) of contact for
purposes of this Agreement.
3
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"BBC REPRESENTATIVE" means a person or persons nominated in writing to CTI
by the BBC from time to time to be its contractual point of contact. The
initial BBC Representative will be Mark Evans.
"BBC R & D" means the BBC's Research and Development Department.
"BBC SITES" means all sites owned by, leased or licensed to the BBC.
"BROADCASTING ACT" means the Broadcasting Act 1990.
"BUILD DATE" means, in relation to a Station:
(i) for Phase 1 Stations the date by which the Station is able to
radiate DTT signals compliant with the relevant technical
specification approved by the BBC as set out in Schedule 12,
Appendix 3; and
(ii) for Phase 2 Stations and Phase 3 Stations the date by which:
(a) all digital equipment at that Station has been installed by
CTI, tested and Accepted;
(b) all the analogue consequential changes at that Station are
complete and accepted by the BBC;
(c) all analogue consequential changes required for that
Station, which are not directly linked to the analogue
returning contract, are completed;
(d) a detailed project plan for those analogue changes directly
linked to the analogue returning contract has been agreed
with the returning contractor and the BBC.
"CA" means conditional access.
"CHANGE CONTROL PROCEDURE" means the procedure set out in Schedule 3.
"CHARGES" means charges calculated in accordance with Schedule 2.
"CHARTER" means the Charter granted to the BBC by Her Majesty the Queen in
Council on 13 March 1996 which came into force on 1 May 1996, as amended or
replaced from time to time.
"CTI ASSIGNEE" means any person, firm or company to whom CTI has assigned
this Agreement pursuant to Clause 17.2.
4
<PAGE>
"CTI REPRESENTATIVE" means a person or persons nominated in writing to the
BBC by CTI from time to time to be its contractual point of contact.
"CTI SITE" means all sites owned by, leased or licensed to CTI, other than
sites licensed to CTI by the BBC under a Site Sharing Agreement as defined
in this or the Analogue Contract.
"CTI SUB-CONTRACTOR" has the meaning given in Clause 13.5.1.
"DATA" means, subject to the limit on total capacity described in Clause
4.2.4, any data, free-to-air or subscription programming or other material
which the BBC wishes to broadcast or transmit using the BBC Multiplex from
time to time, which may include without limitation:
(a) digitally coded audio and video programme services;
(b) services such as Teletext, Audetel, subtitling and any other similar
services provided by the BBC from time to time;
(c) information relating to or intended for viewer set-top boxes;
(d) subtitling;
(e) private data signals (including EPG and CA);
(f) SI; and
(g) any television channels that the BBC wishes to provide for digital
television transmission from time to time.
"DESIGN AND OPTIMIZATION CONSULTING SERVICES" means technical advice and
consultation, provided prior to the Phase I Launch Date, in order to
optimize the coverage and capability of the Transmission Network, including
Sl interface design and the enhancement of antenna patterns.
"D-MUX GROUP" means the industry group of licensees of digital television
multiplexes under the 1996 Act and includes the BBC.
"DISTRIBUTION LINKS" means the telecommunications services procured or
provided by CTI to convey the Data from the Interfaces to the Stations, as
described in Schedule 5.
"DNH AGREEMENT" means the agreement between the Secretary of State of the
then Department of National Heritage and the BBC dated 25 January 1996
which came into force on 1 May 1996, as such agreement may from time to
time be amended or replaced.
5
<PAGE>
"DTT" means digital terrestrial television.
"DTT TRANSMISSION SERVICE" means digital terrestrial television
transmission of the Data from the Stations using the BBC Multiplex in
accordance with the Transmission Requirements by means of the Transmission
Network.
"DVB-T SPECIFICATION" means ETS1 standard ETS 300744.
"EFFECTIVE DATE" means the date on which the Department of Culture, Media
and Sport gives formal approval for the BBC to provide DTT.
"EMERGENCY ANNOUNCEMENTS" means the provision by the BBC as required by
Clause 8.1 of the DNH Agreement of announcements or other matter from all
or any of the Stations.
"EMERGENCY POWERS" means powers exercisable by a Minister of the Crown
pursuant to any legislation enacted or made to deal with a public
emergency, including the Emergency Powers Act 1920 and any regulations made
under it.
"EMERGENCY SERVICES" means the services described in Clause 3.2.
"EMPLOYEES" means the employees of CTI (or any sub-contractor of CTI) from
time to time principally employed for the purposes of performing CTI's
obligations under this Agreement or the employees of any CTI Assignee from
time to time principally employed for the purposes of performing CTI's
obligations under this Agreement.
"ENGINEER RESPONSE TIME" has the meaning set out in Schedule 8.
"EPG" means electronic programme guide.
"FORCE MAJEURE EVENT" means any events or circumstances beyond the
reasonable control of the defaulting party which cause the relevant default
which shall include, but not be limited to, Act of God, war, civil
disturbance, statutory prohibition, Government intervention, order or act
of Government or local/public authority, supranational regulatory or
governmental agencies, acts or threats of terrorism, fire, lightning,
flood, any adverse weather conditions which cause physical damage to
property used to supply the Services or prevent access or safe working on
any such property, anomalous propagation or other adverse weather
conditions which affect transmission of the signal after it leaves the
transmitter at a Station and before it is received at a viewer's receiver
(but not anomalous propagation or other adverse weather conditions which
affect transmission of the signal from the Interface up to and including
the point at which the signal is
6
<PAGE>
radiated from the transmitter except where weather conditions prevent or
impede access to or safe working on any property), explosion, accident,
theft or vandalism, national strike action or industrial action taken by a
union or the BBC provided that neither party can rely on strikes,
industrial action, theft or acts of vandalism where it could reasonably
have been expected to have prevented them or the industrial action or
strike is by its own employees only.
"GRADED BROADCAST" means:
(a) broadcasts of announcements made by a member of the royal family;
and
(b) major outside broadcasts,
as notified to CTI by the BBC in accordance with Clause 10.4.1, and
any urgent broadcasts of a similar nature as notified to CTI by the
BBC from time to time in accordance with Clause 10-4.
"HARMFUL INTERFERENCE" shall have the same meaning as in the Radio
Regulations.
"HIGH LEVEL DESIGN" means a high level block diagram in the form set
out in Schedule 12, identifying all Interfaces and Interface
protocols.
"INTERFACE" means the network interconnection points between the BBC's
facilities and the Transmission Network as more fully described in the
Interface Specification.
"INTERFACE SPECIFICATION" means the specification set out in Schedule
7.
"ITC" means the Independent Television Commission.
"JOINT FREQUENCY PLANNING BOARD" means the board of that name formed
under the auspices of the Radiocommunications Agency.
"LIQUIDATED DAMAGES" means amounts payable under Clause 16.6 and
calculated in the manner set out in Schedule 2.
"LOSSES" means all losses, liabilities, costs (including, without
limitation, legal costs), expenses and damages.
"MAIN STATIONS" means Stations which are not Relay Stations.
"MILLENNIUM COMPLIANT" means neither the performance nor the
functionality of the Services will be affected by any changes to the
date format caused by the advent of the year 2000 or any dates
thereafter. In particular:
7
<PAGE>
(a) no value for current date will cause any interruption of the
Services;
(b) all manipulation of time related data will produce the desired
results for valid date values within the application domain;
(c) date elements in Interfaces and data storage will permit
specifying the century to eliminate date ambiguity; and
(d) where any data element is represented without a century, the
correct century shall be unambiguous for all manipulations
involving that element.
"OPERATOR" means the BBC and/or any Successor Operator.
"OPERATIONAL" means, in relation to a Station, that the relevant
Station is ready for Operational use; i.e.:
(i) the Build Date has been achieved;
(ii) end-to-end system integration testing is complete;
(iii) all analogue consequential changes required for that
Station are complete.
"OPERATIONAL NON-PRIORITY STATIONS" means those Stations which are
described as not being Operational Priority Stations in Schedule 1 as
amended from time to time in accordance with the Change Control
Procedure.
"OPERATIONAL PRIORITY STATIONS" means those Stations described as
Operational Priority Stations in Schedule 1 as amended from time to
time in accordance with the Change Control Procedure.
"PERFORMANCE MEASURES" means the numerical indications of CTI's
overall performance, calculated as set out in Schedule 8.
"PERFORMANCE STANDARDS" means the performance parameters to be applied
by CTI as set out in Schedule 8.
"PHASE 1" means the dates during which roll-out of the Stations
identified in Schedule 1 (or otherwise agreed between the parties
pursuant to this Agreement) as first phase Stations takes place.
"PHASE 1 LAUNCH DATE" means the date by which Phase 1 Stations are
Operational, being 1 November 1998 (or such other later date as is
specified by the D-Mux Group).
8
<PAGE>
"PHASE 2" means the period during which roll-out of the Stations identified
in Schedule I (or otherwise agreed between the parties pursuant to this
Agreement) as second phase Stations takes place.
"PHASE 2 SERVICE DATE" means, in relation to a Phase 2 Station, the date by
which that Station is Operational, as specified in Schedule 1 hereto (or as
otherwise agreed between the parties).
"PHASE 3" means the period during which roll-out of the Stations identified
in Schedule 1 (or otherwise agreed between the parties pursuant to this
Agreement) as third phase Stations takes place.
"PHASE 3 SERVICE DATE" means, in relation to a Phase 3 Station, the date by
which that Station is Operational, as specified in Schedule 1 hereto (or as
otherwise agreed between the parties).
"PLANNED INTERRUPTIONS" means any interruptions of the kind described in
Clauses 10-2.1 and 10.2.2.
"PLANNED WORK MESSAGE" means a message where there is a Planned
Interruption to the DTT Transmission Service.
"PROJECT MANAGER" has the meaning set out in Clause 5.3.2.
"RADIO REGULATIONS" means the Radio Regulations of the International
Telecommunication Union or any replacement for such regulations and
includes all related regional agreements.
"RELAY STATIONS" means stations defined as such in Table 1 of Schedule 1.
"RELEVANT EMPLOYEES" means all Employees employed immediately before the
Transfer Date (whether employed by CTI or otherwise) whose contract of
employment has been or is to be transferred to the BBC or, as the case may
be, a Successor Operator by virtue of the operation of law (including the
Transfer Regulations) or any other person so employed in respect of whom
liabilities arising from a contract of employment or employment
relationship have or will be transferred by virtue of the operation of law
(including the Transfer Regulations).
"RELEVANT EMPLOYER" means an employer of any of the Employees or the
Relevant Employees.
"ROLL-OUT PLAN" means the industry-agreed plan for the roll-out of the
second and third phases of DTT, as notified to CTI and amended by the D-Mux
Group from time to time.
9
<PAGE>
"ROUTINE MAINTENANCE" means work or repairs that are planned by CTI to
minimize faults on CTI equipment and/or the Transmission Network and to
ensure that such equipment and the Transmission Network operates safely,
complies with all applicable statutory requirements and meets the
Transmission Requirements and Target Performance Measures.
"RPI" means the retail price index (all items) published monthly in the
Digest of Statistics by the Central Statistical Office or, if such index
shall cease to be published, such other index of retail prices published in
substitution for it.
"THE SECRETARY OF STATE" means one of Her Majesty's Principal Secretaries
of State.
"SERVICES" means all services provided by CTI under this Agreement.
"SERVICE CREDITS" means credits against Charges in respect of CTI failing
to meet the relevant Target Performance Measures calculated in accordance
with Clause 11.3 and Schedule 8.
"SERVICE MANAGEMENT BOARD" means the committee described in Clause 5.4.
"SERVICE MESSAGE" means a message of the kind described in Schedule 8.
"SERVICES MANAGER" has the meaning set out in Clause 5.3.2.
"SI" means service information.
"SLA" means the service level agreement or agreements described in Clause
5.1 .1.
"SITE SHARING AGREEMENT" means an agreement substantially in the form of
Schedule 10 or in such other form as is acceptable to the BBC.
"STATIONS" means the transmitter sites listed in Schedule 1 as amended from
time to time and any substitute or additional transmitter sites that the
parties may agree from time to time, in accordance with the Change Control
Procedure.
"SUCCESSOR OPERATOR" means the contractor first succeeding CTI in the
provision or operation of all or any of the Services.
"TARGET PERFORMANCE MEASURE" means the Performance Measure which is
required for the DTF Transmission Service as described in Schedule 8.
"TECHNICAL OPERATIONS CENTRE" ("TOC") means CTI's principal operations
centre located at Warwick Technology Park, Gallows Hill, Heathcote Lane,
Warwick CV34 6TN.
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"TELECOMS ACT" means, in relation to the UK, the Telecommunications Act
1984 or such equivalent statutes as are from time to time in force in the
Channel Islands or the Isle of Man.
"TELETEXT" means any data service of the type which is currently
transmitted using lines in the vertical blanking interval of the vision
element of analogue television signals directed to the general public.
"TERM" means the period of 12 years from the Phase 1 Launch Date.
"TEST DATE" means, in relation to a Station, the date by which the relevant
test transmitter or transmitter, as the case may be, is installed and ready
for testing on such other date as may reasonably be agreed between the BBC
and CTI in accordance with the requirements of the D-mux Group.
"TPGD" means the Television Planning Group Digital of the ITC.
"TRANSFER DATE" means close of business on the date when this Agreement
terminates.
"TRANSFER REGULATIONS" means the Transfer of Undertakings (Protection of
Employment) Regulations 1981.
"TRANSMISSION FAULTS" means breaks, discontinuances or other impairments of
the transmission of the Data.
"TRANSMISSION NETWORK" means all or such parts of the transmission system
which are used to provide the DTT Transmission Service, including
transmitters and related equipment at such of the Stations as have been
Accepted, and any Distribution Links that are used to provide the DTT
Transmission Service.
"TRANSMISSION REQUIREMENTS" means the BBC's requirements for transmission
of DTT by CTI as specified in Schedule 5, to be carried out by CTI in
accordance with the provisions of Schedule 12.
"VAT" means value added tax as currently charged under the Value Added Tax
Act 1994 and any successor or replacement thereof and any similar tax
chargeable under the laws of the United Kingdom or any other jurisdiction.
"WTA" means the Wireless Telegraphy Acts 1949-1967 or such equivalent
statutes as are from time to time in force in any of the United Kingdom,
the Channel Islands or the Isle of Man.
11
<PAGE>
"YEAR" means the period from the date of execution of this Agreement to the
first anniversary of that date (which constitutes the first Year), and each
subsequent complete period of twelve months.
1.2 The expressions "THE BBC" and "CTI" include their respective permitted
assigns, employees and agents.
1.3 Other than in Clause 12.7 or otherwise expressly stated in this Agreement,
any reference to any Act of Parliament will be deemed to include any
replacement or re-enactment for the time being in force and to include any
by-laws, statutory instruments, licences, rules, regulations, orders,
notices, directions, consents or permissions made under such Act and any
condition attaching thereto. Any reference to a reference document shall be
to one of the reference documents listed in Schedule 13, in its version at
the date hereof or as otherwise reasonably agreed between the parties.
1.4 The headings in this Agreement are for ease of reference only and will not
be taken into account in the construction or interpretation of any
provision to which they refer.
1.5 The invalidity or unenforceability of any individual provision(s) of this
Agreement shall not affect any other provision herein or render this
Agreement invalid or unenforceable.
1.6 This Agreement is made between principals and it shall not be deemed to
create any partnership between the parties and neither shall hold itself
out as agent or partner of the other except as specifically contemplated
under this Agreement.
1.7 In the event of any inconsistency between the general provisions of this
Agreement and any of the provisions contained in any of the Schedules or
attachments to this Agreement or to documents or agreements referred to in
this Agreement the provisions of this Agreement shall take precedence to
the extent of the inconsistencies.
1.8 Failure by either party to exercise any right conferred by this Agreement
will not be deemed to be a waiver of any such right nor operate so as to
bar the exercise or enforcement thereof or of any right on any other
occasion.
1.9 Except to the extent that the context otherwise requires, words and
expressions defined in Article 1 of the Radio Regulations shall have the
same meanings in this Agreement,
1.10 This Agreement shall come into force on the Effective Date.
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PART B - DESIGN AND IMPLEMENTATION PHASE
2 DESIGN AND ROLL-OUT
2.1 Subject to the provisions of this Agreement, it is the responsibility of
CTI as from the Effective Date to provide the Design and Optimization
Consulting Services and to ensure that the Transmission Network is
supplied, operated, installed and maintained in a manner which allows
supply of the DTT Transmission Services in accordance with the terms of
this Agreement. CTI acknowledges that the BBC has no obligation to make any
contribution to the capital cost of the Transmission Network or to the
costs of maintaining or operating the Transmission Network.. This Clause
2.1 does not affect the obligations of the BBC to make any payments
expressly provided for in, or envisaged by, this Agreement.
2.2 TEST TRANSMITTERS
2.2.1 CTI shall install the test transmitters at the Stations specified
in Schedule 1 by the Test Dates.
2.2.2 CTI has submitted to the BBC a High Level Design for each of the
test transmitters. As these transmitters will be test
transmitters, the BBC acknowledges that the designs may not be
complete. Subject to Clause 2.2.3, each High Level Design must
comply with the Transmission Requirements.
2.2.3 It is acknowledged by the BBC and CTI that the High Level Design
is based on information, data and documentation produced and/or
approved by the Joint Frequency Planning Board. Accordingly, if,
notwithstanding CTI's compliance with the High Level Design, CTI
does not comply with the Transmission Requirements through no
fault of CTI's, CTI shall not be in breach of this Agreement in
consequence thereof and any material costs of overcoming a
failure of the High Level Design to comply with the Transmission
Requirements shall be for the account of the BBC.
2.2.4 The test transmitters must be installed so that they comply with
the radio frequency parameters set out in Schedule 1, Schedule 5,
the technical parameters in Schedule 8 and the provisions of
Schedule 12. Distribution Links and multiplex facilities will not
be required, except as may be agreed between the BBC and CTI. The
BBC and CTI will negotiate in good faith to agree what other
requirements the test transmitters will be required to meet.
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<PAGE>
2.2.5 CTI must provide the BBC with such access to the test
transmitters as may be reasonably required as soon as they are
available, and in any event by the Test Dates, for the purpose of
inspecting the transmitters and conducting or participating in
the conduct of test broadcasts. CTI must perform such test
broadcasts and such other tests using the test transmitters as
the BBC reasonably requires. The BBC will provide such material
for test broadcasts by CTI as it considers reasonably
appropriate. Further detail of the tests to be conducted will be
reasonably agreed in good faith between the parties.
2.3 FIRST PHASE ROLL-OUT
2.3.1 CTI must provide the BBC with such access to each of the Phase 1
Stations and all such information as is reasonably required (and
which CTI is not prevented by statute, regulation or obligation
of confidentiality from supplying) in order for the BBC to
satisfy itself that CTI has complied with its obligations under
Clause 2.1.
2.3.2 The Phase 1 Launch Date shall be 1 November 1998, being the same
as the industry launch date for DTT in the UK (the "Phase 1
Launch Date"). [*]
2.3.3 [*]
2.3.4 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
14
<PAGE>
2.4 SUBSEQUENT ROLL-OUT
2.4.1 [*]
2.4.2 For the avoidance of doubt, the BBC will not be obliged to pay
any additional amounts and in appropriate circumstances may
receive a reduction in the Charges (to be agreed pursuant to
Change Control) as a result of any changes to the Roll-out Plan
(whether they result in a reduction in the number of Stations or
change the timing of roll-out) to the extent that such changes
are required or permitted by the ITC in relation to any DTT
multiplex licensee. This clause will not require CTI to increase
the number of Stations without a change in the Charges.
2.4.3 If the BBC wishes during the Term to acquire DTT Transmission
Services from the Subsequent Stations, it will acquire such
services from CTI in accordance with this Clause 2.4.
2.4.4 CTI must comply with the Roll-out Plan in relation to the
Subsequent Stations.
2.4.5 CTI must provide the BBC with such access to each of the
Subsequent Stations and all such information as is reasonably
required (and which CTI is not prevented by statute,
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
15
<PAGE>
regulation or third party confidentiality obligations from supplying) in order
for the BBC to satisfy itself that CTI has complied with its obligations under
Clause 2.4.4.
2.5 DELAY
2.5.1 Without prejudice to CTI's obligations under this Agreement, if
any event occurs which causes or is likely to cause delay in the
installation of any transmitter (including test transmitters) or
if CTI is unable or likely to be unable to meet the Phase 1
Launch Date or the Phase 2 or Phase 3 Service Dates (as the case
may be), it must notify the BBC of the delay, giving reasons for
it and specifying the likely period of the delay.
2.5.2 If the event notified by CTI under Clause 2.5.1 is:
(i) a Force Majeure Event;
(ii) a breach of this Agreement by the BBC;
(iii) delays caused by CTI carrying out work to modify analogue
transmitters other than as set out in Schedule 4;
(iv) delays occasioned by performance by CTI of any Emergency Service
in accordance with Clause 3.2 below;
(v) delays caused by disputes on the issue of an Acceptance
Certificate resolved or determined in CTI's favour;
(vi) delay in obtaining or refusal to grant planning approval to the
extent that the delay is outside CTI's control;
(vii) lack of agreement on national or international frequency co-
ordination or frequency planning or changes in frequencies;
then the Phase 1 Launch Date or the Phase 2 Service Date or Phase 3
Service Date (as the case may be) for affected Stations and the date for
completion of the other obligations of CTI under this Agreement will be
amended to reflect the period of the delay resulting from that event.
Further, the BBC shall pay any reasonable additional costs incurred by
CTI and evidenced to the BBC to overcome or circumvent the matter giving
rise to any delay under Clause 2.5.2(ii) above.
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<PAGE>
2.6 MODIFICATIONS TO ANALOGUE TRANSMITTERS
2.6.1 Modifications may be required to the transmission characteristics
of existing analogue transmitters located at Stations or at other
transmission sites to permit the introduction of the BBC
Multiplex and to ensure the transmission of analogue and digital
services without interference from those Stations and other sites
simultaneously with the digital transmission of the Data.
2.6.2 The determination of what modifications are required will require
co-ordination with other industry participants. Although the BBC
will be primarily responsible for this process, CTI must take a
pro-active role in this co-ordination, and will be required to
represent the BBC's interests on relevant working groups.
2.6.3 Details of the modifications to the existing analogue
transmitters which shall be undertaken by CTI are set out in
Schedule 4. Work carried out by CTI in this field in addition to
that described in Schedule 4 may be an additional cost to be
borne by the BBC and agreed between the parties in advance.
2.6.4 Modifications shall be made to transmitters by the Test Date for
the relevant Station.
2.6.5 CTI shall not be responsible for modifying equipment at viewers'
premises.
2.7 INSTALLATION AND TESTING
2.7.1 CTI must, subject to this Agreement, and in particular to Clauses
2.2.3 and 2.7.2, install and test each Station by the Build Date,
and have Accepted each Phase 2 Station and Phase 3 Station by the
Build Date and make each Station Operational by the Phase 1
Launch Date or the Phase 2 Service Date or Phase 3 Service Date
(as the case may be) for that Station. CTI must ensure that by
the Phase 1 Launch Date or Phase 2 Service Date or Phase 3
Service Date (as the case may be) for that Station:
(i) the Station is capable of providing the DTT Transmission Services
in accordance with the Transmission Requirements;
(ii) all Distribution Links and other equipment or facilities
(including multiplex facilities) required in order for CTI to
supply the DTT Transmission Services from the Station are
installed and operating such that the DTT Transmission Services
can be provided from that Station in accordance with the
Transmission Requirements; and
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(iii) the transmitter and other equipment installed at the Station
comply in all material respects with the High Level Design for
the Station. Subject to Clause 2.2.3, such High Level Design will
comply with the Transmission Requirements.
2.7.2 CTI must give the BBC 14 days' notice of when a Station first
becomes available for testing. Each Station must be available for
testing by the Test Date for that Station unless otherwise agreed
between the parties. For the avoidance of doubt, if a Station is
available before that time CTI must notify the BBC in accordance
with this paragraph.
2.7.3 The Acceptance Tests in relation to each Station shall be as set
out in Schedule 6, or as otherwise amended by agreement between
the parties.
2.7.4 The Acceptance Tests will be carried out at such times as are
agreed between the parties, and shall be jointly executed by the
BBC and CTI unless the BBC notifies CTI in writing that CTI may
carry out any such Acceptance Tests itself, in which event the
BBC shall be entitled to attend. CTI shall, in all cases, notify
the BBC with copies of the results of Acceptance Tests, when any
such Acceptance Tests have been completed.
2.7.5 The BBC must notify CTI in writing within 24 hours of receipt of
the results of Acceptance Tests if it considers that the
Acceptance Tests have not been completed successfully in
accordance with Schedule 6 Part 2. If the BBC confirms such
successful completion or does not respond to CTI within the said
24-hour period, then Acceptance for the purposes of this
Agreement will have taken place on the date on which the
Acceptance Tests were delivered to the BBC.
2.7.6 For the avoidance of doubt, Acceptance of a Station in accordance
with this Clause will not affect, remove or mitigate any other
obligations of CTI under this Agreement including, without
limitation, the obligation to provide the DTT Transmission
Services in accordance with the Transmission Requirements and the
obligation to pay Service Credits calculated in accordance with
Schedule 8. No service credits shall be payable in respect of any
Station until that Station's Acceptance in accordance with this
Clause 2.
2.7.7 If within 24 hours of the receipt of the Acceptance Tests the BBC
notifies CTI in writing that it does not consider that the
Acceptance Tests have been completed successfully and CTI and the
BBC shall fail to settle the matter in dispute within a further 7
days, then the question of whether the Acceptance Tests have been
completed successfully
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will be referred to the Expert described in Clause 5.6.5 for the
Expert's determination as set out in Clause 5.6.5.
2.7.8 If, pursuant to Clause 2.7.7, it is agreed or determined that the
Acceptance Tests have not been completed successfully, CTI shall
be required to take such steps as are necessary to ensure
successful completion of such Acceptance Tests at CTI's expense.
In such circumstances CTI shall also reimburse the BBC in full
for its costs and expenses reasonably incurred in investigating
and disputing the unsuccessful Acceptance Tests. If, pursuant to
Clause 2.7.7, it is agreed or determined that the Acceptance
Tests have been completed successfully then no liquidated damages
or other amounts shall be payable by CTI and the Station(s) in
question shall be deemed to have been Accepted on the date on
which CTI first delivered the Acceptance Tests to the BBC.
2.7.9 Detection of a fault as a result of a helicopter survey conducted
pursuant to the procedure set out in paragraph 12 of Schedule 6
Part 2 shall not of itself affect the timing of completion of the
Acceptance Tests. CTI agrees that if a fault is so detected it
will rectify it within a reasonable period of time, such time to
be agreed between the partes.
2.8 MILLENNIUM COMPLIANCE
CTI must ensure that all software and systems installed or used in the
Transmission Network, or otherwise used in relation to the provision of the
Services, are Millennium Compliant.
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PART C - SERVICE OPERATION PHASE
3 SERVICES
3.1 DTT TRANSMISSION SERVICE
3.1.1 From the Phase 1 Launch Date or the Phase 2 Service Date or Phase
3 Service Date (as the case may be) in relation to each Station,
CTI shall provide the digital terrestrial transmission of the
Data from that Station using the BBC Multiplex in accordance with
the Transmission Requirements. The Data will be delivered to CTI
at the Interfaces in the form set out in Schedule 7, and CTI
shall be responsible for conveying the Data from the Interfaces
to the Stations for transmission using the Distribution Links.
The services described in this Clause 3.1.1 shall comprise the
"DTT Transmission Service". A detailed description of the DTT
Transmission Service is set out in Schedule 5. Nothing in this
Agreement shall constitute or imply any warranty, representation
or obligation on the part of CTI as to the size or location of
the areas actually capable of receiving Data transmitted by CTI
in accordance with this Agreement or that any such Data is
capable of reception in the whole or part of any such area.
3.1.2 In addition, CTI will ensure that the DTT Transmission Service
is:
(i) performed in accordance with the standard of care to be
reasonably expected of a skilled provider of digital
terrestrial television broadcast transmission services; and
(ii) provided on a continuous basis at all times when the Data
is scheduled by the BBC to be transmitted.
3.1.3 CTI shall not be liable for failure to provide the DTT
Transmission Service:
(i) in respect of any failure or degradation of the signal or
message comprising the Data which arises during
transmission of the Data to the Interfaces and prior to
receipt at the Interface;
(ii) (except as provided in (i) above) where it is temporarily
unable to provide all or part of the DTT Transmission
Service due to a Force Majeure Event;
(iii) where any of the Transmission Network is requisitioned,
taken over or used pursuant to Clause 8 of the DNH
Agreement, any Emergency Powers, including for the making
of Emergency Announcements or the performance of Emergency
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Services or action taken by any authority pursuant to any
direction under Section 94 of the Telecoms Act or by any
authority pursuant to Condition 6 of CTI's Telecoms Act licence;
(iv) where any part of the Transmission Network is subject to a notice
issued by the Secretary of State or the Radiocommunications
Agency which requires the cessation of, or adversely affects the
provision of, the DTT Transmission Service:
(a) in the interests of long-term spectrum planning; or
(b) in the event of a national or local state of emergency
being declared.
3.1.4 CTI hereby undertakes not to change, add or remove any Data or in
any other way affect the BBC's editorial control of the Data
whether before or after its transmission through the Transmission
Network, other than:
(i) as is necessary to process and multiplex the signals for
the purposes of transmission by the transmitters comprised
in the Transmission Network in accordance with the terms of
this Agreement; or
(ii) where automatic protection systems are in place; or
(iii) for purposes of monitoring the Data as it is transmitted,
provided that any Data which is decoded for purposes of
monitoring is not subsequently recoded for transmission; or
(iv) as directed by the BBC in writing.
Any changes made to the transmission of the Data in the event of
a Force Majeure Event or Transmission Fault shall be the
responsibility of the BBC unless the BBC gives instructions to
CTI to make specified changes to the Data to circumvent the Force
Majeure Event or the Transmission Fault and it is reasonably
practicable to make such changes within the requisite timescale.
3.1.5 This Agreement does not cover the insertion of EPG or CA
information into the Data. However, CTI will be required to
transmit EPG or CA data, which may be inserted by one or more
third parties. CTI must co-operate with, and provide reasonable
assistance where requested, to any such third parties. It shall
ensure that its equipment has the flexibility to support the
transmission of EPG and CA. Any introduction of EPG or CA
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into the DTT Transmission Service will be dealt with under the
Change Control Procedure.
3.1.6 CTI must use its reasonable endeavours to ensure that no pirated
signal or other unauthorised data is injected to any signal
broadcast using the BBC Multiplex at any stage after the
Interface and at or before transmission by CTI and must use its
reasonable endeavours, to ensure that no Station picks up off air
signals not licensed for broadcasting in the UK and re-transmits
such signals or other unauthorised data using the BBC Multiplex.
If CTI becomes aware of the injection of any pirated signal or
the retransmission of such off air signals it must promptly
inform each of the BBC and the Radiocommunications Agency and co-
operate with any request of the BBC or the Radiocommunications
Agency concerning that pirated signal or other unauthorised data
or off air signal. Any steps taken by CTI to resolve any such
problems which do not result from any breach of this Clause by
CTI shall not be an Accountable Incident for the purposes of this
Agreement.
3.2 EMERGENCY SERVICES
3.2.1 In the event that the BBC notifies CTI that the Data includes any
Emergency Announcements, CTI will transmit such Emergency
Announcements from all Stations notified to it by the BBC (to the
extent that the Station forms part of the Transmission Network at
the time), using, where required, the Transmission Network
(notwithstanding any Planned or Routine Maintenance relating to
such Stations), and will halt, to the extent that it would
otherwise prevent the transmission of such Emergency
Announcements, any emergency fault repair. In the event that the
BBC notifies CTI that it has been requested by the Secretary of
State to refrain from broadcasting or transmitting any matter or
class of matter, the BBC will use reasonable endeavours to
prevent such matter from being sent to the Interfaces.
3.2.2 The BBC will act as required, requested or directed by the
Secretary of State, any Minister of Her Majesty's Government, the
Home Office or the Channel Islands' authorities in providing any
Emergency Announcement, requiring the cessation of any
transmission or taking possession of any of the Stations or any
CTI Equipment. The BBC agrees to use its reasonable endeavours to
provide as much notice as possible of any requirements for an
Emergency Announcement or any of the Emergency Services. Subject
to the terms of any direction given to CTI by Her Majesty's
Government, the
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BBC and CTI will work together when required by the BBC to plan
the procedures for transmitting Emergency Announcements. In the
event of any dispute between CTI and the BBC, acting on behalf of
the Secretary of State, any Minister, the Home Office or the
Channel Islands' authorities, as to the procedures for
transmitting Emergency Announcements, the reasonable requirements
of the BBC shall prevail.
3.2.3 In the event that the Secretary of State, or any Minister of the
Crown, or official of the Secretary of State authorised to act on
his or her behalf, has concluded that an emergency has arisen as
contemplated by Clause 8.3 of the DNH Agreement then CTI agrees
to permit the Secretary of State to exercise his or her powers to
take control of the transmission of the Data or to do any of the
other acts contemplated by Clause 8.3 of the DNH Agreement. The
Secretary of State or his or her nominee may enter any CTI Sites
(including pursuant to an order or direction made by Her
Majesty's Government requiring this) in exercise of Emergency
Powers and use all CTI Equipment located at such premises or
sites and may use the BBC Multiplex and any spectrum licensed to
CTI under the WTA. The BBC may act on behalf of the Secretary of
State in this regard.
3.2.4 Any provision of any Emergency Services or an Emergency
Announcement, either at the request of the BBC or pursuant to any
Emergency Powers, shall not constitute a breach of any other
requirements of this Agreement or give rise to an obligation on
CTI to make any payment or give any Service Credits to the BBC
and to the extent that the provision of any such services delays
a Launch Date, no damages in this connection shall be payable by
CTI.
3.3 INDUSTRY INVOLVEMENT
3.3.1 The parties understand that launch of DTT in the United Kingdom
will require considerable industry co-ordination and co-
operation. Each of them agrees to use all reasonable endeavours
to participate in relevant industry working groups and to be pro-
active in seeking to achieve industry agreement on matters that
are yet to be determined.
3.3.2 Without limiting the generality of Clause 3.3.1, CTI agrees that
throughout the Term it will:
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(i) liaise with other multiplex and transmitter network operators and
receiver and set top box manufacturers with a view to ensuring
that the Data can be satisfactorily received and displayed in
accordance with the Transmission Requirements;
(ii) procure that the CTI Representative attends all seminars,
industry meetings or other meetings as the BBC may reasonably
request relating to the subject matter of this Agreement
including, without limitation, meetings relating to digital
terrestrial video broadcasting, CA, SI, EPG and domestic,
regional and international frequency allocation; and
(iii) assist the BBC where requested to make oral or written
representations or submissions to, or conducting negotiations
with, regulators, industry or government bodies or working groups
relating to the subject matter of this Agreement including,
without limitation, representations, submissions or negotiations
relating to digital terrestrial video broadcasting, CA, SI, EPG
and domestic, regional and international frequency allocation.
3.4 SPECTRUM MANAGEMENT
3.4.1 Throughout the Term, CTI will co-operate with and assist the BBC
where requested in relation to spectrum management and frequency
allocation but the BBC remains primarily responsible for such
matters.
3.4.2 CTI will at the request of the BBC and/or the Radiocommunications
Agency investigate at its own cost any instances of interference
to digital or analogue broadcast transmission or reception which
may be related to the Stations or the performance of the DTT
Transmission Services anywhere in the United Kingdom, the Channel
Islands or the Isle of Man. In the event that such interference
is found to be as a direct result of an act or omission by the
BBC, the BBC will be responsible for CTI's costs of investigating
that interference. CTI's obligations under this Clause 3.4.2
shall not extend to investigating interference at viewers'
premises.
3.5 DISTRIBUTION LINKS
3.5.1 CTI will use a fibre distribution network provided by British
Telecommunications PLC ("BT").
3.5.2 The current distribution network is set out in Schedule 12 (the
"NETWORK"). By the completion of Phase 3 in accordance with the
Roll-out Plan and the Phase 3 Launch
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Date no fewer than 76 Stations will be connected by primary fibre
link to the Network and no fewer than 40 Stations will be
connected with a dual fibre link to this Network. No more than 5
Stations will have dual radio feed connections to the Network.
3.5.3 [*]
4 THE BBC'S OBLIGATIONS
4.1 OPERATIONAL OBLIGATIONS
4.1.1 The BBC shall supply the Data to CTI in accordance with the
Interface Specification for transmission by CTI from the
Interface. No material changes may be made to the Interface
Specification without the agreement of CTI and the BBC.
4.1.2 In the event of interruption or degradation to the signal
carrying the Data occurring prior to receipt by CTI of the Data
at the Interface the onus shall be upon the BBC at its own cost
to establish and remedy at its own cost the cause. CTI shall not
be held to be in breach of any of its obligations under this
Agreement as a result of interruption or deterioration in the
quality of transmission of the Data in such circumstances, unless
that interruption or degradation is as a direct result of the
breach by CTI of any of its obligations under this Agreement .
4.2 DATA
4.2.1 The BBC will supply the Data to the Interfaces in such form as is
necessary to permit CTI to comply with the relevant provisions of
the 1996 Act, the terms upon which the BBC Multiplex is allocated
to the BBC, the WTA or the Telecoms Act and any other licence or
consent which governs or relates to the running of the
Transmission Network, provided that any requirements necessary to
enable CTI to so comply are notified by CTI to the BBC from time
to time.
4.2.2 Without limitation to the generality of Clause 4.2.1, the BBC
will not knowingly permit the Data to contain any material:
(i) which is defamatory, offensive or abusive or of an obscene or
menacing character; or
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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(ii) which constitutes a violation or infringement of the rights of
any person (including but not limited to all intellectual
property rights such as moral rights, rights of copyright or
confidentiality) or infringement of any law.
4.2.3 The BBC will indemnify CTI against all Losses arising out of or
in any way connected with the matters referred to in Clause
4.2.2.
4.2.4 The BBC reserves the right, under this Agreement, to vary at any
time the number of channels comprised in the Data and the nature
of the Data that it broadcasts using DTT, provided that the total
capacity required to broadcast the Data is not greater than the
total available on the BBC Multiplex (24.13 Mbit/S).
4.3 BBC AFFILIATES
Subject to the BBC being responsible for compliance with any relevant legal
or regulatory requirements, the BBC may permit its Affiliates to use the
Services. The BBC will be responsible for any use by its Affiliates and for
procuring that its Affiliates comply with the terms of this Agreement.
4.4 FREQUENCY CLEARANCES
As between the BBC and CTI, the BBC shall be responsible for ensuring that
the BBC has been, and continues to be, allocated all the necessary
frequencies for the digital terrestrial television broadcasting of Data in
the UK. CTI will not be responsible for any failure to obtain or delay in
obtaining such allocations.
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PART D - PROJECT MANAGEMENT, SERVICE MANAGEMENT AND CONTRACT
MANAGEMENT
5 CONTRACT MANAGEMENT, REVIEW OF SERVICES AND DISPUTES
The parties shall comply with the provisions relating to operational
management of this Agreement set out in Schedule 8 hereto.
5.1 SERVICE LEVEL AGREEMENT
5.1.1 Within 3 months from the date of execution of this Agreement CTI
must submit to the BBC a draft service level agreement or
agreements (the "SLA") setting out detailed provisions relating
to the following matters:
(i) performance requirements of the Services;
(ii) operational management of the Services;
(iii) the manner and form of problem notification;
(iv) the mechanism for review of the Services;
(v) the management and escalation of problems arising from this
Agreement; and
(vi) other matters relating to the day-to-day implementation and
operation of this Agreement.
5.1.2 Within 30 days of receipt by the BBC of the draft SLA, the
parties will discuss in good faith the terms of the SLA with a
view to reaching agreement on its terms. CTI will take into
account any reasonable comments of the BBC and modify the SLA
accordingly.
5.1.3 If the terms of the SLA are not agreed within 6 months from the
date of execution of this Agreement, then the agreement of its
terms will be escalated in accordance with Clause 5.6.
5.1.4 The SLA is intended to operate as a functional document which is
used in the day-to-day management and operation of the Services.
It will need to be continually reviewed, in accordance with the
terms of this Clause 5, to reflect the developing nature of the
Services and to ensure the continual improvement of the Services.
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5.1.5 Each party agrees to comply with the terms of the SLA provided
that, if from time to time there is any inconsistency between the
terms of this Agreement and the terms of the SLA, the terms of
this Agreement will prevail to the extent of the inconsistency.
The agreement of terms in the SLA which are inconsistent with or
supplementary to the terms of this Agreement will not be treated
as a waiver or variation of any terms of this Agreement.
5.2 GENERAL PRINCIPLES AND DEVELOPMENT OF THE SERVICES
5.2.1 It is intended by the parties that they will operate this
Agreement in close communication with the aim of achieving the
closest possible co-operation in relation to the Services. It is
recognised by the parties that to achieve this aim both parties
will need to consult with each other on a frequent basis and
regularly on a daily basis.
5.2.2 CTI will constantly strive to improve the quality, reliability
and value for money of the Services in accordance with the
principles set out in paragraph 2 of Schedule 3 hereto.
5.2.3 CTI will approach the provision of the Services to the BBC in an
innovative and creative fashion.
5.2.4 On or before 30 September in each Year (or on such other date as
is agreed), CTI will provide to the BBC an annual written report
to be prepared at its own cost which:
(i) describes the changes and improvements made during the last Year
to the infrastructure and facilities used to provide the Services
and those planned for the next Year and subsequent Years;
(ii) contains a summary of industry trends and innovations, sufficient
to give the BBC an understanding of options that may exist for
future improvement or development of the Services and technology
developments that could improve the quality, reliability and
value for money of the Services;
(iii) includes an executive summary; and
(iv) is otherwise in such format and contains such material as the
parties agree.
5.2.5 CTI acknowledges that the BBC wishes to be able to take advantage
of potential improvements in technology which will improve the
quality of the Services and to ensure that it is placed to meet
industry developments. CTI will inform the BBC of any
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changes, developments or industry trends that may assist the BBC
in achieving this aim and will inform the BBC Representative of
any means of which it is aware from time to time to improve the
reception of the Data, the coverage area receiving the Data, or
the quality, reliability or value for money of the Services.
5.2.6 The parties shall work together in good faith in carrying out
their respective obligations under this Agreement.
5.3 PROJECT AND CONTRACT MANAGEMENT AND OPERATIONAL MANAGEMENT
5.3.1 In respect of the day-to-day management of this Agreement and the
performance of each part of the Services:
(i) CTI will deal with the BBC Operational Point of Contact; and
(ii) the BBC will deal with the Technical Operations Centre.
5.3.2 CTI must appoint a person who will be the BBC's primary point of
contact at CTI in relation to the roll-out of the Transmission
Network (the "PROJECT MANAGER"). CTI must also appoint a person
who will be the BBC's primary point of contact at CTI in relation
to the provision of the Services (the "SERVICES MANAGER"). The
initial Project Manager will be Russel Inman and the initial
Services Manager will be Peter Lee.
5.3.3 The Project Manager and the Services Manager may be the same
person or they may be two different people.
5.3.4 [*]
5.3.5 CTI must give the BBC at least 1 month's notice of the removal of
the Project Manager or the Service Manager, unless it is unable
to do so and the removal results from the resignation, dismissal
with due cause, illness or death of the Project Manager or
Services Manager or any other similar event outside the control
of CTI ("UNAVOIDABLE EVENT"). If an Unavoidable Event occurs, CTI
must advise the BBC as soon as reasonably practicable after it
becomes aware that the Unavoidable Event will result or is likely
to result in the removal of the Project Manager or the Services
Manager.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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5.3.6 CTI must provide the BBC with details of the experience of any
proposed replacement for the Project Manager or the Services
Manager and must give the BBC the opportunity to meet with the
proposed replacement. The replacement must be approved by the
BBC, such approval not to be unreasonably withheld. Except in
cases where an Unavoidable Event has occurred, the replacement
must be approved by the BBC prior to the removal of the Services
Manager or the Project Manager.
5.3.7 Except in cases where an Unavoidable Event has occurred, when a
replacement Services Manager or Project Manager is appointed,
there must be at least a one-month handover period where the
replacement works together with the outgoing Services Manager or
Project Manager, as the case may be.
5.3.8 The BBC Representative will be the BBC's primary point of contact
for the Project Manager and the Services Manager.
5.3.9 The BBC Representative and the Project Manager will meet once
every month, or more frequently at the request of either party,
until both parties agree that such meetings are no longer
required. These meetings will relate to the roll-out of the
Transmission Network. Each month, the Project Manager will be
required to provide the following:
(i) an overall programme plan indicating the main implementation
issues, including acceptance and end-to-end testing and
identifying the critical path for roll-out of the Transmission
Network and provision of the DTT Transmission Service;
(ii) GANTT charts showing clearly the timescale and relationship
between each phase of the project, including major milestones,
and clearly indicating any critical areas; and
(iii) progress reports showing developments and progress against the
plan. An updated version of the flow diagram or GANTT chart,
revised to show progress and re-calculated to show any changes to
the forecast ready for service date shall be provided with every
progress report.
5.3.10 The BBC Representative and the Services Manager will meet once
every month, or more frequently at the request of either party,
beginning at least three months prior to the Phase 1 Launch Date
or at such other time as is agreed.
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5.4 SERVICE MANAGEMENT BOARD
CTI and the BBC will establish a Service Management Board to deal with all
major matters concerning the amendment, or the reviewing of the operation,
of this Agreement. It will consist of two or more representatives of each
party, including the Services Manager, the Project Manager and the BBC
Representative. The Board will meet quarterly, or at such other time as is
agreed between the parties. Its remit will be as follows:
5.4.1 to make recommendations to the parties regarding the need for, and
implementation of, changes to the Services or the SLA;
5.4.2 to attempt to resolve any disputes that may arise between the
parties which cannot be satisfactorily resolved between the
Services Manager and the BBC Representative or the Project Manager
and the BBC Representative, and which are referred to it in
accordance with Clause 5.6, and to make recommendations to the
parties regarding any such dispute;
5.4.3 to monitor technological developments in telecommunications and
broadcasting which may affect the provision of the Services and to
make recommendations to the parties regarding the desirability of
improving the Services in light of such changes and to consider and
plan for the implementation of new services;
5.4.4 to make recommendations on changes to this Agreement required by
reason of changes to the Charter and DNH Agreement; and
5.4.5 any other matters on which the parties agree from time to time.
5.5 ANNUAL REVIEW
CTI and the BBC will hold an annual review meeting which must be attended
by the Chief Executive Officer of CTI (or a replacement reasonably
acceptable to the BBC) and the BBC's Director of Policy and Planning (or a
replacement reasonably acceptable to CTI).
5.6 DISPUTES
5.6.1 Any complaints, disputes or problems (each an "ISSUE") relating to
this Agreement will be escalated as set out in this Clause 5.6.
5.6.2 Any Issue will be referred in the first instance to the BBC
Representative and either the Project Manager or the Services
Manager, as appropriate. The BBC and CTI will procure that their
respective representatives discuss in good faith any Issue with a
view
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to resolving it. If an Issue is not resolved to the satisfaction of
either party within 30 days of both parties having first been aware
of it, then either party may refer it to the Service Management
Board.
5.6.3 If an Issue is referred to the Service Management Board, then each
party must procure that their Representatives on that Board discuss
the Issue in good faith at the next meeting of the Service
Management Board with a view to resolving it. Either party may
convene a meeting of the Service Management Board to be held within
14 days of an Issue being referred to it. If the Issue is not
resolved to the satisfaction of both parties within 7 days of the
meeting of the Service Management Board, then either party may
require that the Issue is dealt with under Clause 5.6.4.
5.6.4 Where an Issue is to be dealt with under this Clause 5.6.4, the
parties will ensure that, for the BBC, the Director of Policy and
Planning, and for CTI, the Chief Operating Officer, will meet
together with a view to resolving the Issue. The parties will allow
30 days from the date of escalation of the matter for such
consultation or discussions to take place before referring the
Issue to adjudication or initiating any arbitration or other legal
proceedings.
5.6.5 If an Issue is not resolved pursuant to Clause 5.6.4 and it relates
solely to matters of an engineering or technical nature, either
party may refer it for adjudication to the President for the time
being of the Institution of Electrical Engineers, or his nominee.
The President or his nominee shall act as an expert, not an
arbitrator. The Expert shall in no circumstances be an employee,
agent or sub-contractor of NTL, CTI or the BBC and shall in all
other ways be independent of all such persons. The party referring
any Issue for adjudication must deliver to the expert and the other
party a notice setting out the matters in dispute and any relevant
supporting evidence. The other party shall be entitled to reply to
the notice and such evidence, delivering such reply to the expert
and the party referring the Issue. Otherwise, the expert shall be
entitled to decide on the procedure he or she wishes to adopt. Any
determination of the expert must be in writing and shall be final
and binding on both parties, failing any manifest error on the face
of the decision. Unless the expert determines otherwise, both
parties will bear their own costs of the determination and half the
costs of the expert.
5.6.6 If an Issue is not resolved pursuant to Clause 5.6.4 and it does
not relate solely to matters of an engineering or technical nature,
either party may refer it to mediation in
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accordance with the Centre for Dispute Resolution procedures then
in force. If after 30 days either party believes that mediation has
not resolved the Issue, then either party may proceed to
litigation. Unless agreed otherwise, each party will bear its own
costs of the mediation and half the costs of any third party
involved.
5.6.7 Except where clearly prevented by the nature of the Issue, the
parties must continue performing their respective obligations under
this Agreement while any Issue is escalated in accordance with this
Clause 5.
6 CHANGE CONTROL
6.1 CHANGES BY CTI
6.1.1 Subject to Clause 6.1.2, CTI shall not make any changes to the High
Level Design which have or may have a material effect on the
performance of CTI's obligations under this Agreement without the
BBC's prior written consent, not to be unreasonably withheld or
delayed. CTI may make any other changes to the High Level Design
provided it notifies the BBC of the proposed changes and the reason
for such proposed changes in advance in writing. CTI may make other
changes to the Transmission Network provided that:
(i) any such changes do not detract from, reduce or impair the
performance or operation of the Services or the Transmission
Network (which includes the flexibility of the Transmission
Network);
(ii) CTI is still able to comply with the Transmission Requirements and
the Target Performance Measures; and
(iii) it notifies the BBC of such changes in advance in writing and,
where such proposed changes are notified to the BBC before
completion of Phase 3 and subject to Clause 6.1.2 below, CTI
obtains the BBC's prior written consent, such consent not to be
unreasonably withheld or delayed.
6.1.2 The BBC's consent under Clause 6.1.1 shall not be required where:
(i) closure of a Station is necessitated by a Force Majeure Event; or
(ii) closure is required, either on a temporary or a permanent basis, by
reason of road building or other civil works carried out by a
government or public sector body or
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any other person acting under a concession granted by a
government or public sector body; or any other person acting
under a concession granted by a government or public sector
body; or
(iii) if the change is required by law, any national or supranational
regulatory authority, the Radio Regulations, or any statutory
obligations.
In such circumstances, the parties agree to make all necessary
consequential amendments to this Agreement in accordance with the
Change Control Procedure.
6.1.3 In making any changes in accordance with this Clause 6.1, CTI
will have regard to the BBC's programme scheduling requirements
and give the BBC's Representative as much written notice as
reasonably practicable, with sufficient details of any proposed
changes.
6.2 [*]
6.3 OTHER CHANGES
6.3.1 Each of the parties acknowledges that the nature of the Services
being provided under this Agreement means that they are likely to
change as digital terrestrial television broadcasting develops in
the United Kingdom and in Europe.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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6.3.2 Either party may from time to time request or suggest a change to
the Services provided under this Agreement. Any such request or
suggestion will be dealt with in accordance with the Change Control
Procedure.
6.3.3 All modifications or amendments to this Agreement must be in writing
and signed by both parties and must specify which Clauses and
Schedules are intended to be amended. All modifications or
amendments to this Agreement must be agreed in accordance with this
Clause 6.
7 PERFORMANCE MONITORING AND REPORTING
7.1 MONITORING
7.1.1 Detailed provisions relating to monitoring and reporting of
performance will be contained in the SLA. To the extent that there
is any inconsistency between the terms of the SLA and the terms of
this Clause 7, the terms of this Clause will prevail unless the
parties agree otherwise in writing.
7.1.2 CTI must install and operate monitoring, control and reporting
equipment to allow the dynamic checking of:
(i) the integrity of the received and broadcast MPEG transport stream;
(ii) compliance with the ERP and equivalent loss of noise margin
requirements; and
(iii) the transmission of the Data against the Transmission Requirements
and Target Performance Measures.
7.1.3 The monitoring performed by CTI must comply with the requirements
set out in Schedule 8 and such other requirements as are agreed
between the parties from time to time.
7.1.4 CTI must monitor the quality of the signal received at the
Interfaces. CTI must immediately notify the BBC Operational Point of
Contact where any signal interruption or degradation is identified
and provide all reasonable assistance to the BBC in establishing and
remedying its cause.
7.1.5 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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[*]
7.1.6 If any process of monitoring or verification which is required by
the BBC requires an interruption of the DTT Transmission Service and
CTI advises the BBC prior to the performance of the monitoring or
verification that such an interruption will be required and gives it
the option as to whether or not to continue, CTI will not be
required to pay Service Credits if the BBC elects to continue and
the monitoring or verification results in an Accountable Incident.
If any process of monitoring or verification does not require
interruption or the BBC is not advised prior to it being performed
that it requires an interruption, then Service Credits will be
payable in respect of any Accountable Incident that results from the
monitoring or verification.
7.2 COMPLIANCE WITH THE TRANSMISSION REQUIREMENTS AND PERFORMANCE STANDARDS
7.2.1 If the BBC reasonably believes that CTI has failed to comply with
the Transmission Requirements or Target Performance Measures or that
other impairments to the transmission of the Data have occurred in
respect of any of the Stations, it may give to CTI written notice to
this effect, and CTI shall carry out checks within seven days of the
date of such notice to ascertain whether such failure has taken
place and provide the results of such checking to the BBC and take
any measures needed to comply with the Transmission Requirements and
Performance Standards (provided that, in the event of any dispute
between the parties, that dispute shall be referred to the BBC
Representative and the CTI Representative and thereafter dealt with
according to the contract management procedure set out in Clause 5).
Where it is substantiated (either by agreement or by expert
determination) that such failure has taken place, then the BBC shall
be entitled to recover Service Credits to the extent of a failure to
meet the Transmission Requirements in accordance with Clause 11.3.
7.2.2 Performance measurement to ensure compliance with the Transmission
Requirements shall take place [*]. During such tests, CTI shall
deploy staff at a sufficient number of Stations and will carry out
sufficient tests to ensure that the Transmission Network as a whole
performs in accordance with the Transmission
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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Requirements. In order to perform these tests, the BBC may apply an
agreed set of test signals to the Transmission Network, in place of normal
programme material. Each of the BBC and CTI shall bear its own costs in
respect of such tests. If the network tests described above reveal that
the Performance Standards are not being achieved, then:
(i) CTI must immediately rectify any defects in the Transmission Network
so as to ensure that the Performance Standards are achieved;
(ii) CTI must make the Transmission Network available for re-tests to
take place. In undertaking such re-tests, CTI shall endeavour to
minimise disruption to the Services. CTI shall be responsible for
all costs of such re-tests, including any reasonable costs incurred
by the BBC; and
(iii) CTI will be liable to pay Service Credits in respect of any failure
to meet the Performance Standards which is revealed as a result of
the network tests until such time as the Performance Standards are
met.
7.3 PERFORMANCE REPORTING
7.3.1 CTI will produce a monthly performance review report relating to its
compliance with the Transmission Requirements and Performance
Standards. The report must be in a form to be agreed between the
parties, but must include, as a minimum, the following:
(i) a list of all Transmission Faults that have occurred during the
period covered by the report (including Transmission Faults which
are not Accountable Incidents);
(ii) a separate list of all Accountable Incidents that have occurred
during the period covered by the report;
(iii) information showing details of actual performance which has differed
significantly from the Target Performance Measures during the period
covered by the report; and
(iv) such other information as is agreed between the parties from time to
time.
7.3.2 The report required under Clause 7.3.1 shall be sent to the BBC
Representative within seven days of the end of each month.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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7.4 PERFORMANCE DATABASE
7.4.1 All source material relevant to monitoring, as specified in Schedule
8, shall be recorded by CTI in an electronic database more fully
described in Schedule 12 (the "PERFORMANCE DATABASE") which will be
archived on a monthly basis and the data kept for 3 years from the
end of the then current Year.
7.4.2 CTI must provide the BBC with on-line access to the Performance
Database. The BBC may use and copy the Performance Database and any
information or data contained in the Performance Database or
otherwise supplied pursuant to this Agreement relating to CTI's
compliance with this Agreement solely for the purposes of this
Agreement, assessing the performance of digital terrestrial
broadcasting generally and in performance of its obligations to the
Department of Culture, Media and Sport in relation to this Agreement
and the performance of digital terrestrial broadcasting only.
7.4.3 If CTI becomes aware at any time that the information contained in
the Performance Database is or may be inaccurate, it must promptly
notify the BBC and must reprocess the data so that it is accurate
and provide the BBC with the revised information. If the BBC
considers that the Performance Database is or may be providing
inaccurate information it may advise CTI and CTI must promptly
investigate the potential inaccuracy.
7.4.4 The information provided by the Performance Database will be used
for the purpose of measuring CTI's compliance with its obligations
under this Agreement. It will be assumed to be accurate unless:
(i) it is reasonably apparent that it is incorrect or it is likely that
it has not been calculated correctly; or
(ii) either party demonstrates that it is not correct or that it is
likely that it has not been calculated correctly.
7.4.5 CTI must provide the BBC with one copy in a format specified by the
BBC of such application software as may be required in order to
enable the BBC to access the Performance Database (the "SOFTWARE").
CTI hereby licenses the BBC and, subject to Clause 7.4.6 below,
wholly-owned subsidiaries of the BBC on a non-exclusive basis for
the Term to use the Software at any location from which the BBC
conducts business from time to time for the purposes of monitoring
the supply of the Services under this
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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Agreement, assessing the performance of digital terrestrial
broadcasting generally and in performance of its obligations to the
Department of Culture, Media and Sport for the Term and a reasonable
period thereafter. The BBC may make such backup copies of the
Software as may be reasonably required provided that it applies its
standard security procedures to the storage of that Software. All
copies of the Software shall be returned to CTI by the BBC and its
Affiliates on the termination or expiry of this licence.
7.4.6 Any other party may be licensed to use the Software pursuant to
Clause 7.4.5 upon:
(i) the BBC requesting the same of CTI;
(ii) CTI giving its specific consent (not to be unreasonably withheld or
delayed); and
(iii) the BBC showing that it has procured sufficient confidentiality
obligations in relation to such software and the Performance
Database to meet CTI's reasonable concerns.
7.4.7 CTI warrants that:
(i) the Software will, when modified for BBC use pursuant to Clause
7.4.5 above and when provided to the BBC, be of satisfactory quality
and fit for the purpose for which it is supplied;
(ii) the Software will, when modified for BBC use pursuant to Clause
7.4.5 above, and when provided to the BBC, be free from known
viruses;
(iii) the information provided from the Performance Database will be free
from material errors; and
(iv) use by the BBC or its Affiliates of the Performance Database and the
Software in accordance with the terms of this Clause 7.4 will not
infringe the intellectual property rights of any party.
8 ACCESS
8.1 BBC ACCESS TO STATIONS
8.1.1 The BBC or the BBC's nominated contractor(s) shall be permitted
access to each of the Stations at least once per annum per Station
by prior notice from the BBC Representative and by arrangement with
CTI for the purpose of conducting routine
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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checks of the Transmission Network in order to ascertain whether it
is meeting the Transmission Requirements.
8.1.2 Where the BBC, or the BBC's nominated contractor(s) on behalf of the
BBC, exercises its rights to access to the Stations, CTI may require
that the BBC or the BBC's nominated contractor is accompanied by one
appropriate member of CTI staff, at CTI's cost.
8.1.3 The BBC shall comply with CTI's or NTL's reasonable regulations as
notified to it from time to time when entering into and performing
work on CTI's Sites and shall procure that each of its nominated
contractors shall do the same. The BBC hereby indemnifies CTI for
any loss or damage which it may suffer as a result of any acts or
omissions of it or its nominated contractors in this connection.
8.2 BBC ACCESS TO RECORDS
8.2.1 The BBC may by prior notice and arrangement with CTI require access
to or copies of any specifications or diagrams of any of the
Stations which are in the possession or control of CTI.
8.2.2 The BBC has the right to audit any records on which the billing
information provided under Clause 11.2 is based subject to the BBC's
agreement to procure that all such records are kept confidential and
used only for purposes connected with the verification of such
billing information or disputing invoices. Such audit may be
conducted by the BBC, or on the BBC's behalf by an independent
auditor, not more than twice in each Year of this Agreement and at
the BBC's cost. In the event that such audit reveals any discrepancy
in any information provided relating to the Charges or in the
Charges the BBC and CTI agree to rectify such discrepancy as soon as
practicable. If CTI disagrees on the existence of a discrepancy then
the matter shall be referred to the Service Management Board. In the
event that any audit reveals overpayment by the BBC of more than 1
per cent of the Charges or other amounts payable in any Year of this
Agreement, CTI shall be responsible for all costs of the BBC's
audit.
8.3 CTI ACCESS TO MASTS, STATIONS AND BBC SITES
8.3.1 CTI will be required, where necessary, to negotiate with other
transmitter mast providers to ensure that the BBC Multiplex and
other digital terrestrial television multiplexes are radiated from
the same mast at each Station.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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8.3.2 Where transmitters are required to be installed and operated at sites
which are not CTI Sites, CTI is responsible for obtaining such rights
of access to that site and the facilities located at that site for
itself and for the BBC as are necessary in order for CTI to perform
its obligations under this Agreement.
8.3.3 CTI may locate such equipment at BBC Sites for purposes of providing
the Services as is agreed with the BBC in writing, subject to CTI
entering into a Site Sharing Agreement in relation to each such BBC
Site at no greater than a nominal charge.
8.3.4 For the avoidance of doubt, CTI will be a licensee only in respect of
any BBC Site for which a Site Sharing Agreement is entered into and
nothing in this Agreement shall imply any relationship of landlord and
tenant or operate (save as may be specifically required) to give CTI
any greater interest in the BBC Sites than that of a hirer of
services. If there is any inconsistency between this Agreement and any
Site Sharing Agreement the terms of this Agreement shall prevail.
9 THIRD PARTY SERVICES
Nothing in this Agreement shall prevent CTI from entering into any
arrangements with any third parties to provide broadcasting, transmission
and/or any other telecommunications services from the Stations. CTI agrees
that such new arrangements shall not detrimentally affect the contracted
provision of the Services to the BBC and CTI agrees not to use the BBC
Multiplex other than for performance of the DTT Transmission Services except
as otherwise agreed by the BBC (which agreement may be withheld in the
absolute discretion of the BBC).
10 MAINTENANCE AND FAULTS
10.1 FAULT REPORTING AND REPAIR
10.1.1 CTI shall provide a fault reporting information system operating in
accordance with Schedule 8 and use that system to notify the BBC if
it has failed to provide a Service and otherwise to test compliance
with the Transmission Requirements and the Target Performance
Measures.
10.1.2 CTI will repair or otherwise attend to all Transmission Faults in
accordance with Schedule 8 and Clause 10.2.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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10.2 ROUTINE MAINTENANCE AND PLANNED INTERRUPTIONS
10.2.1 ROUTINE MAINTENANCE AND INTERRUPTION
(i) CTI shall only interrupt the DTT Transmission Service or depart from
the Transmission Requirements or Performance Standards at any one or
more of the Stations for the purposes of access to works, safety and
Routine Maintenance if it has agreed such interruption or reduction
with the BBC in advance, in which case each interruption or reduction
shall be a Planned Interruption. Where such access, safety and
Routine Maintenance and/or repairs constitute and cause Accountable
Incidents, the BBC shall be entitled to recover Service Credits
calculated in accordance with Schedule 8.
(ii) The BBC's prior agreement is not needed where CTI is obliged to carry
out work because of any legal or regulatory requirement or if either
the Radiocommunications Agency or the BBC has asked it to investigate
or rectify any Harmful Interference. If any legal or regulatory
requirement is not immediate, CTI shall agree any interruption or
departure with the BBC and the BBC agrees to consider such requests
in good faith with a view to ensuring that CTI is not in breach of
any such legal or regulatory requirement. In all such circumstances,
such interruptions or departures shall not be an Accountable
Incident.
10.2.2 PLANNED INTERRUPTIONS
(i) CTI may reduce or affect the Transmission Requirements or Performance
Standards in order to carry out inspections, alterations,
installation works, renewal of or repairs to any equipment at any
Station forming part of the Transmission Network, including any
reduced power operation at any Station and any notified power
outages, provided CTI shall not cause or otherwise permit such
interruptions without first giving reasonable advance notice to the
BBC, and shall obtain agreement from the BBC as to the dates and
times that such interruptions shall take place, such agreement not to
be unreasonably withheld or delayed. Such interruptions shall be
"Planned Interruptions". CTI shall use all reasonable endeavours to
minimise such Planned Interruptions. Where the reduction or effect to
the Transmission Requirements or Performance Standards constitute and
cause
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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Accountable Incidents, the BBC shall be entitled to recover Service
Credits calculated in accordance with Schedule 8.
(ii) The BBC's prior agreement to a Planned Interruption is not needed
where CTI is obliged to carry out work because of any legal or
regulatory requirement. If any legal or regulatory requirement is
not immediate, CTI shall agree any reduction with the BBC and the BBC
agrees to consider such requests in good faith with a view to
ensuring that CTI is not in breach of any such legal or regulatory
requirement. If any Planned Interruption is a result of any legal or
regulatory requirement, the interruption shall not constitute an
Accountable Incident.
10.3 EMERGENCY FAULT REPAIR
10.3.1 In the event of any interruption to the provision of the Services as
a result of a Force Majeure Event, or an imminent fault reasonably
apparent to CTI, CTI may interrupt the transmission of the Data for
the purposes of dealing with the emergency. CTI will give the BBC
Representative immediate notice of the event and whenever possible
shall give notice to the BBC Representative of the duration of the
interruption.
10.3.2 CTI shall use all reasonable endeavors to minimise the duration and
effect on the provision of the Services of any unscheduled
interruption or fault.
10.3.3 In the case of an emergency, when transmission of the Data cannot be
restored at full power, reduced power will be employed.
10.3.4 An Interruption of Services for an emergency will constitute an
Accountable Incident unless it is a consequence of a Force Majeure
Event.
10.4 GRADED BROADCASTS
10.4.1 The BBC will notify CTI annually of the Graded Broadcasts that it
expects to occur during the following year. If an urgent Graded
Broadcast occurs which was not included in the annual notification,
the BBC will give CTI as much notice of the Graded Broadcast as it is
reasonably able to give.
10.4.2 Subject to Clause 10.4.1, CTI must not conduct any planned or Routine
Maintenance during a Graded Broadcast or during a reasonable period
either side of a Graded Broadcast, the duration of that period to be
agreed on a case by case basis by the parties.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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10.5 SERVICE PRIORITIES
10.5.1 When all or any of the Services cannot be restored at full power,
reduced power operation of all or any of the Services will be
employed, if no other arrangements are available to maintain the
agreed Services. If it is not possible to restore Services to all or
any of the Stations, the Operational Priority Stations will be
restored first, and in accordance with an order to be agreed with the
BBC. If CTI is also providing analogue or digital transmission
services to third parties, the parties will hold discussions in good
faith with a view to agreeing the order of priority for restoration
of those services with the principle being that the BBC's services
should be given at least as high a priority as the services of any
other party.
10.5.2 During a state of national emergency, a different order of priority
may be introduced and CTI will comply with the instructions of the
BBC Representative or such other person as is authorised to give such
instructions provided these instructions are not in breach of any
other instructions given by representatives of Her Majesty's
Government.
10.6 DISASTER RECOVERY
10.6.1 CTI shall discuss and comply, where any BBC disaster recovery plan
covers the Services or any part of the Services, with the reasonable
requirements of the BBC disaster recovery plan or any other emergency
procedures which may be developed from time to time and notified to
CTI by the BBC.
10.6.2 CTI must implement and comply with the requirements relating to
Disaster Recovery as set out in Schedule 11.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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PART E - PRICING
11 CHARGES, PAYMENT AND BILLING
11.1 CHARGES AND PAYMENT FOR THE SERVICES
The Charges payable under this Agreement by the BBC shall be calculated as
set out in Schedule 2. The Charges for each Year will be paid in 12 monthly
installments. In addition to the Charges, the BBC will pay all fees payable
pursuant to the WTA Licences held by CTI for the purposes of carrying out its
obligations under this Agreement, subject to CTI providing the BBC in advance
with copies of such WTA Licences and evidence from the Radiocommunications
Agency of the level of, and obligation to pay, such fees.
11.2 INVOICES
11.2.1 CTI will invoice the BBC monthly in arrears, with invoices to be
issued at the end of each month. All invoices will be addressed to
the BBC Representative.
11.2.2 Each invoice rendered by CTI must be accompanied by such billing
information and be in such format as the BBC may reasonably require.
11.2.3 Except as set out in Schedule 2, all correct Charges on an invoice
submitted by CTI under this Agreement will be payable by the BBC at
the end of the month following the month in which a correctly
prepared invoice is received by the BBC. The BBC will pay by cheque,
or by such other method as may be agreed from time to time between
the parties without any set-off, deductions or withholdings other
than as set out in this Agreement.
11.2.4 In the event that any Charges are disputed, the BBC shall be entitled
to withhold any disputed amounts, provided the BBC shall have given
reasonable notice to CTI of the dispute relating to the Charges
together with a reasonable description of the basis on which the BBC
is disputing the Charges. In the event that any Charges are withheld
by reason of a dispute, CTI and the BBC will both use their best
endeavors to resolve any such disputed amount prior to the time of
delivery of CTI's next invoice.
11.3 FAILURE TO MEET SERVICE OBLIGATIONS - SERVICE CREDITS
11.3.1 The Charges payable hereunder will be subject to Service Credits,
calculated in accordance with Schedule 8. Any Service Credits
incurred will be set off against the Charges payable under the first
invoice rendered by CTI following the month in which
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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the obligation to give Service Credits is determined in accordance
with Schedule 8. Service Credits are intended to act as an incentive
to CTI to provide quality services to the BBC and is not intended to
result in a lower price being paid for a poorer quality service.
11.3.2 Service Credits will not be available to the BBC to the extent that
the failure of CTI to meet all or any part of its obligations under
this Agreement results directly from the BBC's act, fault or omission
or from any Force Majeure Event or from any failure of the BBC to
comply with the WT Act and shall not be payable in respect of a
Station until that Station has been accepted and is in service.
11.3.3 CTI's total aggregate liability in respect of all obligations to pay
Service Credits in any one Year, will be [*].
11.3.4 To the extent that any obligation of CTI to pay Service Credits is
due to a new technology problem which does not arise through any
fault of CTI and is beyond CTI's reasonable control, the BBC will
waive its right to the payment of Service Credits for the period
beginning on the date on which the BBC and CTI have agreed in good
faith a process to resolve the problem and ending on the date that
CTI has achieved a workable solution to such a problem, PROVIDED
always that CTI has at all times used all reasonable efforts to
achieve such solution as soon as is reasonably possible.
11.3.5 If, after provision of the DTT Transmission Service has commenced by
CTI, there is a total failure to transmit the Data across the
Transmission Network in circumstances where the failure to transmit
is an Accountable Incident, rather than a partial failure to transmit
any of the Data, for anything other than an immaterial period of time
having regard to the nature of the Data, then CTI shall not [*]. The
BBC shall not be entitled to obtain such services elsewhere if CTI is
able at any reasonable time to perform such services and undertakes
to do so, subject to any rights of termination under Clause 12, and
subject to a reasonable period following notice of CTI's intention to
recommence performance of the Services. If CTI pays any monies under
this Clause, no Service Credits shall be
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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payable in respect of the period of time for which there is a failure
to perform which is compensated under this Clause.
11.3.6 The right to claim Service Credits under this Clause 11.3 is without
prejudice to any other right that the BBC may have if CTI fails to
comply with the terms of this Agreement.
11.4 [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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PART F - TERM AND TERMINATION
12 TERM AND TERMINATION
12.1 COMMENCEMENT AND RENEWAL
12.1.1 This Agreement will come into force on the Effective Date and,
subject to this Clause 12, shall continue in force for the Term.
It will continue after the Term until terminated by either party
on six months' notice expiring on or after the end of the Term.
12.2 TERMINATION ON CESSATION OF DTT
12.2.1 The BBC may terminate this Agreement by giving CTI at least one
year's written notice at any time during the three-month period
following the fifth anniversary of the Phase 1 Launch Date, in
the event that the Board of Governors of the BBC (or such
equivalent body as may replace it) believes, at its sole
discretion, that DTT does not have sufficient public take-up to
justify continuing to provide the Services. In the event of
termination of this Agreement by the BBC pursuant to this Clause
12.2.1 the BBC shall not obtain digital television transmission
services in the UK from any service provider other than CTI for a
period of five years from the date of termination. The parties
acknowledge that the right to terminate set out in this Clause
12.2.1 has been granted because of the BBC's position as a public
service broadcaster at the date of this Agreement, but that it is
in no way conditional upon the BBC remaining so.
12.2.2 If the BBC terminates this Agreement under Clause 12.2.1, then it
must pay to CTI a termination payment by cash, cheque or bank
transfer (subject to the BBC's right to set off any monies which
the BBC and CTI agree or have previously agreed are due to the
BBC from CTI or any outstanding Service Credits) calculated in
accordance with Part 2 of Schedule 2 within 30 days after the
Agreement terminates. This Agreement will continue in full force
and effect for the period of the notice.
12.2.3 Termination of this Agreement under Clause 12.2.1 shall give the
BBC no right to purchase Dedicated Equipment under the procedure
set out in Clause 13.2 below.
12.3 TERMINATION FOR INSOLVENCY
Either party has the right to terminate this Agreement with immediate
effect by notice if:
12.3.1 a liquidator, administrative receiver, administrator or receiver
is appointed (other than for the purpose of an amalgamation or
reconstruction the terms of which have been
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previously approved by the party having the right to terminate
(such approval not to be unreasonably withheld or delayed in the
case of a solvent amalgamation or reconstruction)) in respect of
the whole or a material part of the assets and/or undertaking of
the other party; or
12.3.2 the other party enters into an arrangement or composition with
its creditors, or if it becomes unable to pay its debts within
the meaning of Section 123 of the Insolvency Act 1986.
12.4 SUSPENSION/TERMINATION OF INDIVIDUAL SERVICES
12.4.1 CTI may suspend provision of the Services in whole or in part
until further notice on notifying the BBC either orally
(confirming such notification in writing), or in writing with
immediate effect if:
(i) CTI is entitled to terminate this Agreement; or
(ii) CTI is obliged to comply with an order, instruction or request by
any Government minister, the Home Office, the Channel Islands or
Isle of Man authorities, an emergency services organisation or
other competent administrative authority.
12.4.2 If CTI exercises its right of suspension in respect of an event
referred to in Clause 12.4.1(i), this will not exclude CTI's
right to terminate this Agreement later in respect of that or any
other event, nor will it prevent CTI from claiming damages from
the BBC resulting from such event if the BBC is in breach of this
Agreement.
12.4.3 Notwithstanding Clause 12.4.1(ii), it is acknowledged that, in
the event of an emergency, the respective obligations of the BBC
and CTI will be governed by special arrangements under the
relevant Emergency Powers and CTI agrees that it will not suspend
service to the BBC other than on, or in order to comply with, the
instructions by the relevant authorities in the event of an
emergency.
12.5 FORCE MAJEURE
12.5.1 In the event of the occurrence of a Force Majeure Event affecting
either CTI or the BBC, the affected party shall give notice in
writing thereof to the other party as soon as possible and shall
likewise give notice on the cessation of the Force Majeure Event.
The parties agree to discuss a course of action and to comply
with any agreed course of action pursuant to Clause 12.5.2.
Subject thereto, if the Force Majeure Event continues
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for a period of more than 60 days following a failure to either agree
a course of action under Clause 12.5.2 or to comply with such a
course of action, then the non-defaulting party shall have the right
to terminate where the Force Majeure Event affects all or
substantially the whole of the Stations comprised in all or part of
this Agreement, all or that part of this Agreement by not less than
30 days' prior notice.
12.5.2 Where a Force Majeure Event occurs, other than one affecting delivery
of the Data to CTI for transmission which causes suspension of the
Services, CTI will use its reasonable endeavors to continue to carry
out the Services while any Force Majeure Event subsists. Where this
is not possible, the BBC and CTI shall discuss and agree the most
appropriate course of action to be taken for a resumption of the
Services and/or the provision of a temporary service and the
timescale within which such action is to be taken. If, having agreed
a timescale for the resumption of any Service, CTI shall fail to
comply with that timescale, not having agreed any extension of time
where the failure is not itself caused by another Force Majeure
Event, then the BBC shall be entitled to serve notice on CTI
requiring that:
(i) in the case of a Force Majeure Event affecting the DTT Transmission
Services, unless the DTT Transmission Services are resumed within a
period of seven working days for an Operational Non-Priority Station
and three working days for an Operational Priority Station from the
date of delivery of the notice, then the BBC shall be entitled to
receive Service Credits for that Station from the end of the seven-
day or three-day period referred to above to the date on which the
Services are resumed or a temporary service provided;
(ii) in the case of a Force Majeure Event affecting the rollout of any
Station, unless that Station is Accepted by the agreed revised Launch
Date for that Station, CTI will be liable to pay liquidated damages
in respect of that Station calculated in accordance with Clause 16.6.
12.5.3 To the extent that any Force Majeure Event relates to the provision
of either the Emergency Services or compliance by CTI with a
direction under Section 94 of the Telecoms Act, the provisions of
this Agreement relating to Emergency Services shall prevail and
Clause 12.5 shall not take effect if it would only have taken effect
by reason of events giving rise to the need for CTI to perform the
Emergency Services or in accordance with the relevant direction.
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12.5.4 Subject to Clause 12.5.2, neither party shall be liable to the other
for any failure to perform its obligations (excluding payment
obligations) under this Agreement where that failure is caused by a
Force Majeure Event.
12.6 TERMINATION FOR BREACH
12.6.1 If a party is in material breach of this Agreement (the "BREACHING
PARTY"), the other party may give it a written notice requiring the
breach to be remedied within 45 days.
12.6.2 If the breach is material or could amount to a material breach if not
remedied and, in either case, is remediable, and the Breaching Party
fails to remedy the breach within the time specified in the notice
requesting the breach to be remedied, then the non breaching party
may terminate this Agreement immediately or on such longer period of
notice as is specified in the notice of termination.
12.7 TERMINATION ON CHANGE OF CONTROL
12.7.1 The BBC will be entitled to terminate this Agreement immediately by
notice or on such period of notice as is specified in the notice of
termination if there is a Change of Control of a Relevant Company
other than on:
(i) a transfer of Shares between an existing shareholder in a Relevant
Company and an Associate of such shareholder; or
(ii) the creation of a mortgage, charge, encumbrance or security interest
over or in respect of any Shares of a Relevant Company.
12.7.2 CTI shall notify the BBC as soon as possible after it or any Relevant
Company becomes aware of any Change of Control of a Relevant Company,
or of any potential Change of Control or other circumstances which
would or might give rise to a termination right under this Clause
12.7.
12.7.3 The BBC agrees that it will only exercise its rights to terminate
pursuant to a Change of Control which arises in the circumstances set
out in paragraph (i)(a) or (iii) of the definition of "Change of
Control" set out in clause 12.7.4 if it reasonably considers that the
event giving rise to such right is contrary to the BBC's corporate
interests and/or those of Her Majesty's Government. The BBC agrees
that a notice of termination (regardless of the period of notice set
out in such notice), and whatever the circumstances giving rise to
that right, will be given by the BBC within three months of
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receipt of notice of the relevant event and may not be given
thereafter. The BBC agrees to consider in good faith any requests for
the sale of the Relevant Company's Shares or any other arrangement
which might otherwise give rise to a termination right having regard
to the reasonable interests of the BBC and each Relevant Company and
those of Her Majesty's Government.
12.7.4 For the purposes of this Clause 12.7:
"ACTING IN CONCERT" has the meaning given to it in The City Code on Take
overs and Mergers;
"ASSOCIATE" means, in relation to a person, (a) a subsidiary or holding
company (as those terms are defined by Section 736 of the Companies Act
1985) of that person or a subsidiary of that person's holding company (a
"GROUP COMPANY"); (b) any limited partnership, the general partner of
which is a Group Company; (c) any limited partner in any limited
partnership, the general partner of which is a Group Company; (d) any
fund managed or advised by a Group Company; (e) any employee of such
person or any Group Company; or (f) who is a partnership, that
partnership's constituent partners.
"CONTROL" has the meaning given to it in Schedule 2, Part I paragraph
(3)(b) of the Broadcasting Act 1990, as amended by the 1996 Act; and
"Controlled" has a corresponding meaning;
"CHANGE OF CONTROL" means in relation to a Relevant Company:
(i) before a Listing, where a Third Party acquires, obtains in any
manner or in any circumstances comes to hold:
(a) Control of a Relevant Company;
(b) a Relevant Interest in a Relevant Company's Share capital; or
(c) such Interest in the Relevant Company's Share capital as
would, when taken with that already held by such Third Party
or by any Associate of, or person Controlled by or Acting in
Concert with, such Third Party, amount to a Relevant
Interest;
(ii) on or after a Listing, where a Third Party acquires, obtains in
any manner or in any circumstances comes to hold:
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(a) a Relevant interest in a Relevant Company's Share capital; or
(b) such Interest in the Relevant Company's Share capital as
would, when taken with that already held by such Third Party
or by any Associate of, or person Controlled by or Acting in
Concert with, such Third Party, amount to a Relevant Interest;
(iii) on or after a Listing, a Third Party, by itself or together with
any persons Acting in Concert with it, obtaining in any manner or
in any circumstances coming to hold an Interest in 25 per cent or
more of the Shares of a Relevant Company and Control of the
Relevant Company,
PROVIDED THAT any scheme of arrangement for the purpose of
reconstruction or reorganisation of the assets of a Relevant Company
shall not, without further alteration in Control, constitute a Change of
Control;
"INTEREST" means, in relation to the Shares of a Relevant Company, any
legal or beneficial interest in them, or any right or power (whether
conditional or unconditional and whether legally enforceable or otherwise)
to exercise control (directly or indirectly) over the disposal of those
Shares or over the manner of exercise of any right to vote in a general
meeting attached to such Shares;
"LISTING" means the first listing of any of the Shares of any Relevant
Company on any stock exchange or public dealings facility and "listed"
shall be construed accordingly;
"RELEVANT COMPANY" means CTI or any holding company (as that term is
defined by Section 736 of the Companies Act 1985) of CTI;
"RELEVANT INTEREST" means, in relation to any Shares of a Relevant Company
an Interest in 30 per cent or more of the Relevant Company's Shares;
"RELEVANT PERSON" means, in relation to a Relevant Company, any person or
any one of two or more persons Acting in Concert who have Control of the
Relevant Company;
"SHARES" means, in relation to a Relevant Company, the shares in the
relevant share capital (as that expression is defined in Section 198(2) of
the Companies Act 1985) of that Relevant Company and shall include any
shares which have been alloted (whether conditionally or unconditionally);
and
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"THIRD PARTY" means any person other than a Relevant Person or an Associate
of a Relevant Person.
13 CONSEQUENCES OF EXPIRATION OR TERMINATION
13.1 ACCRUED RIGHTS
Expiration or termination for whatever reason of this Agreement will not
affect any rights of the parties which have accrued prior to the expiration
or termination including, without limitation, any right to claim damages
for breach of this Agreement.
13.2 RIGHT TO PURCHASE DEDICATED EQUIPMENT
The provisions of this Clause 13.2 shall apply mainly in the event of
termination of this Agreement by the BBC for breach by CTI pursuant to
Clause 12.6 hereof.
13.2.1 For purposes of this Clause 13-2:
(i) "DEDICATED EQUIPMENT" means the CTI Equipment and Third Party
Equipment.
(ii) "CTI EQUIPMENT" means any equipment owned by CTI and used by
CTI solely for purposes of providing the Services to the BBC.
(iii) "THIRD PARTY EQUIPMENT" means any equipment used (but not
owned) by CTI solely for the purposes of providing the Services
to the BBC.
(iv) "FAIR MARKET VALUE" means the market value for the Dedicated
Equipment. If the parties are unable to agree as to Fair Market
Value within what either party considers is a reasonable
timeframe, either party may refer the issue to an expert
accountant appointed by the Chairman of the Chartered Institute
of Accountants for adjudication and, subject to any manifest
error on the face of the determination, the parties will comply
with the terms of such determination and treat it as final. The
parties will bear their own costs of the adjudication and one
half of the costs of the adjudicator.
(v) "NET BOOK VALUE" means the value recorded in CTI's financial
accounts for the Dedicated Equipment in accordance with UK
GAAP.
13.2.2 At least 90 days prior to the expiration or termination of this
Agreement or, where this Agreement is terminated on a shorter
period of notice, within 30 days of receipt of a
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notice of termination of this Agreement, CTI must, if requested
to do so by the BBC, provide the BBC with a list which:
(i) identifies the nature and location of the Dedicated Equipment;
(ii) gives the Net Book Value of the Dedicated Equipment at the date
on which the list is given;
(iii) identifies what rights CTI has in relation to the Dedicated
Equipment; and
(iv) identifies circumstances where transfer of such rights as CTI
has in the Third Party Dedicated Equipment to the BBC would
require the consent of a third party.
13.2.3 Within 90 days of receipt of a list under Clause 13.2.2, the
BBC must advise CTI whether or not it wishes to acquire some or
all of the Dedicated Equipment. If the BBC does not respond
within 90 days of receipt of such list, then it will be deemed
to have elected not to purchase any of the Dedicated Equipment.
If the BBC does wish to acquire some or all of the Dedicated
Equipment, the following provisions will apply:
(i) Where all of CTI's rights in respect of the Dedicated Equipment
may be assigned or transferred to the BBC without the consent
of any other person, CTI must assign or transfer such rights to
the BBC if requested to do so by the BBC;
(ii) Where any of CTI's rights in respect of the Third Party
Equipment cannot be assigned or transferred to the BBC without
the consent of another person, CTI must if requested to do so
by the BBC use its reasonable endeavors to obtain, at such cost
as the parties agree to be reasonable in the circumstances, all
such consents and if such consents are obtained, CTI must then
assign or transfer such rights to the BBC.
(iii) The price payable by the BBC to CTI for the Dedicated Equipment
shall be the Fair Market Value. The BBC shall initially pay CTI
the Net Book Value in respect of the CTI Equipment and its fair
estimate of the Fair Market Value of the Third Party Equipment
(the "PROVISIONAL PAYMENT"). On making the Provisional Payment
to CTI the BBC shall be entitled to use the Dedicated Equipment
as if title had passed to it. Upon Fair Market Value being
determined by agreement or adjudication, as the case may be,
compensating payment shall be made within 30 days of this
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determination as necessary between CTI and the BBC to reflect the
difference between the Provisional Payment and determined Fair
Market Value.
(iv) Title to any Dedicated Equipment the ownership of which is
transferred or assigned under this Clause 13.2 will transfer on
payment of the compensating amount payable under Clause
13.2.3(iii).
(v) CTI must deliver to the BBC such technical or user documentation
relating to any Dedicated Equipment where the rights in that
Dedicated Equipment are transferred or assigned to the BBC under
this Clause 13.2.
(vi) The Dedicated Equipment will be sold "as is where is" without the
benefit of any warranties or conditions whatsoever whether
express or implied, other than the benefit of any warranties or
conditions which are held by CTI and provided by a third party
and which remain in force as at the date of the list, the benefit
of which CTI will use reasonable endeavors to assign to the BBC.
(vii) CTI will, at the BBC's expense, detach and deliver the Dedicated
Equipment as soon as reasonably practicable after title has
passed.
13.3 HANDOVER AND EXIT MANAGEMENT
13.3.1 If requested to do so by the BBC, CTI will continue to provide
the Services to the BBC for a period of up to 6 months after
expiration or termination of this Agreement on the terms of this
Agreement, to allow the BBC to hand over responsibility of the
Services to the BBC or a Successor Operator. During that 6 month
period, the Charges payable by the BBC will be the Charges paid
for the previous 6 months adjusted by reference to the RPI for
the previous financial year.
13.3.2 During the period prior to and for six months following
expiration or termination of this Agreement CTI must at no cost
to the BBC:
(i) co-operate fully with the BBC or a Successor Operator and use
reasonable endeavors to ensure a seamless transition in passing
responsibility for the Services to the BBC or a Successor
Operator;
(ii) respond to reasonable questions and requests for assistance from
the BBC or a Successor Operator in relation to the Services; and
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(iii) provide reasonable assistance to the BBC or a Successor Operator
to enable them to obtain access to Stations and masts.
13.4 DETAILS OF EMPLOYEES
Six months before the termination or assignment of this Agreement, or if
this Agreement is terminated without notice for any reason as soon as
reasonably practicable, but in either case if requested to do so by the BBC,
CTI will provide, and will procure that any Relevant Employers will provide,
to the BBC, or at the BBC's request to the Successor Operator, the following
particulars of the Employees employed as at that date to the extent
permitted by law:
13.4.1 name, sex and the date on which continuity of employment began for
each Employee for statutory purposes;
13.4.2 the terms and conditions of employment of each such Employee;
13.4.3 all payments, benefits or changes to terms and conditions of
employment promised to any such Employee;
together with particulars of:
13.4.4 dismissals of any other Employees or terminations of employment
effected within 12 months of the Transfer Date;
13.4.5 all agreements or arrangements entered into in relation to any such
Employee between CTI or any other Relevant Employer and any trade
union or association of trade unions or organisation or body of
employees including elected representatives; and
13.4.6 all strikes or other material industrial action taken by any such
Employee within 12 months of the Transfer Date.
13.5 TRANSFER REGULATIONS
13.5.1 On termination of this Agreement the Transfer Regulations may
transfer the Relevant Employees to the BBC or the Successor
Operator. If the Transfer Regulations have effect the following
provisions shall apply:
(i) the contract of employment of each of the Relevant Employees (save
insofar as such contract relates to any occupational pension scheme)
shall be transferred to the BBC or, as the case may be, the
Successor Operator with effect from the Transfer Date which shall be
the "time of transfer" under the Transfer Regulations;
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(ii) CTI shall perform and discharge all its obligations in respect of
all the Relevant Employees for its own account up to and including
the Transfer Date including, without limitation, discharging all
wages and salaries of the Relevant Employees, all employer's
contributions to any relevant occupational pension scheme and all
other costs and expenses related to their employment (including,
without limitation, any taxation, accrued holiday pay, accrued
bonus, commission or other sums payable in respect of service
prior to the close of business on the Transfer Date) and shall
indemnify the BBC or the Successor Operator, as the case may be,
and keep the BBC or the Successor Operator indemnified against
each and every action, proceeding, liability (including, without
limitation, any taxation liability directly related to the
Relevant Employees), cost, claim, expense (including, without
limitation, reasonable legal fees), or demand arising from CTI's
failure so to perform and discharge. The BBC shall, or, as the
case may be, shall procure that the Successor Operator shall
perform and discharge all such obligations from the Transfer Date;
(iii) CTI shall indemnity (on an after-tax basis) the BBC or the
Successor Operator, as the case may be, and keep the BBC or the
Successor Operator so indemnified against each and every action,
proceeding, cost, claim, liability (including, without limitation,
any taxation liability directly related to the Relevant
Employees), expense (including, without limitation, reasonable
legal fees) or demand which relates to or arises out of any act or
omission by CTI or any other event or occurrence prior to the
Transfer Date and which the BBC or the Successor Operator, as the
case may be, may incur in relation to any contract of employment
or collective agreement concerning one or more of the Relevant
Employees pursuant to the provisions of the Transfer Regulations
or otherwise including, without limitation, any such matter
relating to or arising out of:
(a) CTI's rights, powers, duties and/or liabilities (including,
without limitation, any taxation) under or by virtue of any
such contract of employment or collective agreement, which
rights, powers, duties and/or liabilities (as the case may
be) are or will be transferred to the BBC or the Successor
Operator in accordance with the Transfer Regulations; or
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(b) anything done or omitted before the Transfer Date by or in
relation to CTI in respect of any such contract of employment
or collective agreement or any Relevant Employee, which is
deemed by the Transfer Regulations to have been done or
omitted by or in relation to the BBC or the Successor
Operator;
(iv) if any contract of employment or collective agreement which is not
in accordance with Clause 13.4 above disclosed in writing to the
BBC, or at its request to the Successor Operator, by CTI prior to
the Transfer Date shall have effect as if originally made between
the BBC or the Successor Operator and any employee ("UNDISCLOSED
EMPLOYEE") or a trade union as a result of the provisions of the
Transfer Regulations (without prejudice to any other right or
remedy which may be available to the BBC or the Successor
Operator):
(a) the BBC or the Successor Operator may, within 3 months of the
Transfer Date upon becoming aware of the application of the
Transfer Regulations to any such contract of employment or
collective agreement, terminate such contract or agreement
forthwith, and CTI shall indemnify the BBC or the Successor
Operator (on an after-tax basis) in respect of any Undisclosed
Employee so dismissed on the same terms mutatis mutandis as CTI
has indemnified the BBC or the Successor Operator in respect of a
Relevant Employee pursuant to the terms of Clause 13.5.1 (ii) and
13.5.1 (iii); and
(b) CTI shall indemnify the BBC or the Successor Operator (on an
after-tax basis) against each and every action, proceeding, cost,
claim, liability (including, without limitation, reasonable legal
fees) or demand relating to or arising out of such termination and
reimburse the BBC or the Successor Operator for all costs and
expenses (including, without limitation, any taxation) incurred in
employing such employee in respect of his employment following the
Transfer Date;
(v) CTI shall indemnify (on an after tax-basis) the BBC or the
Successor Operator and keep the BBC or the Successor Operator so
indemnified against each and every action, proceeding, cost,
claim, liability (including, without limitation, any taxation),
expense (including, without limitation, reasonable legal fees) or
demand which relates to or arises out of any dismissal (including,
without limitation, constructive dismissal) by CTI of any employee
(not being a Relevant Employee) which the BBC
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or the Successor Operator may incur pursuant to the provisions of
the Transfer Regulations;
(vi) If CTI assigns this Agreement to the CTI Assignee, or sub-
contracts its obligations under this Agreement in respect of all
or part of the Services to any firm, person or company (the "CTI
SUB-CONTRACTOR"), CTI shall procure that the CTI Assignee or, as
the case may be, the CTI Sub-Contractor will indemnify the BBC
and the Successor Operator in the same terms, mutatis mutandis,
as CTI has indemnified the BBC and the Successor Operator in this
Clause 13.5.1.
13.5.2 In Clause 13.5.1 the undertakings and indemnities given by CTI to
the Successor Operator shall be given to the BBC for itself and
as trustee for any BBC Assignee or the Successor Operator.
13.6 REDUNDANCY COSTS
13.6.1 In this clause "REDUNDANCY COSTS" means notice pay, statutory
redundancy pay, contractual redundancy pay and any Losses
incurred by the BBC or a Successor Operator in connection with
any claims arising out of or in connection with the dismissal of
any Relevant Employee pursuant to Clause 13.6.2.
13.6.2 The CTI will reimburse to the BBC or, as the case may be, a
Successor Operator the Redundancy Costs incurred by the BBC or
such Successor Operator in connection with the dismissal by
reason of redundancy, reconstruction or reorganisation of any
Relevant Employee within twelve months of the expiry or earlier
termination of this Agreement and will make such reimbursement
within 28 days of being notified of such Redundancy Costs. The
undertakings given in this Clause 13.6.2 to the Successor
Operator shall be given to the BBC for itself and as trustee for
the Successor Operator.
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PART G - LIABILITY, WARRANTIES AND INSURANCE
14 WARRANTIES AND UNDERTAKINGS
14.1 CTI hereby warrants and undertakes that it has applied for, and the
Radiocommunications Agency has agreed to grant, conditional only on
execution of this Agreement, or will grant by the time required by
law, and will hold during the Term, all necessary licences and
consents under the Telecoms Act and the WTA and, subject to Clause
4.4, all consents and clearances of whatever nature as are required to
enable it to perform its obligations under this Agreement (other than
frequency allocation and clearances which it is the BBC's obligation
to obtain) and shall comply with the terms of all such licences,
clearances and consents and shall not do anything or omit to do
anything which would cause such licences, clearances or consents to be
revoked or not renewed.
14.2 The BBC shall obtain at its own expense and hold during the Term all
necessary licences and consents under the Charter and DNH Agreement,
the Broadcasting Act, the 1996 Act, the WTA and the Telecoms Act and
all consents, clearances and other rights of whatsoever nature
including, without limitation, any necessary licence and consent which
the BBC may require in relation to the BBC Multiplex which in each
case are required to permit the BBC to perform its obligations under
this Agreement and otherwise and shall do all things necessary to
comply with the terms of such licences, clearances and consents and
shall not do anything or omit to do anything which would cause such
licences, clearances and consents to be revoked or not renewed.
14.3 CTI shall do all things reasonably necessary to renew any leases or
licences for the sites on which the Stations are located, so that they
subsist for the duration of this Agreement or any agreed renewal of
the same.
15 INSURANCE
15.1 Both parties must maintain insurance against any loss, damages, claims
or actions arising from:
15.1.1 personal injury or death;
15.1.2 public liability; and/or
15.1.3 any other liability for which either is required by law to
insure,
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arising out of the performance of this Agreement.
15.2 CTI must maintain insurance cover adequate to cover the risks which it
is likely to incur in relation to the subject matter of this
Agreement, with a minimum of:
15.2.1 primary public and product liability insurance in a form
reasonably acceptable to the BBC providing for payment of a sum
up to (Pounds)50 million for any one occurrence (or in the annual
aggregate for product liability) and, in the case of third party
property damage arising out of the use of private vehicles,
unlimited cover and, in the case of third party property damage,
arising out of the use of commercial vehicles, (Pounds)5 million
in respect of one occurrence;
15.2.2 employer's liability insurance sufficient to meet its statutory
requirements and sufficient to cover any liabilities to past or
present employees;
15.2.3 all risks or loss or damage to property and business interruption
insurance in a form reasonably acceptable to the BBC in respect
of each of the Stations, the CTI Sites and all equipment used to
provide the Services covering the full reinstatement value of all
such assets and the reasonable cost of any replacement
transmission services from the Stations or any other stations
used to supply any part of the DTT Transmission Services; and
15.2.4 professional indemnity insurance of at least (Pounds)5 million
per year, commensurate with the nature of the risks undertaken in
that year.
15.3 Where requested by the BBC, CTI agrees to provide the BBC with a copy
of the relevant policy or policies or evidence of such insurance and
its material terms referred to in this Clause 15 which shall be
treated as Confidential Information belonging to CTI. CTI will also
notify the BBC of any substantive change to the insurance programme
maintained by it and referred to in this Clause 15 for the risks
covered.
15.4 Where CTI engages a sub-contractor, it shall ensure that its insurance
includes cover for its liabilities in respect of the acts and
omissions of its sub-contractors or that its sub-contractors have
their own insurance with appropriate cover in the light of the work to
be undertaken by the sub-contractors.
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16 LIABILITY AND WARRANTIES
16.1 For purposes of this Clause 16, "CONTRACTS" means this Agreement, any
Site Sharing Agreement entered into pursuant to this Agreement and any
other agreement between the parties relating to the subject matter of
this Agreement.
16.2 PERSONAL INJURY AND DAMAGE TO PROPERTY
16.2.1 Each of the BBC and CTI shall indemnify the other on an after-
tax basis against all claims or actions brought against the
other by any third party relating to:
(i) personal injury; or
(ii) loss of, or damage to, property; or
(iii) Harmful Interference caused to analogue or digital broadcasts,
excepting any such claims made by viewers;
caused as a result of any breach of this Agreement or any wilful or
negligent act or wilful or negligent omission by the party from whom
indemnification is sought. Without limiting the generality of this
Clause 16.2.1, CTI will indemnify the BBC on an after-tax basis
against any claims made against the BBC by any party as a result of
damage caused by CTI to the property of that party in installing,
maintaining or operating transmitters for provision of the DTT
Transmission Services.
16.2.2 Each of the BBC and CTI will indemnify the other on an after-tax
basis against any loss incurred by the relevant party resulting
from damage to that party's property or injury to its employees
or the employees of its agents or sub-contractors arising out of
any breach of any of its obligations, warranties or undertakings
contained in any of the Contracts or any other agreements
between the parties relating to the provision of the Services or
any other negligent or wilful act or omission of the party from
whom an indemnity is sought.
16.2.3 The party from whom indemnification is sought shall have the
right to conduct any proceedings brought by a third party
against the other party or to settle any such proceedings
subject to reimbursing the other party any costs of such
proceedings and any damages, costs and expenses payable by the
indemnified party arising out of those proceedings. Both parties
will notify the other as soon as possible of the existence of a
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claim which is reasonably likely to give rise to a claim for
indemnification under this Clause 16.2.
16.2.4 Neither party excludes or restricts liability for death or
personal injury resulting from its own negligence or from
liability arising under the Health and Safety at Work Act 1974 or
any regulations made pursuant to that Act.
16.3 THIRD PARTY ACTS
Neither CTI nor the BBC shall be held responsible for the consequences of
any act or omission or misconduct of any third party, unless:
16.3.1 such third parties are in the employment of or providing sub-
contracted services to either CTI or the BBC at the time the
lncident takes place; or
16.3.2 the party claimed against has recovered damages in respect of
such act, omission or misconduct directly from the relevant third
party or otherwise where it has recovered insurance (and in each
such case to the extent of such recovery or insurance claim)
provided that where such party is entitled to claim damages
and/or recover under such insurance policy it shall use all
reasonable endeavours to do so as soon as reasonably practicable.
16.4 BBC LIABILITY
16.4.1 The BBC shall not be liable, whether in contract, tort,
negligence, breach of statutory duty or otherwise, to CTI for
loss of profits other than any element of profit comprised in the
Charges or for any indirect, special, incidental or consequential
loss whatsoever arising out of its performance of or failure to
perform any of the Contracts or otherwise.
16.4.2 The BBC's liability for all matters under the Contracts, other
than for payment of the Charges under this Agreement or for
payment of any of the termination sums provided for in Clause
12.2 or for any sums payable in respect of the Dedicated
Equipment or in respect of the repudiatory breach of any of the
Contracts or in respect of the content indemnity contained in
Clause 4.2.3, shall be limited to [*] in any Year or, if greater,
the amount recovered by the BBC in respect of and to the extent
attributable to such loss pursuant to any insurance policy
maintained by the BBC.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
65
<PAGE>
16.5 CTI LIABILITY
16.5.1 CTI's total aggregate liability in respect of all matters under
or arising out of the Contracts in any one Year, including in
relation to the payment of liquidated damages and/or Service
Credits, will be limited to [*].
16.5.2 CTI shall not be liable, whether in contract, tort, negligence,
breach of statutory duty or otherwise, to the BBC for loss of
profits or for any indirect, special, incidental or consequential
loss whatsoever whether incurred by the BBC or a third party
arising out of its performance of or failure to perform any of
its obligations under the Contracts or otherwise .
16.5.3 For the avoidance of doubt, CTI is liable to pay to the BBC any
liquidated damages and/or Service Credits payable in accordance
with this Agreement.
16.5.4 This Agreement and the Site Sharing Agreement sets out the full
extent of each party's obligations and liabilities relating to
the Services whether in contract, tort, negligence, breach of
statutory duty or otherwise. In particular, there are no
conditions, warranties or other terms, express or implied, as to
satisfactory quality, fitness for purpose or of any other kind
whatsoever which are binding on CTI except as specifically set
out in this Agreement. Any other condition, warranty or other
term relating to the provision of the Services or the sale of the
Dedicated Equipment which might otherwise have been implied into
this Agreement by statute, common law or otherwise is hereby
excluded.
16.6 DELAY
16.6.1 If a Phase 1 Station is not Accepted by the Phase 1 Launch Date
for that Station, then CTI must pay to the BBC liquidated damages
to be calculated in accordance with Paragraph 5 of Schedule 2,
subject to Clauses 2.5.2 and 16.6.4.
16.6.2 CTI acknowledges that the liquidated damages payable under Clause
16.6.1 are a reasonable pre-estimate of the damages that the BBC
may sustain if there is any failure to comply with the terms of
this Agreement.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
66
<PAGE>
16.6.3 The BBC's right to claim liquidated damages under Clause 16.6
shall be without prejudice to any other right which the BBC may
have.
16.6.4 CTI's total aggregate liability in respect of all claims by the
BBC for payment of liquidated damages under this Agreement shall
be limited to the sum of [*].
16.6.5 To the extent that any delay in the Acceptance of any Station is
due to a new-technology problem which does not arise through any
fault of CTI and is beyond CTI's reasonable control, the BBC will
waive its right to the payment of liquidated damages for the
period beginning on the date on which the BBC and CTI have agreed
in good faith a process to resolve the problem and ending on the
date that CTI has achieved a workable solution to such a problem,
provided always that CTI has at all times used all reasonable
efforts to achieve such solution as soon as is reasonably
possible.
16.7 WARRANTIES
16.7.1 CTI warrants and represents that:
(i) it has full power and authority to execute, deliver and perform
its obligations under this Agreement;
(ii) the Services will be of satisfactory quality and fit for the
purpose for which they are supplied and without limiting the
generality of the foregoing, will comply with Schedule 5;
(iii) all work performed under this Agreement will be performed in a
proper and workmanlike manner and with due skill and care;
(iv) it has and will have throughout the term of this Agreement the
necessary skills, expertise and resources to perform its
obligations under this Agreement;
(v) all personnel employed by CTI in the performance of its
obligations under this Agreement will be appropriately trained
and experienced;
(vi) it is not currently a party to and will not enter into any
agreements or arrangements with third parties the terms of
which prevent it entering into this Agreement or would impede
the substantial performance of its obligations under this
Agreement; and
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
67
<PAGE>
(vii) it has disclosed no Confidential Information as described in
Clause 19.1 to any third party in breach of any obligations of
confidentiality.
16.7.2 The BBC warrants and represents that:
(i) it has full power and authority to execute, deliver and perform
its obligations under this Agreement; and
(ii) it has disclosed no Confidential Information as described in
Clause 19.1 to any third party in breach of any obligations of
confidentiality.
16.7.3 There are no conditions or warranties, express or implied,
binding on CTI or the BBC except those set out in this
Agreement. Any condition or warranty which might have been
implied into this Agreement by statute, common law or otherwise
is hereby excluded.
68
<PAGE>
PART H - GENERAL
17 ASSIGNMENT
17.1 This Agreement is personal to the pates hereto and they shall not
assign, transfer, charge or deal in any other manner with this
Agreement other than as expressly set out below except that CTI shall
be entitled to assign its rights to payments under this Agreement by
way of security to any person providing finance to it or its holding
company(ies).
17.2 Each of CTI and the BBC shall be entitled to transfer this Agreement
to any of its wholly-owned subsidiaries provided that:
17.2.1 each party procures that the transferee is bound by a direct
covenant with the other party to observe all the terms of this
Agreement and the covenants and obligations by the transferor
contained in this Agreement; and
17.2.2 if any transferee ceases to be a wholly-owned subsidiary of
either the BBC or CTI, as the case may be, this Agreement will be
transferred back to CTI or the BBC, or to one of their wholly-
owned subsidiaries.
18 SUB-CONTRACTING
CTI may sub-contract any of its obligations under this Agreement. CTI will
not be relieved of any of its liabilities or obligations under this
Agreement by entering into sub-contracts and CTI will be liable to the BBC
for the acts, defaults and neglects of any sub-contractor or any employee
or agent of the sub-contractor as fully as if they were the acts, defaults
or neglects of CTI or the employees or agents of CTI.
19 INFORMATION AND CONFIDENTIALITY
19.1 Subject to the terms of any other agreement between the parties, each
party agrees and undertakes that during the term of this Agreement,
and thereafter, it will keep confidential and will not use for its own
purposes or, without the prior written consent of the other, disclose
to any third party the terms of this Agreement or any information of a
confidential nature which is supplied to it under this Agreement or of
which it becomes aware in the performance of this Agreement unless:
69
<PAGE>
19.1.1 such information is required to be disclosed to CTI's bankers,
CTI's holding company and any shareholders of its holding company
(subject in each case to such companies or individuals agreeing
that the information shall be confidential in terms substantially
similar to this Clause 19.1); or
19.1.2 such information is public knowledge, or subsequently becomes
public knowledge, other than by breach of this Agreement; or
19.1.3 such information subsequently comes lawfully into the possession
of the party in question from a third party; or
19.1.4 the disclosure of such information is required by any court of
competent jurisdiction or any regulatory authority, including any
recognized stock exchange or any taxation authority.
19.2 To the extent that it is necessary to disclose confidential
information pursuant to the provisions of this Clause 19 or otherwise
as necessary to implement the provisions of this Agreement, either
party may disclose any confidential information concerning this
Agreement to such of its employees or, in the case of the BBC, to such
of the BBC's nominated contractor(s) as may be reasonably necessary on
a "need-to-know basis", provided that before any such disclosure such
party shall make such persons aware of its obligations of
confidentiality under this Agreement and shall at all times procure
compliance by such persons therewith.
19.3 The obligations of confidentiality hereunder shall not apply to
prevent the supply of confidential information to the Department of
Culture, Media and Sport, the Home Office, the Cabinet Office, the
Foreign and Commonwealth Office, the Comptroller and Auditor General,
the Office of Fair Trading, the Radiocommunications Agency, the
Department for Trade and Industry, the Independent Television
Commission, the Office of Telecommunications or any other regulatory
body.
20 INTELLECTUAL PROPERTY RIGHTS
20.1 If in the course of the provision of the Services any material is
created by CTI which is protected by copyright or other intellectual
property rights, all legal and beneficial interests in those
intellectual property rights will, as between the BBC and CTI, be
owned by CTI. The BBC will only have such rights as are set out in
this Clause 20 in relation to such materials.
70
<PAGE>
20.2 CTI warrants and undertakes to the BBC that the use by the BBC of the
Services and the Transmission Network in accordance with the terms of
this Agreement will not infringe the intellectual property rights of
any party.
20.3 CTI will indemnify the BBC on an after-tax basis against any loss,
damage, or expenses (including legal fees on an indemnity basis) which
the BBC may suffer or incur as a result of any claim that the
Services, the Transmission Network or any component of the
Transmission Network infringes the intellectual property rights of any
third party.
20.4 Each party must notify the other as soon as reasonably practicable:
20.4.1 after becoming aware of any infringement or suspected
infringement by the Services, the Transmission Network or any
component of the Transmission Network of the intellectual
property rights of any third Party; and
20.4.2 of any claim being made of the type described in Clause 20.3.
20.5 The BBC must not make any admission relating to a claim under Clause
20.3, and must give CTI all reasonable assistance (including providing
all relevant information) in respect of such a claim at CTI's cost.
The BBC will take all such action as CTI may reasonably request to
avoid, dispute, resist, appeal, compromise or contest any such claim
at CTI's cost.
21 EMPLOYEES
21.1 TERMS OF EMPLOYMENT OF EXISTING EMPLOYEES
CTI shall not, and shall procure that any other Relevant Employer shall
not, without the prior consent of the BBC (which shall not be unreasonably
withheld or delayed), vary, or purport or promise to vary, the terms or
conditions (as amended from time to time) of employment of any Employee
(including a promise to make any additional payment or provide any
additional benefit) where such variation or addition:
21.1.1 takes effect at any time after either party has served a notice
terminating this Agreement unless it is in the ordinary course of
business and, when aggregated with any other variation or
addition which takes effect during such period, represents an
increase in the remuneration of the Employee of no more than the
percentage increase
71
<PAGE>
in the level of the Average Earnings Index between the month for
which such index was last published at the time the variation or
addition is made or proposed and the month failing 12 months
before such month; or
21.1.2 first takes effect in whole or in part after this Agreement has
terminated; or
21.1.3 results in any such employment not being terminable by the
Relevant Employer within six months after this Agreement has
terminated; or
21.1.4 relates to a payment or the provision of a material benefit
triggered by termination of employment after this Agreement has
terminated; or
21.1.5 relates to the provision of a benefit (but excluding base salary)
which takes effect at any time after either party has served a
notice terminating this Agreement or which any such Employee will
or may have a contractual right to first receive after this
Agreement has terminated; or
21.1.6 prevents, restricts or hinders any such Employee after this
Agreement has terminated from working for the BBC or the
Successor Operator or from performing the duties such Employee
performed for CTI.
21.2 CHANGES IN NUMBERS AND TOTAL COST OF EMPLOYEES
Subject to and excluding any increase in the remuneration of Employees
permitted under Clause 21.1, CTI shall not, and shall procure that any
other Relevant Employer shall not, without the prior consent of the BBC
(which shall not be unreasonably withheld or delayed), increase or decrease
at any time after either party has served a notice terminating this
Agreement the number of Employees either such that the total number of
Employees or the total cost per annum to CTI and each other Relevant
Employer of employing all Employees is increased or such that the total
number of Employees is decreased, in each case, by more than 5 per cent
during any period of 12 months.
22 NOTICES
22.1 Any notice to be served by either party shall be in writing and shall
be sent to the following addresses:
72
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CTI Chief Executive Officer
Castle Transmission International Ltd
Warwick Technology Park
Gallows Hill
Heathcote Lane
Warwick CV34 6TN
Fax No: 01926 416006
BBC Director of Policy and Planning
British Broadcasting Corporation
Broadcasting House
London W1A 1AA
Fax No: 0171 436 0393 Copy to: the BBC Representative
22.2 Any notice, invoice or other document which may be given by either
party under this Agreement will be deemed to have been duly given if
left at or sent by post (whether by letter or, where the parties agree
in writing, in any other form) or facsimile transmission to the
address set out above or to any other address notified to each other
in writing in accordance with this Clause as an address to which
notices, invoices and other documents may be sent. Any such
communication will be deemed to have been made to the other party:
22.2.1 if sent by hand, when delivered;
22.2.2 if sent by post, 72 hours after the envelope containing such
notice was posted; or
22.2.3 if sent by facsimile, when the transmission of the facsimile is
confirmed delivered complete, if delivered on a business day, or,
if not, at 9.30 a.m. (British Standard Time) on the next business
day.
For the purposes of this Clause, "BUSINESS DAY" means 9 a.m. to 5 p.m.
Monday to Friday every week of the year except for English public holidays.
It is further agreed that notices sent by facsimile will also be confirmed
by sending a signed copy by post, the copy to be posted within 24 hours of
sending the facsimile.
73
<PAGE>
23 NON-SOLICITATION
Neither the BBC nor CTI shall offer employment or engage any employee of
the other involved in the provision of the Services whilst engaged, or
within 12 months of his ceasing to be engaged, in carrying out any
obligations under this Agreement without the prior written consent of the
other. This prohibition shall not prevent either party advertising for
staff in the national, local or industry press.
24 RESTRICTIVE TRADE PRACTICES
Notwithstanding any other provision of this Agreement, no provision of this
Agreement which is of such a nature as to make this Agreement, or any
agreement or arrangement of which this Agreement forms part, liable to
registration under the Restrictive Trade Practices Act 1976 shall take
effect until the day after that on which particulars thereof have been duly
furnished to the Director General of Fair Trading.
25 WHOLE AGREEMENT
This Agreement supersedes any previous written or oral agreement between
the parties in relation to the matters dealt with in this Agreement and,
together with its Schedules, contains the whole agreement between the
parties relating to the subject matter of this Agreement at the date hereof
to the exclusion of any terms implied by law which may be excluded by
contract. Each of the parties acknowledges that it has not been induced to
enter into this Agreement by a representation, warranty or undertaking not
expressly incorporated into it. So far as permitted by law and except in
the case of fraud, the parties agree and acknowledge that their only rights
and remedies in relation to any representation, warranty or undertaking
made or given in connection with this Agreement shall be for breach of the
terms of this Agreement, to the exclusion of all other rights and remedies
(including those in tort or arising under statute).
26 VALUE ADDED TAX
26.1 All sums due to either party under this Agreement are exclusive of VAT
thereon, if any, which shall be charged in addition thereto in
accordance with the relevant law in force at the time of making the
relevant taxable supply and shall be payable by the paying party only
against receipt from the other of a valid VAT invoice in respect
thereof.
74
<PAGE>
26.2 Where under this Agreement one party has agreed to reimburse or
indemnify the other in respect of any payment made or cost incurred by
the other, then the first party shall also reimburse any VAT paid by
the other which forms part of its payment or costs incurred to the
extent that such VAT is not available for credit for the other (or for
the representative member of the other's VAT group) under Sections 25
and 26 of the Value Added Tax Act 1994 (or any replacement or
equivalent provision).
27 PARENT COMPANY GUARANTEE
CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD will enter into a guarantee in
the form set out in Schedule 9.
28 JURISDICTION
This Agreement will be governed by and construed and interpreted in
accordance with English law, and the parties hereby submit to the non-
exclusive jurisdiction of the English courts.
IN WITNESS whereof this document has teen executed the day and year first
before written.
SIGNED for the BRITISH }
BROADCASTING CORPORATION by:
In the presence of:
SIGNED for CASTLE TRANSMISSION }
INTERNATIONAL LTD by:
In the presence of:
75
<PAGE>
SCHEDULE 1
STATIONS
1. THE STATIONS
1.1. The Stations listed in this schedule constitute the "Stations" for
purposes of this Agreement.
2. TIMETABLE
2.1. Phase I Stations (including those at which test transmitters agree to be
installed), Phase 2 and Phase 3 Stations are identified in Table I below,
as is the Build Date and Phase I Launch Date or Phase 2 and Phase 3 Service
Date (as the case may be) for each Station and the Test Date for test
transmitters.
3. CHANNELS AND ERP
3.1. The BBC has been allocated multiplex 1 and the table shows the
corresponding channel and ERP for multiplex 1 for each Station.
NOTES AND ABBREVIATIONS IN TABLE 1
NOTE 1: ABBREVIATION
*XYZ * = "Must have at Launch".
NOTE 2: ITC PHASE
T = Test Transmitter
NOTE 3: BUILD & CONTRACTUAL SERVICE
Build and Contractual Service dates are defined in the main Contract.
. LDI Phase I Launch Date
. LD1 + [2] etc Launch Date plus [2] months
NOTE 4 : OPERATIONAL AND RESPONSE TARGET
See Schedule 8, for definition of Operational Priority and Response Target
stations.
NOTE 5: BBC, ITV, CH4 AND SDN REGIONS
<TABLE>
<S> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------------
Ang Anglia Meri Meridian SE SouthEast
Bord Border Mid Midlands Sth South
C/LWT Carlton/LWT N North SW South West
Central Central NE North East TTT Tyne Tees Television
ChTv Channel Television NI Northern Ireland U Ulster
E East Nth North UTV Ulster Television
EMid East Midlands NW North West W West
Gram Grampian R1 Region 1 WA West Anglia
Gran Granada R2 Region 2 WC West Country
HTVB HTV Bristol R3 Region 3 Wls Wales
HTVC HTV Cardiff S Scotland York Yorkshire
L London Scd Scotland - -
M Midlands Scot Scottish - -
-----------------------------------------------------------------------------------
</TABLE>
NOTE 6: ITC DESIGNATION
. M = Main Station
. R = Relay
1
<PAGE>
NOTE 7: BBC TRANSPORT STREAM SOURCE
BOLD = BBC Studio Centre
<TABLE>
<S> <C> <C> <C> <C> <C>
-------------------------------------------------------------------
BE BELFAST GW GLASGOW NT NEWCASTLE
BM BIRMINGHAM LS LEEDS PY PLYMOUTH
BS BRISTOL MR MANCHESTER SO SOUTHAMPTON
CB CAMBRIDGE NC NORWICH TC TELEVISION CENTRE
CF CARDIFF NO NOTTINGHAM - -
-------------------------------------------------------------------
</TABLE>
NOTE 8: HIGH LEVEL DESIGN CATEGORIES
<TABLE>
<CAPTION>
<S> <C> <C>
- -----------------------------------------------------------------------------
First Letter SI Insertion S = SI Insertion Station
- -----------------------------------------------------------------------------
Second Transmitter Power H = High (greater than 66OW)
Letter L = Low (less than 66OW)
- -----------------------------------------------------------------------------
Third Letter Combiner Type S = Single Ended
D = Duplicated
- -----------------------------------------------------------------------------
Fourth Letter Antenna type A = Existing Analogue antenna++
N =-New Digital antenna
- -----------------------------------------------------------------------------
</TABLE>
++ The analogue antenna may be an existing C5 antenna at certain sites,
currently Craigkelly and Darvel.
2
<PAGE>
TABLE 1
3
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
DTT TRANSMISSION ROLL-OUT PRIORITY
- --------------------------------------------------------------------------------------------------------------------------------
Coverage
UHF (000' ITC
STATION Abbreviation Channel proportional) Phase Operational
- --------------------------------------------------------------------------------------------------------------------------------
KEYS: SEE NOTE [1] [2] [*] [*] [4]
<S> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
ABERDARE ABR 28 56 3 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
ANGUS AGU 68 434 2 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
BEACON HILL BNL 52 228 2 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
BELMONT *BMN* 30 2,019 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
BILSDALE BIL 34 1,483 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
BLACK HILL *BKH* 41 1,526 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
BLAENPLWYF BY 28 49 2 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
BLUEBELL HILL BBL 59 1,334 2 [*] [*] X
- --------------------------------------------------------------------------------------------------------------------------------
BRESSAY BRQ 21 12 3 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
BRIERLEY HILL BOF 68 95 3 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
BRISTOL IC BSL 49 160 2 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
BRISTOL KW BSK 22 98 3 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
BROMSGROVE BGE 34 104 3 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
BROUGHER MTN. BRM 30 56 3 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
CALDBECK *CDK* 25 323 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
CARADON HILL *CNH* 34 309 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
CARMEL CRL 55 181 2 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
CHATTON CHN 40 242 3 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
CHESTERFIELD CD 34 255 3 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
CRAIGKELLY CGK 33 578 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
CRYSTAL PALACE *CP* 25 8,501 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
DARVEL DVL 22 512 2 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
DIVIS *DIV* 29 1,122 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
DOVER DOV 68 547 2 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
DURRIS *DUS* 30 368 1 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
EITSHAL ETL 34 19 3 [*] [*]
- --------------------------------------------------------------------------------------------------------------------------------
EMLEY MOOR *MLM* 52 2,099 1T [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
FENHAM FNH 30 304 2 [*] [*] x
- --------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
DTT TRANSMISSION PRIORITY REGION SITE DESIGN
- --------------------------------------------------------------------------------------------------------------------------------
CONTRACTUAL
RESPONSE ITC BBC GENERIC ERP
STATION TIME BBC CHANNEL 4 ITV SDN LANDLORD DESIGNATION STUDIO SOURCE (KW)
- --------------------------------------------------------------------------------------------------------------------------------
KEYS: SEE NOTE [4] [5] [5] [5] [5] [6] [7] [8]
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------------
ABERDARE Wls E HTV C R1 CT1 R CF _LSA 0.050
- --------------------------------------------------------------------------------------------------------------------------------
ANGUS Scd S Gramf R3 NTL R GW _LDA 2.000
- --------------------------------------------------------------------------------------------------------------------------------
BEACON HILL SW E WC R2 NTL R PY _LDN 1.000
- --------------------------------------------------------------------------------------------------------------------------------
BELMONT x Nth N YTV3 R2 NTL M LS SLDA 5.000
- --------------------------------------------------------------------------------------------------------------------------------
BILSDALE x NE N TTT2 R2 CTI M NT SLDN 2.400
- --------------------------------------------------------------------------------------------------------------------------------
BLACK HILL x Scd S Scot1 R3 NTL M GW SHDN 10.000
- --------------------------------------------------------------------------------------------------------------------------------
BLAENPLWYF Wls N HTV C R1 CTI R CF _LDN 2.000
- --------------------------------------------------------------------------------------------------------------------------------
BLUEBELL HILL X SE E Meri3 R2 CTI M TC SLDN 3.000
- --------------------------------------------------------------------------------------------------------------------------------
BRESSAY Scd S Gram1 R3 CTI R GW _LDA 1.000
- --------------------------------------------------------------------------------------------------------------------------------
BRIERLEY HILL Mid M Cen1 R2 CTI R BM _LSA 0.050
- --------------------------------------------------------------------------------------------------------------------------------
BRISTOL IC W E HTV B R2 CTI R BS _LSA 0.020
- --------------------------------------------------------------------------------------------------------------------------------
BRISTOL KW W E HTV B R2 CTI R BS _LDN 0.010
- --------------------------------------------------------------------------------------------------------------------------------
BROMSGROVE Mid M Cen1 R2 CTI R BM LSA 0.025
- --------------------------------------------------------------------------------------------------------------------------------
BROUGHER MTN. NI U UTV1 R2 CTI R BE _LDA 0.500
- --------------------------------------------------------------------------------------------------------------------------------
CALDBECK NE S Bord1 R2 NTL M NT SHDN 5.000
- --------------------------------------------------------------------------------------------------------------------------------
CARADON HILL SW E WC R2 NTL M PY SHDN 4.000
- --------------------------------------------------------------------------------------------------------------------------------
CARMEL Wls E HTV C R1 CTI R CF _LDA 2.500
- --------------------------------------------------------------------------------------------------------------------------------
CHATTON NE N TTT1 R2 NTL R NT _LDA 3.000
- --------------------------------------------------------------------------------------------------------------------------------
CHESTERFIELD Nth N YTV2 R2 NTL R LS _LSA 0.020
- --------------------------------------------------------------------------------------------------------------------------------
CRAIGKELLY Scd S Scot1 R3 NTL M GW _LDN 1.000
- --------------------------------------------------------------------------------------------------------------------------------
CRYSTAL PALACE x SE L C/LWT R2 CTI M TC SHDN 10.000
- --------------------------------------------------------------------------------------------------------------------------------
DARVEL Scd S Scot1 R3 NTL R GW _LDA 2.000
- --------------------------------------------------------------------------------------------------------------------------------
DIVIS x NI U UTV1 R2 CTI M BE SLDN 2.300
- --------------------------------------------------------------------------------------------------------------------------------
DOVER SE E Meri3 R2 NTL M TC _LDN 1.000
- --------------------------------------------------------------------------------------------------------------------------------
DURRIS Scd S Gram1 R3 NTL M GW SHDA 10.000
- --------------------------------------------------------------------------------------------------------------------------------
EITSHAL Scd S Gram1 R3 CTI R GW _LDA 0.800
- --------------------------------------------------------------------------------------------------------------------------------
EMLEY MOOR x Nth N YTV1 R2 NTL M LS SLDA 5.000
- --------------------------------------------------------------------------------------------------------------------------------
FENHAM NE N TTT1 R2 CTI R NT _LSA 0.020
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
OTT Transmission Roll-Out Priority
- -----------------------------------------------------------------------------------------------------------------------------------
Abbreviation UHF Coverage ITC Operational Contractual BBC
STATION Channel (000' Phase Responce
proportional) Time
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
FENTON FNT 34 203 3 [*] [*] Mid
- -----------------------------------------------------------------------------------------------------------------------------------
FREMONT POINT FRP 38 tbd 1 [*] [*] SW
- -----------------------------------------------------------------------------------------------------------------------------------
GUILDFORD GI 49 242 2 [*] [*] x SE
- -----------------------------------------------------------------------------------------------------------------------------------
HANNINGTON HAN 50 628 1 [*] [*] x Sth
- -----------------------------------------------------------------------------------------------------------------------------------
HASTINGS HS 31 196 3 [*] [*] Sth
- -----------------------------------------------------------------------------------------------------------------------------------
HEATHFIELD HJV 34 354 2 [*] [*] x Sth
- -----------------------------------------------------------------------------------------------------------------------------------
HEMEL HEMPSTEAD HH 48 161 2 [*] [*] SE
- -----------------------------------------------------------------------------------------------------------------------------------
HUNTSHAW CROSS HC 54 117 3 [*] [*] SW
- -----------------------------------------------------------------------------------------------------------------------------------
IDLE IDL 45 163 2 [*] [*] Nth
- -----------------------------------------------------------------------------------------------------------------------------------
KEELYLANG HILL KEE 48 15 3 [*] [*] Scd
- -----------------------------------------------------------------------------------------------------------------------------------
KEIGHLEY KJ 53 131 3 [*] [*] Nth
- -----------------------------------------------------------------------------------------------------------------------------------
KILVEY HILL KVH 25 245 2 [*] [*] x Wls
- -----------------------------------------------------------------------------------------------------------------------------------
KNOCK MORE KMR 34 54 3 [*] [*] Scd
- -----------------------------------------------------------------------------------------------------------------------------------
LANCASTER LCR 28 225 2 [*] [*] x NW
- -----------------------------------------------------------------------------------------------------------------------------------
LARK STOKE LKK 21 122 3 [*] [*] Mid
- -----------------------------------------------------------------------------------------------------------------------------------
LLMAVADY LTS 67 146 2 [*] [*] NI
- -----------------------------------------------------------------------------------------------------------------------------------
LIANDDONA LLA 67 187 2 [*] [*] Wls
- -----------------------------------------------------------------------------------------------------------------------------------
MALVERN MVR 67 241 3 [*] [*] x Mid
- -----------------------------------------------------------------------------------------------------------------------------------
MENDIP *MEN* 59 1,360 1 [*] [*] x x W
- -----------------------------------------------------------------------------------------------------------------------------------
MIDHURST MH 56 1014 2 [*] [*] x x Sth
- -----------------------------------------------------------------------------------------------------------------------------------
MOEL-Y-PARC MYP 54 531 1 [*] [*] x x Wls
- -----------------------------------------------------------------------------------------------------------------------------------
NOTTINGHAM NOU 39 311 2 [*] [*] x EMid
- -----------------------------------------------------------------------------------------------------------------------------------
OLIVERS MOUNT OMT 49 70 3 [*] [*] Nth
- -----------------------------------------------------------------------------------------------------------------------------------
OXFORD OF 34 907 1 [*] [*] x x SE
- -----------------------------------------------------------------------------------------------------------------------------------
PENDLE FOREST PLF 21 196 3 [*] [*] NW
- ------------------------------------------------------------------------------------------------------------------------------------
PLYMPTON PTN 52 149 3 [*] [*] SW
- ------------------------------------------------------------------------------------------------------------------------------------
PONTOP PIKE *PP* 48 1,309 1 [*] [*] x x NE
- ------------------------------------------------------------------------------------------------------------------------------------
PONTYPOOL PPL 52 78 3 [*] [*] Wls
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Religion Site Design
- --------------------------------------------------------------------------------------------------------------------
ITV SDN Landlord ITC BBC Generic ERP
STATION Channel 4 Designation Studio Source (kw)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
FENTON M Cen2 R2 CTI R BM _LSA 0.050
- ---------------------------------------------------------------------------------------------------------------------
FREMONT POINT E ChTv1 R2 NTL M PY SLDA 0.200
- ---------------------------------------------------------------------------------------------------------------------
GUILDFORD L C/LWT R2 CTI R TC _LDN 0.100
- ---------------------------------------------------------------------------------------------------------------------
HANNINGTON E Meri2 R2 CTI M SO SLDN 10.000
- ---------------------------------------------------------------------------------------------------------------------
HASTINGS E Meri4 R2 CTI R SO _LSA 0.100
- ---------------------------------------------------------------------------------------------------------------------
HEATHFIELD E Meri4 R2 CTI M SO SLDN 1.600
- ---------------------------------------------------------------------------------------------------------------------
HEMEL HEMPSTEAD L C/LWT R2 CTI R TC _LDN 0.100
- ---------------------------------------------------------------------------------------------------------------------
HUNTSHAW CROSS E WC4 R2 NTL R PY _LDA 2.000
- ---------------------------------------------------------------------------------------------------------------------
IDLE N York1 R2 NTL R LS _LSA 0.003
- ---------------------------------------------------------------------------------------------------------------------
KEELYLANG HILL S Gram2 R3 CTI R GW _LDN 1.000
- ---------------------------------------------------------------------------------------------------------------------
KEIGHLEY N York1 R2 NTL R LS _LSA 0.050
- ---------------------------------------------------------------------------------------------------------------------
KILVEY HILL E HTV R1 CTI R CF _LDN 0.300
- ---------------------------------------------------------------------------------------------------------------------
KNOCK MORE S Gram2 R3 NTL R GW _LDA 1.000
- ---------------------------------------------------------------------------------------------------------------------
LANCASTER N Gran1 R2 NTL R MR _LSA 0.100
- ---------------------------------------------------------------------------------------------------------------------
LARK STOKE M Cen2 R2 CTI R BM _LSA 0.025
- ---------------------------------------------------------------------------------------------------------------------
LLMAVADY U UTV1 R2 CTI R BE _LDA 0.800
- ---------------------------------------------------------------------------------------------------------------------
LIANDDONA N HTV R1 CTI R CF _LDA 1.000
- ---------------------------------------------------------------------------------------------------------------------
MALVERN M Cen2 R2 CTI R BM _LSA 0.100
- ---------------------------------------------------------------------------------------------------------------------
MENDIP E HTV R2 CTI M BS SLDN 3.000
- ---------------------------------------------------------------------------------------------------------------------
MIDHURST E Meri3 R2 CTI M SO _LDN 10.000
- ---------------------------------------------------------------------------------------------------------------------
MOEL-Y-PARC N HTV R1 NTL M CF _LDN 0.500
- ---------------------------------------------------------------------------------------------------------------------
NOTTINGHAM M Cen4 R2 NTL R NO LSA 0.020
- ---------------------------------------------------------------------------------------------------------------------
OLIVERS MOUNT N York1 R2 CTI R LS _LSA 0.050
- ---------------------------------------------------------------------------------------------------------------------
OXFORD M Cen3 R2 CTI M TC SHDA 10.000
- ---------------------------------------------------------------------------------------------------------------------
PENDLE FOREST N Gran1 R2 NTL R MR _LSA 0.050
- ---------------------------------------------------------------------------------------------------------------------
PLYMPTON E W C3 R2 NTL R PY _LSA 0.100
- ---------------------------------------------------------------------------------------------------------------------
PONTOP PIKE N TTT1 R2 CTI M NT SHDA 10.000
- ---------------------------------------------------------------------------------------------------------------------
PONTYPOOL E HTV R1 CTI R CF _LDN 0.010
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
5
<PAGE>
<TABLE>
<CAPTION>
DTT TRANSMISSION ROLL-OUT
- -----------------------------------------------------------------------------------------------------------------------------
UHF Coverage ITC
STATION Abbreviation Channel (000' proportional) Phase
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PRESELY PRS 47 97 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
REDRUTH RR 39 240 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
REIGATE REI 31 219 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
RIDGE HILL RHA 34 527 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
ROSEMARKIE RK 47 112 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
ROSNEATH ROS 67 126 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
ROWRIDGE *ROW* 67 1,731 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
RUMSTER FOREST RMF 28 60 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
SADDLEWORTH SWH 47 366 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
SALISBURY SA 55 47 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
SANDY HEATH *SDT* 29 1,745 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
SELKIRK SXJ 53 69 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
SHEFFIELD SF 39 340 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
STOCKLAND HILL SDL 22 572 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
STORETON SEN 30 206 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
SUDBURY SVY 49 645 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
SUTTON COLDFIELD *SC* 41 2,923 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
TACOLNESTON TAC 63 868 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
THE WREKIN(E) WRK 39 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
THE WREKIN(W) WRK 21 882 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
TOROSAY TOY 23 13 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
TUNBRIDGE WELLS TW 55 75 3 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
WALTHAM *WBF* 49 2,098 1 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
WENVOE *WV* 39 907 1 T [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
WHITEHAWK HILL WL 66 386 2 [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* 56 5,058 1 T [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* 67 1 T [*] [*]
- -----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
DTT TRANSMISSION PRIORITY REGION
- -----------------------------------------------------------------------------------------------------------------------------
Contractual
STATION Abbreviation Operational Response Time BBC Channel 4 ITV SDN
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
PRESELY PRS Wls E HTV C1 R1
- -----------------------------------------------------------------------------------------------------------------------------
REDRUTH RR x SW E W C5 R2
- -----------------------------------------------------------------------------------------------------------------------------
REIGATE REI SE L C/LWT R2
- -----------------------------------------------------------------------------------------------------------------------------
RIDGE HILL RHA x Mid M Cen1 R2
- -----------------------------------------------------------------------------------------------------------------------------
ROSEMARKIE RK Scd S Gram2 R3
- -----------------------------------------------------------------------------------------------------------------------------
ROSNEATH ROS Scd S Scot1 R3
- -----------------------------------------------------------------------------------------------------------------------------
ROWRIDGE *ROW* x x Sth E Meri1 R2
- -----------------------------------------------------------------------------------------------------------------------------
RUMSTER FOREST RMF Scd S Gram2 R3
- -----------------------------------------------------------------------------------------------------------------------------
SADDLEWORTH SWH x NW N Gran1 R2
- -----------------------------------------------------------------------------------------------------------------------------
SALISBURY SA Sth E Meri1 R2
- -----------------------------------------------------------------------------------------------------------------------------
SANDY HEATH *SDT* x x WA E Ang2 R2
- -----------------------------------------------------------------------------------------------------------------------------
SELKIRK SXJ Scd S Bord2 R2
- -----------------------------------------------------------------------------------------------------------------------------
SHEFFIELD SF x Nth N York2 R2
- -----------------------------------------------------------------------------------------------------------------------------
STOCKLAND HILL SDL x x SW E WC1 R2
- -----------------------------------------------------------------------------------------------------------------------------
STORETON SEN NW N Gran1 R2
- -----------------------------------------------------------------------------------------------------------------------------
SUDBURY SVY x x E E Ang1 R2
- -----------------------------------------------------------------------------------------------------------------------------
SUTTON COLDFIELD *SC* x x Mid M Cen2 R2
- -----------------------------------------------------------------------------------------------------------------------------
TACOLNESTON TAC x x E E Ang3 R2
- -----------------------------------------------------------------------------------------------------------------------------
THE WREKIN(E) WRK x x Mid M Cen2 R2
- -----------------------------------------------------------------------------------------------------------------------------
THE WREKIN(W) WRK x x Mid M Cen2 R2
- -----------------------------------------------------------------------------------------------------------------------------
TOROSAY TOY Scd S Scot1 R3
- -----------------------------------------------------------------------------------------------------------------------------
TUNBRIDGE WELLS TW SE E Meri4 R2
- -----------------------------------------------------------------------------------------------------------------------------
WALTHAM *WBF* x x Emid M Cen4 R2
- -----------------------------------------------------------------------------------------------------------------------------
WENVOE *WV* x x Wls E HTVC1 R1
- -----------------------------------------------------------------------------------------------------------------------------
WHITEHAWK HILL WL x Sth E Meri3 R2
- -----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* x x NW N Gran1 R2
- -----------------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* x x NW N Gran1 R2
- -----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
DTT TRANSMISSION SITE DESIGN
- -----------------------------------------------------------------------------------------------------------------------
ITC BBC ERP
STATION Abbreviation Landlord Designation Studio Source Generic (kw)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
PRESELY PRS NTL R CF LDA 0.500
- -----------------------------------------------------------------------------------------------------------------------
REDRUTH RR CTI R PY LDA 1.600
- -----------------------------------------------------------------------------------------------------------------------
REIGATE REI CTI R TC LDN 0.100
- -----------------------------------------------------------------------------------------------------------------------
RIDGE HILL RHA NTL M BM SHDN 5.000
- -----------------------------------------------------------------------------------------------------------------------
ROSEMARKIE RK CTI R GW HDA 10.000
- -----------------------------------------------------------------------------------------------------------------------
ROSNEATH ROS NTL R GW LSA 0.100
- -----------------------------------------------------------------------------------------------------------------------
ROWRIDGE *ROW* CTI M SO SLDN 10.000
- -----------------------------------------------------------------------------------------------------------------------
RUMSTER FOREST RMF NTL R GW LDA 1.000
- -----------------------------------------------------------------------------------------------------------------------
SADDLEWORTH SWH NTL R MR LSA 0.020
- -----------------------------------------------------------------------------------------------------------------------
SALISBURY SA CTI R SO LSA 0.500
- -----------------------------------------------------------------------------------------------------------------------
SANDY HEATH *SDT* NTL M CB SHDN 10.000
- -----------------------------------------------------------------------------------------------------------------------
SELKIRK SXJ NTL M GW SLDA 3.000
- -----------------------------------------------------------------------------------------------------------------------
SHEFFIELD SF CTI R LS SLDN 0.050
- -----------------------------------------------------------------------------------------------------------------------
STOCKLAND HILL SDL NTL M PY HDN 2.500
- -----------------------------------------------------------------------------------------------------------------------
STORETON SEN CTI R MR LDN 0.028
- -----------------------------------------------------------------------------------------------------------------------
SUDBURY SVY CTI M NC LDN 7.000
- -----------------------------------------------------------------------------------------------------------------------
SUTTON COLDFIELD *SC* CTI M BM SLDN 4.000
- -----------------------------------------------------------------------------------------------------------------------
TACOLNESTON TAC CTI M NC SLDN 10.000
- -----------------------------------------------------------------------------------------------------------------------
THE WREKIN(E) WRK CTI R BM LDN 1.000
- -----------------------------------------------------------------------------------------------------------------------
THE WREKIN(W) WRK CTI R BM LDN 1.000
- -----------------------------------------------------------------------------------------------------------------------
TOROSAY TOY CTI R GW LDA 0.125
- -----------------------------------------------------------------------------------------------------------------------
TUNBRIDGE WELLS TW CTI R TC LDA 0.100
- -----------------------------------------------------------------------------------------------------------------------
WALTHAM *WBF* CTI M NO SHDN 5.000
- -----------------------------------------------------------------------------------------------------------------------
WENVOE *WV* CTI M CF SHDN 10.000
- -----------------------------------------------------------------------------------------------------------------------
WHITEHAWK HILL WL CTI R SO LSA 0.100
- -----------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* NTL M MR SHDN 5.000
- -----------------------------------------------------------------------------------------------------------------------
WINTER HILL *WRH* NTL M MR SLDN 0.100
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
6
<PAGE>
SCHEDULE 2
CHARGES
1. INTRODUCTION
1.1 This Schedule details the charges payable under this Agreement and the
mechanism for establishing all future charges that may become payable as
agreed between both parties. It also sets out the charges for liquidated
damages and service termination.
1.2 No change shall be made to any charges under this Agreement without prior
written agreement between the parties, as appropriate.
2. PRINCIPLES
2.1 Charges shall become due from the BBC from the First Payment Date specified
in Clause 2.3.4, after which a monthly payment will be made in arrears to
CTI, which will be one twelfth of the annual charge agreed.
2.2 The annual charge may be varied on each anniversary of the First Payment
Date for the purpose of inflationary adjustment. Adjustments will be
calculated by applying the Retail Price Index (RPI) [*].
2.3 Changes to the Agreement that involve a change to the annual charge other
than by application of RPI, shall be calculated and executed in accordance
with the Change Control Procedure (Schedule 3).
2.4 Service Credits that may accrue to the BBC will be deducted from subsequent
payments due to CTI, as appropriate, and established in accordance with the
procedures prescribed in Schedule 8.
2.5 Liquidated damages that may become payable to the BBC will be deducted from
the monthly payments due to CTI.
3. CHARGES
3.1 The BBC shall pay CTI monthly in arrears one twelfth of the agreed annual
charge, following receipt each month of a valid invoice.
3.2 The agreed annual charge for Phase 1 (excluding VAT) shall be:[*]
3.3 If the BBC commits to Phase 2 before the date set out in Clause 2.4.1, the
agreed annual charge for Phase 2 (excluding VAT) shall be:[*]
3.4 If the BBC commits to Phase 3 before the date set out in Clause 2.4.1, the
agreed annual charge for Phase 3 (excluding VAT) shall be:[*]
For the avoidance of doubt, the first payment date for Phase 3 shall be the
first day of the month following the date that the BBC commits to Phase 3.
3.5 In addition to the annual charge, the BBC shall pay the actual cost of the
WT Act Licence fee for the transmission of the BBC multiplex from the
Stations. This fee will be paid to CTI by the BBC on receipt of a valid
invoice from CTI, supported by a copy of the invoice from the
Radiocommunications Agency.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
<PAGE>
4. CHANGES TO CHARGES
4.1 GENERAL
4.1.1 Changes to the annual charge shall be made in accordance with the
following procedures.
4.2 CHANGE DUE TO INFLATION
4.2.1 On the First Payment Date, and each anniversary of the Payment Date
thereafter, the annual Charge shall be uplifted by the Retail Price
Index [*]. The uplift will be agreed two months prior to the date on
which the increase is due to take effect, and RPI will be taken from
the most recently published index issued by the Central Statistical
Office. Where such index is no longer published, any other index
replacing RPI shall be used, subject to the agreement of both parties.
4.3 CHANGE UNDER CHANGE CONTROL
4.3.1 Where a change executed in accordance with the provisions of Schedule
3 results in a change (up or down) to the annual charges, the
following shall apply in calculating subsequent adjustments due to
RPI:
a) where change brings an increase to the annual charge and the increase
takes effect after 3 months from the last RPI adjustment, the increase
will not be taken into account when calculating the next RPI
adjustment;
b) where change brings a decrease to the annual charge and the decrease
takes effect after 6 months from the last RPI adjustment, the decrease
will not be taken into account when calculating the next RPI
adjustment.
4.3.2 Both parties will agree in good faith the point when it is appropriate
to adjust the annual service charge
4.4 RIGHT TO AUDIT
4.4.1 The BBC shall retain the right to audit all information provided by
CTI under the "open book" approach, as defined in Schedule 3.
5. LIQUIDATED DAMAGES
5.1 PRINCIPLES
5.1.1 Liquidated damages shall be
5.1.2 Liquidated Damages will be payable as set out in Schedule 1. In the
case of Phase I this will relate to delays from the Phase 1 in the
event of delays from the Launch Date and for Phases 2 and 3 from the
Phase 2 Service Date and Phase 3 Service agreed industry roll-out Date
(as appropriate) shown in Schedule 1. Liquidated Damages will be
deducted from the Charges in the payment following their occurrence.
5.1.3 The following Liquidated Damage charges will apply:
Station CHARGE PER DAY
Black Hill [*]
Crystal Palace [*]
Divis [*]
Wenvoe [*]
Phase 1 Stations identified as "must have for launch" [*]
Other Phase 1 Stations [*]
All Phase 2 and Phase 3 Stations [*]
subject to a maximum aggregate charge of [*] per day.
5.2 METHOD OF CALCULATING DAMAGES FOR PHASE 1
5.2.1 For those Phase 1 Stations which the parties have agreed and indicated
in Schedule 1, Table 1 that the BBC "must have at launch", any delay
in the issuance of an Acceptance Certificate in accordance with Clause
2.7.5 by the BBC before the Phase 1 Launch Date will be deemed to
prevent the launch of all Phase 1 Stations and CM shall pay to the BBC
liquidated damages for those Stations as set out above.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
2
<PAGE>
5.2.2 For those Phase 1 Stations which the parties have not agreed nor
indicated in Schedule 1 Table 1 that the BBC "Must have at launch",
any delay in the issuance of an Acceptance Certificate by the BBC
before the Phase 1 Launch Date will be deemed to prevent the launch of
that Station only, and CTI shall pay to the BBC Liquidated Damages at
the rates set out against each Station as set out above for each day
that the Launch Date for that Station is delayed.
5.3 METHOD OF CALCULATING DAMAGES FOR PHASES 2 AND 3
5.3.1 For those Stations included in Schedule 1 Table 1 for Phases 2 and 3,
any delay in the issuance of an Acceptance Certificate in accordance
with Clause 2.7.5 by the BBC, shall initiate the payment of Liquidated
Damages by CTI for that Station, as set out above.
6. TERMINATION
6.1 If the BBC chooses to terminate this Agreement at the agreed review point
given in clause 12.2.1, the BBC will be liable to pay CTI on termination
a charge which will be:
Where the BBC has committed to Phase 1 only: [*]
Where the BBC has committed to Phases 1 and 2: [*]
Where the BBC has committed to Phases 1, 2 and 3: [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
3
<PAGE>
SCHEDULE 3
PART I: CHANGE CONTROL
1. INTRODUCTION
1.1 This Schedule defines the Change Control Procedure by which the parties
will deal with all proposed changes to this Agreement. CTI and the BBC will
discuss any proposed change, and the consequences, in good faith and within
agreed timescales. Either party may raise with the other a requirement for
a change to the Agreement, but only changes agreed with CTI and authorised
in writing by the BBC may be executed.
2. PRINCIPLES
2.1 Changes which are reasonably needed for CTI to comply with its fundamental
obligations under this Agreement shall be undertaken by CTI within an
agreed timescale and at its cost, unless CTI can adequately demonstrate,
and the BBC agrees (such agreement not to be unreasonably withheld) that it
would be unreasonable for CTI to bear the full cost of the necessary
change.
2.2 The primary approach to change is two-fold:
i) major change involving additional services will be managed within the
Chance Control Procedure and the Charges varied accordingly
ii) technological changes with the purpose of maintaining, enhancing or
improving either the quality and efficiency or overall value for money
of the Services will be managed under the Change Control Procedure.
The onus will be on CTI to demonstrate innovative ways of financing
such changes within the agreed Charges and to manage the consequences
and risk of implementing such changes.
2.3 In principle, the primary areas of this Agreement and the Services that
will be subject to change control are as follows:
i) requirements for additional Stations
ii) technology refresh designed to improve the quality, efficiency and
value for money of the Services
iii) technology refresh which provides additional functionality not yet
available, such as particular technical monitoring capabilities
iv) enhancements or additions to the Services that represent additional
features or service functionality
2.4 Changes that involve a variation (up or down) to the Charges will be
established either:
i) by reference to fixed charges already agreed, if any, between both
parties, such as a fixed charge for additional Stations or
transmitters
ii) by use of an "open book" policy, where CTI will provide a reasonably
detailed breakdown (in any format requested by the BBC) of the cost of
any proposed change, which demonstrates that such costs have been
minimised and that the change represents best value for money.
2.5 Any report requested from CTI by the BBC under paragraph 4.2 below which
details the impact and costs of any change shall include, as a minimum, the
following:
i) effects on performance
ii) any consequential effects of the change
iii) potential for disruptions
iv) any appropriate contingency plans
1
<PAGE>
3. CHANGES PROPOSED BY CTI
3.1 If CTI proposes any changes to this Agreement, then CTI must submit to the
BBC a document describing the suggested changes, and detailing:
i) any impact the change would have on the timing for provision of any
Services under this Agreement.
ii) any impact the change would have on the Charges payable under this
Agreement.
iii) a description of the benefits that the change would make to the
provision of the Services.
iv) any other changes that would be required to any aspect of this
Agreement if the change were implemented.
v) any other matter or thing of which CTI is aware that would be relevant
to deciding whether or not to implement the change.
3.2 Within 10 Business Days of receipt by the BBC of the document referred to
in paragraph 3.1, the parties must commence discussions in good faith on
the proposed change with a view to agreeing whether to amend this
Agreement.
4 CHANGES PROPOSED BY THE BBC
4.1 The BBC may at any time propose changes to this Agreement. The BBC may
require CTI to make any changes arising from a change to the BBC's Charter
or DNH Agreement.
4.2 Within 20 Business Days of receipt of a notice from the BBC or other period
as agreed between the parties proposing or requiring a change, CTI must
submit to the BBC a document detailing the matters set out in paragraphs
3.1(i) to 3.1(v).
4.3 Within 10 Business Days of receipt by the BBC of the document referred to
in paragraph 4.2, the parties must discuss in good faith the proposed or
required change with a view to agreeing whether to amend this Agreement.
PART II: MANAGEMENT OF FORESEEABLE CHANGES
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Change
Change Area Ref. Specific Change Details of Exposure [*]
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
DISTRIBUTION 1A SI insertion [*] [*]
SYSTEM required other than
as defined in
Schedule 1I
- -------------------------------------------------------------------------------------
1B Modifications to Delays and/or technology [*]
distribution network problems. Management
provided by BT and performance of BT will
be exclusively CTI's
responsibility.
- -------------------------------------------------------------------------------------
1C Change of BBC Ramifications of regional [*]
Editorial Regional boundary changes on
Boundaries proposed distribution
network and SI collation.
CTI to make reasonable
endeavours in network
planning to minimise
additional costs. This is
subject to BBC submitting
details of possible regional
changes PRIOR to network
design being finalised by
CTI.
- -------------------------------------------------------------------------------------
TRANSMISSION 2A Frequency Co- Changes to network [*]
SYSTEM ordination and and/or transmission
Planning systems made
- -------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
2
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------
Change
Change Area Ref. Specific Change Details of Exposure [*]
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
necessary by the process
of agreeing the frequency
plan other than where a
change of site is required.
- -------------------------------------------------------------------------------------
Changes to network [*]
and/or transmission
systems made necessary
by the process of agreeing
the frequency plan where
a change of site is
required.
- -------------------------------------------------------------------------------------
2B Cross-Carriage of Risk of co-ordination with [*]
SI other multiplex
transmission service
providers.
- -------------------------------------------------------------------------------------
2C Fundamental Changes to SI [*]
Changes to SI implementation from the
Collation Strategy system specified in CTI's
including Non- Proposal but in
distributed accordance with the D-
collation Mux Group agreement.
and/or Non-DVB
compliant SI
--------------------------------------
Changes required by the
BBC other than in
accordance with the D-
Mux Group agreement.
- -------------------------------------------------------------------------------------
2D Changes to Risk of additional changes [*]
Analogue Network to the analogue network
over and above those
required in Schedule 4:
Analogue Changes. CTI
will absorb any minor
costs where significant
capital outlay is not
required.
- -------------------------------------------------------------------------------------
2E Frequency Offset Risk of changes [*]
associated with adoption
or removal of frequency
offsets.
- -------------------------------------------------------------------------------------
2F Re-radiation of Radiation of unwanted [*]
Digital signals caused by re-
transmissions by radiation of adjacent
Analogue Relays channel digital
transmissions by analogue
transposers.
CTI will modify up to 20
transposers where an
interference problem is
identified for [*] per
transposer per annum.
Beyond this number of
transposers, the Change
Control Procedure will
determine the price.
- -------------------------------------------------------------------------------------
2G DTG D-Book Post-contract changes to [*]
Changes the D-Book which the BBC
requires CTI to implement.
- ---------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
3
<PAGE>
SCHEDULE 4
CHANGES TO THE ANALOGUE NETWORK
1. TYPES OF CHANGE
1.1 The existing analogue television transmission network will need to be
modified to permit the introduction of DTT. For any analogue station, these
changes may include, but are not limited to:
i) modification of the VSB response to permit adjacent channel DTT
operation
ii) modification of the maximum ERP
iii) modification of the antenna parameters
iv) addition of a precision offset
v) frequency changes
vi) introduction of additional analogue transmissions
1.2 Other changes to the network may include:
i) construction and operation of new analogue transmitter sites
ii) modifications to ancillary services equipment
1.3 The required changes to the analogue network shall be derived from the
information contained in Schedule 12 Appendix 4, and References 15, 16, 29
and 32 in Schedule 13. The changes proposed by CTI are summarised in Tables
1 and 2 below for information purposes only.
Table 1: Analogue modifications at non-DTT stations as a result of
Multiplex 1 (for information purposes only)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------
Trpsr New RBL New
Analogue DTT Chan ERP Relay Ant Tx
Station Landlord Interferer P.O. Chnge Inc Stn Mods Ant
- --------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Arfon NTL PRS x
Ardnadam CTI BKH x x
Bargoed CTI WV x
Barrow Town CTI LCR x
Bath CTI BSK x
Bronnant SH CTI* BY x
Carhampton CTI WV x x x
Cefn-Mawr NTL SC x x
Chagford CTI CRL x
Croeserw NTL HC x
Cwmbran NTL* SDL x
Easter Compton NTL WV x x
Gilfach CTI WV x
Glyncorrwg NTL HC x
Greenhill CTI WV x
- --------------------------------------------------------------------------
High Keil CTI DIV x
Ilfracombe NTL HC x
Kewstoke NTL WV x x x
Long Mountain CTI SC x
Lydden NTL DOV x
Pitlochry CTI SXJ x
Ramsbottom NTL WRH x
Redcliff Bay NTL WV x x x
Roadwater CTI WV x
Woodcombe CTI WV x x x x
- --------------------------------------------------------------------------
</TABLE>
* Subject to confirmation
1
<PAGE>
Table 2: Analogue modifications at DTT stations as a result of Multiplex 1
(for information purposes only)
<TABLE>
<CAPTION>
-------------------------------------------------------
Modify
Modify Group Precision Replace
Analogue Station VSB Delay Offset Drive
-------------------------------------------------------
<S> <C> <C> <C> <C>
Aberdare x
Beacon Hill x x
Bilsdale x x
Black Hill x
Blaenplwyf x
Bressay x x
Bristol I.C. x x
Carmel x
Chatton x
Chesterfield x
Crystal Palace x x
Darvel x x
Eitshal x
Emley Moor x
Fenham x x
Fenton x x
Guildford x x
Hastings x x
Hemel Hempstead x
Huntshaw Cross x x
Keighley x x
Kilvey Hill x x
Knock More x
Lancaster x
Malvern x x
Mendip x x
Midhurst x
Oxford x
Pendle Forest x x
Pontop Pike x
Pontypool x
Presely x x
Ridge Hill x x
Rumster Forest x
Sandy Heath x
Selkirk x
Stockland Hill x x
Sutton Coldfield x x
Tacolneston x
Torosay x
Waltham x
Winter Hill x
-------------------------------------------------------
</TABLE>
2 REQUIREMENT
2.1 CTI shall design and carry out, or procure, the changes to:
a) that part of the existing analogue network used for BBC services
necessitated by the introduction of the BBC's digital multiplex
b) that part of the existing analogue network used for third party
services necessitated by the introduction of the BBC's digital
multiplex
c) that part of the existing analogue network used for BBC services
necessitated by the introduction of third party digital multiplexes
2
<PAGE>
2.2 The changes shall be made in accordance with the methodology outlined in 3
below, unless otherwise agreed between the parties.
2.3 For the avoidance of doubt the changes outlined in (a) and (b) above shall
be carried out with the BBC's consent and charged in accordance with this
Agreement. The changes outlined in (c) above shall be carried out under the
Analogue Contract at the relevant third party multiplex operator's cost.
Any charge made shall include a one-off payment for the ongoing operation
and maintenance of any new equipment supplied under the requirements of 2.1
above.
2.4 Without prejudice to Clause 2.6.3, CTI shall comply with whatever changes
are required by the Radiocommunications Agency and the Department of
Culture, Media & Sport when national approval is granted.
2.5 In addition, CTI shall work with and comply with the timetable of the
organisation charged by the multiplex operators for ensuring that
interference to domestic reception of analogue TV is rectified. The
approach adopted will fall within the ITC regulation described in Reference
14.
3 [*]
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treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
4
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SCHEDULE 7
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treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
5
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SCHEDULE 8
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
6
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confidential treatment. The omitted text has been filed with the
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SCHEDULE 5
TRANSMISSION REQUIREMENTS
1 GENERAL
1.1 The DTT Transmission Service shall comply with all applicable laws,
regulations, industry standards and codes of practice. CTI shall be liable
for the cost implications of complying with any changes arising from
amendments to existing, or new, laws, regulations etc.
2 BBC INTERNAL DTT ARCHITECTURE
2.1 Introduction
2.1.1 The BBC will distribute programmes to a number of its studio centres
around the UK, and will install and operate equipment at those centres
to assemble the national-regional and English-regional DTT
multiplexes. The centres involved are set out in Schedule 7. The BBC
reserves the right to vary the number and location of such studio
centres from time to time, and CTI shall provide sufficient
flexibility in its network design to accommodate such changes with
minimal dislocation and associated additional costs.
2.2 National Regions
2.2.1 Coding and multiplexing equipment will be installed by the BBC in the
national-regional studio centres at Glasgow, Belfast, and Cardiff.
Such equipment will also be installed by the BBC at the English
regional studio centre in TV Centre, London. The programme services
with the addition of SI describing the BBC multiplex services will be
re-multiplexed into DTT format. CTI shall send the resulting signal
from the national-regional studio centres to the relevant Stations
where it shall be re-multiplexed by CTI to insert the SI of the other
multiplex operators which is to be cross-carried within the BBC
multiplex, and modulated using the DVB-Terrestrial Specification
(Reference 6).
2.3 English Regions
2.3.1 The BBC will also install coding and multiplexing equipment at 11
English-regional studio centres (including London) to allow local opt-
outs to be generated. This will allow the BBC to meet the requirements
of the Broadcasting Act to simulcast analogue services on DTT. The
programme services including the SI of the BBC English-regional
multiplexes will then be multiplexed into DTT format. The English-
regional studio centres will act in a similar way to the national-
regional studio centres.
2.3.2 CTI shall send the resulting signal from the English-regional studio
centres to the relevant Stations where it shall be re-multiplexed by
CTI to insert the SI of the other multiplex operators which is to be
cross-carried within the BBC multiplex, and modulated as set out in
Reference 6.
2.3.3 The stations for both the national and English-regional variants of
the BBC multiplex are shown in Schedule 1
3 OVERVIEW OF DTT TRANSMISSION SERVICE
3.1 The DTT Transmission Service shall be provided using a network of
terrestrial stations installed, maintained and operated by CTI. The BBC
will not contribute directly to the capital cost of this network or the
cost of maintaining the network.
3.2 The DTT Transmission Service is made up of the following elements:
. The design, configuration, supply, installation, maintenance and
operation of all digital transmission equipment and associated equipment
at Stations (see Section 4, below).
. The design, supply, installation, maintenance and operation of the links
to enable distribution of the BBC multiplexed signal from the BBC's
national-regional and English-regional studio centres to Stations (see
Section 5, below).
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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. The supply, installation, maintenance and operation of MPEG-2
multiplexing equipment, to enable configuration of the BBC multiplex at
key Stations (see Section 6, below).
. Modification, as appropriate, to the transmission characteristics of the
existing analogue transmitters to permit the introduction of the digital
television multiplex and the simultaneous transmission of analogue
services. Changes to the analogue transmission network shall be
undertaken in conjunction with the operator of the analogue services, as
set out in Schedule 4.
. Liaison and co-ordination with other multiplex and transmitter network
operators, and receiver manufacturers, to ensure that the BBC's signals
can be satisfactorily received and displayed. In particular, this will
require working with other multiplex operators to ensure that SI, EPG
and CA data that the BBC may wish to broadcast are correctly inserted
into the multiplex. CTI shall ensure that the equipment employed has the
flexibility to support such SI, EPG and CA requirements (which may be
added at a later date). To facilitate this, the BBC will endeavor to
reach agreement with other multiplex operators and licensing authorities
about the format and technical requirements of SI, EPG and CA.
3.3 CTI shall assume end-to-end responsibility for the provision of the service
from BBC national-regional and English-regional studio centre interface to
transmission from Stations, and shall ensure that the design,
implementation and operation of each service component is consistent with
the overall design. Although CTI's responsibilities do not extend to the
receipt of signals at receivers, CTI shall assist the BBC in resolving
viewers problems on a reasonable endeavours basis.
3.4 The arrangements for rectification of any interference caused by the BBC
DTT multiplex to analogue domestic reception comprises two parts; changes
at Stations (covered in Schedule 4), and changes at domestic receiving
locations. The latter will form part of a separate contract and is not
covered in this Agreement. However, CTI shall provide Station changes in
co-ordination with the agreed industry timetable for changes to domestic
receivers set out in that separate contract.
4. TRANSMISSION
4.1 CTI shall design, supply, install and operate facilities to radiate the
BBC's multiplex in accordance with:
. the CTI Technical Specification for each Station as listed in Schedule
12.
. the subset of transmission characteristics defined in Reference 6 as 2k
system, 1/32 guard interval, 64 QAM model, with FEC-2/3 and Reed Solomon
defined by RS (204, 188, t=8).
. ITC UK DTT Frequency Plan (Reference 1)
. DTG Interoperability requirements (Reference 7)
4.2 CTI shall use all reasonable endeavours to minimise the impact of changes
in the transmission characteristics as a result of international co-
ordination.
4.3 CTI shall take responsibility for obtaining such access to sites and/or
masts owned by other parties as it requires in order to provide the
Services.
4.4 The main feed at each Station shall contain the correct BBC Regional
Programming. In relation to national regional programming, reserve feeds
for the Stations must also contain the correct national-regional variant of
the BBC multiplex. In relation to English-regional programming, at
Operational Priority Stations (as shown in Schedule 1) the reserve feed
must carry the correct English regional variant. At non-priority Stations
CTI may use an incorrect English-regional variant for reserve purposes only
where this gives a substantial and identificable technical or economic
benefit to the BBC. Such use of an incorrect English-regional variant as a
reserve feed will require prior agreement with the BBC.
5. DISTRIBUTION LINKS FROM THE BBC'S STUDIO CENTRES
5.1 CTI shall design, supply, install and operate or procure distribution links
from the agreed BBC-CTI interface at the BBC's studio centres to the Phase
1 Stations covered in Schedule 1 and, if relevant, the subsequent Stations.
Access to BBC studio centres for this purpose will be pursuant to the site
sharing agreement shown in Schedule 10.
5.2 The key points of the overall architecture for BBC's DTT service are:
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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. Each DTT national-regional multiplex will be available at a network
termination point at the appropriate studio centre in the national
region. That is, BBC Scotland at Broadcasting House, Glasgow, BBC
Northern Ireland at Broadcasting House, Belfast and BBC Wales at
Broadcasting House, Cardiff.
. The English-regional multiplexes for the English regions will be
available at the relevant BBC studio centre.
5.3 At Operational Priority Stations a single point of failure between the main
and reserve feeds should be avoided as far as is reasonably practicable.
For reasons of Rights protection, CTI shall ensure that any terrestrial or
satellite circuits used only for the primary distribution of services
cannot be used to feed domestic installations outside the UK or to feed
national-regional variants outside the relevant national-region. However,
if a closed, low-power or proprietary system is used, the services may not
need to be scrambled; any use of such an approach by CTI will require the
prior agreement of the BBC.
6 MULTIPLEXING REQUIREMENTS
6.1 General
6.1.1 Subject to Sections 6.1 and 6.2 below, CTI shall design, procure,
supply, install and operate suitable equipment to multiplex additional
data into the MPEG data stream for radiation at each Station for
cross-carriage of DVB SI.
6.1.2 No other recoding or remultiplexing of the DTT MPEG transport stream
provided by the BBC shall be performed by CTI, without the prior
written approval of the BBC.
6.2 Service Information (SI)
6.2.1 The SI referring to the BBC multiplex and inserted in the BBC
multiplex shall remain correct in the event of a reserve feed for the
BBC multiplex being selected. It is desirable that the SI referring to
the BBC multiplex and offered to other multiplex operators also
remains correct in the event of a reserve feed for the BBC multiplex
being selected. Similarly, it is desirable that the SI referring to
other multiplexes and inserted in the BBC multiplex accurately
reflects the actual status of the services radiated on the other
multiplexes. CTI shall comply with the SI insertion points identified
in Schedule 1.
6.2.2 Should central collation of SI be chosen by the D-Mux group, and
agreed by the BBC, remultiplexing equipment will be retained at the
Station where SI is required to be inserted. The specification for
this remultiplexing equipment, and the format in which the SI (or data
from which SI is derived) is provided, will be dependent on the
central collator system that is chosen.
6.3 Electronic Programme Guide (EPG) and Conditional Access (CA) data
6.3.1 The BBC will endeavour to reach agreement with any of the other
multiplex operators which intend to carry an EPG and CA as part of
their terrestrial multiplex. Although the insertion, carriage and
cross carriage of EPG and CA data is outside the scope of this
agreement, CTI shall assist in this process by providing the ability
for appropriate data insertion and extraction to be carried out by the
BBC or its agents, including a reasonable right of access to CTI
buildings and/or items of infrastructure. In addition, CTI shall
provide a design sufficiently flexible to accommodate the above
requirements with minimal disruption and associated additional costs.
7 INDUSTRY LIAISON
7.1 CTI shall participate in relevant industry organisations and act on the
BBC's behalf to ensure a co-ordinated approach to the introduction of DTT,
and that the maximum compatibility is achieved between the signals radiated
on each multiplex.
7.2 In particular CTI shall liaise with other multiplex service providers,
operators and receiver manufacturers to assist the BBC in ensuring that the
SI, EPG and CA information can be cross-carried and that the BBC's DTT
services remain accessible by all DVB-T compliant receivers.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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SCHEDULE 6
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
2
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
3
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
5
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
6
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
7
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
8
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
9
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
10
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
11
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
12
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission seperately
13
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
14
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
15
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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SCHEDULE 7
INTERFACE SPECIFICATION
1 SIGNAL FORMATS
1.1 The signals at the network termination point at the Studio Centres in the
BBC will comprise multi-programme MPEG transport streams coded and
formatted in accordance with the ETSI/DVB and ISO/IEC standards as they
stand at the date of this Agreement, these being:
. Reference 17
. Reference 18
. Reference 19
. Reference 21
1.2 In addition to coded and compressed video, audio and data, the transport
streams will include DVB SI, coded and formatted in accordance with the
relevant ETSI/DVB and ISO/IEC standards which apply from time to time,
which as at the date of this Agreement are:
. Reference 7
. Reference 9
. Reference 10
. Reference 11
. Reference 13
. Reference 22
1.3 Any DVB subtitling included in Data will be coded and formatted in
accordance with Reference 25.
1.4 Any DVB Teletext included in Data will be coded and formatted in accordance
with Reference 30.
1.5 Any data services included in Data will be coded and formatted in
accordance with the relevant ETSI/DVB and ISO/IEC standards which apply
from time to time, which as at the date of this Agreement are under
development in the DVB Technical Module.
1.6 Although the Data will initially be supplied by the BBC unscrarnbled, at
some time in the future the video/audio/data conveyed within these Data may
be scrambled in accordance with Reference 23.
2 TRANSPORT STREAM BIT-RATE
2.1 The transport stream bit-rate provided by the BBC at each regional studio
centre shall be less than or equal to 24.000 Mbits/s of which an agreed
minimum of number kbits/s will be in the form of null packets.
2.2 No constraints shall be made by CTI on the BBC regarding the particular
temporal distribution of these null packets.
3 BBC FEED ARCHITECTURE
3.1 At each regional studio centre the BBC intends to use duplicated MPEG-2
multiplexers in a 1+1 redundant configuration.
3.2 The appropriate multiplexer output will be selected under automatic control
using downstream 2:1 coaxial switches.
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3.3 Duplicate feeds of the selected output transport stream will therefore be
provided in DVB-ASI byte mode form from these managed switches. The DVB-ASI
transport stream physical interface is defined in Reference 24.
3.4 The contractual boundary at each studio centre will be the outputs of these
managed switches.
3.5 The BBC will provide CTI with accommodation and power in accordance with
the site sharing agreement in Schedule 10.
3.6 The sources of regional multiplexes are as follows:
---------------------------------------------
REGION STUDIO CENTRE
---------------------------------------------
East (E) Norwich
---------------------------------------------
East Midlands Nottingham
---------------------------------------------
Midlands Birmingham
---------------------------------------------
North (N) Leeds
---------------------------------------------
North East (NE) Newcastle
---------------------------------------------
North West (NW) Manchester
---------------------------------------------
South (S) Southampton
---------------------------------------------
South East (SE) Television Centre, London
---------------------------------------------
South West (SW) Plymouth
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West (W) Bristol
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West Anglia Cambridge
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Northern Ireland Belfast
---------------------------------------------
Scotland Glasgow
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Wales Cardiff
---------------------------------------------
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SCHEDULE 8
OPERATIONAL SERVICES
1 SERVICE LEVEL AGREEMENT
1.1 It is intended that the day-to-day administration of this Agreement be the
subject of a formal service level agreement (SLA) between CTI and the BBC.
The SLA will be jointly developed by the BBC and CTI during the first six
months of this Agreement, and the BBC and CTI agree to progress this in a
timely fashion and in good faith.
1.2 The operational service requirements described in the subsequent paragraphs
will form the basis of the SLA, and shall apply until the SLA has been
completed and agreed.
2 MONITORING SERVICES
2.1 General
2.1.1 CTI shall operate the DTT Transmission Service in such a way as to
comply with the technical parameters set out in Table I for each
Station, 24 hours a day.
2.1.2 CTI shall maintain and enhance its existing network of TV dealer
contacts who are used to collate information on the quality of BBC TV
reception, and report annually on its status.
2.2 Process
2.2.1 Continuous
2.2.1.1 CTI are responsible for the quality of the DTT signal from the
Interface to the point of radiation from the transmit antenna at each
Station. CTI shall continuously monitor the signal at points
throughout the distribution system in order to confirm that the signal
meets the parameters set out in Table 1 relevant to the monitoring
point. If the signal fails to meet those parameters, CTI shall ensure
that the monitoring equipment normally alerts the TOC via the primary
communications link within 120 seconds of the failure commencing.
Should the primary communications link fail, CTI shall ensure that the
monitoring equipment alerts the TOC via a back-up communications link
within 300 seconds of the failure commencing.
2.2.1.2 The parameters monitored continuously shall include:
i) the integrity and decodability of the MPEG transport stream received
at the Interface
ii) the integrity and decodability of the broadcast MPEG transport stream
iii) transmitter power (and therefore, indirectly, effective radiated
power)
iv) equivalent loss of noise margin (see Note 1 below)
v) SI integrity
2.2.1.3 The monitoring provided by CTI shall be sufficient to identify that a
failure has occurred, and the part of the Transmission Network at
fault. Transport Stream monitoring shall be in accordance with
Reference 33.
2.2.1.4 CTI and the BBC recognise that the monitoring regime will change over
the life of this Agreement as measurement requirements change, and new
techniques and equipment become available. CTI shall ensure that all
monitoring is carried out in line with best industry practice, subject
to a joint annual review by the BBC and CTI of the list of parameters
to be monitored, the effectiveness of the monitoring and the
mechanisms by which the monitoring takes place.
2.2.1.5 CTI and the BBC agree that the asterisked numbers in the algorithm set
out in Appendix 1 will be reviewed in accordance with the impact of
transient errored seconds on the viewer. Such review may require use
of different parameters.
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2.2.1.6 CTI shall procure test equipment to permit measurement of all
parameters on a non-intrusive basis as soon as reasonably practicable,
the type and quantity and timing of the acquisition of such test
equipment to be reviewed and agreed at the joint annual review.
2.2.1.7 CTI are not responsible for validating the editorial content of the
MPEG transport stream received at the Interface.
2.2.1.8 Faults not detected by the CTI monitoring system, but reported by BBC
staff, CTI staff or third parties and notified to CTI will be
investigated by CTI. Confirmed faults will be treated as Incidents for
the purposes of this Agreement. Incidents detected in such a way will
be deemed to have started at the time reported, unless evidence of an
earlier start time can be established by the BBC or CTI. CTI shall
keep full records of, and report at least annually on, the number of
Incidents detected in this way. If the BBC considers that the number
of faults which go undetected by the CTI monitoring system is
significant, CTI shall take all reasonable steps to remedy the
deficiency at its own cost.
Note 1
While this Agreement requires the measurement of the equivalent loss of
noise margin or an agreed replacement parameter on a continuous basis, the
BBC recognise that the state of technology pertaining at the time of
commencement of the Agreement does not permit this. Subject to the periodic
review of measuring equipment referred to in paragraph 2.2.1.6, the BBC
will agree to a temporary relaxation whereby the equivalent loss of noise
margin will be evaluated during the periodic tests described in paragraph
2.2.2.1or at other times by mutual agreement, following the procedure
described in Note 6 to Schedule 6, Part 2.
2.2.2 Periodic
2.2.2.1 CTI shall measure the parameters and confirm the correct operation of
every DTT transmitter system at least once per year. The tests shall
also cover the correct performance, operation and selection of reserve
equipment where installed. The results of these tests and measurements
shall be made available to the BBC on request. CTI shall maintain
sufficient books and records to ensure this information can be
obtained and shall retain records of such information for the duration
of this Agreement, or in the case of a dispute, for such a greater
length of time as is necessary to resolve it. Any interruptions to
service required to make these measurements will be Accountable
Incidents unless otherwise agreed.
2.2.2.2 Parameters checked shall include, but not be limited to:
i) the group-delay variation across the DTT signal bandwidth (see Note 2
below)
ii) the out-of-band emission of the DTT signal
iii) the out-of-band emission of analogue signals which are co-channel with
the DTT signal, arising as a result of analogue signals which are
adjacent channel to the DTT signal
iv) centre frequency
v) general compliance with the WT Act licence conditions in accordance
with best industry practice
Note 2
Until such time as this measurement can be made non-intrusively, the group
delay will be inferred by measuring the amplitude response across the DTT
signal bandwidth. If the amplitude response indicates that there may be a
group delay problem, then the BBC will require the intrusive group-delay
measurement to be made. The interruption required to make this measurement
will be accountable, unless the group delay variation subsequently proves
to be in specification.
2.2.3 Ad Hoc
2.2.3.1 In addition to the periodic measurements described above, the BBC will
make random checks of all material aspects of transmitter performance.
In the first instance, the measurements will be made off-site. If the
measurements indicate that it is likely that a transmitter is failing
to meet the performance or other criteria, the BBC may require CTI to
demonstrate the performance of that transmitter to the satisfaction of
the BBC within five working days of the BBC giving notice to CTI. The
tests included in this process
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will be at the discretion of the BBC, and may be more extensive than
those required by paragraph 2.2.2.2 above. CTI will co-operate with
this process by providing access to the relevant Station and suitable
test equipment free-of-charge. The BBC reserves the right to also make
the measurements using its own test equipment. Any interruptions to
service required to make Ad-hoc measurements under this clause will be
Accountable Incidents unless CTI are subsequently exonerated.
2.2.4 Auditing
2.2.4.1 The BBC may require CTI to disclose, free-of-charge to the BBC, other
Station-specific information pertinent to this Agreement for
correlation with Incident reports and for general auditing purposes.
Such information may include, but not be limited to WT Act licence
details, telemetry data, and auditable information which can confirm
the correct operation of a Station over an extended period. CTI shall
maintain sufficient books and records to ensure this information can
be obtained and shall retain records of such information for the
duration of this Agreement, or in the case of a dispute, for such a
greater length of time as is necessary to resolve it. The BBC accept
that raw (unprocessed) status data will only be automatically retained
for a period of 30 days due to its volume.
2.3 Standards
2.3.1 Performance Classification
2.3.1.1 Performance limits are defined as follows:
Operating Limits The Performance Standards expected from a Station under
normal operating conditions.
Failure Limits The Performance Standards at which a significant number
of viewers with satisfactory receiving installations who
normally receive a service from a Station would not
receive a useable signal.
2.3.2 Measurements
2.3.2.1 Measurements undertaken by CTI shall be carried out with the test
equipment listed in Table 1, and using techniques agreed with the BBC.
All such test equipment must have a current certificate of
calibration, and documentary evidence of this fact must be recorded
with measurement results. Any changes to the methods of measurement or
type of test equipment employed by CTI must be agreed with the BBC in
advance.
2.3.3 [*]
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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3.[*]
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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[*]
3.1.5 Logging Requirements
3.1.5.1. CTI shall record the following information for every Station as part
of the continuous monitoring process outlined in paragraph 2.2.1.:
i) the date, time and duration in whole seconds of Accountable
Incidents
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treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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ii) the date, time and duration in whole seconds of Non-accountable
Incidents
3.1.6 Reportable Incidents
3.1.6.1 All Incidents are Reportable.
3.2 Operational
3.2.1 General
3.2.1.1 CTI will notify the BBC as soon as reasonably possible upon becoming
aware of a Reportable Incident. Where practicable, CTI will also
inform the BBC of the likely duration of the Reportable Incident, and
the steps being taken to rectify it.
3.2.1.2 The detailed Incident reporting procedure will comprise part of the
SLA, but it will be based on the following summary requirements.
3.2.2 Relationships
3.2.2.1 Routine operational business will be conducted on a day-to-day basis
between the BBC and CTI nominated operational points-of-contact,
copying information to the relevant contractual representatives as
necessary. If a dispute arises, it should be escalated to the
nominated contractual representatives of the parties.
3.2.3 Incident Reports
3.2.3.1 General
3.2.3.1.1 Incident reports will only be initiated for Incidents lasting 60
seconds or more.
3.2.3.1.2 The Incident reporting procedure will vary depending on the severity
of the Incident, and the type of Station affected. An indication of
the BBC's initial reporting requirements is given in Table 2 below.
Both the BBC and CTI recognise that these requirements may need to be
modified in the light of operational experience, and so the reporting
mechanism will be subject to a joint annual review.
Table 2
<TABLE>
<CAPTION>
OPERATIONAL PRIORITY STATIONS OTHER STATIONS
----------------------------------------------------------------------
REPORT TYPE 1 2 3 1 2 3
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
INCIDENT TYPE
- ---------------------------------------------------------------------------------------------------------
Failure to transmit the multiplex X X
- ---------------------------------------------------------------------------------------------------------
Transmission of Wrong Programme X X
- ---------------------------------------------------------------------------------------------------------
Failure to transmit a decodable X X
multiplex
- ---------------------------------------------------------------------------------------------------------
RF parameters below failure limit X X
- ---------------------------------------------------------------------------------------------------------
Unavailable ES above failure limit X X
- ---------------------------------------------------------------------------------------------------------
Radiated COFDM BER above failure X X
limit
- ---------------------------------------------------------------------------------------------------------
Transport stream invalid X X
- ---------------------------------------------------------------------------------------------------------
Failure to transmit the SI X X
- ---------------------------------------------------------------------------------------------------------
Failure to transmit other component X X
part(s)
- ---------------------------------------------------------------------------------------------------------
RF parameters below operating limit X X
- ---------------------------------------------------------------------------------------------------------
COFDM BER above operating limit X X
- ---------------------------------------------------------------------------------------------------------
</TABLE>
3.2.3.2 Report Type 1
3.2.3.2.1 A telephone report summarising the nature of the Incident shall be
made by the CTI Operational Point-of-Contact to the BBC Operational
Point-of-Contact within 5 minutes of the Incident being reported
manually or electronically to the TOC, and again within 5 minutes of
the end of the Incident. A written report shall be issued by the CTI
operational point-of-contact to the BBC Operational Point-of-Contact
and the BBC Representative within 10 minutes of end of the Incident.
3.2.3.3 Report Type 2
3.2.3.3.1 A written report shall be issued by the CTI operational point-of-
contact to the BBC Operational Point-of-Contact and the BBC
Representative within 10 minutes of the Incident being reported
manually or electronically to the TOC, and within 10 minutes of the
end of the Incident.
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3.2.3.4 Report Type 3
3.2.3.4.1 The Incident details shall be included in the monthly contractual
report.
3.2.4 Planned Interruptions
3.2.4.1 CTI shall issue a calendar of Planned Interruptions proposed for the
succeeding 12 months on a monthly basis to the BBC Operational Point-
of-Contact, and copied to the BBC Representative.
3.2.4.2 Actual requests for BBC agreement to Planned Interruptions shall be
made by CTI as far in advance as possible, and in any case not less
than 14 days in advance of the commencement date requested for the
work.
3.2.4.3 Exceptionally, CM may need to request BBC agreement to a Planned
Interruption with less than 14 days' notice. The BBC will use
reasonable endeavours to consider such requests, but does not
guarantee to do so. Significant levels of short-notice Planned
Interruptions will invoke the escalation procedures.
3.2.4.4 Text-based confirmation of agreed Planned Interruptions shall be
issued by the CTI operational point-of-contact to the BBC Operational
Point-of-Contact, and copied to the BBC Representative both at the
time of the planning and at the time the work is scheduled to take
place.
3.3 Contractual
3.3.1 General
3.3.1.1 The detailed Contract reporting procedure will comprise part of the
SLA, but it will be based on the following summary requirements:
3.3.2 Relationships
3.3.2.1 Routine contractual business will be conducted between the BBC and
CTI nominated contractual representatives.
3.3.3 Performance Reporting
3.3.3.1 A Contractual report shall be sent by CTI to the BBC Representative
on or before the 10th of each calendar month. The exact format of the
report will be defined during the first six months of this Agreement,
but will cover the following points as a minimum:
3.3.3.2 For the previous month
i) Unweighted Accountable performance by transmission.
ii) Unweighted. Non-accountable performance by transmission.
iii) Weighted Accountable performance by transmission.
iv) Weighted Non-accountable performance by transmission.
v) Response time performance against target for Stations in
vi) Table 3.
vii) Response time performance against target for other Stations.
viii) Commentary expanding on significant variances from the target.
3.3.3.3 For the previous six months
i) Average unweighted Accountable performance by transmission.
ii) Average unweighted Non-accountable performance by transmission.
iii) Average weighted Accountable performance by transmission.
iv) Average weighted Non-accountable performance by transmission.
v) Service Credits incurred in the month of the report.
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3.3.4 Meetings
3.3.4.1 The BBC and CTI Contract Representatives shall meet monthly, or less
frequently by mutual agreement, to undertake a contract performance
review.
3.4 Information Access
3.4.1 CTI will provide an on-line data service. CTI are also to maintain an
up-to-date database containing all Reportable Incident details. Such
details will be maintained for at least the term of this Agreement.
The BBC shall be given on-line access to this database by CTI from
two separate locations to enable it to check the accuracy of fault
reporting, and for ad-hoc performance enquiries.
3.4.2 The database shall contain as a minimum for each Station:
i) technical details
ii) transmitter maintenance team identity
iii) all Incident reports as issued to the BBC
iv) Incident dates and durations
v) Incident details
vi) Incident response time
vii) current availability figure on a monthly basis
viii) historical availability figures on a monthly basis
ix) service message archive
3.4.3 The BBC requires CTI to provide a customised database Graphical User
Inter-face (GUI) which will permit the production of ad-hoc enquiry
reports by the BBC in real time. It is intended that the design of
this GUI will be finalised by agreement between the parties during
the first six months of this Agreement, and the BBC and CTI agree to
progress this in a timely fashion and in good faith.
4 PUBLIC ACCOUNTABILITY SERVICES
4.1 VIEWER COMPLAINTS
4.1.1 If CTI receives complaints from members of the public about problems
with receiving the BBC multiplex or otherwise relating to the BBC's
programmes, it shall not make comment but refer all such members of
the public to the appropriate BBC Customer Services department. CTI
shall only discuss problems with its network of dealer contacts
referred to in 2.1.2 above.
5 PERFORMANCE MEASURES [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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[*]
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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SCHEDULE 9
FORM OF PARENT COMPANY GUARANTEE
THIS GUARANTEE is made the 10th day of February 1998 BETWEEN:
(1) CASTLE TRANSMISSION SERVICES (HOLDINGS) LTD whose registered office is at
Warwick Technology Park, Gallows Hill, Heathcote Lane, Warwick CV34 6TN
(the "GUARANTOR"); and
(2) THE BRITISH BROADCASTING CORPORATION, a corporation incorporated under
Royal Charter, whose principal office is at Broadcasting House, Portland
Place, London W1A 1AA (the "BBC").
WHEREAS
(A) By an agreement of even date between the BBC and CTI, CTI has agreed to
provide certain transmission and related services to the BBC (the
"TRANSMISSION AGREEMENT").
(B) CTI is a wholly owned subsidiary company of the Guarantor as defined in the
Companies Act 1985.
(C) The Guarantor has agreed to guarantee (upon and subject to the terms set
out in this Guarantee) the due performance and observance by CTI of all its
obligations under the Transmission Agreement.
IN CONSIDERATION of the BBC having agreed to enter into the Transmission
Agreement, it is hereby agreed as follows:
1 DEFINITIONS
In this Guarantee terms and expressions defined in the Transmission
Agreement shall, save where the context otherwise requires, have the same
meanings herein.
2 GUARANTEE OF PERFORMANCE
2.1 The Guarantor hereby unconditionally and irrevocably guarantees to the BBC
the due and punctual performance and observance by CTI of all the
obligations of CTI under and pursuant to the Transmission Agreement and
agrees to indemnify the BBC on an after-tax basis against all losses,
liabilities, costs, charges, expenses, actions, proceedings, claims and
demands which the BBC may suffer through or arising from any breach by CTI
of its obligations under and pursuant to the Transmission Agreement.
Without prejudice to the provisions of clause 3 of this Guarantee, the
amount which the BBC shall be entitled to recover from the Guarantor
hereunder in respect of or arising from any breach or default by CTI in the
performance of its obligations or liabilities under or pursuant to the
Transmission Agreement shall not exceed the amount for which CTI itself is
or would be liable in respect of such breach or default, save that the
foregoing limitation does not apply in respect of costs and expenses
incurred by the BBC in enforcing the Guarantor's obligations under this
Guarantee.
2.2 If and whenever CTI defaults for any reason whatsoever in the performance
of any obligation or liability undertaken or expressed to be undertaken by
it under or pursuant to the Transmission Agreement, the Guarantor shall
upon demand perform (or procure performance of) and satisfy (or procure the
satisfaction of) the obligation or liability in regard to which such
default has been made in the manner prescribed in the Transmission
Agreement and so that the same benefits shall be conferred on the BBC as it
would have received if such obligation or liability had been duly performed
and satisfied by CTI.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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3 PRIMARY OBLIGATION
3.1 The Guarantor is deemed to be a principal debtor in respect of its
obligations under this Guarantee and not merely a surety and accordingly
shall not be discharged nor shall its liability be affected by any act,
omission or means whereby it would not have been discharged or its
liability would not have been affected if it had been a principal debtor.
3.2 The BBC shall not be obliged, before enforcing this Guarantee, to have:
3.2.1 taken any action or proceedings against CTI; or
3.2.2 obtained any judgment against CTI; or
3.2.3 proven in any winding-up of CTI or agreed with CTI (or any
administrator, liquidator, receiver or similar person) the amount of
any liability of CTI to the BBC; or
3.2.4 enforced any other security held by it in respect of the obligation of
CTI under the Transmission Agreement; or
3.2.5 exercised, levied or enforced any distress, diligence or other process
of execution against CTI.
3.3 This Guarantee shall be in addition to, and not in substitution for, any
rights or remedies that the BBC may have against CTI arising under or in
respect of the Transmission Agreement or otherwise and may be enforced
without first having recourse to any such rights.
3.4 The liability of the Guarantor under this Guarantee shall not be
diminished by any matter (including without limitation any amendment to
or variation of the Transmission Agreement, or any assignment of this
Guarantee or any administration or winding-up order) that might restrict
the ability of the BBC to bring any action or proceedings against CTI
4 CONTINUING GUARANTEE
4.1 This Guarantee shall be a continuing guarantee and shall continue in
force and effect irrespective of the enforceability of any other
provision of the Transmission Agreement.
4.2 Neither the winding-up, liquidation, dissolution, bankruptcy or any other
disability, limitation, incapacity, event or circumstance in relation to
the Guarantor or CTI nor any change in their respective certificates of
incorporation, memorandum and articles of association, status, function,
control or ownership shall terminate the liability under this Guarantee.
4.3 This Guarantee shall terminate when all obligations to be performed or
discharged by CTI under the Transmission Agreement have been irrevocably
performed or discharged.
4.4 This Guarantee is in addition to and without prejudice to and not in
substitution for or derogation of any other rights or security held by
the BBC or any person for whose benefit this Guarantee is given in
respect of the performance and observance of the obligations of CTI under
the Transmission Agreement and shall extend to any costs, charges and
expenses reasonably incurred by the BBC in enforcing or seeking to
enforce this Guarantee.
5 REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the BBC that:
5.1 it has audited assets of more than (Pounds)100 million;
5.2 it has the power to enter into, perform and comply with all of its
obligations under this Guarantee;
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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5.3 the execution and performance of this Guarantee does not breach its
constitutional documents or any agreement by which it is bound;
5.4 this Guarantee has been duly authorised by it and all necessary consents
and authorisations required by it in relation to this Guarantee have been
obtained and are in force; and
5.5 all other actions, conditions and things required to be taken, fulfilled
and done in order to enable it lawfully to enter into and exercise its
rights and perform and comply with its obligations under this Guarantee,
have been taken, fulfilled and done.
6 ASSIGNMENT AND SUCCESSORS
6.1 The BBC shall be entitled to assign the benefit of this Guarantee to any
firm, person or company to whom or to which the BBC shall make an
assignment of its interest under the Transmission Agreement.
6.2 The Guarantor shall not assign or otherwise transfer, dispose of or part
with any of its rights or obligations under this Guarantee to any person
or deal in any other manner with this Guarantee without the prior written
consent of the BBC, such consent not to be unreasonably withheld. Any
purported assignment in violation of this sub-clause 6.2 shall be
ineffective.
7 JURISDICTION
7.1 Other than as set out above this Guarantee will be governed by and
construed and interpreted in accordance with English law, and the parties
will be subject to the non-exclusive jurisdiction of the English courts.
8 NOTICES
8.1 Any notice to be served by either party shall be in writing and shall be
sent to the following addresses:
GUARANTOR The Company Secretary
Castle Transmission Services (Holdings) Ltd
Warwick Technology Park
Gallows Hill
Heathcote Lane
Warwick CV34 6TN
BBC Director, Policy and Planning
British Broadcasting Corporation
Broadcasting House
London W1A 1AA
Fax No. 0171 436 0393
8.2 Any notice, invoice or other document which may be given by either party
under this Guarantee will be deemed to have been duly given if left at or
sent by post (whether by letter or, where the parties agree in writing, in
any other form) or facsimile transmission to the address set out above or
to any other address notified to each other in writing in accordance with
this clause as an address to which notices, invoices and other documents
may be sent. Any such communication will be deemed to have been made to
the other party:
8.2.1 if sent by hand, when delivered;
8.2.2 if sent by post, 72 hours after the envelope containing such notice
was posted; or
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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8.2.3 if sent by facsimile, when the transmission of the facsimile is confirmed
delivered complete (if delivered on a business day) or if not at 9.30
a.m. (British Standard Time) on the next business day.
For the purposes of this Clause business day means 9 a.m. to 5 p.m. Monday to
Friday every week of the year except for English public and bank holidays. It is
further agreed that notices sent by facsimile will also be confirmed by sending
a signed copy by post, the copy to be posted within 24 hours of sending of the
facsimile.
IN WITNESS whereof this document has been executed as a Deed the day and year
first before written.
The COMMON SEAL of CASTLE
TRANSMISSION SERVICES
(HOLDINGS) LTD was hereunto affixed
in the presence of:
Director
Secretary
The COMMON SEAL of THE BRITISH
BROADCASTING CORPORATION was
hereunto affixed in the presence of:
Director
Secretary
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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Schedule 10
form of site Sharing Agreement
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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DATED 10 February 1998
THE BRITISH BROADCASTING CORPORATION
and
CASTLE TRANSMISSION INTERNATIONAL LTD
AGREEMENT
FOR THE USE OF BUILDING/ROOF-TOP SITE
SHARING FACILITIES
LINKLATERS & PAINES
One Silk Street
London EC2Y 8HQ
Tel: 0171-456 2000
Ref: RMBD/GHC
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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THIS AGREEMENT is made on 10 February 1998 BETWEEN:
(1) THE BRITISH BROADCASTING CORPORATION whose principal address is at
Broadcasting House, Portland Place, London W1 A 1 AA ("the BBC"); and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD (registered number 3196207), a
company incorporated under the laws of England and Wales whose principal
place of business is at Warwick Technology Park, Gallows Hill, Heathcote
Lane, Warwick CV34 6TN ("TX CO");
IT IS AGREED AS FOLLOWS:
1 The licensed use of the BBC's Building(s) (as described in the Building
Schedule(s) annexed hereto) will be provided by the BBC and taken by Tx Co
in accordance with and subject to the particulars and provisions set out in
the following attachments:
(a) The Building Licence Site Sharing General Conditions (Issue 1) or such
amended conditions as may from time to time be substituted by the BBC
with the prior consent in writing of Tx Co (the "GENERAL CONDITIONS")
(b) the "BUILDING SCHEDULES" (which term will include all Supplemental
Building Schedules and Termination Notices (if any) appended from time
to time in accordance with the provisions of the General Conditions
(collectively referred to as the "AGREEMENT")
2 The Agreement is entered into and forms part of a digital terrestrial
television services agreement made between Tx Co and the BBC of even date
(the "DTT SERVICES AGREEMENT")
3 To the extent that there is an inconsistency between the terms of the
Agreement and the DTT Services Agreement the terms of the DTT Services
Agreement shall prevail.
Signed by the BBC /s/ Patricia Hodgson Signed for Tx Co /s/ Alan Rees
-------------------- -----------------
Name Patricia Hodgson Name Alan Rees
--------------------------------- ----------------------------
Title Director of Policy and Planning Title Chief Operating Officer
-------------------------------- ----------------------------
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confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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THE BUILDING LICENCE SITE SHARING GENERAL CONDITIONS ("THE GENERAL
CONDITIONS") (ISSUE 1)
1 DEFINITIONS & INTERPRETATIONS
In these conditions except where the Agreement otherwise requires the
following expressions will have the meanings set out opposite them:
"THE BBC" means the British Broadcasting Corporation (acting through the
BBC Representative).
The "BBC REPRESENTATIVE" means a person or person(s) nominated to Tx Co
from time to time by the BBC to be its contractual point of contact. The
initial BBC Representative will be Mark Evans.
"BUILDING(S)" means the land and/or building(s) and related structures
named in Clause 2 of the Building Schedule(s) (collectively "BUILDING(S)")
the use of which may (as the case may be) be deleted from the Agreement by
the removal of a Building Schedule pursuant to a Termination Notice or
added to the Agreement by the addition or substitution of one or more
Building Schedule(s) both in accordance with the provisions of General
Condition 16.
"BUILDING SCHEDULE(S)"/"SUPPLEMENTAL BUILDING SCHEDULE(S)" means those
Schedules appended to the Agreement describing Tx Co's Equipment for which
it is agreed Facilities at one or more of the Building(s) are to be
provided.
"CHARGES" means the charges and the additional charges (if any) for the
Facilities for Tx Co's Equipment in respect of the Building(s) set out in
Clause 5 of the Building Schedule(s).
"COMMENCEMENT DATE" means the date set out in Clause 3 of the Building
Schedule(s) in respect of each Building which is a date agreed between the
BBC Representative and Tx Co, being a date not less than 30 days after Tx
Co has given to the BBC Representative notice of Tx Co's intention to
install equipment relating to DTT Services in a particular Building.
"DTT SERVICES" means the services to be provided by Tx Co described or
referred to in the DTT Services Agreement.
"DUE DATE" means (in relation to any of the Charges and any other payments
due under the Agreement) the commencement of the relevant charging period
as described in the Building Schedule(s) (or where this is not applicable,
30 days after the issue of an invoice in respect of the same).
"EQUIPMENT HOUSING" means that part of the Building(s) used primarily to
house Tx Co's Equipment and as the same is described in Clause 10 of the
Building Schedule.
"FACILITIES" means the rights granted to Tx Co under the Agreement
including such shared use by Tx Co with the BBC or any third party
permitted by the BBC to use part or parts of the Building(s), and any other
antenna support structures belonging to or otherwise under the control of
the BBC at the relevant Building specified for this purpose) and any non-
exclusive Equipment Housing such rights are more particularly described in
General Condition 2.
"FORCE MAJEURE" means any event or circumstances beyond the reasonable
control of the defaulting party which shall include but not be limited to
Act of God, war, civil disturbance, statutory prohibition, Government
intervention, order or act of Government or local/public authority, acts of
terrorism, fire, lightning, flood, adverse weather conditions which cause
physical damage to property used to supply DTT Services, explosion,
accident, theft or vandalism, national strike action or industrial action
taken by a union provided that neither party
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can rely on strikes, industrial action, theft or acts of vandalism where it
could reasonably have expected to have prevented them or the industrial
action or strike is by its own employees only.
"TX CO" means Castle Transmission International Ltd (acting the Tx Co
Representative).
"TX CO'S EQUIPMENT" means Tx Co's Equipment described in Clause 11 of the
Building Schedule(s) and otherwise installed at the Building(s) (which may
include antennas and equipment bays fixed on any of the locations described
in Clause 11 of the relevant Building Schedule(s) together with any
necessary associated equipment (e.g. transmitters/receivers, equipment
racking and cabling) located in the Equipment Housing or as elsewhere
permitted in the Building). A list of any new associated equipment shall be
provided by Tx Co to the BBC for approval as to its size, type and
positioning at least 14 days prior to the Commencement Date (which approval
will not be unreasonably withheld or delayed).
"TX CO REPRESENTATIVE" means the person(s) named in Clause 1 of the
Building Schedule(s) as the contact point or such alternative person whose
name shall be notified to the BBC from time to time by Tx Co and who should
be contacted initially by the BBC if there are any queries concerning the
Agreement.
"TX CO STATUTORY LICENCES" means any statutory licences required by TX Co
in accordance with the terms of the Agreement.
"PERMITTED USE" means Tx Co's use of the Building to provide DTT Services
for the BBC via Tx Co's Equipment and/or such other uses as may be
permitted from time to time by the BBC and as such Permitted Use is more
particularly described in Clause 6 of the relevant Building Schedule.
"PERMITTED CONTRACTOR(S)" means any one or more of the following:
(i) an employee of Tx Co;
(ii) an employee of a public telecommunications operator as defined
by the Telecommunications Act 1984 (or its statutory equivalent
for the country in question) being a person authorised to run a
public telecommunications system;
(iii) any third party contractor employed by Tx Co for this purpose,
provided the BBC has been given prior notification of the name
of such third party contractor prior to their arrival at the
Building to carry out any permitted works;
all of whom shall be permitted access by the BBC to the Building(s) subject
to these General Conditions.
"SPECIAL CONDITIONS" means any conditions set out in Clause 12 of the
relevant Building Schedule and which shall be supplementary to these
General Conditions save and to the extent that there is any conflict
between any Special Conditions and the General Conditions then and for the
relevant Building the Special Conditions shall prevail.
"TERM" means the term described in Clause 4 of the Building Schedule(s)
during which time the Facilities are available at the Building for the
relevant Tx Co's Equipment and which shall commence from and including the
Commencement Date and end on the termination of the DTT Services Agreement
or pursuant to the variation/termination provisions contained in the
General Conditions subject to any Special Conditions and any reference in
the General Conditions to the Term shall be treated as a reference to the
Term described in the Building Schedule(s) in which it appears.
"TERMINATION NOTICE" means a written notice in the prescribed form served
by either party on the other in relation to any one or more Building(s)
pursuant to General Condition 16 to expire at any
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time during the Term for the relevant Building(s) without reference to the
Commencement Date or the Agreement Date.
"VAT" means valued added tax or any substitute form of taxation on the
supply of goods and services.
2 THE FACILITIES
2.1 PERMITTED USE
2.1.1 Subject to any Special Conditions the BBC shall during the
subsistence of the Term:-
(a) permit TX Co, its employees and Permitted Contractor(s) to install,
retain during the Term, inspect, maintain, repair, renew and remove
as necessary (and at Tx Co's expense) Tx Co's Equipment located in
the Equipment Housing and in, under or over such other part or parts
of the Building(s) as the BBC shall from time to time approve (such
approval not to be unreasonably withheld or delayed) for the
Permitted Use described in Clause 6 of the relevant Building
Schedule;
(b) permit Tx Co to share use of such part or parts of the Building(s)
and such of the BBC's equipment therein (including any standby
generator equipment referred to in Clause 12 of the Building
Schedule(s)), in common with others including the BBC, as the BBC
may from time to time approve (such approval not to be unreasonably
withheld or delayed);
such permission being granted by the BBC to Tx Co to facilitate the
provision by Tx Co of DTT Services via Tx Co's Equipment or to
facilitate any other purpose that may from time to time be approved
by the BBC;
2.1.2 Subject to availability of space, where the existing Equipment
Housing, provided by the BBC, is insufficient for the provision of
DTT Services via Tx Co's Equipment the BBC shall permit additional
Equipment Housing to be erected and/or attached to the Building(s)
subject to the BBC's prior approval of the specifications and
positioning of the same and otherwise subject to the provisions of
the General Conditions (including General Condition 2.2.1).
2.2 EQUIPMENT HOUSING
2.2.1 The Equipment Housing shall be:-
(i) existing Equipment Housing located on the Building and made
available to Tx Co by the BBC; or
(ii) new Equipment Housing agreed with Tx Co and to be provided by
the BBC and erected by the BBC, at the BBC's cost where the
new Equipment Housing is required in order to provide services
to the BBC, or otherwise at Tx Co's cost; or
(iii) new Equipment Housing agreed with the BBC to be provided and
erected under the BBC's supervision by TX Co or any Permitted
Contractor(s), at the BBC's cost where the new Equipment
Housing is required in order to provide services to the BBC,
or otherwise at Tx Co's cost; and
in either (ii) or (iii) above any such Equipment Housing shall
be constructed and installed in accordance with plans
reasonably approved by the BBC and the costs incurred (whether
payable by Tx Co or the BBC as aforesaid) shall include any
costs properly incurred by the BBC in seeking any necessary
planning consents (including any architects', surveyors' and
other professional fees in relation to applying for such
planning consents) in addition to the BBC's reasonable
supervision costs.
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2.2.2 Unless Clause 5(b)(iii) of the Building Schedule(s) provides
otherwise, TX Co shall not be responsible for the payment of any
business rates assessed on any Building on which TX Co's Equipment
is located. Nevertheless, and in the BBC's entire discretion, if in
direct consequence of the installation of Tx Co's Equipment on the
Building additional business rates are payable by the BBC in respect
of the Building(s) or any part thereof and Tx Co's Equipment is
being used other than to provide DTT Services to the BBC then and in
such circumstances the BBC shall be entitled to obtain reimbursement
from Tx Co for the amount of such increase from time to time during
the Term.
2.23 Save only as provided herein and in General Condition 2.2.5 below
nothing in the Agreement shall confer on Tx Co any right to
exclusive occupation of any Equipment Housing, (including any new
Equipment Housing constructed on the Building(s) at Tx Co's cost),
unless there is a specific provision in the Building Schedule(s) to
the contrary, and Tx Co shall not object to the BBC permitting
others (including the BBC) to share occupation of any such Equipment
Housing on such terms as the BBC shall decide, provided such
occupation does not cause any resulting damage to Tx Co's Equipment
or adversely affect the performance of Tx Co's Equipment.
2.2.4 Save only as provided in General Condition 2.2.5 (or unless there is
a specific provision to the contrary in the relevant Building
schedule) any Equipment Housing, whether provided by the BBC, or Tx
Co, and irrespective of the costs paid by Tx Co, shall be deemed to
form part of the Building upon which it is situated control of which
shall vest in the BBC upon completion of its construction and
installation.
2.2.5 Notwithstanding the provisions of General Condition 2.2.4 where the
structure used to accommodate Tx: Co's Equipment consists of one or
more moveable equipment cubicles provided by Tx Co solely for Tx
Co's exclusive use, such Equipment Housing shall be treated as
belonging to Tx Co, and shall be deemed to form part of Tx Co's
Equipment for the purpose of interpreting the General Conditions and
shall remain in the ownership of Tx Co.
2.2.6 Tx Co will be responsible for the security of any Tx Co's Equipment
Housing used solely by Tx Go (including any moveable equipment
cubicles of the kind described in General Condition 2.2.5) and shall
provide the BBC with a key to the same to be retained by the BBC in
a suitable secure position for use in cases of emergency and to
enable the BBC to check that TX Co is complying with its obligations
under these General Conditions.
2.3 ACCESS GENERALLY
2.3.1 Subject to any additional provisions set out in Clause 7 of the
Building Schedule(s) and otherwise subject to any Special Conditions
the BBC grants to Tx Co the rights:-
(i) for Tx Co, its employees and Permitted Contractor(s) to use
any private access roads leading to the Building(s) which are
under the control of the BBC (either with or without motor
vehicles as the BBC shall decide) at all times and as often as
Tx Co shall reasonably require in order to gain access to the
Building(s); and
(ii) with effect from the Commencement Date of sufficient and
reasonable access to and egress from the Building(s) along
such routes in the Building(s) as the BBC shall from time to
time direct and as are reasonably necessary for Tx Co, its
employees and Permitted Contractor(s) in order to enjoy the
Facilities granted and comply with its obligations under these
General Conditions and to view and inspect any of Tx Co's
Equipment, provided Tx Co will be held responsible by the BBC
for the conduct of its employees and Permitted Contractor(s)
during any such visits to the Building(s) and Tx Co shall
procure that such persons comply with the relevant terms of
these General Conditions for this purpose;
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(iii) for any representatives of the Radiocommunications Agency, and
the Director General of Telecommunications (or their statutory
successors) to enter the Building(s) insofar as necessary to
comply with any rights of inspection reserved or implied under
any Tx Co Statutory Licenses.
2.3.2 Notwithstanding the provisions of General Condition 2.3.1, Tx Co
acknowledges that the BBC may refuse entry to any Building(s) to a
person who does not produce a suitable identification pass or other
means of identification as a Tx Co employee or a Permitted
Contractor(s) or representative of any of the bodies referred to in
General Condition 2.3.1 (iii) above to the BBC's Representative or
his nominee at the Building(s) and further that the BBC may refuse
admittance to and require the removal from the Building(s) of any
person whose behavior the BBC's Representative reasonably considers
undesirable and/or likely to disrupt the safe operation of the
Building(s). Tx Co shall further be required to accept
responsibility for the behaviour of any such employees or Permitted
Contractor(s) attending the Building(s) on Tx Co's business and
shall procure that they behave in a responsible manner and comply
with any reasonable requests of the BBC's Representative or his
nominee.
2.3.3 The BBC may from time to time modify the means of access to the
Building(s) or to Tx Co's Equipment on the Building(s) made
necessary by any works in progress, or for reasons of safety, or
generally in the interests of orderly management, provided that any
such restrictions will not otherwise prevent the exercise of Tx Co's
right to use Tx Co's Equipment pursuant to the Agreement (which
modifications may include the imposition of reasonable instructions
regarding admittance to the Building(s) and the number, supervision
and times of visits which may from time to time be made by the BBC
and notified to Tx Co).
3 24 HOUR ACCESS
Where Tx Co requires to visit a Building which is not generally open to 24
hour access the BBC will use all reasonable endeavours to make local
arrangements for Tx Co which will enable 24 hour access to be available in
times of emergency, provided in such circumstances any reasonable
additional staff attendance costs incurred by the BBC are met by Tx Co.
4 THE CHARGES
4.1 For the duration of the relevant Term (and unless otherwise provided in the
Special Conditions commencing on the Commencement Date set out in the
relevant Building Schedule) Tx Co will pay to the BBC the Charges payable
in respect of each of the Building(s) on the Due Date, Including any review
of the Charges pursuant to the provisions of General Condition 4.2, or
until varied in accordance with the provisions of General Condition 16,
free of all deductions.
4.2 Unless otherwise provided in the Special Conditions, the BBC will be
entitled to review at any time the Charges payable under this Agreement,
but in the case of review other than:-
(i) in consequence of a change of Tx Co's Equipment or any other
change to the Facilities required by Tx Co; or
(ii) pursuant to General Condition 5.1;
then such reviews will not occur more often than at annual intervals (or
any greater intervals described in the relevant Building Schedule(s)), and
then only on the BBC giving Tx Co not less than three months' notice in
writing. Such variation in the Charges shall take effect from the date of
expiry of the said notice, and shall be to an amount which the BBC will in
its discretion determine as representing the current open market value for
the Facilities for Tx Co's Equipment.
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4.3 For an Agreement incorporating more than one Building Schedule if Tx Co
wishes to have common Charges payment date(s) and/or common Charges review
dates for all the Buildings at which Facilities are provided under the
Agreement the date(s) stated in Clause 5(c) of the Building Schedule will
apply, instead of those stated under Clause 5(a) of each Building Schedule,
with effect from the date of issue of the Building Schedule in which Clause
5(c) has been completed and shall continue until this provision is deleted
from any subsequent Building Schedule signed by Tx Co, Issued pursuant to
the General Conditions and appended to the Agreement.
5 ELECTRICITY
5.1 Subject to any Special Conditions, unless a separate supply is arranged,
the BBC will use all reasonable endeavours to supply electricity to Tx Co's
Equipment subject to Tx Co reimbursing the BBC's electricity supply charges
in accordance with the provisions of Clause 5(b)(i) of the Building
Schedule(s), including any periodic review of the same which the BBC may
require at any time during the Term if Tx Co's consumption, or the local
electricity/electricity supplier's tariff changes and/or where the BBC has
agreed to make emergency back-up generated supplies available. The BBC
shall not be required to discount its electricity supply costs to TX Co at
the Building(s) to a price below the standard unit tariff price of the
local supply company unless any discounted price obtained is solely
attributable to Tx Co's usage.
5.2 Tx Co agrees that the BBC will not be held responsible by Tx Co for any
failure or interruption to any electricity supply or be held liable for any
costs or damages arising in consequence of any failure to provide the same
caused other than in consequence of any negligent act or omission of the
BBC.
6 ALTERATIONS/ADDITIONS TO TX CO'S EQUIPMENT
6.1 Prior to carrying out any works or alteration or addition to Tx Co's
Equipment during the Term (including any ancillary DTT Services works
pursuant to General Condition 9.13) Tx Co will first notify the BBC
Representative of any such proposals, The BBC may in its discretion require
that any such works carried out on the Building outside the boundary of any
exclusively occupied Equipment Housing are supervised by a BBC employee
(the reasonable costs of which must be met by Tx Co as an additional
charge).
6.2 If any works proposed by Tx Co involve any alterations to any BBC property
(including any part of the Building(s) or any BBC equipment), the BBC may
consent to such works in its discretion, and may also impose conditions
including inter alia the performance of such works by a BBC employee or
otherwise under the supervision of the BBC and where such works are not
required in order to provide any enhanced DTT Services for the BBC as a
customer of Tx Co, the BBC may also impose a requirement for reinstatement
of any BBC property or equipment to its former condition at the
determination of the Agreement (or the determination of that part of the
Agreement relating to the Building(s) in question where applicable) at Tx
Co's cost.
6.3 Where any works involves any material change to the Facilities and/or to Tx
Co's Equipment as described in the Building Schedule(s), the BBC will be
entitled to require Tx Co to agree to vary the Building Schedule(s) in
relation to the Building(s) in question and where appropriate amend the
Charges in consequence.
6.4 Any works proposed by Tx Co requiring planning consent shall be subject to
General Condition 7.
7 PLANNING
Tx Co will not make any applications for planning permission in relation to
the Building(s) or Tx Co's Equipment or any Equipment Housing without the
prior approval of the BBC (such approval
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not to be unreasonably withheld or delayed) provided that the BBC may
(unless otherwise agreed with Tx Co) require, as a condition of giving its
approval, that any such application for planning consent is made by the BBC
acting as agent for Tx Co and in such circumstances, (again unless
otherwise agreed with Tx Co) the BBC shall be entitled to recover from Tx
Co any reasonable costs which it incurs in acting as Tx Co's agent for this
purpose.
8 MAINTENANCE OF TX CO'S EQUIPMENT
8.1 Tx Co will ensure that Tx Co's Equipment is maintained in generally safe
repair and condition during the Term to the BBC's reasonable satisfaction.
8.2 Tx Co will use all reasonable endeavors not at any time electrically or
physically to impair, disrupt, interfere with or interrupt any of the BBC's
or any existing third party users' emissions and forthwith will use all
reasonable endeavours to ensure the repair of any faults in Tx Co's
Equipment which cause or may cause any such interference and will indemnify
the BBC against any costs properly incurred by the BBC or any third party
in remedying any such faults.
8.3 Tx Co will be responsible for keeping:-
(i) any Tx Co's Equipment comprising moveable equipment cubicles in
good repair and condition; and
(ii) the interior of any exclusively occupied Equipment Housing which
accommodates Tx Co's Equipment in a clean and tidy condition and
free from its own rubbish in accordance with any reasonable
requirements from time to time imposed by the BBC for the
benefit of the health and safety of the users of the Building(s)
(including Tx Co) and the efficient operation of the
Building(s); and
(iii) any doors or access openings comprised in any Equipment Housing
(or Tx Co's Equipment comprising moveable equipment cubicles)
free of obstruction.
9 OTHER OBLIGATIONS OF TX CO
TX CO WILL:
9.1 Not start using the Facilities unless or until:-
(i) Tx Co has obtained any requisite Tx Co Statutory Licences in
relation to the Facilities; and
(ii) the BBC has confirmed that any planning or other consents which
it has agreed to obtain on behalf of Tx Co have been obtained
(other than for Facilities already in place at the date of the
Agreement for which prior agreement shall be deemed to have
already been obtained); and
(iii) the BBC has Issued a Building Schedule(s) in respect of the
Facilities to be granted at the Building(s) in question and the
Building Schedule(s) has been signed by Tx Co, dated and annexed
to the Agreement; and
(iv) the agreed Commencement Date occurs.
9.2 Not start any installation of Tx Co's Equipment unless the person to be
employed by Tx Co to carry out any such installation is a Permitted
Contractor(s).
9.3 Where applicable and at its own expense retain throughout the Term Tx Co
Statutory Licences other than as provided in the DTT Services Agreement of
even date to be paid by the BBC, (including any Tx Co Statutory Licences
necessary in respect of any additional Building(s)
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comprised in any Supplemental Building Schedule(s) added to the Agreement
in accordance with the provisions of General Condition 16.7).
9.4 Tx Co agrees to attach permanent identification to all Tx Co's Equipment in
common areas in a manner that has been agreed with the BBC Representative.
9.5 In addition to the Charges pay any other sums payable under the Agreement
(including any due pursuant to General Conditions 2.2, 3, 6.1, 6.3, 7,
9.11, 9.13(iii) and 16.9) on the Due Date.
9.6 Accept that no liability shall attach to the BBC or any BBC employees in
respect of the performance, safety or suitability for its purpose of any Tx
Co's Equipment unless the installation of the same was carried out or
otherwise supervised by or on behalf of the BBC as part of any maintenance
services and except insofar as the BBC is in breach of its maintenance
obligations in respect of any Tx Co's Equipment contained in any
maintenance services agreement.
9.7 Not erect or cause to be erected any buildings or structure or other
erection on the Building(s) save as provided in the Building Schedule(s).
9.8 Not tamper with or carry out any unpermitted works or otherwise cause any
damage to the Building(s) or any other equipment belonging to the BBC or
any third party located on the Building(s).
9.9 In exercising the rights granted under the Agreement, not do or permit
anything to cause interference, nuisance, annoyance, inconvenience, loss or
damage to the BBC.
9.10 Not (save as permitted in General Condition 2.3.1 above) permit or allow
any other persons to visit the Building(s) or handle Tx Co's Equipment
without the prior written consent of the BBC.
9.11 Ensure that while at the Building(s) its employees, and Permitted
Contractor(s) behave in a responsible manner and comply with all the BBC's
reasonable security and/or safety requirements and in the event of any
damage being caused to the Building(s) or to any property or equipment
thereon belonging to the BBC or to any third party in consequence of the
exercise of the Agreement by Tx Co, its employees or its Permitted
Contractor(s) (and not as the result of any negligent act or omission of
the BBC or its employees or contractors) to forthwith reinstate the same to
the BBC's reasonable satisfaction (or where the BBC reasonable requires
reimburse the BBC with the full costs and expenses properly incurred by it
in carrying out such reinstatement on Tx Co's behalf).
9.12 Where any of Tx Co's Equipment is to be placed on, above or below ground
outside the Building(s) boundaries and where the BBC is not otherwise able
to grant any rights of installation over such ground obtain, at its sole
expense, the agreement of any other party or parties having an interest in
such ground prior to installation and shall indemnify the BBC fully in this
respect.
9.13 Negotiate any ancillary DTT Services, including telephone connections which
it requires for its use on the Building, subject to obtaining the BBC's
prior consent (which will not be unreasonably withheld or delayed) to the
location of any equipment relating to the same on or under the Building and
outside the Equipment Housing, provided that Tx Co shall where such works
are not required in order to provide any enhanced DTT Services for the BBC
as a customer of Tx Co be responsible:-
(i) for arranging the removal of any such equipment at the end of
sooner termination of the Term at Tx Co's expense; and
(ii) for the costs of reinstating any damage caused to the Building
by such removal; and
(iii) for reimbursing the BBC's reasonable supervision costs.
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9.14 Not erect or permit or suffer or allow to be erected any sign, notice or
advertisement on the Building(s) save only such sign(s) or notice(s) as the
BBC shall in its reasonable discretion permit and otherwise in accordance
with these General Conditions.
9.15 In no circumstances permit or suffer or allow any of its employees or
Permitted Contractor(s) or any other third party to reside at the
Building(s).
9.16 Not light or permit or suffer to be lit any fire on the Building or on any
access thereto nor block or obstruct nor permit or suffer to be blocked or
obstructed any fire exits or access for fire fighting equipment.
10 SWITCHING OFF TX CO'S EQUIPMENT
BY THE BBC
10.1 Without prejudice to the provisions of General Condition 8.3, Tx Co
acknowledges that the BBC will be entitled to switch off Tx Co's
Equipment:-
(i) in a life or property threatening emergency; or
(ii) where Tx Co's Equipment is causing interference to any of the
telecommunications services of other users of the Building
(including the BBC) and where the BBC has taken reasonable
measures to contact and inform Tx Co that such interference
exists and where practicable to do so the BBC has allowed Tx Co
a reasonable period to remedy any such interference caused by
Tx Co's Equipment, or has otherwise requested Tx Co to switch
off Tx Co's Equipment as required under General Condition 10.5,
but Tx Co has not done so and the interference still exists; or
(iii) if required to do so by a Government authority provided that
the BBC shall use its reasonable endeavours to inform Tx Co of
such requirement before Tx Co's Equipment is switched off; or
(iv) with the agreement and at the request of Tx Co; or
(v) where Tx Co has terminated its requirement for the Facilities
pursuant to General Condition 16.4 but has failed to remove Tx
Co's Equipment; or
(vi) where Tx Co is in material breach of any of the terms of the
Agreement and has not remedied such breach within a reasonable
time of receiving notice from the BBC requiring it to do so.
10.2 Tx Co will provide a switch on Tx Co's Equipment to enable it to be
switched off by the BBC in accordance with General Condition 10.1.
10.3 The BBC shall in the event of Tx Co's Equipment being switched off pursuant
to General Condition 10.1, notify Tx Co of this fact as soon as reasonably
practicable.
BY TX CO
10.4 Tx Co will be required to temporarily reduce power or switch off Tx Co's
Equipment by arrangement with the BBC Representative on being given
reasonable prior notice (or forthwith in the case of an emergency) where
the BBC considers the radiation level of Tx Co's Equipment is unsafe for
access to the relevant Building for essential works by the BBC, its
employees and contractors. In such circumstances Tx Co will be asked to
keep Tx Co's Equipment on reduced power or switched off until all such
persons and their equipment have completed the necessary
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works and vacated the relevant part of the Building. The BBC will make
every reasonable effort to ensure such requests only occur at times when
there will be minimum disruption to DTT Services.
10.5 Without prejudice to the provisions of General Condition 8.3, in the event
of any interference being caused to any of BBC's emissions (or to those of
any other lawful third party users at the Building(s)) by Tx Co's
Equipment, Tx Co shall forthwith either eliminate the interference or where
there is interference which cannot be remedied in such time as the BBC
shall reasonably require, Tx Co shall switch off Tx Co's Equipment until
such time as the interference has been eliminated, the cost of all such
measures to be borne by Tx Co.
11 NO ENLARGEMENT OF RIGHTS
Tx Co acknowledges that the Agreement permits Tx Co to use the Facilities
in accordance with the Building Schedule(s) and that no provisions in the
Agreement are intended to create nor shall be treated or construed as
creating the relationship of landlord and tenant but merely that of the
provider and hirer (respectively) of services and Tx Co makes no claim in
this respect and further accepts that the BBC shall not be restrained by
anything contained in the Agreement from using the Building(s) and any
equipment (other than Tx Co's Equipment) for the purposes of the BBC's
business undertaking or permitting others to use the Building(s) and any
equipment (other than Tx Co's Equipment) including inter alia any non-
exclusive Equipment Housing and access ways (including building risers) as
the BBC may in its discretion decide.
12 INTEREST
If payment of the Charges or any other fees payable under the Agreement are
not made on the relevant Due Date, then without prejudice to any other
rights of the BBC, Tx Co agrees the BBC may charge interest (calculated on
a daily basis) on the outstanding amount from the Due Date until payment,
at the rate of 2% per annum above the base rate of Lloyds Bank plc
applicable during the time of non-payment, or where such rate cannot be
ascertained, at 2% per annum above the average of the base rates of the
London clearing banks in force from time to time during the period of the
delay (without prejudice to any other right or remedy of the BBC under the
Agreement).
13 VAT
13.1 All the Charges and other fees described in the Building Schedule or
otherwise payable under the General Conditions are exclusive of VAT which
shall be charged in addition thereto in accordance with the relevant law in
force at the time of making the relevant taxable supply and shall be
payable by the paying party only against receipt from the other of a valid
VAT invoice in respect thereof.
13.2 Where under the Agreement one party has agreed to reimburse or indemnify
the other in respect of any payment made or cost incurred by the other then
the first party shall also reimburse any VAT paid by the other which forms
part of its payment or costs incurred to the extent that such VAT is not
available for credit for the other (or for the representative member of the
other's VAT group) under Section 25 and 26 of the Value Added Tax Act 1994
(or any replacement or equivalent provision).
14 NO ASSIGNMENT OR SUB-CONTRACTING
14.1 This Agreement is personal to the parties hereto and they shall not assign,
transfer, sub-licence, share use or deal in any manner with the Agreement
or the rights herein contained other than as expressly herein provided.
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14.2 Each of Tx Co and the BBC shall be entitled to transfer the Agreement to
any of its wholly owned subsidiaries provided that:-
(a) each party procures that the transferee is bound by a direct covenant
with the other party to observe inter alia all the terms of this
Agreement; and
(b) if any transferee ceases to be a wholly owned subsidiary of either the
BBC or Tx Co, as the case may be, the Agreement will be transferred
back to Tx Co or the BBC, or one of their wholly owned subsidiaries.
15 INDEMNITY (LIABILITY AND INSURANCE)
This Agreement forms part of the DTT Services Agreement. Accordingly, the
liabilities of the parties are as set out below.
15.1 Each party shall be responsible for the insurance of its property at the
Building(s).
15.2 Both parties must maintain insurance against any loss, damages, claims or
actions arising from:
(a) personal injury or death;
(b) public liability; and/or
(c) any other liability for which either is required by law to insure,
arising out of the performance of this Agreement.
15.3 Tx Co must maintain insurance cover adequate to cover the risks which it is
likely to incur in relation to the subject matter of this Agreement, with a
minimum of:
(a) primary public and product liability insurance in a form reasonably
acceptable to the BBC providing for payment of a sum up to (Pounds)50
million for any one occurrence (or in the annual aggregate for
product liability) and, in the case of third party property damage
arising out of the use of private vehicles, unlimited cover and, in
the case of third party property damage arising out of the use of
commercial vehicles, (Pounds)5 million in respect of one occurrence;
(b) employer's liability insurance sufficient to meet its statutory
requirements and sufficient to cover any liabilities to past or
present employees;
(c) all risks or loss or damage to property and business interruption
insurance in a form reasonably acceptable to the BBC in respect of
the Building(s) and all equipment used to provide the DTT Services
covering the full re-instatement value of all such assets and the
reasonable cost of any replacement transmission services from the
Building(s) or any other stations used to supply any part of the DTT
Services; and
(d) professional indemnity insurance of at least (Pounds)5 million per
year, commensurate with the nature of the risks undertaken in that
year.
15.4 Where requested by the BBC, Tx Co agrees to provide the BBC with a copy of
the relevant policy or policies or evidence of such insurance and its
material terms referred to in this General Condition 15 which shall be
treated as confidential information belonging to Tx Co. Tx Co will also
notify the BBC of any substantive change to the insurance programme
maintained by it and referred to in this General Condition 15 for the risks
covered.
15.5 Where Tx Co engages Permitted Contractor(s), it shall ensure that its
insurance includes cover for its liabilities In respect of the acts and
omissions of the Permitted Contractor(s) or that the
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Permitted Contractor(s) have their own insurance with appropriate cover
in the light of the work to be undertaken by the Permitted
Contractor(s).
15.6 For purposes of this General Condition 15, "CONTRACTS" means this
Agreement, the DTT Services Agreement and any other agreement between
the parties relating to the subject matter of the Contracts.
15.7 Each of the BBC and Tx Co shall indemnify the other on an after-tax
basis against all claims or actions brought against the other by any
third party relating to:
(a) personal injury; or
(b) loss of, or damage to, property; or
(c) Harmful Interference (as defined in the DTT Services Agreement)
caused to analogue or digital broadcasts, excepting any such claims
made by viewers;
caused as a result of any breach of this Agreement or any wilful or
negligent act or wilful or negligent omission by the party from whom
indemnification is sought. Without limiting the generality of this
General Condition 15.7, Tx Co will indemnify the BBC on an after-tax
basis against any claims made against the BBC by any party as a result
of damage caused by Tx Co to the property of that party in installing,
maintaining or operating transmitters for provision of the DTT Services.
15.8 Each of the BBC and Tx Co will indemnify the other on an after-tax basis
against any loss incurred by the relevant party resulting from damage to
that party's property or injury to its employees or the employees of its
agents or sub-contractors arising out of any breach of any of its
obligations, warranties or undertakings contained in any of the
Contracts or any other agreements between the parties relating to the
provision of the DTT Services or any other negligent or wilful act or
omission of the party from whom an indemnity is sought.
15.9 The party from whom indemnification is sought shall have the right to
conduct any proceedings brought by a third party against the other party
or to settle any such proceedings subject to reimbursing the other party
any costs of such proceedings and any damages, costs and expenses
payable by the indemnified party arising out of those proceedings. Both
parties will notify the other as soon as possible of the existence of a
claim which is reasonably likely to give rise to a claim for
indemnification under this General Condition 15.
15.10 Neither party excludes or restricts liability for death or personal
injury resulting from its own negligence or from liability arising under
the Health and Safety at Work Act 1974 or any regulations made pursuant
to that Act.
15.11 Neither Tx Co nor the BBC shall be held responsible for the consequences
of any act or omission or misconduct of any third party, unless:
(a) such third parties are in the employment of or providing sub-
contracted services to either Tx Co or the BBC at the time the
incident takes place; or
(b) the party claimed against has recovered damages in respect of such
act, omission or misconduct directly from the relevant third party
or otherwise where it has recovered insurance (and in each such
case to the extent of such recovery or insurance claim) provided
that where such party is entitled to claim damages and/or recover
under such insurance policy it shall use all reasonable endeavors
to do so as soon as reasonably practicable.
15.12 The BBC, shall not be liable, whether in contract, tort, negligence,
breach of statutory duty or otherwise to Tx Co for loss of profits other
than any element of profit comprised in the Charges
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(as defined in the DTT Services Agreement) or for any indirect, special,
incidental or consequential loss whatsoever arising out of its
performance of or failure to perform any of the Contracts or otherwise.
15.13 The BBC's liability for all matters under the Contracts, other than for
payment of the Charges (as defined in the DTT Services Agreement) or for
payment of any of the termination sums provided for in Clause 12.2 of the
DTT Services Agreement or for any sums payable in respect of Tx Co's
Equipment or in respect of the repudiatory breach of any of the Contracts
or in respect of the content indemnity contained in Clause 4.2.3 of the
DTT Services Agreement, shall be limited to one million pounds
((Pounds)1,000,000) in any year or, if greater, the amount recovered by
the BBC in respect of and to the extent attributable to such loss
pursuant to any insurance policy maintained by the BBC.
15.14 Tx Co's total aggregate liability in respect of all matters under or
arising out of the Contracts in any one year, including in relation to
the payment of liquidated damages and/or Service Credits (as defined in
the DTT Services Agreement), will be limited to the higher of the total
Charges (as defined in the DTT Services Agreement) payable by the BBC to
Tx Co in that year or the amount received by Tx Co in respect of and to
the extent attributable to any such loss pursuant to any insurance policy
maintained by Tx Co, whether such claim arises in contract, tort,
negligence, breach of statutory duty or otherwise.
15.15 Tx Co shall not be liable, whether in contract, tort, negligence, breach
of statutory duty or otherwise, to the BBC for loss of profits or for any
indirect, special, incidental or consequential loss whatsoever whether
incurred by the BBC or a third party arising out of its performance of or
failure to perform any of its obligations under the Contracts or
otherwise.
15.16 For the avoidance of doubt, Tx Co is liable to pay to the BBC any
liquidated damages and/or Service Credits (as defined in the DTT Services
Agreement) payable in accordance with the Contracts.
15.17 The Contracts set out the full extent of each party's obligations and
liabilities relating to the DTT Services whether in contract, tort,
negligence, breach of statutory duty or otherwise. In particular, there
are no conditions, warranties or other terms, express or implied, as to
satisfactory quality, fitness for purpose or of any other kind whatsoever
which are binding on Tx Co except as specifically set out in the
Contracts. Any other condition, warranty or other term relating to the
provision of the DTT Services or the sale of Tx Co's Equipment which
might otherwise have been implied into the Contracts by statute, common
law or otherwise is hereby excluded.
16 VARIATION AND/OR TERMINATION
BY EITHER PARTY:-
16.1 The BBC or Tx Co may determine the Agreement and/or any individual
Building Schedule by delivery to the other party of a final written
notice where:
(i) there has been a material breach of the Agreement in respect of
one or more of the Station(s) by the other party which has not
been rectified within 30 days of an initial written notice
being received by the defaulting party requiring that party to
do so; or
(ii) one party has become insolvent, bankrupt, or is in receivership
or administration.
16.2 The BBC or Tx Co may terminate the Facilities atone or more of the
Building(s) by the termination of the provisions of the Agreement insofar
as they relate to one or more of the Building(s) referred to in the
relevant Building Schedule(s) or by the termination of the provisions of
the Agreement in its entirety where either:
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(i) there is an interruption of these Facilities due to an event of
Force Majeure which has continued for a period in excess of 3
months (and for the avoidance of doubt in such circumstances
the BBC shall not be liable for any loss to Tx Co or others
claiming through Tx Co as a result of such interruption); or
(ii) both Tx Co and the BBC consent to such early termination,
BY TX CO:-
16.3 Tx Co may terminate the Agreement on serving a valid Termination Notice
giving not less than six months' prior notice, to expire at any time
(without reference to the Commencement Date, or the Agreement Date, or
the Term).
16.4 Where the Agreement incorporates more than one Building Schedule Tx Co
may modify the Agreement by terminating its requirement for the
Facilities at one or more of the Building(s) and cancelling the relevant
Building Schedule(s) from the Agreement on serving on the BBC a valid
Termination Notice which gives not less than six months' notice to expire
at any time of its intention to cease using the Facilities at the
relevant Building(s).
16.5 Tx Co may vary the Agreement at any time during the subsistence of the
Agreement in accordance with the provisions of General Conditions 16.4
and 16.7, whereupon the Agreement shall continue in full operation and
effect as amended/extended.
BY THE BBC:-
16.6 Subject to any Special Conditions the BBC may terminate the Agreement, or
(where the Agreement incorporates more than one Building Schedule
terminate or modify the Facilities at one or more of the Building(s):-
(i) on serving on Tx Co a valid Termination Notice giving not less
than six months' prior written notice where the BBC's ability
to continue the Agreement or the provision of the Facilities in
respect of the relevant Building is prevented by an event
beyond the reasonable control of the BBC (which shall include
circumstances where the BBC is unable to renew its rights to
occupy any land or buildings comprised in the relevant
Building(s) and/or where renewal is only available on
unreasonable terms); or
(ii) on serving on Tx Co a valid Termination Notice giving not less
than twelve months' prior notice where the BBC requires all or
any part of the Facilities for the purposes of its undertaking;
(iii) forthwith, (and without prejudice to any right of action or
remedy of the BBC in respect of antecedent breach by Tx Co of
any of the obligations imposed on Tx Co under the Agreement),
where:
(a) any planning or other consent or licence for Tx Co's
Equipment is revoked; or
(b) if Tx Co permits any distress to be levied on Tx Co's
Equipment; or
(c) in the case of any payment to be made to the BBC by Tx Co
under the Agreement, such payment remains in arrears and
unpaid following the Due Date and where the BBC has given
written notice to Tx Co that Tx Co's Equipment will be
switched off and the Facilities terminated unless the BBC
receives the outstanding payment together with interest
within 30 days of the date of such written notice and that
period of 30 days has expired without payment having been
made;
15
<PAGE>
then, and in each such case, the BBC may switch off Tx Co's
Equipment and determine the facilities at the relevant
Building(s) without incurring any liability to Tx Co for the
results of such act and Tx Co will indemnify the BBC against
any loss or claim it may incur as a result of such action or
liability.
GENERALLY:-
16.7 Any variation to the Agreement (including any additional Tx Co's
Equipment, variation in the Charges, or the addition or removal of any
one or more of the Building(s)), shall be recorded by the issue of:
(i) In the case of the addition of a Building; by a Supplemental
Building Schedule signed and dated by the parties and annexed to
the Agreement;
(ii) in the case of the variation of any of the terms in an existing
Building Schedule; by a replacement Building Schedule signed and
dated by the parties and annexed to the Agreement together with
an endorsement an the existing Building Schedule cancelling it
with effect from the date of the replacement Building Schedule;
(iii) in the case of the removal of a Building; by service of a valid
Termination Notice in accordance with the provisions of General
Conditions 16.4 or 16.6 together with an endorsement on the
existing Building Schedule cancelling it with effect from the
date of the expiry of the Termination Notice.
16.8 Following termination of the Agreement by either party or following the
cancellation of a Building Schedule pursuant to any of the provisions of
General Condition 16, the Charges in respect of the relevant Building(s)
shall cease to be payable with effect from the effective termination
date, but without prejudice to the rights of either party to pursue any
action or remedy in respect of any antecedent breach by the other of any
of its obligations under the Agreement (subject to the provisions of
General Condition 15); and without prejudice to the rights of the BBC to
recover any Charges or other sums payable under the Agreement properly
due and outstanding prior to the date of such termination.
16.9 Unless relieved from its obligation by any Special Conditions, Tx Co
shall within 30 days following the expiration of any valid Termination
Notice procure the removal by a Permitted Contractor(s) of all Tx Co's
Equipment from the relevant Building(s) to which such notice relates, and
make good any damage caused by such removal to the BBC's reasonable
satisfaction or in default of making good as aforesaid shall pay to the
BBC on demand the costs properly incurred by the BBC in so removing
and/or reinstating.
17 FURTHER OBLIGATIONS OF THE BBC
THE BBC WILL:
17.1 subject to obtaining all necessary planning and other consents, provide
the Facilities;
17.2 maintain in reasonable repair and condition the exterior and structure of
any Equipment Housing (for the avoidance of doubt this will not include
any Tx Co's Equipment comprising moveable equipment cubicles) during the
Term;
17.3 use all reasonable endeavours, to prevent any equipment located at the
Building(s) and under the BBC's control from causing any interference to
Tx Co's Equipment;
17.4 provide invoices in respect of the costs and expenses of any supervision
or other works performed by the BBC pursuant to the provisions of General
Conditions 2.2.1, 3, 6.1, 6.3, 7, 9.11, 9.13(iii) and 16.9 (where
applicable) such costs and expenses to be calculated at a reasonable
16
<PAGE>
daily rate for any day or part of a day's attendance at the relevant
Building(s); such daily rates to be made available to Tx Co by the BBC on
request;
provided (and for the avoidance of doubt) the BBC will not be in breach of
any of its obligations in this General Condition 17 or elsewhere in the
Agreement where it is prevented from so doing in consequence of an event of
Force Majeure.
18 NOTICES
18.1 Notices (including Termination Notices) invoices or other documents
required or permitted to be given under the Agreement shall be in writing
and shall be sent to the following addressed:-
for Tx Co:
Chief Executive Officer
Castle Transmission International Ltd
Warwick Technology Park
Gallows Hill
Heathcote Lane
Warwick
CV34 6TN
Fax No: 01926 416006
for the BBC:
Director of Policy and Planning
The British Broadcasting Corporation
Broadcasting House
Portland Place
London W1A 1AA
Fax No. 0171 436 0393
18.2 Any notice, invoice or other document which may be given by either party
under the Agreement will be deemed to have been duly given if left or sent
by post (whether by letter or, where the parties agree in writing, in any
other form) or facsimile transmission to the address set out above or to
any other address notified to each other in writing in accordance with this
General Condition as an address to which notices, invoices and other
documents may be sent. Any such communication will be deemed to have been
made to the other party:-
(a) if sent by hand, when delivered;
(b) if sent by post; 72 hours after the envelope containing such notice was
posted; or
(c) if sent by facsimile, when the transmission of the facsimile is
confirmed delivered complete (if delivered on a business day) or if not
at 9:30 a.m. (British Standard Time) on the next business day.
For the purposes of this General Condition, "business day" means 9:30 a.m.
to 5:00 p.m. Monday to Friday every week of the year except for English
public holidays. It is further agreed that notices sent by facsimile will
also be confirmed by sending a signed copy by post, the copy to be posted
within 24 hours of sending the facsimile.
17
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19 DISPUTES
19.1 Any complaints, disputes or problems (each an "ISSUE") relating to this
Agreement will be escalated as set out in this Clause 19.
19.2 Any Issue will be referred in the first instance to the BBC Representative
and either the Project Manager or the Service Manager as appropriate. The
BBC and Tx Co will procure that their respective representatives discuss in
good faith any Issue with a view to resolving it. If an Issue is not
resolved to the satisfaction of either party within 30 days of both parties
having first become aware of it, then either party may refer it to the
Service Management Board.
19.3 If an Issue is referred to the Service Management Board, then each party
must procure that their representatives on the Board discuss the Issue in
good faith at the next meeting of the Service Management Board with a view
to resolving it. Either party may convene a meeting of the Service
Management Board to be held within 14 days of an Issue being referred to
it. If the Issue is not resolved to the satisfaction of both parties within
7 days of the meeting of the Service Management Board, then either party
may require that the Issue is dealt with under Clause 19.4.
19.4 Where an Issue is to be dealt with under this Clause 19.4, the parties will
ensure that, for the BBC, the Director of Policy and Planning, and for CTI,
the Chief Operating Officer, will meet together with a view to resolving
the Issue, The parties will allow 30 days from the date of escalation of
the matter for such consultation or discussions to take place before
referring the Issue to adjudication or initiating any arbitration or other
legal proceedings.
19.5 If an Issue is not resolved pursuant to Clause 19.4 and it relates solely
to matters of an engineering or technical nature, either party may refer it
for adjudication to the President for the time being of the Institution of
Electrical Engineers, or his nominee. The President or his nominee shall
act as an expert, not an arbitrator. The party referring any Issue for
adjudication must deliver to the expert and the other party a notice
setting out the matters in dispute and any relevant supporting evidence.
The other party shall be entitled to reply to the notice and such evidence,
delivering such reply to the expert and the party referring the Issue.
Otherwise, the expert shall be entitled to decide on the procedure he or
she wishes to adopt. Any determination of the expert must be in writing and
shall be final and binding on both parties, failing any manifest error on
the face of the decision. Unless the expert determines otherwise, both
parties will bear their own costs of the determination and half the costs
of the expert.
19.6 If an Issue is not resolved pursuant to Clause 19.4 and it does not relate
solely to matters of an engineering or technical nature, either party may
refer it to mediation in accordance with the Centre for Dispute Resolution
procedures then in force. If after 30 days either party believes that
mediation has not resolved the Issue, then either party may proceed to
litigation. Unless agreed otherwise, each party will bear its own costs of
the mediation and half the costs of any third party involved.
19.7 Except where clearly prevented by the nature of the Issue, the parties must
continue performing their respective obligations under this Agreement while
any Issue is escalated in accordance with this Clause 19.
20 NON-WAIVER
20.1 The failure of either the BBC or Tx Co to enforce the terms of the
Agreement will not constitute a waiver and shall not affect the right to
enforce any terms later.
20.2 The provisions of the Agreement are severable and if for any reason any
provision should be or become void, unenforceable or invalid, the rest of
the Agreement will remain in full force and
18
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effect and the parties will seek to agree additional or amended provisions
to replace the void, unenforceable and invalid provision.
21 CONFIDENTIALITY
21.1 The BBC and Tx Co undertake that while the Agreement is in force they and
their employees and contractors (including any Permitted Contractor(s))
shall keep confidential and not disclose to any third party the contents of
the Agreement or any information which they have received from each other
or which they have made available verbally or in writing in relation to
their respective businesses or operations without the written consent of
the other of the aforegoing, such confidentiality shall include any
technical, operational or financial information relating to the
broadcasting business of the BBC or pertaining to any contractual
relationship between the BBC and Tx Co and/or any third party.
21.2 The obligations set out in General Condition 21.1 shall not apply to
information which is or has become public knowledge (unless as a
consequence of a breach of General Condition 21.1) and shall also not apply
to information either party is required to disclose by order of a court or
order of a competent authority nor to information disclosed in order to
maintain any listing on the stock exchange or disclosed pursuant to
obligations in Tx Co Statutory Licenses.
22 GOVERNING LAW
22.1 The Agreement in so far as it relates to Building(s) in Scotland shall be
governed and construed in accordance with the law of Scotland and the
jurisdiction of the Scottish courts shall apply.
22.2 The Agreement in so far as it relates to Building(s) in England and Wales
(and the Agreement as a whole where it includes one or more Building(s) in
England and Wales) shall be governed and construed in accordance with
English law and the jurisdiction of the English courts shall apply.
22.3 The Agreement in so far as it relates to Building(s) in Northern Ireland
shall be governed and construed in accordance with the law of Northern
Ireland and the jurisdiction of the Northern Irish courts shall apply.
19
<PAGE>
BUILDING SCHEDULE
<TABLE>
- -------------------------------------------------------------------------------------------------------------------------
<S> <C>
1 "TX CO" Contact and address for Notices:
Tx Co Representative (referred to as the Tx
Castle Transmission International Limited Co Representative in the DTT Services
whose registered office is at Warwick Agreement) see General Condition 18
Technology Park, Gallows Hill, Heathcote
Lane, Warwick CV34 6TN
- -------------------------------------------------------------------------------------------------------------------------
2 "BUILDING" 3 "COMMENCEMENT DATE"
------------------------------------------------------------
4 "TERM" see Special Condition 11.7
below (minimum period is the
term of the DTT Services
Agreement)
- -------------------------------------------------------------------------------------------------------------------------
5 "CHARGES" (i) amount: (Pounds)l + VAT per annum
from: The Commencement
Date
(a) Licence Fee Charges (ii) payable: in
accordance with the
provisions of the DTT
Services Agreement
(iii) reviewable: see
Special Condition
11.5 below
- -------------------------------------------------------------------------------------------------------------------------
(b) additional Charges (if any) e.g. (i) electricity: a reasonable sum according to use
(ii) capital cost: none
(iii) other: none
- -------------------------------------------------------------------------------------------------------------------------
(c) (i) common payment date(s) for the Charges: in accordance with the provisions of Clause 11.1 and
11.2 of the DTT Services Agreement
(ii) common Charges review dates: N/A
- -------------------------------------------------------------------------------------------------------------------------
6 "PERMITTED USE": Services under the D17 Services Agreement
(including location of equipment provided by
BT as the distribution network service
provider)
- -------------------------------------------------------------------------------------------------------------------------
7 "ACCESS" None
Special Access provisions (if any)
- -------------------------------------------------------------------------------------------------------------------------
8 "THE BBC REPRESENTATIVE" the BBC Representative named in the DTT
Services Agreement
- -------------------------------------------------------------------------------------------------------------------------
9 "EQUIPMENT HOUSING" (IF ANY) PROVIDED BY THE BBC:
- -------------------------------------------------------------------------------------------------------------------------
10 "TX CO'S EQUIPMENT"
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
20
<PAGE>
- --------------------------------------------------------------------------------
11 "SPECIAL CONDITIONS" (IF ANY)
11.1 Subject to the provisions of Special Condition 11.2, the BBC may relocate
any Tx Co's Equipment at any time to a different location on the Building
(or to a replacement Building) by serving on Tx Co a Termination Notice
giving not less than three months' prior notice. The modified Facilities
will be recorded by the issue of a replacement Building Schedule pursuant
to General Condition 16.7(ii).
11.2 Relocation of Tx Co's Equipment by the BBC pursuant to Special Condition
11.1 will be in the BBC's discretion and subject to:-
(a) prior consultation with Tx Co in accordance with the terms of the DTT
Services Agreement;
(b) no resulting increase in the Charges in consequence;
(c) no resulting diminution of the Facilities available to Tx Co in
consequence;
(d) any necessary relocation works being performed by the BBC, or its
contractor and at the BBC's expense.
11.3 Either party may terminate the Agreement, (or where the Agreement
incorporates more than one Building Schedule terminate the Facilities at a
Building) where the facilities are no longer required for the purposes of
the DTT Services, by serving on the other a Termination Notice giving not
less than three months' prior notice.
11.4 For the purposes of General Condition 16.6(ii) the period of notice
therein shall be reduced from 12 to 3 months.
11.5 For the purposes of General Condition 4.2 reviews shall NOT take place
during the Term.
11.6 The Permitted Use of Tx Co's Equipment described in Clause 6 shall be
limited to use for the performances of the DTT Services Agreement and not
the provision of any other third party service without the express prior
written consent of the BBC (which without the express prior written
consent of the BBC (which consent may, in the BBC's absolute discretion,
be granted subject to the negotiation of any necessary modifications to
the Agreement (including modifications to the financial terms).
11.7 The Agreement will continue in force in relation to the Permitted Use and
in respect of Tx Co's Equipment described in Clause 6 above, subject to
General Condition 16, and any of these Special Conditions, until either
party gives to the other not less than 12 months' prior written notice of
termination. The Agreement will co-terminate with the DTT Services
Agreement.
- --------------------------------------------------------------------------------
Signed for the BBC: Signed for Tx Co:
- --------------------------------------------------------------------------------
Date of Issue: the Agreement Date
- --------------------------------------------------------------------------------
Date of termination: by Termination Notice/or where superseded
by a Supplemental Building Schedule
- -------------------------------------------------------------------------------
21
<PAGE>
(Note where there is more than one Building or separate Charges or length of
Term required for different places of Tx Co's equipment on the same Building,
then separate Building Schedule sheets should be completed for each Building.)
22
<PAGE>
TERMINATION NOTICE
THIS TERMINATION NOTICE IS VALIDLY GIVEN WHERE IT IS SERVED PURSUANT TO THE
TERMS OF THE AGREEMENT AND SUBJECT TO THE PROVISIONS CONCERNING TERMINATION
CONTAINED IN THE GENERAL CONDITIONS. SERVICE OF THIS NOTICE DOES NOT AFFECT THE
CONTINUATION OF THE AGREEMENT INSOFAR AS IT RELATES TO ANY OTHER BUILDING(S) NOT
THE SUBJECT OF THIS NOTICE.
- ----------------------------------------------------------------------------
1 Tx Co NAME:
ADDRESS:
- ----------------------------------------------------------------------------
2 The Agreement DATE:
- ----------------------------------------------------------------------------
Notice is served pursuant to the (i) GENERAL CONDITION(S):
General Condition(s) named in this
Notice and the period of Notice is in (ii) PERIOD OF NOTICE:
accordance with those General
Conditions
- ----------------------------------------------------------------------------
4 This notice relates to either:-
(i) the Building(s) named in this (i) BUILDING NAME;
Notice;
or
(ii) THE AGREEMENT (DELETE IF
(ii) the Agreement (in its entirety) NOT APPLICABLE)
- ----------------------------------------------------------------------------
- ---------------------------------------------------------------------------
SERVED BY: ___________________________________________________(AUTHORIZED
SIGNATORY
- ---------------------------------------------------------------------------
PRINT NAME OF
SIGNATORY:___________________________________________________________
- ---------------------------------------------------------------------------
DATE OF DESPATCH:
________________________________________________________________
- ---------------------------------------------------------------------------
23
<PAGE>
SCHEDULE 11
SECURITY, FIRE PREVENTION AND DISASTER RECOVERY SERVICES
1 PREVENTATIVE MEASURES
1.1 SECURITY
1.1.1 CTI shall provide protection to all equipment and facilities used in the
provision of the DTT transmission service, including deterrent and
detection systems to prevent unauthorized entry to Stations and IT systems
used in delivery of the DTT transmission service. A basic level of
security protection (to be agreed by the BBC) is to be provided at all
Stations. Additional measures (for example extra security fencing,
cameras, external alarms and secure cell (limited access within building)
facilities) are also to be provided at certain stations. These stations
and the details of these additional measures are to be agreed between the
BBC and CTI.
1.2 FIRE PREVENTION
1.2.1 The BBC's DTT building at each Station will be equipped with a fire
detection alarm system. Each cell within the building which will either
contain one Multiplex Service or Landlord's Equipment will be given its
own 'Detection Zone' and this will be signalled back to TOC via an
Automatic Fault Reporter. Each cell within the building will be built to a
standard that will give a one hour fire withstand between it and the
neighbouring cells. Appropriate portable fire extinguishers will be
located throughout the installation.
2 DISASTER RECOVERY PLAN
2.1 Within six months of contract signature CTI will develop at its cost a
Disaster Recovery Plan for the DTT Transmission Services to be reviewed
and agreed with the BBC. This will include development of a "Disasters and
Emergencies Procedures Manual" together with an appropriate disaster
recovery test plan. A formal disaster recovery test will be carried out
and the Disasters and Emergencies Procedures Manual will be updated by CTI
on an annual basis. The timetable of the disaster recovery tests is to be
agreed between the BBC and CTI.
2.2 The Disaster Recovery Plan will cover security, fire, mast collapse,
system management (TOC) failure and the provision of replacement broadcast
and distribution equipment.
2.3 CTI will ensure that all services covered in this Schedule II will be
provided for all Stations including those operated by NTL.
3 DISASTER RECOVERY FACILITIES
3.1 DTT EMERGENCY EQUIPMENT
3.1.1 CIT shall provide two new containerised DTT transmission systems, one
commensurate with the high power transmitters, one commensurate with low
or medium power transmitters, for each Multiplex that CTI operate.
3.1.2 In the event of fire destroying a mains supply and the transmitter site's
backup generator simultaneously, a containerised generator will be made
available by CTI within 24 hours except at Eitshal, Bressay, Keelylang
Hill and Torosay, where reasonable endeavours will apply.
3.2 LOSS OF COMPLETE TRANSMITTING STATION (EXCLUDING ANTENNA SYSTEM)
3.2.1 CTI shall ensure that an emergency container transmitter will be delivered
to any Station on the mainland of the UK and Northern Ireland within 24
hours. CTI shall ensure that full service will be resumed within 48 hours
of delivery.
1
<PAGE>
3.3 MAJOR DAMAGE TO MAST AND/OR ANTENNA SYSTEM
3.3.1 CTI shall ensure that the following items, or similar functional
equivalents, are held as emergency cover in the event of major damage to
masts and/or antenna systems:
. 210m Reserve Mast
. 80m Reserve Tower
. 16 Lambda Main UHF Antenna
. 4 Lambda UHF Antenna
. 5 inch Feeder
. 3 inch Feeder
. UHF Combiner
. Handbooks
3.3.2 A separate digital reserve antenna system will also be provided by CM
consisting of.
. 2 Broadband 8 Lambda 4 panel UHF Antennas
. 2 inch feeder
. a modular combiner
3.3.3 The BBC recognise that service recovery times will depend upon the
severity of damage, and that the erection time for the 210m mast is
between four and five weeks.
3.4 TECHNICAL OPERATIONS CENTRE (TOC)
3.4.1 CTI shall provide a back-up technical operations centre, remotely located
from the TOC. Both centres shall have fully duplicated computer systems.
Data communications from Stations to these computer systems shall have
reserve (ISDN) facilities which are selected automatically in the case of
failure of the primary communications link.
3.4.2 In the event that the TOC needs to be abandoned, staff shall transfer to
the back-up centre and the operation be resumed within one hour with no
loss of monitoring data.
4 DISASTER RECOVERY PROCEDURES
4.1 GENERAL
4.1.1 In the event of a serious incident CTI shall follow the procedures laid
down in the Disaster Recovery Plan to be developed and agreed in
accordance with Section 1 of this Schedule 11. Key requirements of this
plan are summarised below.
4.2 NOTIFICATION
4.2.1 In the event that a potentially catastrophic incident is detected, which
will impair or interrupt service from one or more Stations for an
extended period, CTI shall immediately notify the following BBC contacts
in the sequence described:
. Presentation Engineering Co-ordinator (24 hours a day)
. BBC Representative (24 hours a day)
. Engineering Information Department (Office Hours only)
4.2.2 CTI and the BBC Representative will jointly assess the implications of
the incident and will follow the agreed Disaster Recovery Plan.
4.3 SERVICE PRIORITY
4.3.1 In the event of failure of more than one service at a Station, the order
of priority for service restoration will be in accordance with the
Disaster Recovery Plan.
2
<PAGE>
4.3.2 A summary of the proposed restoration sequence to be contained in the
Disaster Recovery Plan, subject to agreement with the D-Mux group is set
out in the table below:
------------------------------------------------------------------------
SERVICE DATE RESTORATION SEQUENCE
AFFECTED
------------------------------------------------------------------------
DTT Only Any time Multiplexes in descending order of
population served
------------------------------------------------------------------------
Analogue and Early years Analogue in accordance with Analogue
DTT Contract DTT multiplexes in descending
order of population served
Later years* DTT multiplexes in descending order of
population served
Analogue in accordance with Analogue
Contract
------------------------------------------------------------------------
* The changeover date will be selected by the BBC, and will be influenced
by DTT take-up.
3
<PAGE>
SCHEDULE 12
TECHNICAL ARCHITECTURE
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
2
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
3
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
5
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
6
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
7
<PAGE>
[*]
12.8 ON-LINE STATUS INFORMATION TO BBC
[*]
12.8.2 The proposed system is shown below:-
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
8
<PAGE>
[Diagram illustrating the system by which CTI will provide the BBC with online
status information]
2.8.3 A dedicated database will be provided to hold a subset of the alarms
and current status of all the DTT Stations. This database will be kept
to within one minute of the status that is known at the TOC system.
12.8.4 A Windows application will be supplied to access the database and
provide a graphical overview of the entire network, as well as showing
more detail on individual Stations when required. It will be possible
to do ad-hoc reports on this database.
12.8.5 CTI will provide suitable systems to protect the networks of both CTI
and the BBC. This will include firewalls on the telecommunications
links and virus checking on the BBC Network Status system computer.
12.8.6 The BBC will use reasonable endeavours to ensure that the systems
located on its premises are physically secure, and to protect them
against local attack or unauthorised use.
12.8.7 The data circuit, PC (for use at the BBC centre), database and Windows
application will form part of the Transmission Service and will be the
responsibility of CTI. The monitoring of this circuit and PC will be
incorporated into CTI's existing Network Management system.
12.8.8 Further details of the functionality of the on-line system are
provided in Schedule 8.
9
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
10
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
11
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
12
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
13
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
14
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
15
<PAGE>
SCHEDULE 13
References
[Table listing references]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
1
<PAGE>
EXHIBIT 10.34
DATED 18 December 1997
______________________________
(1) BRITISH DIGITAL BROADCASTING PLC
and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD
______________________________
AGREEMENT
FOR THE PROVISION OF
DIGITAL TERRESTRIAL TELEVISION DISTRIBUTION
AND TRANSMISSION SERVICES
______________________________
CLIFFORD CHANCE
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS AND INTERPRETATION........................................
2. THE SERVICES..........................................................
3. OWNERSHIP OF THE NETWORK AND SCOPE OF THIS AGREEMENT..................
4. ROLL-OUT OF THE STATIONS AND DISTRIBUTION NETWORK.....................
5. TESTING...............................................................
6. CONSEQUENCES OF FAILURE TO ACHIEVE READY FOR SERVICE DATES............
7. MODIFICATIONS TO EXISTING ANALOGUE TRANSMISSION SYSTEMS...............
8. SECURITY AND SITES....................................................
9. INDUSTRY LIAISON AND SPECTRUM MANAGEMENT..............................
10. LICENSES..............................................................
11. BDB SIGNALS...........................................................
12. EQUIPMENT LOCATED AT BDB PREMISES.....................................
13. CONTRACT MANAGEMENT, REVIEW OF SERVICES AND DISPUTES..................
14. PERFORMANCE MONITORING AND REPORTING..................................
15. MAINTENANCE...........................................................
16. CHANGE CONTROL........................................................
17. CHARGES, SAVINGS, PAYMENT AND BILLING.................................
18. TERM, TERMINATION AND SUSPENSION......................................
19. WARRANTIES............................................................
20. FORCE MAJEURE.........................................................
21. LIABILITY AND INSURANCE...............................................
22. ASSIGNMENT AND SUB-CONTRACTING........................................
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
23. INFORMATION AND CONFIDENTIALITY...................................
24. NOTICES...........................................................
25. [*]...............................................................
26. RESTRICTIVE TRADE PRACTICES.......................................
27. GENERAL...........................................................
28. VALUE ADDED TAX...................................................
29. JURISDICTION......................................................
30. COUNTERPARTS......................................................
SCHEDULE 1..................................................................
CHANGE CONTROL PROCEDURE....................................................
SCHEDULE 2..................................................................
THE CHARGES.................................................................
SCHEDULE 3 CONFIGURATION OF THE NETWORK.....................................
SCHEDULE 4..................................................................
SERVICES PROVIDED BY CTI....................................................
SCHEDULE 5..................................................................
TRANSMISSION TESTING........................................................
SCHEDULE 6..................................................................
THE BDB INTERFACE AND HANDOVER REQUIREMENTS.................................
SCHEDULE 7..................................................................
CALCULATION OF DELAY REBATES AND SERVICE CREDITS............................
SCHEDULE 8..................................................................
STATIONS....................................................................
SCHEDULE 9..................................................................
THE IMPACT SCHEDULE (BDB DTT ANALOGUE CONSEQUENTIALS).......................
________________________________________________________________________________
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
3
<PAGE>
SCHEDULE 9 - TABLE 1..........................................................
SCHEDULE 10...................................................................
[*]...........................................................................
SCHEDULE 11 - EMERGENCY EQUIPMENT/DISASTER RECOVERY PROCEDURES................
SCHEDULE 12...................................................................
ADDITIONAL STATIONS...........................................................
ANNEX 1.......................................................................
THE SATELLITE DISTRIBUTION NETWORK............................................
ANNEX 1 - PART 1..............................................................
SUBSTITUTE SCHEDULE 2.........................................................
ANNEX 1 - PART II.............................................................
SUBSTITUTE SCHEDULE 3 - PART I................................................
ANNEX 1 - PART III............................................................
SUBSTITUTE SCHEDULE 6 - PART I................................................
ANNEX 1 - PART IV.............................................................
SUBSTITUTE SCHEDULE 11........................................................
ANNEX 2.......................................................................
________________________________________________________________________________
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
4
<PAGE>
THIS AGREEMENT is made on 18 December 1997 between:
(1) BRITISH DIGITAL BROADCASTING PLC (No. 3302715) (a company incorporated
under the laws of England and Wales) whose registered office is at 25
Knightsbridge, London, SW1X 7RZ ("BDB"); and
(2) CASTLE TRANSMISSION INTERNATIONAL LTD (No. 3196207) (a company incorporated
under the laws of England and Wales) whose registered office is at Warwick
Technology Park, Gallows Hills, Heathcote Lane, Warwick CV34 6TN ("CTI").
WHEREAS:
(A) BDB intends to provide multiplex services over the frequencies allocated to
BDB by the ITC in relation to digital terrestrial television services,
ancillary services and additional services; and
(B) This Agreement sets out the terms and conditions on which CTI has agreed to
provide, amongst other things, distribution and transmission services to
BDB in relation to the BDB Multiplexes and to procure, construct, operate,
maintain and provide the necessary network for the provision of those
services.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
"ACCOUNTABLE AVAILABILITY" has the meaning set out in Schedule 7;
"ACCEPTANCE TEST SPECIFICATIONS" means the tests to be performed by CTI (as
described in Clause 5) in order to determine whether the Network and any
particular Station are ready for Operational Service as set out in Part I
of Schedule 5;
"ACTUAL SITE SERVICE DATE" means, in respect of each Station, the date on
which the Station is brought into Operational Service;
"ADDITIONAL STATIONS" means any Stations not listed in Schedule 8 which the
parties agree to incorporate into this Agreement in respect of which CTI
shall provide Services:
"ADVANCE PAYMENT" shall have the meaning ascribed to it in the Pre-Contract
Funding Agreement;
"ADVANCE WORKS" shall have the meaning ascribed to it in the Pre-Contract
Funding Agreement;
5
<PAGE>
"AGREED IMPACT SCHEDULE" means the document summarizing the modifications
to be performed by CTI to existing analogue transmission systems
(including, but not limited to, certain of those changes identified in the
ITC Code of Practice on Changes to Existing Transmission and Reception
Arrangements) in Schedule 9;
"AGREED PROPORTION" means [*];
"AMENDED SITE SERVICE DATE" means, in respect of each Station, the amended
date on which the Station is to be brought into Operational Service where
the Initial Site Service Date has been amended pursuant to the terms of
this Agreement;
"AVAILABILITY" means the period of time during which the DTT Transmission
Services and Distribution Services are to be available in respect of a
particular BDB Multiplex from a particular transmitter in accordance with
the terms and to the standards required under this Agreement (including,
without limitation, the Technical Specification);
"1990 ACT" means the Broadcasting Act 1990 (as amended by the 1996 Act);
"1996 ACT" means the Broadcasting Act 1996;
"BDB INTERFACE" means an interface point from the output of the equipment
providing transport streams for each of the BDB Multiplexes at BDB's
multiplex centre to the Distribution Network as more particularly described
in Schedule 6;
"BDB MULTIPLEXES" means the multiplex services known as Multiplexes B, C
and D for digital terrestrial television, provision of which by BDB is
licensed by the ITC under the Multiplex Licences;
"BDB REPRESENTATIVE" means the person notified from time to time by BDB to
CTI for the purposes of Clauses 14 and 15, and Schedule 2;
"BDB SIGNALS" means the digital transport stream originated by BDB from the
BDB Interface as described in Schedule 6 carrying, amongst other things,
the digital programme services, ancillary services and digital additional
services broadcast as part of the services licensed under the Multiplex
Licences from time to time (for the purpose of this definition, the terms
digital programme service, ancillary service and digital additional service
shall have the meanings ascribed to them in Part I of the 1996 Act);
"BUSINESS DAY" means a day on which banks are generally open for business
in the City of London, Saturdays and Sundays excluded;
"CHANGE CONTROL PROCEDURE" means the procedure set out in Schedule 1;
"CHARGES" means charges payable by BDB for the Services calculated in
accordance with Schedule 2;
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
6
<PAGE>
"COMMENCEMENT DATE" shall, in respect of each of the Multiplexes, have the
meaning ascribed to it in the relevant Multiplex Licence;
"CONTINGENCY AMOUNT" means the contingency amount included in the Charges
as set out in Part IV of Schedule 2;
"CONTRACTED AVAILABILITY" means in relation to each BDB Multiplex the end
to end Accountable Availability, from the BDB Interface to the output of
each Station, which CTI is contracted to provide in relation to the
Services pursuant to Clause 2 and Schedule 7;
"DELAY REBATE" means the rebate on the Charges to be given by CTI to BDB in
respect of any failure by CTI to meet the relevant Ready for Service Date
in respect of any Station, being described in and calculated in accordance
with Schedule 7;
"DESIGN AND OPTIMISATION CONSULTING SERVICES" means technical advice and
consultation, prior to the Start of Service Date for the Phase I Stations,
provided in order to optimise the coverage and capability of the
Transmission Network, including SI Interface design and the enhancement of
antenna patterns;
"DISASTER RECOVERY SYSTEMS" means the disaster recovery systems and
procedures to be established by CTI pursuant to Clause 14 as more
particularly described in Part II of Schedule 11;
"DISTRIBUTION NETWORK" means the network to be used by CTI to distribute
the BDB Signals from the BDB Interface to the Stations, details of which
are set out in Part I of Schedule 3;
"DISTRIBUTION SERVICES" means the distribution by CTI of the BDB Signals
from the BDB Interface to the Stations via the Distribution Network
pursuant to this Agreement;
"DTT TRANSMISSION SERVICES" means the transmission services to be provided
by CTI to BDB in accordance with the Technical Specification at each
Station pursuant to this Agreement;
"EMERGENCY POWERS" means a power exercisable by a Minister of the Crown
pursuant to any legislation enacted or made to deal with a public
emergency, including the Emergency Powers Act 1920 and any regulation made
under it;
"EMERGENCY RESERVE EQUIPMENT" means the equipment more particularly
described in Part I of Schedule 11;
"EQUIPMENT" means the equipment used by CTI in the provision of the
Services;
"ERP" means the effective radiated power to be transmitted for a BDB
Multiplex at each Station as set out in Schedule 8;
7
<PAGE>
"EXCLUSIVE EQUIPMENT" means the transmitters, transmitter input equipment
and TVROs at Stations used solely for the provision of the Services;
"FAULT REPORT" means a report relating to any Transmission Fault given by
CTI to BDB pursuant to Clause 14.3;
"FIBRE DISTRIBUTION NETWORK" means the fibre distribution network details
of which are set out in Schedule 3;
"FORCE MAJEURE EVENT" means any events or circumstances beyond the control
of either party (which shall include but not be limited to Act of God, war,
civil disturbance, statutory prohibition, Government intervention, order or
act of Government or local/public authority, act or omission of any
relevant licensing or other regulatory authority not caused by the party,
act or threat of terrorism, fire, lightning, flood, other extreme weather
conditions which cause physical damage to property used to supply the
Services or prevent access to or safe working on any such property,
explosion, theft or vandalism (subject in either case to compliance by CTI
with Clause 8), lawful national strike action or lawful industrial action
taken by members of a union (other than industrial action taken by the
party's own employees or employees of its sub-contractors)) but excluding
the consequences of any act or omission of any of the party's sub-
contractors unless that act or omission is itself the result of a Force
Majeure Event;
"GROUP" means in relation to any company, that company and any company
which is a holding company or subsidiary of that company and any subsidiary
of any such holding company; and for the purposes of this Agreement
"subsidiary" and "holding company" have the meanings ascribed thereto by
Sections 736 and 736A Companies Act 1985;
"HANDOVER REQUIREMENTS" means the requirements in relation to the BDB
Signals set out in Schedule 6;
"INITIAL SITE SERVICE DATE" means, in respect of each Station, the initial
date on which CTI agrees to bring the Station into Operational Service as
set out in Clause 4.2 or in respect of Additional Stations, such date as
maybe agreed between the parties;
"ITC" means the Independent Television Commission established by the 1990
Act and any successor body to the functions of the ITC in relation to the
BDB Multiplexes;
"MULTIPLEX CENTRE" means the location of the BDB Interface;
"MULTIPLEX LICENCES" means the licences to provide multiplex services
granted to BDB by the ITC under Part I of the 1996 Act for the provision of
multiplex services as defined in Section 1(1) of the 1996 Act and any
licences replacing the same. The current draft of the Multiplex Licence
(minus condition 10 and Part I of the annex to
8
<PAGE>
the draft Multiple Licence and all documents and correspondence referred to
in that annex) as at the date of this Agreement is set out in Annex 2;
"NETWORK" means the network of facilities and equipment used to provide the
Services to BDB (including, without limitation, the Distribution Network
and the Transmission Network) which is owned or procured by CTI and the
configuration of which is more particularly described in Schedule 3;
"NETWORK STATUS SYSTEM" means the system to be installed by CTI pursuant to
Clause 14.1 as more particularly described in Part III A of Schedule 3;
"NON-ACCOUNTABLE CONDITION" shall have the meaning ascribed to it in
Schedule 7;
"NTL" means National Transcommunications Limited (company number 2487597) a
company registered in England and Wales, or any successor to the ownership
of the digital terrestrial television transmission network operated by NTL;
"OPERATIONAL SERVICE" means, in respect of the Network and, without
limitation, each Station the ability of CTI to provide the Services and of
the Network (including, but not limited to, each Station) to perform in
accordance with this Agreement (including, but not limited to, the
Technical Specification);
"PHASE I, PHASE II AND PHASE III STATIONS" means the stations specified as
such in Part IV of the annex to the Multiplex Licences;
"PRE-CONTRACT FUNDING AGREEMENT" means the pre-contract funding agreement
between the parties of even date herewith;
"RADIOCOMMUNICATIONS AGENCY" means the executive agency forming part of the
Department of Trade and Industry responsible for issuing and administering
licences under the WTA and any successor body responsible for those
functions;
"RADIO-REGULATIONS" means the Radio Regulations of the International
Telecommunications Union or any replacement for such regulations and
includes all related regional agreements;
"READY FOR SERVICE DATE" means, in respect of each Station, the date on
which CTI agrees to bring the Station into Operational Service being either
the Initial Site Service Date or the Amended Site Service Date determined
in accordance with the provisions of Clause 4;
"RECEPTION SURVEY" means the survey of the coverage achieved from each
Station to be conducted by CTI pursuant to Clause 14. 10 as more
particularly set out in Part IV of Schedule 4;
"RESPONSE TIMES" shall have the meaning set out in Clause 14.4 and Schedule
8;
9
<PAGE>
"RPI" means the general index of retail prices (all items) as published in
the monthly Digest of Statistics by the UK Central Statistical Office, as
amended from time to time, or, if that index is no longer published, any
equivalent replacement of the same agreed by the parties or, where they
fail to agree, selected by an independent expert appointed by the President
of the Institute of Chartered Accountants in England and Wales;
"SATELLITE DISTRIBUTION NETWORK" means the satellite distribution network
details of which are set out in Annex 1;
"SERVICES" means the Distribution Services, the DTT Transmission Services,
the SI Collation Services, the Design and Optimisation Consulting Services
and such other services as are to be provided by CTI to BDB pursuant to
this Agreement;
"SERVICE CREDITS" means credits against Charges in respect of CTI failing
to meet the Contracted Availability calculated in accordance with Schedule
7;
"SERVICE MANAGEMENT BOARD" means the committee to be established by the
parties pursuant to Clause 13.2;
"SHARED EQUIPMENT" means Equipment forming part of the Network which is not
exclusively dedicated to the provision of the Services to BDB;
"SI" means service information as defined in the European Telecommunication
Standard pr ETS 300 468;
"SI COLLATION SERVICES" means collation of SI from all other multiplexes
used for digital terrestrial television transmission, to the extent there
is any, into each of the BDB Multiplexes as more fully described in Part
I.A. of Schedule 3;
"SITE" means the site at which any Station is located;
"SITE OWNER" means in respect of any Site any party with a freehold or
leasehold interest in or a licence to occupy that Site;
"START OF SERVICE DATE" means the date identified in the Multiplex Licences
for each Station as the date upon which broadcasts of the Licensed Service
must commence from that Station;
"STATIONS" means the transmitting stations at the sites listed in Schedule
8, as amended from time to time pursuant to this Agreement, and any
Additional Stations;
"TA LICENCES" means any licences required by CTI under the Telecoms Act to
provide the Services;
"TARGET SITE SERVICE DATE" means the target date for bringing each Station
into Operational Service as set out in Schedule 8, Table 1;
10
<PAGE>
"TECHNICAL SPECIFICATION" means the provisions of this Agreement relating
to the technical performance of the Network and the Services, as set out in
Schedule 5;
"TELECOMS ACT" means, in relation to the UK, the Telecommunications Act
1984. or such equivalent statutes as are from time to time in force in the
Channel Islands or the Isle of Man as the case may be;
"TEMPLATES" means in relation to each Station, the transmitter horizontal
radiation pattern templates for that Station (as the same are defined in
the station design proposals (known as the Digital Television Planning
Group Notes) issued or to be issued by the ITC);
"TERM" means the period commencing on the date hereof and ending on the
date which is 12 years from the Commencement Date of the list of the
Multiplex Licences:
"TEST TRANSMISSIONS" means the test transmissions to be made from each
Station pursuant to Clause 5.6, as more particularly detailed in Part IV of
Schedule 4;
"THIRD PARTY SITE" means any Site in respect of which a third party
(including, without limitation, NTL) is the Site Owner;
"TOC" means CTI's technical operations centre currently located at Warwick;
"TRANSMISSION FAULTS" means any break, interruption, discontinuance,
degradation or other impairment of the transmission of the BDB Signals
resulting in performance outside the Transmission Fault Thresholds
specified in the Technical Specification,
"TRANSMISSION FAULT THRESHOLDS" means the transmission fault thresholds set
out in Part II of Schedule 5:
"TRANSMISSION HOURS" means 24 hours a day or such other times, in respect
of each of the BDB Multiplexes, during which BDB wishes to transmit BDB
Signals from that BDB Multiplex;
"TRANSMISSION NETWORK" means the network to be used by CTI to provide the
DTT Transmission Services, details of which are set out in Part II of
Schedule 3:
"TRANSMISSION TESTING" means the carrying out of tests to determine whether
the Network or any particular Station satisfy the Acceptance Test
Specifications pursuant to Clause 5.1 as more particularly described in
Schedule 5;
"VAT" means value added tax as currently charged under the Value Added Tax
Act 1994 and any successor or replacement thereof and any similar tax
chargeable under the laws of the United Kingdom;
"WTA" means the Wireless Telegraphy Acts 1948-1967, or such equivalent
statutes as are from time to time in force in any of the United Kingdom,
the Channel Islands or the Isle of Man;
11
<PAGE>
"WTA LICENCES" means any licences required by CTI to perform the Services
pursuant to the WTA;
"YEAR" means the period from the date of execution of this Agreement to the
31 December 1997 (which constitutes the first Year), and each subsequent
complete period of twelve months from 1 January to 31 December save for the
last Year which shall start from 1 January to the last day of the Term
inclusive;
1.2 "The expressions "BDB" AND "CTI" include their respective permitted
subcontractors, assigns, employees and agents.
1.3 Any references to any Act of Parliament will be deemed to include any
replacement or re-enactment for the time being in force and to include any
by-laws, statutory instruments, licences, rules, regulations, orders,
notices, directions, consents or permissions made under such Act and any
condition attaching thereto and any reference to any governmental or
regulatory body shall include a reference to its successors.
1.4 The headings in this Agreement are for ease of reference only and will not
be taken into account in the construction or interpretation of any
provision to which they refer.
1.5 Any reference to a clause, schedule or annex, unless the context otherwise
requires, is a reference to a clause of or schedule or annex to this
Agreement.
2. THE SERVICES
2.1 This Agreement is conditional on the satisfaction of the condition
precedent that all three Multiplex Licences shall have been granted to BDB
In substantially the form set out in Annex 2. This Agreement shall come
into full force and effect on the date on which the condition in this
Clause 2.1 shall have been satisfied. In the event that the condition
precedent set out in this Clause 2.1 shall not have been satisfied by 31
March 1998 or such later date as the parties may agree, then this Agreement
shall be void and of no affect.
2.2 CTI shall provide or procure the provision of the Distribution Services
using the Distribution Network on and subject to the terms of this
Agreement.
2.3 From such date as BDB may reasonably request (no later than the Start of
Service Date of the first Station to be rolled out) to the extent
practicable, and throughout the remainder of the Term, CTI shall provide
the SI Collation Services on the terms of this Agreement.
2.4 CTI shall, in relation to each Station, provide the DTT Transmission
Service to BDB from the Ready for Service Date and throughout the remainder
of the Term using the Network on the terms of this Agreement.
12
<PAGE>
2.5 CTI shall provide the Services in compliance with and will ensure that the
Network (including, but not limited to, the Distribution Network, the
Transmission Network and any Equipment or Stations comprised in the
Network) complies with:
2.5.1 the provisions of this Agreement;
2.5.2 the Technical Specification;
2.5.3 the ITC Technical Performance Code and Condition 6(4) of the
Multiplex Licences all as they exist as at the date of this
Agreement; and
2.5.4 the WTA Licences, TA Licences, and any other law or legally binding
regulation in the UK or elsewhere from time to time applicable to
CTI, this Agreement or the subject matter thereof.
In the event of any conflict between any of the above, CTI shall comply
with BDB's reasonable instructions as to which shall take priority, save to
the extent that doing so would be unlawful.
2.6 Without prejudice to Clause 7.3 in the event of any variation from time to
time of the provisions of the ITC Technical Performance Code, or the
technical distribution and transmission requirements of the Multiplex
Licences, ("Variation"), CTI shall provide the Services (subject to its
ability to obtain third party consents which CTI shall use its best
endeavors to obtain) in compliance therewith provided that the effect on
the Services of compliance with the Variation shall be considered by the
parties through the Change Control Procedure and BDB shall be responsible
(to the extent that there is any cost and that such cost is necessarily
incurred) for the material cost of implementing such Variation and any
material increase in CTI's costs of providing the Services as changed to
comply with the Variation provided further that BDB shall not be charged
more than its appropriate share of such costs.
2.7 If the ITC specifies a particular European Community digital standard to be
met in accordance with Section 142(3) of the 1996 Act, CTI shall (subject
to its ability to obtain third party consents which CTI shall use its beat
endeavours to obtain) employ a transmission system in compliance with that
European Community digital standard within the time periods required by the
ITC provided that any changes to the Technical Specification and/or the
Services in consequence shall be authorised by BDB in accordance with the
Change Control Procedure and if the implementation of material changes
causes CTI necessarily to incur a material increase in costs, said material
increase in costs shall be met by BDB, provided further that BDB shall not
be charged more than its appropriate share of such costs.
2.8 If, during the continuance of this Agreement there should come into force a
change in law or legally binding regulation applicable to this Agreement or
the subject matter hereof, which necessitates (in order for CTI to comply
with Clause 2.5.4) a change in the Services and/or increases in CTI's costs
of providing the Services the parties shall consider such change in the
Services or increase in costs pursuant to the Change
13
<PAGE>
Control Procedure. BDB and CTI agree that BDB shall be responsible (to the
extent there is any and it is necessarily incurred) for any increase in
the material costs incurred by CTI of implementing or providing the
Service in compliance with such change in law or legally binding
regulation to the extent that such change in law or legally binding
regulation is only applicable to the Services or is applicable to digital
terrestrial television generally in which case BDB shall not be charged
more than its appropriate share.
2.9 CIT shall, in relation to each BDB Multiplex provide the Services with a
minimum end to end Accountable Availability from the BDB Interface to the
output of each station of 99.9% except for those Stations identified in
Schedule 7 Part III in respect of which the end to end Accountable
Availability from the BDB Interface to the output of each Station will be
a minimum of 99.8%. Such end to end Accountable Availability to be
calculated as set out in Schedule 7.
2.10 CTI undertakes that it will use the skill and care of a diligent provider
of distribution and transmission services in the provision of the
Services, and discharge its obligations under this Agreement in accordance
with best practice in the broadcasting industry.
2.11 CTI shall ensure that:
2.11.1 no change of, reference to or use of a date later than 31 December
1998 in the operation of the Network or the Network Status System
will have an adverse effect on, or cause Services to cease to meet
the Technical Specification; and
2.11.2 without prejudice to the generality of Clause 2.11.1 above, the
Network and the Network Status System will, in responding to two-
digit date input and providing date output, resolve any ambiguity
as to century in a manner which is consistent, clearly defined and
apparent to the user.
2.12 CTI shall ensure that each Station satisfies the minimum level ERP (as
specified in the Template) for each of Multiplexes B, C and D and will use
all reasonable endeavors to maximise ERP at each Station within the
maximum constraints specified in the Templates for each Station. CM shall
demonstrate compliance with these obligations by the relevant transmission
testing procedures described in Schedule 5 and Schedule 4 Part IV.
2.13 In the event that the population coverage predicted by the ITC for a
Template is not reached ("COVERAGE LOWS") despite CTI's compliance with
Clause 2.12, CTI will use all reasonable endeavours to overcome the
Coverage Loss with practical solutions (to be considered through the
Change Control Procedure) and will provide all reasonable assistance to
BDB in any consequential discussions with the ITC. If such Coverage Loss
is due to failure of CTI to comply with Clause 2.12, CTI will be
responsible for any costs and expenditure incurred in correcting such
failure and providing assistance
14
<PAGE>
to BDB. In all other circumstances where BDB wish to have such corrective
works performed, the additional expenditure required will be met by BDB.
Use of Fibre Distribution Network
2.14 The Charges are based on the use by CTI of the Fibre Distribution Network.
British Telecommunications Plc ("BT") has offered to provide CTI with
fibre distribution services which will enable CTI to provide the
Distribution Services using the Fibre Distribution Network.
2.15 The price at which CTI has been offered fibre distribution services by BT
and therefore the charges set out in Part 1 of Schedule 2 are based on a
new tariff for a bespoke distribution network which can only be made
available if taken up by the operators of a minimum number of digital
terrestrial television multiplexes and CTI Is waiting confirmation from BT
that it can make the fibre distribution services available to CTI on the
basis of the tariff. However, CTI agrees to use all reasonable endeavors
to procure the availability of the Fibre Distribution Network as
contemplated in this Agreement.
2.16 If, during the first six months from the date hereof, the price at which
CTI is supplied by BT with the Fibre Distribution Network is materially
increased or the Fibre Distribution Network is no longer available either
because the operators of the multiplex used to transmit the digital
services of Channel 3 and Channel 4 or the BBC elect not to use the
bespoke distribution network contemplated in Clause 2.15 or as a result of
a regulatory intervention by, or other requirements of, the Director
General of Telecommunications, the Change Control Procedure shall be
invoked to discuss the implications of the intervention or other
requirements and, if BDB elects to continue with the Fibre Distribution
Network, BDB acknowledges that the Charges will be amended accordingly
(provided that CTI shall use all reasonable endeavors to reduce the amount
of any increase and shall follow all reasonable instructions of BDB
relating to the use of an alternative distribution system) and that in the
absence of such amendment CTI shall not be obliged to provide the Fibre
Distribution Network.
2.17 If, during the first six months from the date hereof, BT is unable to make
the fibre distribution services available to CTI as contemplated in Clause
2.14 and 2.15 and CTI can therefore cannot commit to providing the Fibre
Distribution Network. BDB shall have the option to require CTI to
substitute the Satellite Distribution Network on the basis set out in
Annex 1 (the provisions of which shall be substituted for the equivalent
provisions of Schedules 2, 3, 6 and 11) and the Satellite Distribution
Network shall become the Distribution Network for the purposes of this
Agreement.
3. OWNERSHIP OF THE NETWORK AND SCOPE OF THIS AGREEMENT
3.1 The Network shall be procured and/or constructed, operated and maintained
by CTI to provide, inter alia, the Services to BDB.
15
<PAGE>
3.2 Subject to the provisions of Clause 3.3 all equipment and services
required by CTI to provide the Services (including but not limited to the
Sites, buildings, plant, the Distribution Network and the Transmission
Network) will be acquired, obtained or procured by CTI at its own cost.
3.3 [*].
3.4 The parties will ensure their financial advisers co-operate to seek an
early resolution to the manner in which the arrangements contemplated in
Clause 3.3 are best achieved.
3.5 Subject to Clauses 3.3 and 18.11, as between CTI and BDB, BDB shall have
no ownership of any part of the Network.
3.6 This Agreement relates, inter alia, to the rollout of the 81 Stations
specified in Schedule 8. If, without hereby creating any binding
obligation, the parties agree to include any Additional Stations in the
Network the terms on which such Additional Stations shall be provided,
including the order and speed of the rollout of the Subsequent Stations
shall be agreed in accordance with the Change Control Procedure save that
the Charges attributable to such Additional Stations shall be calculated
in accordance with the provisions of Schedule 12.
3.7 The Exclusive Equipment shall not be used by CTI to provide services to
itself or to any third party without the prior written consent of BDB.
4. ROLL-OUT OF THE STATIONS AND DISTRIBUTION NETWORK
4.1 CTI will construct and/or procure the construction of the Transmission
Network in accordance with best industry practice in the broadcasting
industry.
4.2 ITC shall bring each of the Stations into Operational Service on its Ready
for Service Date. The Initial Site Service Dates, subject to the
provisions of this Agreement, are as Follows:
4.2.1 for the Phase I Stations, the Initial Site Service Date shall be
the date 12 months from the grant of the Multiplex Licences
provided that CTI shall use its reasonable endeavors to bring each
of those Phase I Stations into
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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Operational Service on its Target Site Service Date or as soon as
practicable thereafter;
4.2.2 for each of the Phase II and Phase III Stations, the initial Site
Service Date shall be the Target Site Service Date as extended by a
period equal to the period of time between 30 September 1998 and
the latest Initial Site Service Date for a Phase I Station agreed
between the parties pursuant to Clause 4.2.1 or 4.3.1, as the case
may be, provided that CTI shall use its reasonable endeavors to
bring each of those Phase II and Phase III Stations on its Target
Site Service Date.
4.3 Without prejudice to Clause 4.2:
4.3.1 no later than 30 days after the grant of the Multiplex Licences,
CTI and BDB will consider, in good faith, whether the Initial Site
Service Dates for the Stations should be revised (taking into
account, amongst other things, the obligation of CTI to use
reasonable endeavors to bring each of the Stations into Operational
Service on its Target Site Service Date; the requirements of BDB
and of the digital terrestrial television industry generally,
including the requirements of CTI and NTL to have sufficient time
to roll-out the Stations in order to meet agreed Ready for Service
Dates; and any Advance Works carried out); and
4.3.2 not less than 90 days before each initial Site Service Date, CTI
and BDB will again consider, in good faith, whether that Initial
Site Service Date should be revised.
If CTI and BDB agree to the revision of an Initial Site Service Date
pursuant to this Clause 4.3 then BDB shall, having regard to its
obligations under the Multiplex Licences, and where relevant, use its
reasonable endeavors to seek the consent of the ITC (and any other
regulatory authority having jurisdiction) to an Amended Site Service Date.
If CTI and BDB agree and, where relevant, the ITC (and any other
regulatory authority having jurisdiction) consent to the Amended Site
Service Date, then such date shall be substituted as the Ready for Service
Date.
4.4 If, pursuant to Clause 4.3, CTI and BDB decide not to revise an Initial
Site Service Date, or fail to reach agreement relating to any proposed
revision to an Initial Site Service Date, or the ITC (or any other
regulatory body having jurisdiction) refuses to consent to any revision to
a Start of Service Date proposed as a consequence then that Initial Site
Service Date shall remain the Ready for Service Date unless, in the event
of the ITC refusing to consent to a revision to the Start of Service Date,
CTI and BDB nonetheless agree an Amended Site Service Date, in which case
said Amended Site Service Date shall become the Ready for Service Date.
4.5 If at any time an event occurs or circumstances arise which may delay the
bringing into Operational Service of any Station on the relevant Ready for
Service Date, then
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CTI shall as soon as reasonably practicable (and in any event within 5
Business Days of CTI becoming aware of the event or circumstances in
question), notify BDB of that fact in writing. Such notification shall set
out:
4.5.1 the nature of the event or circumstances and whether they have
arisen as a result of any of the causes set out in Clause 4.7;
4.5.2 a description of the steps, if any, which CTI has identified are
necessary to rectify the matter and bring the Station into
Operational Service on the relevant Ready for Service Date or as
soon as practicable thereafter; and
4.5.3 the likely effect of the event or circumstances on the
achievability of the relevant Ready for Service Date.
4.6 Following receipt by BDB of any notification pursuant to Clause 4.5, CTI
and BDB shall discuss in good faith:
4.6.1 actions which can be taken to rectify the matter; and
4.6.2 any proposed change to the relevant Ready for Service Date.
4.7 Notwithstanding the foregoing, if any event or circumstance notified by
CTI under Clause 4.5 is, or arises as a result of, one or more of the
following:
4.7.1 a Force Majeure Event;
4.7.2 any material breach by BDB of any material obligations of BDB under
this Agreement which prevents CTI from performing the relevant
obligation under this Agreement; or
4.7.3 compliance with any applicable law, the mandatory requirements of
any national or supranational regulatory authority, the Radio
Regulations or any other applicable statutory obligations
(including, for the avoidance of doubt, frequency planning or
international frequency clearance issues);
then, such events shall be deemed, for the purposes of this Agreement, to
be outside the control of CTI save to the extent that the event arose (in
the case of an event under Clause 4.7.3 only) as a result of any breach of
this Agreement by CTI. Accordingly, CTI shall have no liability to the
extent delay arises from such events, whether under Clause 6.1 or
otherwise, to pay any Delay Rebate, damages or other compensation to BDB
as a result of the relevant Station not being ready for Operational
Service by the Ready for Service Date as a result of such events and that
Ready for Service Date shall be extended to the earliest practicable
Amended Site Service Date on which BDB requires and CTI can, using its
best endeavors, make the Station available for Operational Service in the
light of the relevant event. The provisions of Clause 5 shall apply to
determine whether the relevant Station is ready for Operational Service by
the Amended Site Service Date.
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4.8 The costs (subject to Clause 17.7) of circumventing or rectifying the
consequences of the cause of delay set out in Clause 4.7 shall, save to
the extent that the event arose (in the case of any event under Clause
4.7.3 only) as a result of any breach of this Agreement by CTI be borne by
BDB.
5. TESTING
5.1 CTI shall, at its cost, test the Network and test each Station prior to
its Ready for Service Date in accordance with Part I of Schedule 5 and all
reasonable instructions of BDB. All Transmission Testing shall be
conducted in accordance with any applicable law, licence or regulatory
requirement (including, without limitation, the ITC Guidance Note on Test
Transmissions).
5.2 Each Station shall be made available for testing prior to its Ready for
Service Date as soon as reasonably required by BDB.
5.3 CTI shall provide BDB with reasonable advance notice of any Transmission
Testing and BDB or its authorised representatives shall have the right to
attend and monitor any Transmission Testing.
5.4 As soon as reasonably practicable before the Ready for Service Date for a
Station. CTI will confirm to BDB that the Station is ready for Operational
Service. Such confirmation shall be in writing and shall be accompanied by
a full set of test results for each station showing that the Transmission
Testing has been completed successfully. A Station shall be ready for
Operational Service when it has satisfied the Transmission Testing.
5.5 BDB shall have the right to verify the results of the Transmission
Testing. The costs of such verification shall be met by BDB save where
such verification reveals that the Station in question has not satisfied
the Transmission Testing in which case the costs of the verification and
any subsequent Transmission Testing shall be met by CTI.
5.6 Between the Ready for Service Date and the Actual Site Service Date of
each Station CTI shall perform such Test Transmissions from that Station
as may reasonably be requested by BDB such Test Transmissions to be
carried out at such times and for such periods as BDB may reasonably
require. The costs of the Test Transmissions shall be met by CTI. BDB
shall provide such BDB Signals or other material as are agreed with CTI
for the purpose of enabling Test Transmissions, to be carried out.
6. CONSEQUENCES OF FAILURE TO ACHIEVE READY FOR SERVICE, DATES
6.1 Subject to Clauses 4.2 and 6.2, if any Station is not ready for
Operational Service by the relevant Ready for Service Date, then CTI shall
be liable to pay a Delay Rebate in an amount in respect of the relevant
Station calculated in accordance with Part II of Schedule 7, for the
period from noon on the relevant Ready for Service Date to the Actual Site
Service Date. The Delay Rebate shall be credited against the Charges
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payable in respect of the first month of the Year following the Year in
which the Ready for Service Date originally fell.
6.2 The Distribution Network for each Station shall be available for
Operational Service no later than the Ready for Service Date for that
Station. With respect to each Phase I Station, if the Distribution
Services are provided using the Fibre Distribution Network, CTI shall use
all reasonable endeavors to ensure that the Distribution Network for that
Phase I Station is ready for Operational Service on the date falling [*]
days before the Start of Service Date for that Phase I Station. For the
purposes of calculating Delay Rebate, due solely to failure to make the
Fibre Distribution Network for a Phase I Station available the Ready for
Service Date for that Phase I Station shall be deemed to be the date [*]
days before the Start of Service Date for that Phase I Station and CTI
shall not be liable in breach of contract for any failure to have the
Fibre Distribution Network for that Phase I Station ready for Operational
Service prior to that date.
6.3 If BDB elects to employ the Satellite Distribution System pursuant to
Clause 2.17, CTI shall ensure that the satellite space segment necessary
to provide the Distribution Services is available for use by CTI as from a
date to be agreed between the parties and, in any event, no later than 60
days prior to the first Start of Service Date.
7. MODIFICATIONS TO EXISTING ANALOGUE TRANSMISSION SYSTEMS
7.1 CTI shall, at its own cost and in a proper manner carry out or procure
that the work described in the Agreed Impact Schedule is carried out as
requested in order to enable Operational Service to commence from each
Station an the relevant Ready for Service Date and subject to Clause 7.3
in compliance with the Multiplex Licences and shall promptly carry out any
other work agreed by BDB and CTI to effect changes required to the
analogue transmitter network as a consequence of transmission on the
frequencies allocated to the BDB Multiplexes.
7.2 In the event that any analogue modification works are required to overcome
interference caused by or as a direct consequence of the Network to
analogue television broadcast services in addition to those works
identified in the Agreed Impact Schedule, then CTI will provide details of
the works to be carried out, the costs and estimated duration of such
works and such other information as BDB may reasonably require and CTI
will, where required by BDB, carry out such works and meet the reasonable
costs and expenses (provided that BDB shall not be charged more than its
appropriate share) of the carrying out of such works agreed by BDB (the
"EXPENDITURE").[*]
7.3 Nothing in this Agreement shall impose any obligation on CTI to carry out
domestic returning or antenna alignment or to establish a help desk or
similar facility to deal
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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with queries or complaints from the general public in connection with the
provision of the Services.
8. SECURITY AND SITES
8.1 CTI will take and procure that its sub-contractors take all such security
measures in relation to the Network (including, but not limited to at the
Sites) as would normally be taken by an experienced distribution and
transmission services provider including, but not limited to, security
measures at the Stations to protect against forcible entry and damage by
vandals and burglars using hand operated tools, including protection of
doors and windows in Station buildings, protection of antenna feeders by
scaled underground ducting, steel tube or trunking protection of feeds
located above ground to a height above anti-climbing guards on the
antenna support structures, and intruder alarms at all monitored
unattended Stations. CTI shall regularly review the efficacy of such
security measures and shall take additional security measures at Stations
allocated high priority status by CTI as set out in Schedule 8, such
additional security measures to include, without limitation, additional
monitored security fencing and security cameras.
8.2 Where CTI is not the owner of a Site and the owner of that Site wishes to
terminate CTI's right to use the Site, CTI will notify BDB of such
intended termination as soon as reasonably practicable and shall consult
with and where practicable pay due heed to any recommendations made by
BDB. CTI shall, in any event make all necessary arrangements for the
provision of a substitute station which shall become a Station for the
purposes of this Agreement, subject to receiving the consent of ITC (and
other relevant regulatory authorities) and BDB (such consent riot to be
unreasonably withheld by BDB). CTI shall use all reasonable endeavors to
ensure that this event does not give rise to a material deterioration of
the level or quality of the Services.
9. INDUSTRY LIAISON AND SPECTRUM MANAGEMENT
9.1 CTI will throughout the Term:
9.1.1 work closely with BDB and all relevant third parties in providing
its technical expertise and support (including, but not limited
to, BDB's chosen systems integrator, the ITC, the
Radiocommunications Agency. NTI., other relevant organisations,
other multiplex distribution and transmitter network services
operators, receiver, set top box and other equipment
manufacturers) with a view to achieving the interoperability of
services and equipment and the successful launch of digital
terrestrial television in the UK;
9.1.2 liaise with relevant organisations and groups such as the UK
Digital Television Group;
9.1.3 attend or be represented at relevant meetings (to the extent that
CTI is permitted or invited to attend) relating to digital
terrestrial television broadcasting; and
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9.1.4 assist BDB where reasonably requested in preparing written
representations or submissions to regulators, industry or
government bodies or working groups relating to the subject
matter of this Agreement, including representations or
submissions relating to digital terrestrial television
broadcasting.
9.2 Throughout the Term, CTI will co-operate with and assist BDB where
reasonably requested by it, in relation to questions of spectrum
management or frequency clearances.
9.3 CTI will provide BDB with engineering advice on interference problems
arising from the roll-out of the Transmission Network. CIT will at its
own expense provide reasonable support to BDB equivalent to one CTI
engineer (including vehicle if required) for two man years of effort.
9.4 CTI will at its own cost verify coverage of the Stations as set out in
Schedule 4 Part IV until such time as the parties reasonably agree that
measured coverage correlates with predictions.
9.5 Further support will be made available to BDB (if required) for an extra
charge. This additional support will be charged on a rate card basis at
the following 1997 rates (which rates are subject to annual percentage
increase equal to the percentage increase in RPI over the previous twelve
months):
9.5.1 Engineer @: [*] per hour plus reasonable expenses;
9.5.2 Survey Vehicles @: [*] each per day or [*] each per week; and
9.5.3 Miscellaneous expenses (e.g. fuel, ferries, tolls) at cost.
10. LICENCES
10.1 CTI shall, subject to Part VI of Schedule 2, at its own cost, obtain and
maintain during the Term the TA Licences and the WTA Licences and all
other consents and clearances of whatever nature required to enable it to
lawfully perform its obligations under this Agreement (including, but not
limited to, local planning authority approvals and relevant site sharing
agreements in relation to any Third Party Sites) and CTI shall to the
extent required to operate the Network and provide the Services comply
with the terms of all such licences, clearances and consents and shall
not do anything or omit to do anything which would cause such licences,
clearances or consents to be suspended, avoided, adversely varied,
revoked or not renewed.
10.2 BDB shall obtain and maintain at its own expense during the Term the BDB
Multiplex Licences and all other consents and clearances required to
enable it to perform its obligations under this Agreement and BDB shall,
to the extent necessary to enable it to perform its obligations under
this Agreement, comply with the terms of such licences and consents and
shall not do anything or omit to do anything which would
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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cause such licences, clearances or consents to be suspended, avoided,
adversely varied or revoked.
11. BDB SIGNALS
11.1 BDB shall supply the BDB signals to CTI in accordance with the Handover
Requirements at the BDB interface.
11.2 In the event of interruption or degradation to the BDB Signals occurring
prior to receipt of the BDB Signals at the BDB Interface, the onus shall
be upon BDB to establish and remedy the cause, at its own cost. CTI shall
not be held to be in breach of any of its obligations under this
Agreement resulting solely from interruption or deterioration in the
quality of transmission of the BDB Signals in such circumstances provided
that CTI shall continue to transmit the BDB Signals to the extent it is
able to do so, unless instructed to the contrary by BDB.
11.3 BDB will supply the BDB Signals in such form as is necessary to permit
CTI to comply with the relevant provisions of the 1996 Act, the terms of
the BDB Multiplex Licences, the WTA and the Telecomms Act and any other
licence which governs the running of the Network.
11.4 Without limitation to the generality of Clause 11.3, BDB undertakes that
the BDB Signals will not contain any material:
11.4.1 which is defamatory, offensive or abusive or of an obscene or
menacing character; or
11.4.2 which constitutes a violation or infringement of the rights of
any person (including but not limited to all intellectual
property rights such as moral rights, rights of copyright or
confidentiality) or infringement of any law.
Provided that any breach of this Clause 11.4 shall not give CTI the right to
terminate this Agreement pursuant to Clause 18.
11.5 BDB warrants to CTI that it will perform its obligations under this
Agreement in compliance with all applicable laws and legally binding
regulations, directions, permissions, licences, waivers, consents,
registrations. approvals and other authorities of competent authorities
in the UK or elsewhere.
11.6 BDB will indemnify CTI against all losses, costs, claims, damages and
expenses arising out of a breach of Clauses 11.4 or 11.5 (A "RELEVANT
CLAIM").
11.7 If CTI becomes aware of a matter which might give rise to a Relevant
Claim:
11.7.1 CTI shall notify BDB immediately of the matter (stating in
reasonable detail the nature of the matter and, if practicable,
the amount claimed) and consult with BDB with respect to the
matter; if the matter has become the subject of proceedings, CTI
shall if the existence of the proceedings are known by it
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notify BDB within sufficient time to enable BDB to contest the
proceedings before final judgment;
11.7.2 subject to any bona fide binding obligations of confidentiality,
CTI shall provide BDB and its advisers with reasonable access to
CTI premises and personnel and use its reasonable endeavors to
procure access to other relevant premises and personnel and to
all relevant assets, documents and records that it possesses or
controls for the purposes of investigating the matter and
enabling BDB to take the action referred to in Clause 11.7.4;
11.7.3 subject to any bona fide binding obligations of confidentiality,
BDB may, at its cost, take copies of the relevant CTI documents
or records, and photograph the premises or assets, specified in
Clause 11.7.2. CTI shall use reasonable endeavors to procure any
requisite consents to allow BDB to obtain copies of third party
documents or records in its control or possession.
11.7.4 CTI shall (subject to BDB indemnifying CIT against the cost or
damages incurred thereby):
(a) take any action and institute any proceedings, and give any
information and assistance BDB may reasonably request to:
(i) dispute, resist, appeal, compromise, defend, remedy or
mitigate the matter; or
(ii) enforce against a person (other than BDB) CTI's rights
in relation to the matter; or
(b) in connection with proceedings related to the matter (other
than against BDB) use advisers chosen by BDB and, if BDB
requests, allow BDB the exclusive conduct of the
proceedings; and
(c) not waive any defence or settle any claim without BDB's
prior written approval (such approval not to be unreasonably
withheld or delayed).
11.8 Nothing in this Clause 11 in any way restricts or limits CTI's general
obligation at law to mitigate a loss which it may incur as a result of a
matter giving rise to a claim pursuant to Clause 11.6.
11.9 Nothing in this Clause 11 shall impose any obligation on CTI to monitor
the BDB Signals to ensure that they do not contain any material
transmission of which would result in a breach of Clause 11.4.
11.10 In the event that BDB is required to suspend broadcasting of the BDB
Signals as a result of any breach of Clause 11.4 or otherwise as the
result of any applicable law, or regulatory requirement (including but
not limited to compliance with a direction of the ITC) for any reason,
CTI shall, upon receipt of written notification from BDB or
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earlier if pursuant to a legal requirement, suspend provision of the
Services for the requisite period notified by BDB (or such longer period
as necessary pursuant to the legal requirement) provided that in doing so
CTI shall not incur any liability to pay Service Credits to BDB and BDB
shall continue to pay (subject to Clause 17.9) the Charges for the
Services in accordance with the provisions of Schedule 2.
12. EQUIPMENT LOCATED AT BDB PREMISES
12.1 BDB will permit CTI to locate:
12.1.1 Network Status System equipment comprising a personal computer
and interface (with suitable electronic firewall systems
installed) linked by data circuit to the TOC as described in
Schedule 3 Part IIIa: and
12.1.2 equipment to be installed in the CTI Area as described in
Schedule 6 Part I:
in such reasonably suitable location at BDB's Multiplex Centre as BDB my
determine, free of charge and to connect the same to a power source
provided at the cost of BDB.
12.2 CTI will be responsible and will otherwise procure at its own cost that
the data circuit is monitored and the database and the software
application and the other Equipment referred to in Clause 12.1 above are
maintained for the duration of this Agreement.
12.3 Ownership of the Equipment referred to in Clause 12.1 shall remain vested
in CTI. BDB shall nevertheless be responsible for the said Equipment once
it is installed on BDB premises and BDB shall be responsible for the
reasonable cost of replacing any part of the said Equipment that is
damaged lost or stolen while in BDB's custody other than as a result of
any act or omission on the part of CTI or its agents or contractors.
12.4 BDB shall grant CTI and its authorised sub-contractors all reasonable
access to the Equipment referred to in Clause 12.1 during normal business
hours for the purpose of installing, inspecting, maintaining, renewing,
upgrading and removing the said Equipment from the Multiplex Centre, as
necessary. CTI shall itself and shall procure that its sub-contractors,
comply with all applicable Health and Safety legislation and regulations
and any code of practice or safety at work rules operated by BDB or the
occupier of the Multiplex Centre in respect of the Multiplex Centre and
all other reasonable instructions of BDB or such owner or occupier of the
Multiplex Centre.
13. CONTRACT MANAGEMENT, REVIEW OF SERVICES AND DISPUTES
CONTRACT MANAGEMENT
13.1 BDB and CTI will meet, at regular intervals with such frequency as may be
reasonably required by BDB, for the purposes of project planning,
discussing and reviewing the provision of the Services and, In
particular, the progress of the rollout
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plans. CTI shall provide project planning information to BDB with such
frequency and in such form as BDB may reasonably request.
Service Management Board
13. CTI and BDB will establish a Service Management Board (the composition of
which shall be agreed between CTI and BDB) to deal with all major matters
concerning the amendment, or the reviewing of the operation, of this
Agreement. The Service Management Board will consist of two or more
representatives of each party. The Service Management Board will meet at
least once a Year, or at such other times as is agreed between the
parties or is required under the terms of this Agreement. The Service
Management Board's remit will be as follows:
13.2.1 not less frequently than every three years during the Term to
perform a technical review of the Equipment comprised in the
Network and equipment available in the market. Where
opportunities are identified to operate the Services more cost
efficiently, the parties will co-operate in good faith and where
practicable CTI will, if required by BDB, take advantage of such
opportunities, provided neither party is disadvantaged as a
result;
13.2.2 to attempt to resolve any disputes that may arise between the
parties;
13.2.3 to consider and plan for the implementation of new services and
any Additional Stations; and
13.2.4 any other matters which the parties may agree from time to time.
Disputes
13.3 Any complaints, disputes or problems (each an "Issue") relating to this
Agreement will be escalated as set out in this Clause 13.3:
13.3.1 if an Issue is not resolved to the satisfaction of either party
within 30 days of both parties having first been aware of it,
then either party may refer the Issue to the Service Management
Board;
13.3.2 if an Issue is referred to the Service Management Board, then
each party must procure that their representatives on the Service
Management Board discuss the issue in good faith at the next
meeting of the Service Management Board with a view to resolving
it. Either party may convene a meeting of the Service Management
Board to be held within 14 days of an Issue being referred to it.
If the Issue is not resolved to the satisfaction of either party
within 7 days of the meeting of the Service Management Board,
then either party may refer the Issue to the Director of Options
of BDB, in the ease of BDB ("THE BDB NOMINEE") and to the Chief
Operating Officer of CTI in the case of CTI ("THE CTI NOMINEE");
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13.3.3 if the Issue is referred to the BDB Nominee and the CTI Nominee,
then each party must procure that their representatives discuss
the Issue in good faith as soon as reasonably practicable and in
any event, within 14 days of the meeting of the Service
Management Board referred to in Clause 13.3.1;
13.3.4 if an Issue which relates solely to matters of an engineering or
technical nature is not resolved pursuant to Clause 13.3.3,
either party may refer it (with a request that the person
appointed does not have a conflict of interest) for adjudication
to the President for the time being of the Institution of
Electrical Engineers, or his nominee. The President or his
nominee shall act as an expert, not an arbitrator. The party
referring any Issue for adjudication must deliver to the expert
and the other party a notice setting out the matters in dispute
and any relevant supporting evidence. The other party shall be
entitled to reply to the notice and such evidence, delivering
such reply to the expert and the party referring the Issue.
Otherwise, the expert shall be entitled to decide on the
procedure he or she wishes to adopt. Any determination of the
expert must be in writing and shall be final and binding on both
parties failing any manifest error on the face of the decision.
Unless the expert determines otherwise, both parties will bear
their own costs of the determination and half the costs of the
expert;
13.3.5 if an Issue which does not relate solely to matters of an
engineering or technical nature is not resolved pursuant to
Clause 13.3.3, either party may refer it to mediation in
accordance with the Centre for Dispute Resolution procedures then
in force. The other party shall not be obliged to attend such
mediation. If after 30 days of the matter being referred to
mediation or if either party believes that mediation has not
resolved the Issue or it believes that it is not appropriate to
resolve the issue by mediation or the other party has refused to
attend mediation, then either party may proceed to litigation.
Unless agreed otherwise, each party will bear their own costs of
the mediation and half the costs of any third party involved;
13.3.6 except where clearly prevented by the nature of the Issue, the
parties shall continue performing their respective obligations
under this Agreement while any Issue is escalated in accordance
with this Clause 13.3. Without prejudice to the generality of the
foregoing, BDB shall continue to pay the Charges.
14. PERFORMANCE MONITORING AND REPORTING
Network Status System
14.1 CTI shall supply, install and maintain a Network Status System, (a
description of the functionality of which is set out in Part IIIA of
Schedule 3 and Part II of Schedule 6), which shall provide substantially
similar information regarding the status of the Network as Is available
to CTI, at the location described in Clause 12.1 or such other location
within the UK as BDB may reasonably direct. The Network Status System
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shall give an overview of the entire Network indicating the current
status of the Distribution Network, the Transmission Network and all the
Stations.
Monitoring
14.2 CTI shall monitor, control and report on the transmission of the BDB
Signals against the Technical Specification.
14.3 CTI shall immediately notify the BDB Representative of any Transmission
Fault in relation to the Services and shall, as soon as reasonably
practicable, issue a Fault Report in the form reasonably prescribed by
BDB (to include, without limitation, a fault number, the time the
Transmission Fault occurred, the nature of the Transmission Fault and the
anticipated time it will take to remedy the Transmission Fault).
14.4 CTI shall respond to any Transmission Faults of which it becomes aware
(whether through its monitoring of the Services, as a result of such
Transmission Faults being reported to it by BDB or otherwise), as soon as
reasonably practicable, within the Response Times.
14.5 CTI shall monitor the quality of the BDB Signals received at the BDB
Interfaces. CTI shall, as soon as reasonably practicable, notify the BDB
Representative where any signal interruption or degradation is identified
at the BDB Interface and where requested by BDB will provide reasonable
assistance to BDB, at BDB's cost, in establishing and remedying its
cause.
14.6 Notices issued by CTI pursuant to Clauses 14.3 and 14.5 shall be
delivered via telephone in the first instance, and confirmed by e-
mail/fax to the BDB Representative at the Multiplex Centre or such other
number and address as BDB may notify to CTI for the purpose.
Performance Reporting
14.7 CTI shall produce a monthly performance review report relating to its
compliance with the Technical Specification in the previous month. The
report shall be provided in such format as BDB may reasonably require and
shall, in particular, set out the following:
14.7.1 a list of all Transmission Faults that have occurred during the
period covered by the report (including those which are not to be
taken into account in calculating Accountable Availability);
14.7.2 a separate list of all Transmission Faults which are to be taken
into account in calculating Accountable Availability which have
occurred during the period covered by the report together with
the actual response times and correction times; and
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14.7.3 such other information as may reasonably be requested by BDB from
time to time.
14.8 The report required under Clause 14.7 shall be sent to the BDB
Representative within seven days of the end of each month.
Annual Reporting
14.9 On or before 1st February in each Year (or on such other date as may be
agreed between the parties), CTI will provide to BDB an annual written
report to be prepared at CTI's cost which:
14.9.1 describes the provision of the Services (including performance
changes and improvements of the Service) made during the last
Year;
14.9.2 contains information concerning technological developments in
telecommunications and broadcasting which are relevant to the
provision of the Services:
14.9.3 includes an executive summary; and
14.9.4 is otherwise in such format and contains such material as BDB may
reasonably request.
DTT Surveys
14.10 CTI will provide BDB with a Reception Survey in respect of Stations when
they are ready for Operational Service in such format as is described in
Schedule 4 Part IV. Nothing in this Agreement shall constitute any
warranty, representation or obligation on the part of CTI as to the size
of population actually capable of receiving the BDB Signals transmitted
by CTI under this Agreement.
Performance Database
14.11 Source material relevant to monitoring shall be recorded by CTI in an
electronic database (THE "PERFORMANCE DATABASE") which will be archived
monthly and the data kept for six years from the end of the Year to which
the material relates, CTI shall provide BDB and its authorised
representatives with reasonable access to the Performance Database.
15. MAINTENANCE
15.1 Without prejudice to CTI's obligations to provide the Services on the
terms of this Agreement:
15.1.1 CTI shall ensure throughout the term of this Agreement that it
has all necessary equipment, facilities, resources and services
to be able to provide the Services as described in Schedule 4
Part III;
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15.1.2 CTI shall be entitled to interrupt the Services or to depart from
the Technical Specification in any life threatening or property
threatening emergency for the purposes of safety or if it is
necessary to do so for essential maintenance at any of the
Stations provided that CTI shall use all reasonable endeavours to
reduce the impact of such emergency or essential maintenance
works or repairs on the provision of the Services (including,
without limitation, by performing such essential maintenance
works or repairs at times when the audience for the services
transmitted from the relevant Stations are low);
15.1.3 CTI may also interrupt the DTT Transmission Services or depart
from the Technical Specification in order to carry out any
planned installation works on the antenna support structures at
any of the Stations;
15.1.4 CTI shall provide to BDB a schedule of planned maintenance on
antennas and structures on a rolling twelve month basis as set
out in Schedule 4 Part III;
and, save in cases of emergency, CTI will use all reasonable endeavours
to agree times and duration of any interruption or impairment of the
Services with the BDB Representative and use all reasonable endeavours to
minimise the duration of any such interruption or impairment.
15.2 In cases where the Services are provided from a Third Party Site, BDB
acknowledges that CTI may be required by the Site Owner to interrupt the
DTT Transmission Service from the Third Party Site, on reasonable prior
notice in the case of planned access or without notice in cases of
emergency, so that safe access may be gained to any mast or the Equipment
at the Third Party Site. CTI shall procure that the Site Owner does not
interrupt, or require CTI to interrupt, the BDB Transmission Service in
such circumstances save:
15.2.1 in the event of any life or property threatening emergency;
15.2.2 where any interference caused by the Equipment is creating
significant degradation to the services of the users of the Third
Party Site and the degradation still exists after the Site Owner
has taken all reasonable measures to contact and inform CTI of
such degradation and, where practicable to do so, the Site Owner
has allowed CTI a reasonable period to remedy any such
Interference;
15.2.3 it is required to do so by the Department of Trade and Industry
(or its statutory successor or equivalent); or
15.2.4 with the agreement and at the request of CTI (which shall not be
forthcoming without BDB's consent, such consent not to be
unreasonably withheld or delayed)
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and CTI shall further procure that, where practicable, such interruptions
occur at times and for duration reasonably agreed with BDB and during
periods when the audience receiving the BDB Signals is anticipated to be
low.
15.3 In the case of a Transmission Fault which cannot be dealt with by remote
control, CTI shall ensure that the time from the occurrence of the
Transmission Fault until the time an Engineer attends at the site of the
Transmission Fault or other impairment does not exceed the relevant
Response Time.
15.4 CTI shall ensure that action is taken to rectify any Transmission Fault or
other impairment as soon as practicable after the time of the occurrence
of the Transmission Fault or other impairment.
15.5 CTI shall obtain, commission and provide at CTI's expense the Emergency
Reserve Equipment and the Disaster Recovery Systems and such other
equipment and services as would normally be held by a prudent distribution
and transmission services operator to restore distribution and
transmission services similar to the Services in the event of loss of the
same.
15.6 CTI shall permit BDB or its authorised representative by reasonable prior
arrangement to visit any of the Stations accompanied by a representative
of CTI, for the purpose of inspecting that part of the Network located
there. In such circumstances CTI shall be entitled to invoice BDB, as an
additional charge, its reasonable attendance costs of a member of the
local maintenance team calculated in accordance with CTI's standard
ratecard. This charge shall not apply before the Start of Service Date of
each Station. BDB shall itself and shall procure that its subcontractors,
comply with all applicable Health and Safety legislation and regulations
and any code of practice or safety at work rules operated by CTI (or NTL)
at the applicable Station.
16. CHANGE CONTROL
16.1 Except as expressly set out in this Agreement, any changes to this
Agreement or any of the Services proposed by CTI shall be dealt with in
accordance with Schedule 1, Part I.
16.2 Except as expressly set out in this Agreement, any changes to this
Agreement or any of the Services proposed by BDB shall be dealt with in
accordance with Schedule 1, Part II.
17. CHARGES, SAVINGS, PAYMENT AND BILLING
Charges and Payment for the Services
17.1 In consideration for the satisfactory performance by CTI of its
obligations under this Agreement BDB shall pay the Charges (in Pounds
Sterling) in accordance with the payment timetable and instalment
provisions set out in Schedule 2.
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17.2 Upon this Agreement coming into full force and effect, Advance Payments
paid by BDB pursuant to the Pre-Contract Funding Agreement shall be set
off against the equivalent monthly charges which would have been payable
pursuant to this Agreement had this Agreement been in full force and
effect from the date hereof.
17.3 In the event that the Commencement Date occurs between 1 October 1998 and
31 December 1998 and in consequence CTI incurs any material additional
operational expenditure over the Term, BDB shall bear the cost of such
increase, the method of recovery to be determined under the Change Control
Procedure. If this Agreement has not become unconditional in accordance
with its terms prior to 1 January 1998, then:
17.3.1 In the event that the Term will extend beyond 31 December 2010,
for the period commencing 1 January 2011 until the expiry of the
Term ("RELEVANT PERIOD"), CTI shall be entitled to recover Charges
at a fair market price in respect of the Relevant Period to be
agreed between the parties. In default of agreement between the
parties as to fair market price, the provisions of Clauses 18.2
and 18.3 shall apply mutatis mutandis as if references in those
Clauses to the Extended Term were references to the Relevant
Period; and
17.3.2 the Charges shall be adjusted by an amount equal to any bona fide
material overall variation (A "COSTS VARIATION") to CTI's third
party costs or operational costs relating to the provision of the
Services to be agreed by the parties. In default of agreement
between the parties as to the amount of that Costs Variation, the
provisions of Clauses 18.2 and 18.3 shall apply mutatis mutandis
as if references in those Clauses to the Extended Period were
references to the Relevant Period and references to fair market
price were to the Costs Variation.
17.4 The Charges are based on the provision of the Services and the roll-out of
the Stations as set out in this Agreement. If the roll-out of the Stations
is revised, the Charges shall be adjusted by CTI by an amount agreed
pursuant to the Change Control Procedure.
17.5 CTI will operate a transparent open book approach to the provision of the
Services, including, but not limited to, by providing BDB with access to
CTI's information regarding CTI's costs in acquiring the Equipment,
constructing or procuring the Network and providing the Services.
Information provided under this Clause will be provided to BDB pursuant to
Clause 17.6 or at such other times as reasonably requested by BDB.
17.6 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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Savings
17.7 Throughout the Term CTI will work with BDB, other multiplex licensees and
equipment and service providers to seek to reduce CTI's costs in
providing the Services. To the extent that any overall savings are
achieved which have not (in respect of the Agreed Proportion thereof)
been applied by CTI to defray increased or unforeseen costs in lieu of
the Contingency Amount, CTI will reduce the Charges by an amount equal to
the Agreed Proportion of such savings such reduction to be implemented in
such a manner as to avoid financial disadvantage to CTI caused by any
changes to the instalment payment of the Charges.
17.8 CTI shall use its reasonable endeavours to mitigate costs it may incur
pursuant to Clauses 4.7 and 4.8 and, if CTI makes an overall saving in
its costs as a result of a delay pursuant to Clause 4.7 such overall
savings shall be passed in their entirety on to BDB by way of a reduction
to the Charges the manner of implementation of which shall be agreed
through the Change Control Procedure.
17.9 If CTI makes any overall saving in its costs as a result of the
suspension of the provision of the Services pursuant to Clause 11.10, it
shall pass on the benefit of such overall savings to BDB in its entirety
by way of a reduction to the Charges, the manner of implementation of
which shall be agreed through the Change Control Procedure.
Invoices
17.10 CTI will invoice BDB monthly in arrears, with invoices to be issued at
the end of each month. The first such invoice will be issued at the end
of the first full month since this Agreement became unconditional in
accordance with its terms. All invoices will be addressed to Director of
Operations, at the address in Clause 24.
17.11 Each invoice rendered by CTI shall be accompanied by such billing
information and be in such format as BDB may reasonably require and as
may be required by law or regulatory requirements.
17.12 Except in the event of a disagreement as to the amount due, correctly
prepared and submitted invoices shall be paid by BDB on the 13th day
following the date of CTI's
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invoice (the "DUE DATE"). Invoices shall be payable by electronic funds
transfer to Royal Bank of Scotland plc, Corporate Banking Office, P.O.
Box 450, 5-10 Gt. Tower Street, London, EC3P 3HX (account no. 20071038,
sort code 16-04-00) or in such other manner as CTI may reasonably direct
and shall be paid in full, subject only to Clause 17.14, without any
withholding, set-off or deduction whatsoever.
17.13 CTI may charge interest on outstanding amounts payable to CTI from the
Due Date until payment in full is received by CTI at a rate equal to 2
per cent. per annum above the base lending rate of the Royal Bank of
Scotland plc as current from time to time whether before or after
judgement. Interest accrues daily and will continue to accrue on any
unpaid amounts notwithstanding termination of this Agreement for any
cause.
17.14 Subject to Schedule 7, if any Service Credits or Delay Rebate are payable
hereunder, such Service Credits and Delay Rebate shall be deducted from
the Charges by an adjustment made by CTI to the first payment due in
respect of the Year following the Year in which the Service Credits or
Delay Rebate accrued. Any Service Credits or Delay Rebate payable in
respect of the final Year shall be paid by CTI to BDB no later than 30
days after the termination or expiry of this Agreement.
18. TERM, TERMINATION AND SUSPENSION
Commencement and the Term
18.1 This Agreement shall come into force as provided in Clause 2.1 and unless
terminated earlier shall continue in force for the Term.
18.2 BDB shall have the option to extend the Term for a further period of not
less than 6 years but not exceeding 12 years (the "EXTENDED TERM") by
giving notice in writing to CTI not less than 12 months' prior to the
expiry of the Term. Such Extended Term to be on the then current terms of
this Agreement save that the Charges shall be revised to a level agreed
by the parties to represent a fair market price for the Services to be
provided during the Extended Term having regard amongst other things to
the availability of the existing Network and Equipment and any expected
replacement costs thereof.[*]
18.3 [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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Termination
18.4 Subject to Clause 18.5, if either party is in material breach of this
Agreement (the "BREACHING PARTY"), the other party may, by notice in
writing, terminate this Agreement by giving three months' prior written
notice.
18.5 In the case of a material breach of this Agreement which is remediable,
the other party may serve a notice on the Breaching Party giving details
of the breach and requiring it to remedy the breach within 30 days of
receipt of the notice. If the Breaching Party fails to remedy the breach
within the period specified in the notice then the other Party may
terminate this Agreement by giving two months' prior written notice
during which BDB, if the other party, may suspend taking the Services and
payment of the Charges to CTI.
18.6 BDB may terminate this Agreement on 30 days written notice if any TA
Licences are suspended or revoked thereby preventing the lawful
performance by CTI of this Agreement.
18.7 In the event of a suspension or revocation of a right to use a frequency
under a WTA Licence:
18.7.1 CTI shall endeavour to reverse the effect of the suspension or
revocation;
18.7.2 if CTI cannot implement Clause 18.7.1, the parties shall attempt
to agree on whether to exclude the affected Station from the
Services and the consequent reduction in the Charges; and
18.7.3 in the event that neither of the above are achieved within 30
days or any longer period reasonably agreed by the parties, BDB
may terminate this Agreement on 30 days written notice provided
that the effect of the suspension or revocation is such as to
cause the ITC to revoke or threaten to revoke the Multiplex
Licences or otherwise has the effect that BDB is deprived of
revenue equivalent to three month's worth of Relevant Revenue.
For the purpose of this clause Relevant Revenue means 2% of BDB's
revenue for the twelve months preceding the event.
18.8 Either party may terminate this Agreement with immediate effect by
written notice if:
18.8.1 a liquidator, administrative receiver, administrator or receiver
is appointed (other than for the purpose of an amalgamation or
reconstruction, the terms of which have been previously approved
by the party having the right to terminate (such approval not to
be unreasonably withheld or delayed in the
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case of a solvent amalgamation or reconstruction)) in respect of
the whole or a material part of the assets and/or undertaking of
the other party; or
18.8.2 the other party enters into an arrangement or composition with
its creditors, or if it becomes unable to pay its debts within
the meaning of section 123 of the Insolvency Act 1986.
Suspension
18.9 CTI may suspend provision of the Services in whole or in part until
further notice on notifying BDB in writing with immediate effect from
receipt by BDB of the notice on the occurrence of any of the following (a
"SUSPENSION EVENT"):
18.9.1 BDB is in material breach of this Agreement which, in the case of
a breach capable of remedy, BDB has failed to remedy within 30
days of receipt of notice from CTI to do so; or
18.9.2 any licence required by law to be held by BDB is cancelled,
revoked, not renewed, suspended or otherwise terminated by the
relevant licensing body thereby preventing the lawful performance
by CTI of this Agreement;
18.9.3 The suspension of this Agreement is required in order to comply
with a mandatory order, instruction or request of any government
minister, The Home Office, The Channel Islands, Isle of Man
Authorities, an emergency services organisation or any other
competent administrative authority.
Provided that BDB will nevertheless remain liable for its payment
obligations under the Agreement (subject to CTI mitigating its losses)
and CTI's right to suspend the provision of the Services pursuant to this
Clause shall only apply in respect of any particular Station or BDB
Multiplex to the extent that and for so long as the Suspension Event
occurred in respect of that Station or BDB Multiplex. Subject to BDB
continuing to meet its payment obligations as aforesaid CTI agrees that
the right of suspension, where exercised, shall be CTI's sole remedy for
any breach in respect of which the right to suspend has been exercised.
If CTI makes any overall savings, in its costs as a result of suspension
pursuant to this Clause 18.9 it shall pass the benefit of these savings
to BDB by crediting such saving as a reduction in the Charges, the manner
of implementation of which shall be agreed through the Change Control
Procedure.
Consequences of Termination
18.10 Expiration or termination for whatever reason of this Agreement will not
affect any rights of the parties which have accrued prior to its
expiration or termination including, without limitation, any right to
claim damages for breach of this Agreement.
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18.11 If pursuant to Clauses 18.4, 18.5, 18.7, 18.8 or 20.2 BDB becomes
entitled to and does exercise its right to terminate this Agreement it
may also exercise a right to purchase Exclusive Equipment in accordance
with and subject to the provisions of Schedule 10.
19. WARRANTIES
19.1 Each party warrants to the other that it has full power and authority to
enter into and perform its obligations under this Agreement.
19.2 CTI warrants to BDB that the use of the Network and the Services by BDB
in accordance with this Agreement will not place BDB in breach of any
law, regulation, direction, permission, waiver, consent, registration,
approval or other authorisation.
20. FORCE MAJEURE
20.1 If a party (the "AFFECTED PARTY") is prevented, hindered or delayed from
or in performing any of its obligations under this Agreement by a Force
Majeure Event:
20.1.1 the Affected Party's obligations under this Agreement are
suspended from notification of the event in accordance with
Clause 20.1.2 while the Force Majeure Event continues but only to
the extent that it is so prevented, hindered or delayed:
20.1.2 immediately after the start of the Force Majeure Event the
Affected Party shall notify the other party in writing of the
Force Majeure Event, the time and date on which the Force Majeure
Event started and the effects of the Force Majeure Event on its
ability to perform its obligations under this Agreement;
20.1.3 the Affected Parry shall make all reasonable efforts to mitigate
the effects of the Force Majeure Event on the performance of its
obligations under this Agreement; and
20.1.4 immediately after the end of the Force Majeure Event, the
Affected Party shall notify the other party in writing that the
Force Majeure Event has ended, the duration of the Force Majeure
Event, and shall resume performance of its obligations under this
Agreement.
20.2 As soon as reasonably practicable and in any event within 48 hours
following notification by CTI of a Force Majeure Event CTI shall develop
and provide to BDB an outline plan of action for overcoming the Force
Majeure Event and a timetable for implementation thereof for
consideration by BDB. If such plan is acceptable to BDB, CTI shall
proceed to implement such plan provided that BDB may terminate this
Agreement by giving not less than 10 days written notice if such plan is
not successfully implemented so as to end the Force Majeure Event within
the timescales agreed. If the parties fail to agree an outline plan or
CTI fails to meet the said agreed
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timescales the parties shall, through the Change Control Procedure and
subject to regulatory consents, attempt to agree to vary the Services and
the Charges, and in default of such agreement within such timescales as
BDB shall reasonably determine then BDB shall be entitled to terminate on
30 days prior written notice.
21. LIABILITY AND INSURANCE
21.1 Each party shall maintain appropriate insurance against any loss,
damages, claims or actions arising out of the performance by it of its
obligations under this Agreement from:
21.1.1 personal injury or death;
21.1.2 public liability; and/or
21.1.3 any other liability for which either is required by law to
insure.
21.2 Service Credits shall be payable by CTI in the manner calculated as set
out in Schedule 7.
21.3 BDB's entitlement to Delay Rebate and Service Credits of all Stations in
any twelve month period shall not exceed [*] in aggregate. For the
avoidance of doubt, nothing in this Clause 21.3 shall prevent BDB from
claiming damages in respect of any breach of this Agreement which might
otherwise have given rise to an entitlement to a Delay Rebate or Service
Credits.
21.4 CTI's total aggregate liability in respect of all claims made under or in
connection with this Agreement (including Services Credits and Delay
Rebates) arising out of any event or series of events in any Year will be
limited to an aggregate amount equal to [*] as set out in Schedule 2
Table 1, whether such liability arises in contract, tort, negligence,
misrepresentation, breach of statutory duty or otherwise howsoever.
21.5 CTI shall not be liable to BDB for loss of profits or for any indirect,
special, incidental or consequential loss whatsoever arising out of its
performance of or failure to perform this Agreement, whether in contract,
tort, negligence, misrepresentation, breach of statutory duty or
otherwise howsoever.
21.6 Nothing in this Agreement shall exclude CTI's liability for death or
personal injury caused by its negligence.
21.7 BDB shall not be liable to CTI for loss of profits or for any indirect,
special, incidental or consequential loss whatsoever arising out of its
performance of or failure to perform this Agreement, whether in contract,
tort, negligence, misrepresentation, breach of statutory duty or
otherwise howsoever provided that this Clause 21.7 is not intended to and
shall not operate to deprive CTI of damages calculated on the basis of
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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the revenue it would have earned from BDB under this Agreement but for a
breach by BDB of this Agreement.
21.8 Nothing in this Agreement shall exclude BDB's liability for death or
personal injury caused by its negligence.
22. ASSIGNMENT AND SUB-CONTRACTING
22.1 This Agreement is personal to the parties hereto and neither may assign,
transfer, charge or deal in any other manner with this Agreement other
than as expressly set out below except that CTI shall be entitled to
assign its rights to payments under this Agreement by way of security to
any person providing finance to it or to any member of its Group subject
to receiving BDB's prior written consent (such consent not to be
unreasonably withheld).
22.2 Each of CTI and BDB shall be entitled to assign this Agreement to any
wholly-owned subsidiary provided that:
22.2.1 the transferor procures that the transferee is bound by a direct
covenant with the other party to observe all the terms of this
Agreement and the obligations of the transferor contained in this
Agreement if the transferee were a party to this Agreement; and
22.2.2 if any transferee ceases to be a wholly-owned subsidiary of the
transferor, this Agreement will be transferred back to the
transferor, or to a wholly-owned subsidiary of the transferor.
22.3 BDB may on notice to CTI assign this Agreement to any person holding a
valid licence to provide multiplex services over the BDB Multiplexes
providing that the proposed assignee enters into an legally binding
covenant with CTI to be bound by and perform the obligations of BDB under
this Agreement from the date of the assignment as if the assignee were
party to this Agreement in place of BDB.
22.4 CTI may, with BDB's prior written consent, sub-contract any of its
obligations under this Agreement (such consent not to be unreasonably
withheld) providing that CTI procures that the sub-contractor complies
with CTI's obligations under this Agreement as if it were a party to this
Agreement in place of CTI. Nothing in this Clause 22.4 will relieve CTI
of any of its liabilities or obligations under this Agreement.
23. INFORMATION AND CONFIDENTIALITY
23.1 Each party agrees and undertakes that during the Term, and thereafter, it
will keep confidential and will not use for any purposes other than as
contemplated in this Agreement or, without the prior written consent of
the other, disclose to any third party the terms of this Agreement or any
information of a confidential nature which is supplied to it under this
Agreement or of which it becomes aware in the performance of this
Agreement unless:
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23.1.1 such information is required to be disclosed to the respective
financiers of CTI or BDB, to members of their respective Groups
or their shareholders, subject in each case to such companies or
individuals agreeing that the information shall be confidential
in terms substantially similar to this Clause 23.1;
23.1.2 such information is public knowledge, or subsequently becomes
public knowledge, other than by breach of this Agreement;
23.1.3 such information subsequently comes lawfully into the possession
of the party in question from a third party; or
23.1.4 the disclosure of such information is required pursuant to law,
by any court of competent jurisdiction or any regulatory
authority, including any recognised stock exchange or any
taxation authority.
23.2 To the extent that it is necessary to disclose confidential information
pursuant to the provisions of this Clause 23.2 or otherwise as is
necessary to implement the provisions of this Agreement, either party may
disclose any confidential information concerning this Agreement to its
employees, agents, professional advisers or authorised sub-contractors on
a "need-to-know basis"; provided that before any such disclosure such
party shall make such persons aware of its obligations of confidentiality
under this Agreement and shall at all times procure compliance by such
persons with these obligations of confidentiality as if they were party
to their Agreement.
23.3 CTI may not refer to this Agreement in any publicity or advertising
material without first obtaining BDB's written consent.
24. NOTICES
24. Any notice to be served by either party shall be in writing and shall be
sent to the following addresses:
CTI: Chief Executive Officer
CTI
Warwick Technology Park
Gallows Hill
Heathcote Lane
Warwickshire CN34 6TN
Fax No: 01926 416026
Copy to: Nick Davies
CTI
Warwick Technology Park
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Gallows Hill
Heathcote Lane
Warwickshire CN34 6TN
BDB: Director of Operations
British Digital Broadcasting
c/o 25 Knightsbridge
London SWIX 7RZ
Fax No: 0171 663 6330
Copy to: Company Secretary
British Digital Broadcasting
c/o 25 Knightsbridge
London SWIX 7RZ
Fax No: 0171 663 6330
24.2 Any notice, invoice or other document which may be given by either party
under this Agreement will be deemed to have been duly given if left at or
sent by post (whether by letter or, where the parties agree in writing, in
any other form) or facsimile transmission to the address and fax numbers
to any other address or fax number to each other in writing in accordance
with this Clause as an address to which notices, invoices and other
documents may be sent. Any such communication will be deemed to have been
made to the other party:
24.2.1 if sent by hand, when delivered;
24.2.2 if sent by post, 48 hours after the envelope containing such
notice was posted; or
24.2.3 if sent by facsimile, when the transmission of the facsimile is
confirmed delivered complete, if delivered on a Business Day, or,
if not, at 9.30 a.m. (British Standard Time) on the next Business
Day following transmission.
24.3 It is further agreed that notices sent by facsimile will also be confirmed
by sending a signed copy by hand or by post, the copy to be posted or
delivered within 24 hours of sending the facsimile.
25. [*]
25.1 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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25.2 [*]
25.3 [*]
25.4 [*]
25.5 [*]
25.6 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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25.7 CTI shall operate this Agreement in good faith.
26. RESTRICTIVE TRADE PRACTICES
26.1 If there are provisions of this Agreement (or of an agreement, or
arrangement of which it forms part) by virtue of which particulars of this
Agreement (or of an agreement of which it forms part) are, at the date of
this Agreement required to be furnished to the Director General of Fair
Trading under the Restrictive Trade Practices Acts 1976-1977:
26.1.1 The parties shall ensure that those particulars are furnished as
soon as possible and in any event within the time specified by
those Acts; and
26.1.2 Those provisions do not take effect until the day after those
particulars have been furnished.
27. GENERAL
27.1 The failure to exercise or delay in exercising a right or remedy provided
by this Agreement or by law does not constitute a waiver of the right or
remedy or a waiver of any other right or remedy. No single or partial
exercise of a right or remedy provided by this Agreement or by law
prevents further exercise of the right or remedy or the exercise of
another right or remedy.
27.2 A variation or amendment of this Agreement is valid only if it is made in
writing and signed by or on behalf of each party.
27.3 Except where this Agreement provides otherwise, the rights and remedies
contained in this Agreement are cumulative and not exclusive of any rights
or remedies provided by law.
27.4 A party has no authority or power to bind, to contract in the name of, or
to create a liability for the other party in any way or for any purpose.
27.5 This agreement together with the Equipment Purchase Agreement between
Granada Group PLC, Carlton Communications pie and Castle Transmission
International Ltd of even date herewith supersedes any previous written or
oral agreement between the parties in relation to the matters dealt with
in this Agreement including the
43
<PAGE>
Memorandum of Understanding dated 4th August 1997 and, together with the
Schedules and Annexures and any document incorporated by reference herein,
contains the whole agreement between the parties relating to the subject
matter of this Agreement.
27.6 The invalidity or unenforceability of any individual provision(s) of this
Agreement shall not affect any other provision herein or render this
Agreement invalid or unenforceable.
27.7 This Agreement is made between principals and shall not be deemed to
create any partnership between the parties and neither party shall hold
itself out as agent or partner of the other except as specifically
contemplated under this Agreement.
27.8 In the event of any inconsistency between the general provisions of this
Agreement and any of the provisions contained in any of the Schedules,
attachments, annexures to it or to documents or agreements referred to in
this Agreement, the provisions of this Agreement shall take precedence.
28. VALUE ADDED TAX
28.1 All sums due to either party under this Agreement are exclusive of VAT
thereon, if any, which shall be charged in addition thereto in accordance
with the relevant law in force at the time of making the relevant taxable
supply and shall be payable by the paying party only against receipt from
the other of a valid VAT invoice in respect thereof.
28.2 Where under this Agreement one party has agreed to reimburse or indemnify
the other in respect of any payment made or cost incurred by the other,
then the first party shall also reimburse any VAT paid by the other which
forms part of its payment or costs incurred to the extent that such VAT is
not available for credit for the other (or for the representative member
of the other's VAT group) under sections 25 and 26 of the Value Added Tax
Act 1994 (or any replacement or equivalent provision).
29. JURISDICTION
This Agreement will be governed by and construed and interpreted in
accordance with English law, and the parties hereby submit to the
exclusive jurisdiction of the English courts.
30. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which
when executed and delivered is an original, but all the counterparts
together constitute the same document.
44
<PAGE>
SCHEDULE 1
CHANGE CONTROL PROCEDURE
PART I - CHANGES PROPOSED BY CTI
1. If CTI proposes any changes to this Agreement or any of the Services then
CTI must submit to BDB a document (a "CHANGE REPORT") describing the
suggested changes, and detailing:
1.1 the reason for the proposed change;
1.2 any impact the change may have on the timing for provision of any
Services under this Agreement and whether, for example, but without
limitation, it will have an effect on any Ready for Service Date and
Start of Service Date;
1.3 any impact the change would have on the costs of implementing and
providing the Services and the Charges payable under this Agreement;
1.4 a description of the benefits that the change would make to the
provision of the Services, if any; and
1.5 any other changes that would be required to any aspect of this
Agreement if the change were implemented.
2. Within 10 Business Days of receipt by BDB of a notice under paragraph 1,
BDB and CTI shall discuss in good faith the proposed change with a view to
agreeing whether to amend this Agreement. Pending an agreed change this
Agreement shall continue unamended.
3. CTI shall nominate a representative who will act as a single point of
contact, and take responsibility for progressing change requests whether
made by CTI or BDB.
PART II - CHANGES PROPOSED BY BDB
4. If BDB at any time proposes changes to this Agreement or the Services then:
4.1 Within 20 Business Days of receipt of a notice from BDB proposing a
change, CTI must submit to BDB a Change Report detailing the matters
set out in paragraphs 1.1 to 1.5 of Part I of this Schedule.
4.2 Within 10 Business Days of receipt by BDB of a Change Report under
paragraph 4.1 of Part II of this Schedule, the parties shall discuss
in good faith
45
<PAGE>
the proposed change with a view to agreeing whether to amend this
Agreement. Pending an agreed change this Agreement shall continue
unamended.
4.3 All change requests must be authorised by the BDB Director of
Operations or his nominee from time to time notified to CTI.
46
<PAGE>
SCHEDULE 2
THE CHARGES
PART I - SCHEDULE OF CHARGES
<TABLE>
<CAPTION>
TRANSMISSION TOTAL CHARGES
YEAR [*] SERVICES' CHARGES
[*] (Pounds)000S (Pounds)000S
<S> <C> <C> <C>
1997 [*] [*] [*]
1998 [*] [*] [*]
1999 [*] [*] [*]
2000 [*] [*] [*]
2001 [*] [*] 19,285
2002 [*] [*] 19,307
2003 [*] [*] 19,310
2004 [*] [*] 19,314
2005 [*] [*] 19,317
2006 [*] [*] 19,321
2007 [*] [*] 19,324
2008 [*] [*] 19,732
2009 [*] [*] [*]
2010 [*] [*] [*]
TOTAL [*] [*] [*]
</TABLE>
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
47
<PAGE>
PART II - ANNUAL RPI INCREASES
The Charges set out in Part I of this Schedule (the "UNADJUSTED CHARGES") are
shown before the effect of increases calculated in accordance with this Part II.
With effect from each anniversary of 1 January 1998 (the "REVIEW DATE") the
Unadjusted Charges shall be subject to RPI review and shall be increased by an
Adjustment Factor as set out below.
An "ADJUSTMENT FACTOR" is calculated for each calendar year starting with a
value of 1 on 1 January 1998. The Adjustment Factor for the year commencing at
each Review Date is calculated by increasing the Adjustment Factor for the
previous calendar year by the Adjusted Rate of Inflation (as defined below). The
Charges for the current calendar year are calculated by multiplying the figure
for the Unadjusted Charges in respect of that year set out in Part I of this
Schedule by the Adjustment Factor.
The "ADJUSTED RATE OF INFLATION" shall be calculated by [*] the Rate of
Inflation.
The "RATE OF INFLATION" shall be calculated as follows:
Rate of Inflation = A - B x 100 (shown as a percentage amount)
-----
B
Where A = RPI at 31 December, immediately prior to the Review Date
B = RPI at 31 December, 12 months preceding the Review Date
All the above can be written as a formula:
Current year Charges = Unadjusted Charge set out in Part I of this Schedule x
Adjustment Factor
where:
Adjustment Factor =
Adjustment Factor for previous calendar year x (1 + A - B [*])
-----
B
and
Adjustment Factor for the first calendar year of the Term = 1
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
48
<PAGE>
In the event that RPI is reset or no longer published, the above calculation
will be replaced with an equivalent formula which will result in the same
Adjusted Rate of Inflation as would have been achieved had the RPI remained
available or not been reset as the case may be.
If in recalculating the Charges prior to the 5/th/ Anniversary of 1 January 1998
the Rate of Inflation shall exceed [*], but shall not exceed [*], then [*] shall
be deemed to be the Rate of Inflation for the purposes of calculating the
Charges for the year in question. If in such recalculation of the Charges, the
Rate of Inflation shall exceed [*] then the parties shall renegotiate in good
faith and on an open book basis the [*] deemed Maximum Rate of Inflation to be
applied in calculating the relevant Charges.
PART III - [*]
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
49
<PAGE>
[*]
PART IV - THE CONTINGENCY
The Charges have been calculated with the inclusion of an amount of [*] (the
"CONTINGENCY AMOUNT").
The Contingency Amount is intended to be utilised by CTI in defraying unforeseen
or increased costs to the extent that such increased or unforeseen costs have
not be defrayed by CTI from savings pursuant to Clause 17.7. If by a date
falling three months after the last Station comes into Operational Service
(excluding any Additional Stations, unless otherwise agreed by the Parties)
there shall remain unutilised any balance of the Contingency Amount in respect
of any identified category of expenditure, the balance shall be utilised to
provide a
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
50
<PAGE>
reduction in the Charges in a manner to be agreed between the parties failing
which it will be set off against the charges pro-rata for the remainder of the
Term.
PART V - BASIS OF CHARGING [*]
PART VI - THE WTA LICENCE FEE
To the extent that any licence fees are payable by CTI in respect of any WTA
Licences relating solely to the operation of the BDB Multiplexes:
1.1 shall exceed [*] per annum per BDB Multiplex then the Charges in respect of
the year in which the WTA Licence fee is payable shall be increased by an
amount equal to that excess; or
1.2 fall short of [*] per annum in the first full year following the last
Station coming into Operational Service (excluding any Additional Stations,
unless otherwise agreed by the parties) or any subsequent year in which the
WTA Licence fee is payable per BDB Multiplex then the Charges in respect of
that year that shall be reduced by an amount equal to the shortfall.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
51
<PAGE>
SCHEDULE 3 CONFIGURATION OF THE NETWORK
PART I - DISTRIBUTION
Multiplex distribution provides resilient terrestrial circuits from the
Multiplex Centre to each of the 81 transmitting stations.
The circuits will be provided by BT on behalf of CTI, and will comprise
diversely routed dual fibre circuits carrying three multiplexes to BT network
access points. At these access points the BDB signals will be combined with
those from other DTT multiplex operators for onwards delivery via a common
network.
Interfaces will be provided at the Multiplex Centre to enable transport streams
with different programming to be fed independently to six "macro regions". This
facility will be provided for multiplexes B, C and D. The Stations within each
macro region will be as for Multiplex 2 unless otherwise agreed by the parties
through the Change Control Procedure.
NETWORK TECHNOLOGY & RESILIENCE
Terrestrial circuits will be designed to provide availabilities of 99.99%
through the use of optical fibre circuits. This diversity will be maintained
throughout the network, such that there are no common points of failure. At a
few of the very remote sites, where the provision of dual optical fibre paths is
not practicable, service may be provided on duplicated digital radio links,
engineered to the same level of availability.
The network will consist of circuits providing connectivity from the local BT
network nodes to the transmitter sites. These circuits will be provided
specifically for this purpose on dedicated optical fibres. To maintain
resilience upon the failure of a single incoming circuit, the line-termination
plant will be configured to provide 'cross protection', such that upon the
failure of one incoming circuit, the remaining diverse feed will feed both
halves of the core network or transmitter input equipment.
A core national network, providing interconnection between the BT nodes, will be
provided on existing BT digital line plant using SDH technology. The automatic
re-routing capabilities of BT's SDH network will ensure that full diversity is
restored automatically should any individual element of the core network fail.
TOPOLOGY
Although a common delivery network will be utilised, aggregation with other
broadcasters signals will be carried out at BT network nodes, and BDB's signals
will not be routed via any other broadcasters premises. The multiplexes, as
originated from the Multiplex Centre, will be delivered to each of the primary
sites listed below. Where any secondary Sites are shown these will be fed via
the primary Sites, from the output of the SI processing equipment.
52
<PAGE>
SCHEDULE 3 - TABLE 1; SI Processing Primary and Secondary Stations
------------------------------------------------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
PRIMARY SITE SECONDARY SITES
- ---------------------------------------------------------------------------------------------
<S> <C>
Belmont None
- ---------------------------------------------------------------------------------------------
Bilsdale None
- ---------------------------------------------------------------------------------------------
Black Hill Rosneath, Darvel, Torosay.
- ---------------------------------------------------------------------------------------------
Bluebell Hill Dover.
- ---------------------------------------------------------------------------------------------
Caldbeck None
- ---------------------------------------------------------------------------------------------
Caradon Hill Plympton.
- ---------------------------------------------------------------------------------------------
Craigkelly None
- ---------------------------------------------------------------------------------------------
Crystal Palace Reigate, Guildford, Hemel Hempstead.
- ---------------------------------------------------------------------------------------------
Divis Limavady, Brougher Mountain.
- ---------------------------------------------------------------------------------------------
Durris Angus, Knockmore, Rosemarkie, Eitshal, Rumster Forest, Kellylang Hill,
Bressay.
- ---------------------------------------------------------------------------------------------
Emley Moor Idle, Keighly, Oliver's Mount.
- ---------------------------------------------------------------------------------------------
Fremont Point None
- ---------------------------------------------------------------------------------------------
Hannington None
- ---------------------------------------------------------------------------------------------
Heathfield Hastings.
- ---------------------------------------------------------------------------------------------
Huntshaw Cross None
- ---------------------------------------------------------------------------------------------
Mendip Ilchester Crescent, Kings Weston Hill.
- ---------------------------------------------------------------------------------------------
Midhurst Whitehawk Hill.
- ---------------------------------------------------------------------------------------------
Oxford None
- ---------------------------------------------------------------------------------------------
Pontop Pike Fenham, Chatton.
- ---------------------------------------------------------------------------------------------
Redruth None
- ---------------------------------------------------------------------------------------------
Ridge Hill None
- ---------------------------------------------------------------------------------------------
Rowridge Salisbury.
- ---------------------------------------------------------------------------------------------
Sandy Heath None
- ---------------------------------------------------------------------------------------------
Selkirk None
- ---------------------------------------------------------------------------------------------
Sheffield Chesterfield.
- ---------------------------------------------------------------------------------------------
Stockland Hill Beacon Hill.
- ---------------------------------------------------------------------------------------------
Sudbury None
- ---------------------------------------------------------------------------------------------
Sutton Coldfield Fenton, The Wrekin, Bromsgrove, Brierley Hill, Malvern, Larkstoke.
- ---------------------------------------------------------------------------------------------
Tacolneston None
- ---------------------------------------------------------------------------------------------
Tunbridge Wells None
- ---------------------------------------------------------------------------------------------
Waltham Nottingham.
- ---------------------------------------------------------------------------------------------
Wenvoe Pontypool, Aberdare, Kilvey Hill, Carmel, Presely, Blaenplwyf,
Llanddona, Moel-y-Parc.
- ---------------------------------------------------------------------------------------------
Winter Hill Lancaster, Pendle Forest, Storeton, Saddleworth.
- ---------------------------------------------------------------------------------------------
</TABLE>
The transmitter input system at the secondary sites will consist only of
duplicated COFDM modulators since the incoming transport stream will contain the
correct SI information from the associated primary station.
53
<PAGE>
NETWORK MONITORING AND MANAGEMENT
The service will be provided as a fully managed network and CTI will have on-
line access to the BT network management system providing details of the network
status. This will allow rapid fault diagnosis and escalation, together with
reporting to BDB as provided in Clause 14.
At the BDB Interface, BDB's multiplex streams will be tagged with a unique
identification header, which will remain with the stream until the final point
of delivery. This will enable the terminating equipment to ensure that the
correct BDB stream is being delivered to the transmitters at all times, and take
appropriate executive action in the case of any equipment faults or
configuration errors.
54
<PAGE>
PART II - [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
55
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
56
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
57
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
58
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
59
<PAGE>
SCHEDULE 3 - TABLE 2 LIST OF STATIONS WITH SINGLE COMBINING SYSTEMS
<TABLE>
<CAPTION>
- --------------------------------------------------------
Station Affected BDB Multiplex(es)
- --------------------------------------------------------
<S> <C>
- --------------------------------------------------------
Aberdare [*]
- --------------------------------------------------------
Brierley Hill [*]
- --------------------------------------------------------
Bristol Ilchester Crescent [*]
- --------------------------------------------------------
Bromsgrove [*]
- --------------------------------------------------------
Fenham [*]
- --------------------------------------------------------
Fenton [*]
- --------------------------------------------------------
Hastings [*]
- --------------------------------------------------------
Larkstoke [*]
- --------------------------------------------------------
Malvern [*]
- --------------------------------------------------------
Olivers Mount [*]
- --------------------------------------------------------
Salisbury [*]
- --------------------------------------------------------
Tunbridge Wells [*]
- --------------------------------------------------------
Whitehawk Hill [*]
- --------------------------------------------------------
Chesterfield [*]
- --------------------------------------------------------
Idle [*]
- --------------------------------------------------------
Lancaster [*]
- --------------------------------------------------------
Nottingham [*]
- --------------------------------------------------------
Pendle Forest [*]
- --------------------------------------------------------
Plympton [*]
- --------------------------------------------------------
Rosneath [*]
- --------------------------------------------------------
Saddleworth [*]
- --------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
60
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
61
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
62
<PAGE>
STRUCTURAL ENGINEERING
Either new structures will be provided for DTT antennas or existing structures
will be strengthened where necessary to accept additional load.
BUILDING
New or modified buildings will be provided to accommodate the equipment for all
multiplex operators.
At each Station other than those referred to below, each multiplex operator's
plant will be housed in a discrete area, classed as an independent fire cell for
isolation, with secure access via a common corridor shared with the other
operators.
At the following Stations all multiplex operators equipment will be housed in
secure housing separate from other transmission equipment: Aberdare, Brierley
Hill, Bristol Ilchester Crescent, Bristol Kings Weston, Bromsgrove,
Chesterfield, Fenham, Fenton, Guildford, Hastings, Hemel Hempstead, Idle,
Keighley, Lancaster, Larkstoke, Malvern, Nottingham, Olivers Mount, Plympton,
Pontypool, Reigate, Rosneath, Saddleworth, Salisbury, Sheffield, Storeton,
Tunbridge Wells, Whitehawk Hill.
At Crystal Palace multiplex B shall be housed in an independent fire cell,
multiplexes C and D shall be housed together in an otherwise independent fire
cell. At Rowridge, Multiplexes B, C and D shall be housed together in an
otherwise independent fire cell.
POWER
All DTT Stations will have dual electricity supplies, except for those listed in
the table below:
SCHEDULE 3 - TABLE 3 : Stations with Single Power Supply Feeds
--------------------------------------------------------------
- ------------------------------------------------------------------------------
Aberdare Eitshal Kilvey Hill Pontypool
- ------------------------------------------------------------------------------
Bilsdale Fenham Knockmore Reigate
- ------------------------------------------------------------------------------
Bressay Fenton Lancaster Rosneath
- ------------------------------------------------------------------------------
Brierley Hill Fremont Point Larkstoke Saddleworth
- ------------------------------------------------------------------------------
Bristol Ilchester Crescent Guildford Llanddona Salisbury
- ------------------------------------------------------------------------------
Bristol Kings Weston Hastings Malvern Storeton
- ------------------------------------------------------------------------------
Bromsgrove Hemel Hempstead Nottingham Torosay
- ------------------------------------------------------------------------------
Brougher Mountain Idle Oliver's Mount Tunbridge Wells
- ------------------------------------------------------------------------------
Chatton Keelylang Hill Pendle Forest Whitehawk Hill
- ------------------------------------------------------------------------------
Chesterfield Keighley Plympton
- ------------------------------------------------------------------------------
CTI will install new DTT auto-start, auto-changeover diesel generators at all
stations. These will be containerised where planning regulations allow and will
have sufficient fuel for a minimum of 24 hours full-power operation.
Duplicate power distribution will provide resilience for fault conditions or
maintenance activity.
63
<PAGE>
UPS units will be provided to protect individual key items of equipment within
the transmitter input system as appropriate.
64
<PAGE>
SCHEDULE 3 CONFIGURATION OF THE NETWORK
PART IIA - SI DATA INTERCHANGE
SYSTEM REQUIREMENTS
It is specified in the D Book that 'each multiplex must carry certain SI
information for certain other multiplexes', in particular Event Information
Table entries.
[*]
Where the regional SI permutation is appropriate to other Sites in the locality,
the modified transport streams will be delivered onwards to those Sites via the
Distribution Network.
SYSTEM OVERVIEW
[*]
All of the acquired SI, along with the SI relating to the BDB multiplex, will be
collated and reinserted into the outgoing transport stream.
The SI Collation System ("SICS") will be configured to ensure that appropriate
bit-rate will be apportioned to the 'Other multiplex' table data within the
stream in accordance with the recommendations of the D-Book ("GUARANTEED
BANDWIDTH"). The SICS will also ensure that the incoming 'Other multiplex' data
conforms to 'D' Book technical standards ("QUALIFYING DATA"), rejecting data as
necessary to ensure the integrity of the 'Actual' multiplex.
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
65
<PAGE>
[*]
EQUIPMENT SUPPLIER
The Charges in Schedule 2 are based on the use of Phillips equipment to provide
SI and related functions. If BDB does not chose Phillips as its system
integrator then it may not be appropriate to use Phillips equipment and the
Charge Control Procedure shall apply.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
66
<PAGE>
SCHEDULE 3 CONFIGURATION OF THE NETWORK
PART III - MONITORING AND CONTROL
The Network has been designed for unattended operation. CTI will use automatic
monitoring facilities at all Stations as a means of measuring compliance with
the technical performance parameters of the DTT Transmission Service.
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
67
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
68
<PAGE>
SCHEDULE 3 CONFIGURATION OF THE NETWORK
PART IIIA - NETWORK STATUS SYSTEM
A Network Status System will be provided to BDB to display the current status of
the Network.
A dedicated Kilostream circuit will be provided from the TOC to the BDB
Multiplex Centre. A personal computer and network equipment will also be
supplied as part of the Network Status System.
The following diagram outlines the proposed system:
[Diagram illustrating the configuration of the BDB network]
APPLICATION
An application, based upon a graphical user interface, will be supplied to
access the database and provide a graphical overview of the Network, as well as
showing more detail on individual Stations when required.
A dedicated database will be provided to hold a subset of the alarm and current
status of all the DTT transmitting stations. This status database will be kept
to within thirty seconds of the status that is known at the TOC system. The
database will also hold service messages for at least the preceding 18 months.
These can be used for ad-hoc queries and service level confirmation.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
69
<PAGE>
SERVICE LEVEL
The data circuit, database and graphical user interface application will form
part of the Service and will be the responsibility of CTI. The monitoring of
this circuit and PC will be incorporated into the TOC system and a watchdog
system will be used to ensure that any loss of the monitoring facility is
detected.
Throughout the life of the system CTI will make all reasonable endeavours to
ensure compatibility with current industry-standard operating systems.
SECURITY
CTI will provide suitable systems to protect the networks of both organisations.
This will include electronic firewalls on the telecommunications links and virus
checking on the BDB Network Status system computer.
BDB will need to maintain the physical security for the system to protect it
against local attack.
FUNCTIONAL DESIGN
A detailed functional design specification for the Network Status System will
ensure that any reasonable requirements of BDB are met within the constraints of
the CTI TOC system.
70
<PAGE>
SCHEDULE 4
SERVICES PROVIDED BY CTI
GENERAL
QUALITY
CTI's operation is governed by a quality management system that is accredited to
ISO 9001.
As far as possible, CTI expects suppliers to operate under similar quality
arrangements.
CTI staff are chosen with appropriate skills and are kept up to date with
training, as needed, in new techniques and systems.
SAFETY
CTI's internal Safety Policy (the "Safety Policy") fulfils the company's legal
requirement under the Health and Safety at Work Act 1974.
The Safety Policy is carried out through a series of Company Safety Instructions
under the auspices of a full-time Company Safety Adviser (CSA).
All staff receive relevant training to carry out their jobs in accordance with
the Safety Policy. Such training is under continual review.
PART I - DESIGN AND PROCUREMENT
PROJECT MANAGEMENT
The following personnel am responsible for provision of the Network:
Principal Account Manager:
. acts as primary point of contact between BDB and CTI for both Project
and Service delivery issues.
Project Manager:
. responsible for provision of Network infrastructure; and
. co-ordinates inter-site and on-site activities of project
contributors.
Technical Manager:
. ensures technical compatibility of Network elements; and
. ensures, compatibility of the Service with customer and industry
expectations.
71
<PAGE>
Project schedules will be created and maintained under review for each site an
which there is project work in progress. From these a 'super-project' plan will
be maintained to co-ordinate intrasite activities.
The Project Manager will have direct access to all the relevant Resource Heads
to ensure provision of relevant resources.
Project meetings and systems architecture meetings will be hold regularly to
ensure cross-specialism, co-ordination and compatibility.
PROGRESS REPORTING
CTI will present a two weekly progress report to BDB. This report to will be in
the form of a project schedule. This will be in a software format compatible
with the project planning system used by BDB.
There will in addition be a brief narrative highlighting the main issues
associated with particular activities or sites.
RISK
CTI's risk management principles are encompassed in CTI's quality procedures.
The discipline is based on risk identification, analysis, mitigation and
management as an iterative process. This process will be managed by the Project
Manager and the Technical Manager.
PART II - OPERATIONS
SERVICE DELIVERY
Delivery of the service will be the responsibility of the Head of Operations,
who is:
. responsible for provision of an effective operations and maintenance
system nation wide; and
. responsible for ensuring service level provision compliant with
relevant contractual requirements.
TECHNICAL OPERATIONS CENTRE (TOC)
CTI has in place a TOC and this is the hub of CTI's network operations,
monitoring and management capability. It offers a full 24 hour, 365 day facility
staffed by specialist technical, managerial and operational staff. The TOC back-
up site at Sutton Coldfield provides technical resilience and geographical
separation.
Provision of a 24-hr TOC operation is the responsibility of the TOC Manager, who
ensures that TOC procedures are commensurate with service level provision.
The TOC will be equipped with the following systems:
72
<PAGE>
. a supervisory control and dam acquisition system (SCADA);
. a management information system (MIS) and wide area private data network;
. a wide area networked maintenance personnel despatch system;
. a Network Status System; and
. a standby power supply system with diesel generator and UPS.
The transmitting stations will operate unattended with remote monitoring fully
integrated into the TOC. The TOC will initiate operational response to potential
and service-affecting faults in accordance with the provisions of Schedule 9 and
the Contracted Availability. The required operational support will be supplied
from one of a number of team bases which are located at various points
throughout the UK.
Alarm from the DTT monitoring equipment will arrive in the TOC and priorities
will be automatically assigned. In addition suspected problems may be reported
to the TOC from other sources. All such occurrences will be recorded and dealt
with accordingly via a pre-defined escalation procedure.
The TOC will provide operational information and statistics to meet the
performance monitoring and reporting requirements set out in Clause 14.
REMOTE CONTROL
The Duty Engineer or nominated deputy Engineer will be the only persons in the
TOC authorised to Initiate any control action.
CTI TEAM BASE MONITORING
All team bases will be equipped with receive systems for DTT. They will be able
to check (on an ad-hoc basis), the output from those stations which are
receivable at that base.
TV DEALER MONITORING
The TOC has an existing network of TV dealer contacts that are used to confirm
TV and radio reception and this facility will be extended for DTT reception
where practicable.
VIEWER MONITORING
At least one nominated audience contact for each DTT station will have direct
telephone access to the TOC to enable reporting of suspected problems and to
allow the TOC to contact them to confirm problems reported from another source.
PART III - MAINTENANCE
FAULT REPAIR AND RECORDING
73
<PAGE>
The first priority of maintenance staff will be to ensure that the service is
restored. The next priority will be to restore system redundancy by repairing
reserve or standby equipment. Fault rectification will usually be by replacement
of faulty units or modules.
Fault repair down to component level will usually be done at Daventry (see
below).
A database of fault history will be maintained to identify any trends with a
view to improving system reliability.
ROUTINE MAINTENANCE
Any necessary routine maintenance will be carried out by maintenance staff on an
"as necessary" basis. The frequency of such work will be determined by condition
monitoring and analysis of the database of fault history.
Routine maintenance will be planned in such a way that the outgoing service is
unaffected by the activity. Any work which is service-affecting will be carried
out under the Planned Work regime (below).
PLANNED WORK
The number of DTT channels sharing antenna systems will make planned outages and
switching breaks more difficult to negotiate in future. Antennas shared between
analogue and digital services present even greater difficulty.
CTI are committed to the formulation of an agreed CTI/NTL rolling 12 month
planned work programme for structural maintenance. To that end a formalised
negotiation method is proposed within the following guidelines:
. ensure that a clear need for the work to be done can be shown;
. parallel negotiations between identified points of contact within each
organisation to minimise the time taken to reach agreement;
. a rotating 'veto' system, ensuring fair and equitable treatment of all
requests:
. agree with each operator those programme periods that they regard as
highest priority; and
. equalisation of the effects of planned work on all services at a
particular station.
DAVENTRY CENTRAL MAINTENANCE FACILITIES
CTI has a central maintenance and supply facility at Daventry which operates on
the following principles:-
. repair of equipment down to component level.
. work is done under controlled conditions by experienced staff; and
74
<PAGE>
. a central store of spare units and parts is maintained to support field
requirements.
It provides additional support including a fast turn-around modular repair
service, parts purchasing, a spares control/delivery system and a test equipment
calibration service.
SPECIALIST SUPPORT
The existing callout procedure will be expanded to include out of hours support
for maintenance teams.
An escalation procedure will ensure that an appropriate level of support is
available for all incidents. This will be implemented via the TOC which will
maintain a schedule of engineers who have specialised knowledge of nominated
systems and equipment used in the Network. These engineers will come from CTI's
Operations and Engineering departments as well as external organisations
contracted to provide support where necessary. The escalation procedure will
include CTI's senior management who will ensure that appropriate resources are
deployed rapidly to resolve any relevant problem.
PART IV - CUSTOMER SUPPORT
SERVICE PLANNING SUPPORT
CTI will provide support to BDB as follows:
. liaison with NTL and BBC R&D as necessary;
. consultation with the ITC and RA as appropriate; and
. advice on subscriber coverage issues. (This will include a telephone
hotline which will operate 09:30 to 17.30 Monday to Friday, with backup
from the TOC at other times. The TOC will call on specialist engineering
support to deal with urgent enquiries when necessary, on an ad-hoc basis.)
CTI will deploy additional resources from its partner TDF as necessary.
DTT SURVEYS
CTI will survey DTT coverage by actual measurement of field strength at early
installations, concentrating on areas where coverage is predicted to be
marginal. The CTI prediction models will then be refined iteratively using
measured data to a level where further verification is deemed unnecessary by
both parties. Predictions will take due account of the degree of interference to
be expected as the network expands.
CTI will verify that now DTT transmit antennas as installed will comply with the
relevant Template.
75
<PAGE>
This shall be achieved by electrical and mechanical tests and inspections of the
antenna, on works acceptance and as a part of installation commissioning. This
work will conform with current best industry practice.
CTI will make the results of these tests available to BDB. BDB reserves the
right to carry out independent tests to verify compliance with the relevant
Template.
In order to be able to verify that field strength remains stable over time, a
series of reference measurements will be made at agreed locations.
CTI will make additional support available for service coverage measurements
when requested by BDB in accordance with the rate card arrangements in Clause
9.5.
TEST TRANSMISSIONS AT EARLY STATIONS
Prior to the launch of service CTI shall provide early test transmissions to an
agreed timetable at an agreed (small) number of Stations. The purpose of these
transmissions is to provide early verification of planning tools and assumptions
and to provide a source of signals for receiver testing. The format and content
of these transmissions is to be agreed between CTI and BDB.
Routine Test Transmissions will be provided at all Stations as part of the
commissioning and acceptance process.
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<PAGE>
SOURCE EQUIPMENT
Prior to the availability of Distribution Network feeds at the test Stations,
CTI will provide temporary source equipment as necessary to ensure that Test
Transmissions can take place. CTI have included costs for up to [*] for the
provision of the necessary source equipment. Purchase of additional equipment
will be dealt with under the Change Control Procedure. The format of this
equipment and the storage medium used will be agreed between CTI and BDB. Any
programme material required for Test Transmissions will be provided by BDB in an
agreed format.
As the Distribution Network becomes available the Test Transmission signals will
be inserted by CTI at the BDB Interface using equipment similar to that provided
at the Stations. At an agreed time, prior to the first start of Site Service
Date, BDB shall make signals suitable for transmission available at the BDB
Interface.
TEST BED
CTI will continue to support the development of DTT systems using testbed
facilities at Sutton Coldfield to test new equipment and systems.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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<PAGE>
SCHEDULE 5
TRANSMISSION TESTING
PART I - ACCEPTANCE TEST SPECIFICATION
PARAMETERS & LIMITS
- -------------------
This table details the test parameters, methods of measurement and limits
applicable.
78
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
79
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
80
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
81
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
82
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
83
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
84
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
85
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
86
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
87
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
88
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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PART II - TRANSMISSION FAULT THRESHOLDS
For acceptance testing CTI shall demonstrate that exceeding the thresholds in
the table below results in the appropriate executive actions (e.g. changeovers)
and that the relevant alarms are raised at the TOC.
For the purposes of this Agreement the Transmission Fault Thresholds are as
follows:
SCHEDULE 5 - TABLE 2 Transmission Fault Thresholds
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
90
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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SCHEDULE 6
THE BDB INTERFACE AND HANDOVER REQUIREMENTS
PART I - DISTRIBUTION
ACCOMMODATION
CTI will require secure accommodation within the Multiplex Center for the
installation of the circuit terminating equipment, and any associated monitoring
(the "CTI Area"). Provision is required for two PTO racks (separate A&B
systems) and one CTI rack. BDB shall be responsible for maintaining the ambient
temperature within this CTI Area between +10 degrees celsius and +30 degrees
celsius, by appropriate means. The area shall be sufficient to provide front
and rear access to the PTO racks for maintenance and be adequately illuminated
to allow repair of electronic equipment in the racks.
POWER REQUIREMENTS
Each of the racks will consume up to 500w from a 230vAC supply provided by BDB.
In order to ensure full redundancy, the power for the "A & B" racks shall be
provided from diversely derived supplies, such that a single failure in the
power distribution system will not cause both supplies to fail simultaneously.
Should BDB choose to protect the supplies to the multiplex equipment with
locally generated or UPS supplies, then this level of protection shall also be
provided to the CTI interface area. A suitable technical earth is also
required.
In addition to the equipment supplies, a minimum of four 'general purpose' 13A
sockets shall be provided adjacent to the racks for the connection of test
equipment.
TELECOMMUNICATIONS REQUIREMENTS
The distribution circuits from the CTI Area require diverse optical fibre
routing to the PTO network with an agreed practicable separation within the
building until they approach the CTI Area, thereafter a reduced practicable
separation shall be provided. Either a PSTN Direct Exchange Line or an
extension of the BDB multiplex centre telephone system will be required within
the CTI area.
ACCESS ARRANGEMENTS
CTI& BDB shall agree on a system such that necessary maintenance personnel can
gain access to the CTI Area for the diagnosis and correction of equipment
faults, on the production of an appropriate identification. Access is required
on a 24hr/365 day basis, and includes PTO staff unaccompanied by CTI for the
correction of circuit faults but will be subject to an agreed operational
procedure.
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TRANSPORT STREAM PRESENTATION
Each of the three groups of six macro region transport steam multiplexes shall
be a single presentation in an agreed ASZI format.
Due to availability and reliability considerations, CTI do not propose to re-
generate the transport stream prior to connection to the terrestrial circuit
interface.
Each transport stream provided at the interface point will be at an agreed
bitrate.
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PART II - NETWORK STATUS SYSTEM
For a detailed description of the Network Status System please refer to Schedule
3 Part IIIa.
ACCOMMODATION
The Network Status System will require BDB to provide dedicated desk space in a
secure and environmentally controlled area for the following items:
. personal Computer;
. network router (including electronic firewall);
. monitor (17");
. keyboard and mouse; and
. inkjet Printer (consumables will be provided by BDB at its own cost).
POWER REQUIREMENTS
BDB shall provide six mains outlets (total maximum load greater than 13A) on the
desk that will carry the Network Status System computer and other hardware.
A maintained mains outlet shall also be provided by BDB for the Kilostream
circuit.
TELECOMMUNICATIONS REQUIREMENTS
CTI will require the following circuits to be installed in the Multiplex Centre
in the vicinity of the Network Status System location.
. BT Termination for 64k Kilostream circuit; and
. BT Termination for ISDN 2 circuit.
Connection and rental charges for these circuits shall be met by CTI.
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SCHEDULE 7
CALCULATION OF DELAY REBATES AND SERVICE CREDITS
PART I - ILLUSTRATION OF RELATIONSHIP BETWEEN DATES
The following diagram illustrates the relationship between the types of the date
specified in the Contract.
[Diagram which illustrates the relationship between the types of the date
specified in the Contract]
Contractual Review of Dates See Clause 4.3.
Ready for Test Transmission date: DTT Station ready to transmit and
associated analogue transmitter work
complete at all relevant Stations.
Ready for Service date: As defined in the Agreement
Start of Service date: As defined in the Agreement
PART II - CALCULATION OF DELAY REBATE
Table 2 lists the Daily Charges which apply under the circumstances specified in
Clause 6.
In order to calculate the Delay Rebate, the numbers of days from the relevant
Ready for Service Date to the Actual Site Service Date Inclusive ("Days of
Delay") shall be calculated in accordance with Clause 6 and entered into Table
3. The Delay Rebate for each Station shall be entered on the table by
multiplying the Days of Delay and the Daily Charge.
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In the case of one BDB Multiplex being delayed, the Delay Rebate shall be the
same as if all BDB Multiplexes have been delayed at that site.
Table 3 shall be completed each Year for all Station which reach their Actual
Site Service Date in that Year. The Total Delay Rebate for that year (the sum
of the column, shown on the last line of Table 3), shall be subtracted from
CTI's first monthly invoice in the following year.
PART III - CALCULATION OF SERVICE CREDITS
Service Credits become payable if Accountable Availability falls below [*],
except in the case of Bressay, Eitshal, Keelylang, Hill and Torosay where
Service Credits become payable if Accountable Availability falls below [*].
DERIVATION OF ACCOUNTABLE AVAILABILITY
Accountable Availability = A-B x 100%
---
A
Where:
A = Total number of minutes in the previous six months
B = Total number of minutes in the previous six months during which performance
is worse than the Service Shutdown Threshold as defined in Schedule 5 Part II,
arising other than as a result of Non-Accountable Conditions. This is defined
as Minutes Lost.
For each of the first five months after Start of Service, Accountable
Availability shall be calculated over the previous six months by treating
performance prior to Start of Service as always exceeding the Service Shutdown
Threshold i.e. the contribution to variable B in the above equation for those
months shall equal zero.
The following are Non-Accountable Conditions:
a) a Force Majeure Event;
b) extreme weather conditions affecting traveling to any remotely located
Station;
c) a delay of no more than [*] in re-establishing the Services when
switching to standby equipment;
d) a delay of no more than [*] in re-establishing the Services when
switching to alternative power supplies;
e) interruption for essential or planned works on mast structures, GRP
cylinders and stays made in compliance with Clauses 15.1 or 15.2. The
timing and length of each interruption shall be agreed by the parties as
set out in Schedule 4 Part III;
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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<PAGE>
f) frequency planning or international frequency clearance issues;
g) incidents arising as a result of known and previously agreed fundamental
equipment design deficiencies which cannot be immediately rectified, from
the date at which the deficiency is identified and agreed by the parties,
to the date agreed for rectification;
h) compliance with the mandatory requirements of any law, any national or
supranational regulatory authority, the Radio Regulations or any statutory
obligations;
i) planned and previously agreed interruptions to undertake modifications to
the DTT Transmission Network required by BDB and/or legal or regulatory
bodies such as the Radio-communications Agency and the Independent
Television Commission, unless the interruption is required to remedy a
situation arising due to the fault or omission of CTI, its agents or sub-
contractors;
j) where invasive tests are required by BDB, such as the measurements of group
delay, provided that the results meet the Technical Specifications.
k) any failure or degradation of the signal or message comprising the BDB
Signals from the BDB Interface to the CTI interface;
l) any material breach of this Agreement by BDB (or any act or omission of it
or its agents or sub-contractors) to the extent that it prevents or impedes
the performance of CTI's obligations to provide the Distribution Service
and DTT Transmission Service; and
m) where any of the relevant part of the Network is requisitioned, taken over
or used pursuant to the exercise of any Emergency Powers.
Account Availability shall be calculated at the end of each month, for each BDB
Multiplex at each of the sites listed in Table 3. The result shall be sent to
BDB by the 7th day of the following month.
NON-COMPLAINT SERVICE
Each BDB Multiplex at each site which has an Accountable Availability result of
less than [*], shall be deemed a Non-Complaint Service ([*])
At the end of each month, a Service Credit amount shall be calculated for each
Non-Complaint Service.
The value of the Service Credit shall be related to the severity of the service
loss, by taking account of the time of day when the performance was worse than
the Service Shutdown Threshold, and the population served by the Non-Complaint
Service. This shall be achieved through the use of adjustment and weighting
factors in Tables 1, 2 and 3.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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<PAGE>
CALCULATION OF SERVICE CREDITS
Each month, the total Minutes Lost by a Non-Complaint Service during the
previous six months shall be entered into the second column of Table 1, with
separate figures for losses during each hour of the day. Each figure shall then
be multiplied by the corresponding Time Adjustment Factor to give Unweighted
Service Credits, which are totalled to give the Unweighted Service Credit Total,
The Service Credit shall be calculated by inserting the relevant Station
Weighting Factor from Table 3 and multiplying it by the Unweighted Service
Credit Total.
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Format of Table 1
The figures in italics are for illustration and they are included in order to
demonstrate that 60 minutes complete loss of service from one multiplex at
Crystal Palace during peak time will result in a Service Credit payment of [*].
This total will accrue because the 60 minute loss of service will be included on
the table below for six consecutive months, giving six payments of
[*].
The table shows a 60 minutes loss of service between 21:00 and 22:00. The time
lost, in minutes, is entered in the second column and multiplied by the Time
Adjustment Factor in the third column (100 in this case) to achieve a monetary
Unweighted Service Credit as shown. The Unweighted Service Credits are totalled
down the column (S) and multiplied by the Station Weighting Factor to obtain a
Service credit of [*].
STATION 7 - TABLE 1 EXAMPLE OF SERVICE CREDIT CALCULATION
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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<PAGE>
SERVICE CREDITS FOR SIMULTANEOUS FAILURE AT MORE THAN ONE STATION
If a single distribution failure results in more than one Station having a Non-
Complaint Service, then Service Credits with respects to this simultaneous
failure at more than one Station shall be calculated as follows, instead of
using Station Weighting Factors from Table 3:-
Unweighted Service Credits shall be calculated using Table 1 and then the
Unweighted Service Credit Total shall be multiplied by the relevant Service
Weighting Factor given in Table 2, to derive the Service Credit.
SCHEDULE 7 - TABLE 2 - Service Weighting Factors
[*]
For the purposes of this Table only the population served shall be the gross
population figures for the relevant multiplexes at the relevant Stations, as
defined by the ITC from time to time.
TIMING OF SERVICE CREDIT PAYMENTS
A Service Credit payment shall be made one per Year only and it shall be in the
form of a reduction in CTI's first monthly invoice for the Year. The amount of
the reduction shall equal the total of Service Credits calculated during the
previous Year.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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<PAGE>
REDUCTION DURING THE INITIAL PERIOD
During the first three months after Start of Service, each Minute Lost will be
reduced by 50% before entering the resultant figures into Table 1. This
reduction is subject to one month "burn in" period being available prior to
Start of Service date. Should this period not be available then the reduction
is decreased in proportion e.g. two weeks "burn in" equates to six weeks
reduction.
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SCHEDULE 7 - TABLE 3 STATION WEIGHING FACTORS AND DAILY CHARGES
The table shows two values for each Station, the Daily Charge P. used in Daily
Rebate calculations, and the Station Weighting Factor used in Service Credit
calculations.
SCHEDULE 7 - TABLE 3 SHEET 1 OF 3
<TABLE>
<CAPTION>
STATION DAYS OF DAILY DELAY REBATE STATION WEIGHTING FACTOR (TO
DELAY CHARGE P = D X P BE INSERTED IN TABLE 1, FOR
D (Pounds) (Pounds) SERVICE CREDIT CALCULATION)
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Aberdare [*] [*]
- ---------------------------------------------------------------------------------------------
Angus [*] [*]
- ---------------------------------------------------------------------------------------------
Beacon Hill [*] [*]
- ---------------------------------------------------------------------------------------------
Belmont [*] [*]
- ---------------------------------------------------------------------------------------------
Bilsdale [*] [*]
- ---------------------------------------------------------------------------------------------
Black Hill [*] [*]
- ---------------------------------------------------------------------------------------------
Blaenplwyf [*] [*]
- ---------------------------------------------------------------------------------------------
Bluebell Hill [*] [*]
- ---------------------------------------------------------------------------------------------
Bressay [*] [*]
- ---------------------------------------------------------------------------------------------
Brierley Hill [*] [*]
- ---------------------------------------------------------------------------------------------
Bristol Ilchester [*] [*]
Crescent
- ---------------------------------------------------------------------------------------------
Bristol Kings [*] [*]
Weston
- ---------------------------------------------------------------------------------------------
Bromsgrove [*] [*]
- ---------------------------------------------------------------------------------------------
Brougher Mountain [*] [*]
- ---------------------------------------------------------------------------------------------
Caldbeck [*] [*]
- ---------------------------------------------------------------------------------------------
Caradon Hill [*] [*]
- ---------------------------------------------------------------------------------------------
Carmel [*] [*]
- ---------------------------------------------------------------------------------------------
Chatton [*] [*]
- ---------------------------------------------------------------------------------------------
Chesterfield [*] [*]
- ---------------------------------------------------------------------------------------------
Craigkelly [*] [*]
- ---------------------------------------------------------------------------------------------
Crystal Palace [*] [*]
- ---------------------------------------------------------------------------------------------
Darvel [*] [*]
- ---------------------------------------------------------------------------------------------
Divis [*] [*]
- ---------------------------------------------------------------------------------------------
Dover [*] [*]
- ---------------------------------------------------------------------------------------------
Durris [*] [*]
- ---------------------------------------------------------------------------------------------
Eitshal [*] [*]
- ---------------------------------------------------------------------------------------------
Emley Moor [*] [*]
- ---------------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
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<PAGE>
SCHEDULE 7 - TABLE 3 SHEET 2 OF 3
<TABLE>
<CAPTION>
STATION DAYS OF DAILY DELAY REBATE STATION WEIGHTING FACTOR (TO
DELAY CHARGE P = D X P BE INSERTED IN TABLE 1, FOR
D SERVICE CREDIT CALCULATION)
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Fenham [*] [*]
- -----------------------------------------------------------------------------------------
Fenton [*] [*]
- -----------------------------------------------------------------------------------------
Fremont Point [*] [*]
- -----------------------------------------------------------------------------------------
Guildford [*] [*]
- -----------------------------------------------------------------------------------------
Hannington [*] [*]
- -----------------------------------------------------------------------------------------
Hastings [*] [*]
- -----------------------------------------------------------------------------------------
Heathfield [*] [*]
- -----------------------------------------------------------------------------------------
Hernel Hempstead [*] [*]
- -----------------------------------------------------------------------------------------
Huntshaw Cross [*] [*]
Main
- -----------------------------------------------------------------------------------------
Huntshaw Cross [*] [*]
Fill In
- -----------------------------------------------------------------------------------------
Idle [*] [*]
- -----------------------------------------------------------------------------------------
Keelylang Hill [*] [*]
- -----------------------------------------------------------------------------------------
Keighley [*] [*]
- -----------------------------------------------------------------------------------------
Kilvey Hill [*] [*]
- -----------------------------------------------------------------------------------------
Knock More [*] [*]
- -----------------------------------------------------------------------------------------
Lancaster [*] [*]
- -----------------------------------------------------------------------------------------
Larkstoke [*] [*]
- -----------------------------------------------------------------------------------------
Limavady [*] [*]
- -----------------------------------------------------------------------------------------
Llanddona [*] [*]
- -----------------------------------------------------------------------------------------
Malvern [*] [*]
- -----------------------------------------------------------------------------------------
Mendip [*] [*]
- -----------------------------------------------------------------------------------------
Midhurst [*] [*]
- -----------------------------------------------------------------------------------------
Moel-y-Parc [*] [*]
- -----------------------------------------------------------------------------------------
Nottingham [*] [*]
- -----------------------------------------------------------------------------------------
Olivers Mount [*] [*]
- -----------------------------------------------------------------------------------------
Oxford [*] [*]
- -----------------------------------------------------------------------------------------
Pendle Forest [*] [*]
- -----------------------------------------------------------------------------------------
Plympton [*] [*]
- -----------------------------------------------------------------------------------------
Pontop Pike [*] [*]
- -----------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
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<PAGE>
SCHEDULE 7 - TABLE 3 SHEET 3 OF 3
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
STATION DAYS OF DAILY DELAY REBATE STATION WEIGHTING FACTOR (TO
DELAY CHARGE P = D X P BE INSERTED IN TABLE 1, FOR
D SERVICE CREDIT CALCULATION)
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Pontypool [*] [*]
- -----------------------------------------------------------------------------------------
Presely [*] [*]
- -----------------------------------------------------------------------------------------
Redruth [*] [*]
- -----------------------------------------------------------------------------------------
Reigate [*] [*]
- -----------------------------------------------------------------------------------------
Ridge Hill [*] [*]
- -----------------------------------------------------------------------------------------
Rosemarkle [*] [*]
- -----------------------------------------------------------------------------------------
Rosneath [*] [*]
- -----------------------------------------------------------------------------------------
Rowridge [*] [*]
- -----------------------------------------------------------------------------------------
Rumster Forest [*] [*]
- -----------------------------------------------------------------------------------------
Saddleworth [*] [*]
- -----------------------------------------------------------------------------------------
Salisbury [*] [*]
- -----------------------------------------------------------------------------------------
Sandy Heath [*] [*]
- -----------------------------------------------------------------------------------------
Selkirk [*] [*]
- -----------------------------------------------------------------------------------------
Sheffield [*] [*]
- -----------------------------------------------------------------------------------------
Stockland Hill [*] [*]
- -----------------------------------------------------------------------------------------
Storeton [*] [*]
- -----------------------------------------------------------------------------------------
Sudbury [*] [*]
- -----------------------------------------------------------------------------------------
Sutton Coldfield [*] [*]
- -----------------------------------------------------------------------------------------
Tacolneston [*] [*]
- -----------------------------------------------------------------------------------------
The Wrekin [*] [*]
- -----------------------------------------------------------------------------------------
The Wrekin West [*] [*]
- -----------------------------------------------------------------------------------------
Torosay [*] [*]
- -----------------------------------------------------------------------------------------
Tunbridge Wells [*] [*]
- -----------------------------------------------------------------------------------------
Waltham [*] [*]
- -----------------------------------------------------------------------------------------
Wenvoe [*] [*]
- -----------------------------------------------------------------------------------------
Whitehawk Hill [*] [*]
- -----------------------------------------------------------------------------------------
Winter Hill Fill-In [*] [*]
- -----------------------------------------------------------------------------------------
Winter Hill Main [*] [*]
- -----------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
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<PAGE>
SCHEDULE 8
STATIONS
The Stations are listed in the order of the reference numbers provided by BDB.
Dates are underlined if they are not in consecutive order on the table.
SCHEDULE 8 - TABLE 1 SHEET 1 OF 3 PHASE I
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
SITE MULTIPLEX MULTIPLEX ERP TARGET SITE
CHANNEL SERVICE DATE
- ----------------------------------------------------------------------------------------------------------------
NO. STATION NAME ABB. OWNER RESPONSE B C D B C D
TIME (1)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1 Pontop Pike PP CTI [*] 62 65 53 10 10 2 [*]
- ----------------------------------------------------------------------------------------------------------------
2 Belmont BMN NTL [*] 66 60 57 10 4 4 [*]
- ----------------------------------------------------------------------------------------------------------------
3 Wenvoe WV CTI [*] 67 N/A N/A 10 0 0 [*]
- ----------------------------------------------------------------------------------------------------------------
4 Black Hill BKH NTL [*] 51 55 65 10 10 10 [*]
- ----------------------------------------------------------------------------------------------------------------
5 Caldbeck CDK NTL [*] 39 45 42 1.6 1.6 1.6 [*]
- ----------------------------------------------------------------------------------------------------------------
6 Caradon Hill CNH NTL [*] 21 24 27 2 2 2 [*]
- ----------------------------------------------------------------------------------------------------------------
7 Emley Moor MLM NTL [*] 46 50 49 5 5 2 [*]
- ----------------------------------------------------------------------------------------------------------------
8 Durris DUS NTL [*] 51 41 44 5 5 5 [*]
- ----------------------------------------------------------------------------------------------------------------
9 Craigkelly CGK NTL [*] 26 42 39 1 2 2 [*]
- ----------------------------------------------------------------------------------------------------------------
10 Sandy Heath SDT NTL [*] 67 40 46 10 2.5 2.5 [*]
- ----------------------------------------------------------------------------------------------------------------
11 Winter Hill Main WRH NTL [*] 50 60 63 2 2 2 [*]
- ----------------------------------------------------------------------------------------------------------------
11 Winter Hill Fill-In WRH NTL [*] 0 43 40 0 0.2 0.2 [*]
- ----------------------------------------------------------------------------------------------------------------
12 Stockland Hill SDL NTL [*] 32 30 34 2.5 2.5 2.5 [*]
- ----------------------------------------------------------------------------------------------------------------
13 Sutton Coldfield SC CTI [*] 51 52 55 4 2 2 [*]
- ----------------------------------------------------------------------------------------------------------------
14 Crystal Palace CP CTI [*] 28 34 29 6.5 1 1 [*]
- ----------------------------------------------------------------------------------------------------------------
15 Bilsdale BIL CTI [*] 24 27 42 3 3 0.4 [*]
- ----------------------------------------------------------------------------------------------------------------
16 Mendip MEN CTI [*] 65 62 48 3 0.25 0.25 [*]
- ----------------------------------------------------------------------------------------------------------------
17 Waltham WBF CTI [*] 33 45 42 10 5 5 [*]
- ----------------------------------------------------------------------------------------------------------------
18 Hannington HAN CTI [*] 46 29 48 5 1.3 0.85 [*]
- ----------------------------------------------------------------------------------------------------------------
19 Divis DIV CTI [*] 26 48 34 2.3 1 0.8 [*]
- ----------------------------------------------------------------------------------------------------------------
20 Rowridge ROW CTI [*] 32 25 28 3 3 3 [*]
- ----------------------------------------------------------------------------------------------------------------
21 Oxford OF CTI [*] 52 48 67 3 1 1 [*]
- ----------------------------------------------------------------------------------------------------------------
22 Moel-y-Parc MYP NTL [*] 64 30 34 0.5 0.25 0.25 [*]
- ----------------------------------------------------------------------------------------------------------------
23 Tacolneston TAC CTI [*] 57 43 46 10 10 5 [*]
- ----------------------------------------------------------------------------------------------------------------
24 Fremont Point FRP NTL [*] 32 66 68 0.2 0.2 0.2 [*]
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
105
<PAGE>
SCHEDULE 8 - TABLE 1 SHEET OF 2 OF 3 PHASE 2
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
SITE MULTIPLEX MULTIPLEX ERP TARGET SITE
CHANNEL SERVICE DATE
- -----------------------------------------------------------------------------------------------------------------
NO. STATION NAME ABB. OWNER RESPONSE B C D B C D
TIME (1)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
25 Bluebell Hill BBL CTI [*] 45 42 39 3 3 3 [*]
- -----------------------------------------------------------------------------------------------------------------
26 Sudbury SUY CTI [*] 39 54 50 7.5 1.5 1.1 [*]
- -----------------------------------------------------------------------------------------------------------------
27 Darvel DVL NTL [*] 28 30 34 2 2 2 [*]
- -----------------------------------------------------------------------------------------------------------------
28 Angus AGU NTL [*] 62 56 65 2 2 2 [*]
- -----------------------------------------------------------------------------------------------------------------
29 Midhurst MH CTI [*] 59 64 60 2.5 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
30 Selkirk SXI NTL [*] 63 66 56 3 0.5 0.5 [*]
- -----------------------------------------------------------------------------------------------------------------
31 The Wrekin West WRK CTI [*] 27 53 63 1 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
31 The Wrekin West WRK CTI [*] 41 0 0 1 0 0 [*]
- -----------------------------------------------------------------------------------------------------------------
32 Kilvey Hill KVH CTI [*] 32 21 31 0.3 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
33 Ridge Hill RHA NTL [*] 39 42 45 1 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
34 Saddleworth SWH NTL [*] 51 39 54 0.02 0.02 0.02 [*]
- -----------------------------------------------------------------------------------------------------------------
35 Heathfield HJV CTI [*] 47 54 51 1 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
36 Blaenplwyf BY CTI [*] 32 29 33 2 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
37 Beacon Hill BNL NTL [*] 54 56 64 1 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
38 Carmel CRL CTI [*] 62 68 64 2.5 10 1 [*]
- -----------------------------------------------------------------------------------------------------------------
39 Sheffield SF CTI [*] 60 45 42 0.05 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
40 Limavady LTS CTI [*] 57 60 63 0.8 0.8 0.8 [*]
- -----------------------------------------------------------------------------------------------------------------
41 Nottingham NOU NTL [*] 63 29 59 0.02 0.02 0.02 [*]
- -----------------------------------------------------------------------------------------------------------------
42 Dover DOV NTL [*] 58 57 60 1 1 0.5 [*]
- -----------------------------------------------------------------------------------------------------------------
43 Whitehawk Hill WL CTI [*] 48 58 61 1 0.4 0.4 [*]
- -----------------------------------------------------------------------------------------------------------------
44 Fenham FNH CTI [*] 28 32 57 0.02 0.02 0.02 [*]
- -----------------------------------------------------------------------------------------------------------------
45 Llanddona LLA CTI [*] 61 64 46 1 1 0.5 [*]
- -----------------------------------------------------------------------------------------------------------------
46 Guildford GI CTI [*] 51 47 54 0.1 0.1 0.1 [*]
- -----------------------------------------------------------------------------------------------------------------
47 Presely PRS NTL [*] 42 45 49 1 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
48 Rosemarkie RK CTI [*] 44 46 50 10 4 4 [*]
- -----------------------------------------------------------------------------------------------------------------
49 Hemel Hempstead HH CTI [*] 66 50 43 0.1 0.1 0.1 [*]
- -----------------------------------------------------------------------------------------------------------------
50 Lancaster LCR NTL [*] 32 34 30 0.1 0.1 0.1 [*]
- -----------------------------------------------------------------------------------------------------------------
51 Bristol IC BSL CTI [*] 44 47 51 0.02 0.02 0.02 [*]
- -----------------------------------------------------------------------------------------------------------------
52 Idle IDL NTL [*] 56 30 42 0.003 0.003 0.003 [*]
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
106
<PAGE>
SCHEDULE 8 - TABLE 1 SHEET OF 3 OF 3 PHASE 3
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
SITE MULTIPLEX MULTIPLEX ERP TARGET SITE
CHANNEL SERVICE DATE
- -----------------------------------------------------------------------------------------------------------------
NO. STATION NAME ABB. OWNER RESPONSE B C D B C D
TIME (1)
- -----------------------------------------------------------------------------------------------------------------
<C> <S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
53 Brougher Mountain BRM CTI [*] 26 29 33 0.5 0.5 0.5 [*]
- -----------------------------------------------------------------------------------------------------------------
54 Redruth RR CTI [*] 49 43 50 1.6 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
55 Hastings HS CTI [*] 24 63 60 0.2 0.2 0.2 [*]
- -----------------------------------------------------------------------------------------------------------------
56 Chesterfield CD NTL [*] 46 50 52 0.02 0.02 0.02 [*]
- -----------------------------------------------------------------------------------------------------------------
57 Bromsgrove BGE CTI [*] 23 26 30 0.0125 0.0125 0.025 [*]
- -----------------------------------------------------------------------------------------------------------------
58 Pendle Forest PLF NTL [*] 31 30 34 0.05 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
59 Chatton CHN NTL [*] 46 47 51 1 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
60 Reigate REI CTI [*] 27 N/A N/A 0.1 0 0 [*]
- -----------------------------------------------------------------------------------------------------------------
61 Malvern MVR CTI [*] 55 23 26 0.1 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
62 Rosneath ROS NTL [*] 60 63 48 0.1 0.1 0.1 [*]
- -----------------------------------------------------------------------------------------------------------------
63 Bristol KW BSK CTI [*] 32 30 34 0.01 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
64 Fenton FNT CTI [*] 25 28 32 0.05 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
65 Storeton SEN CTI [*] 26 29 33 0.028 0.028 0.028 [*]
- -----------------------------------------------------------------------------------------------------------------
66 Tunbridge Wells TW CTI [*] 45 39 59 0.1 0.1 0.1 [*]
- -----------------------------------------------------------------------------------------------------------------
67 Plympton PTN NTL [*] 60 63 56 0.1 0.1 0.1 [*]
- -----------------------------------------------------------------------------------------------------------------
68 Salisbury SA CTI [*] 62 65 52 0.5 0.5 0.16 [*]
- -----------------------------------------------------------------------------------------------------------------
69 Larkstoke LKK CTI [*] 27 57 60 0.025 0.025 0.025 [*]
- -----------------------------------------------------------------------------------------------------------------
70 Keighley KJ NTL [*] 34 N/A N/A 0.05 0 0 [*]
- -----------------------------------------------------------------------------------------------------------------
71 Huntshaw Cross HC NTL [*] 64 53 57 2 2 2 [*]
- -----------------------------------------------------------------------------------------------------------------
Huntshaw Cross HC NTL [*] 64 53 57 2 2 2 [*]
- -----------------------------------------------------------------------------------------------------------------
72 Knock More KMR NTL [*] 57 60 56 1 1 1 [*]
- -----------------------------------------------------------------------------------------------------------------
73 Rumster Forest RMF NTL [*] 32 62 59 1 2 2 [*]
- -----------------------------------------------------------------------------------------------------------------
74 Aberdare ABR CTI [*] 26 29 33 0.025 0.025 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
75 Eitshal ETL CTI [*] 25 28 32 0.8 0.8 0.8 [*]
- -----------------------------------------------------------------------------------------------------------------
76 Brierley Hill BOF CTI [*] 59 66 62 0.1 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
77 Olivers Mount OMT CTI [*] 58 61 64 0.05 0.05 0.05 [*]
- -----------------------------------------------------------------------------------------------------------------
78 Keelylang Hill KEE CTI [*] 44 47 51 0.63 0.63 0.63 [*]
- -----------------------------------------------------------------------------------------------------------------
79 Pontypool PPL CTI [*] 45 66 68 0.01 0.01 0.01 [*]
- -----------------------------------------------------------------------------------------------------------------
80 Torosay TOY CTI [*] 33 21 31 0.125 0.125 0.125 [*]
- -----------------------------------------------------------------------------------------------------------------
81 Bressay BRQ CTI [*] 31 66 68 1 0.1 0.1 [*]
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the
Securities and Exchange Commission separately.
107
<PAGE>
NOTES ON SCHEDULE 8, TABLE 1
Note 1: Response time Time from which transmitting station automatic
monitoring equipment signals a fault to the TOC, until
arrival on site
Note 2: Whitehawk Hill has suffered from gypsies and vandals so
is no longer visited at night for security
Note 3: Rumster Forest will be 1h provided the team are not on
Orkney
Note 4: No night-time ferry from Bressay
Note 5: For the purposes of Clause 8.1 Crystal Palace and Divis
have been allocated high priority status by CTI
108
<PAGE>
SCHEDULE 9
THE IMPACT SCHEDULE
(BDB DTT ANALOGUE CONSEQUENTIALS)
PART I - INTRODUCTION
This document defines the work which CTI will undertake, either directly or
through NTL, in connection with the modifications to existing analogue TV plant
as a result of the introduction of the DTT service in the UK.
The work described here is strictly limited to the consequentials of the
introduction of the BDB Multiplexes.
The work described forms the 'baseline' for CTI's responsibilities under the BDB
DTT Contract. It reflects the changes which are known at 15 August 1997. Any
further changes will be dealt with under the 'Change Control' procedures as laid
down in Schedule 1 of the DTT Contract.
PART II - SCOPE OF WORK
The work described in this Schedule and included in the Contract price is
outlined in the following ITC documents:
. "Impact of Digital TV Relay Stations on UK Analogue Services", Doc. No. 18,
Ver 1.0, 30 April 1997;
. "Impact of Digital TV Main Stations on UK Analogue Services, Results of
field work for Stage 1 and 2 sites", Doc. No. 19, Ver 1.0, 31 May 1997; and
. "Change to DTT Frequency Plan", Doc. No. 21, Ver 1.0, 6 August 1997.
PART III - SPECIFIC EXCLUSIONS IN THIS SCHEDULE
Please refer to the list of specific exclusions in Schedule 9, Table I and Table
2.
In particular, the following are not included:-
. domestic re-tuning; and
. any subsequent changes required by the ITC.
PART IV - SCHEDULE OF WORK
DESCRIPTION OF WORK AT SITES OTHER THAN DTT STATIONS
Schedule 9, Table 1 shows the type of work required at each of the analogue
relay stations in connection with the introduction of the BDB Multiplexes. The
work under the various headings is described below:
109
<PAGE>
PRECISION OFFSET
In most cases precision offset is impossible to implement with the existing
equipment due to its design. At such sites the transmission plant will have to
be replaced.
CHANNEL CHANGE
Existing equipment can generally be retuned. However the ITC stipulates that
there is to be no degradation of service for existing viewers. This means that
the old and new channels should be simulcast for a period to be specified by the
broadcasters which will require the purchase of temporary systems.
In addition the broadcasters require the use of captioning on the existing
channels in such circumstances.
INCREASE IN ERP
This can be achieved either by the modification of the transmit antenna or by
increasing the transmitter output power. In most cases this is combined with
precision offset working so new equipment Is called for. In cases where space is
limited and the transmission plant is integrated into one bay, an increase in
ERP of one service will mean that new equipment will be required for all the
services on a site.
NEW ANALOGUE RELAY
In five cases new relays will be provided. At [*] this will be by addition of
equipment at an existing NTL site where space exists in the current building
([*] will be fed by RBL from Wrexham-Rhos).
At Prestatyn a new Relay will have to be built on a green-field site.
RBL ANTENNA MODIFICATIONS
In a few cases modification of the existing site RBL receive antennas is
required to reduce Interference to the received signal.
NEW TRANSMIT ANTENNA
In some cases, a new transmit antenna is required for one or both of the
following reasons:-
. to increase the ERP of the station with an antenna of greater gain; and/or
. to suit the new channel allocation(s).
110
<PAGE>
DESCRIPTION OF WORK AT CO-SITED STATIONS
Schedule 9, Table 2 shows the work required to modify the existing analogue
transmission system, at stations, with co-sited DTT services, as a result of the
introduction of the BDB Multiplexes. The work under the various headings is
described below:-
MODIFICATION OF VESTIGIAL SIDEBAND REGION
To avoid degradation of a DTT multiplex which is lower adjacent to an
existing analogue service, the VSB region of the analogue service must be
modified. This will be carried out both at low power in the analogue drive
equipment and also with high power filtering at the output of the
amplifiers. This work is subject to approval by the relevant regulatory
authority.
MODIFICATION OF GROUP DELAY
As a consequence of the high power filtering required to restrict the VSB
region extra group delay correction will be required on all analogue
services with lower adjacent DTT multiplexes. This correction will be
installed within the analogue drive equipment. At sites where the DTT
services are to be combined with the analogue services and transmitted from
a common antenna this extra correction must be configured such that it can
be easily removed from circuit when maintenance is carried out on the
analogue equipment. Extra group delay correction will also be required at
sites where the DTT multiplex is upper adjacent to the analogue service,
this is easier to accomplish than at lower adjacent sites.
PRECISION OFFSET
Precision offset oscillators will be installed in the analogue equipment at
five co-sited stations. This is necessary to avoid co-channel interference
with analogue relay stations which must be frequency changed as a
requirement of the ITC frequency plan.
REPLACEMENT DRIVES
A total of four analogue services will require replacement drive equipment.
The type of drive equipment presently employed at these sites cannot be
modified to allow lower adjacent DTT operation. New drive equipment will be
procured and interfaced to the existing control circuits and high power
amplifiers.
111
<PAGE>
SCHEDULE 9 -TABLE 1
SCHEDULE OF WORK: ANALOGUE MODIFICATIONS AT SITES OTHER THAN DTT STATIONS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
Site Interfering B C D Precision Channel Increase New Modify New Tx SHF
DTT Site & Offset change Power Relay RBL antenna Link
Mux
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Hunmanby Belmont x x x
- ---------------------------------------------------------------------------------------------------------------------------
Ardnadam Black Hill x x
- ---------------------------------------------------------------------------------------------------------------------------
Bellshill SH Black Hill x x
- ---------------------------------------------------------------------------------------------------------------------------
Bronnant SH Blaenplwvf x x
- ---------------------------------------------------------------------------------------------------------------------------
Bath Briston KW x
- ---------------------------------------------------------------------------------------------------------------------------
Ferryside Caradon Hill x x x
- ---------------------------------------------------------------------------------------------------------------------------
Chagford Carmel x x
- ---------------------------------------------------------------------------------------------------------------------------
Staithes Chatton x x x
- ---------------------------------------------------------------------------------------------------------------------------
High Keil Divis x x
- ---------------------------------------------------------------------------------------------------------------------------
Bretch Hill Emley Moor x x x
- ---------------------------------------------------------------------------------------------------------------------------
Buxton Emley Moor x x
- ---------------------------------------------------------------------------------------------------------------------------
Holmfirth Emley Moor x x x
- ---------------------------------------------------------------------------------------------------------------------------
Nottingham Emley Moor x x x
- ---------------------------------------------------------------------------------------------------------------------------
Sheffield Emley Moor x x x
- ---------------------------------------------------------------------------------------------------------------------------
Stoke North Fenton x x x x
- ---------------------------------------------------------------------------------------------------------------------------
Croeserw Huntshaw x x
- ---------------------------------------------------------------------------------------------------------------------------
Glyncorrwg Huntshaw x x
- ---------------------------------------------------------------------------------------------------------------------------
Ilfracombe Huntshaw x x
- ---------------------------------------------------------------------------------------------------------------------------
Craigellachie Knock More x x x
- ---------------------------------------------------------------------------------------------------------------------------
Barrow Town Lancaster x x
- ---------------------------------------------------------------------------------------------------------------------------
Kings Weston Mendip/Ridg x x x
- ---------------------------------------------------------------------------------------------------------------------------
Bidston Moel-y-Parc x x
- ---------------------------------------------------------------------------------------------------------------------------
West Kirby Moel-y-Parc x x
- ---------------------------------------------------------------------------------------------------------------------------
Stroud Ridge Hill x x x x
- ---------------------------------------------------------------------------------------------------------------------------
Cathcart Rosneath x x x
- ---------------------------------------------------------------------------------------------------------------------------
Kelvindale Rosneath x x
- ---------------------------------------------------------------------------------------------------------------------------
Pitlochry Selkirk x x
- ---------------------------------------------------------------------------------------------------------------------------
Blackburn Sheffield x x
- ---------------------------------------------------------------------------------------------------------------------------
Hasland Sheffield x x
- ---------------------------------------------------------------------------------------------------------------------------
Cwmbran Stockland x x
- ---------------------------------------------------------------------------------------------------------------------------
Wivenhoe Park Sudbury x x
- ---------------------------------------------------------------------------------------------------------------------------
Long Mountain Sutton x x
- ---------------------------------------------------------------------------------------------------------------------------
Glossop Sutton x x
- ---------------------------------------------------------------------------------------------------------------------------
Leek Sutton x x
- ---------------------------------------------------------------------------------------------------------------------------
Lees Sutton x x
- ---------------------------------------------------------------------------------------------------------------------------
Storeton Sutton x x
- ---------------------------------------------------------------------------------------------------------------------------
Wardle Sutton x x
- ---------------------------------------------------------------------------------------------------------------------------
Wrexham Rhos Sutton x x
- ---------------------------------------------------------------------------------------------------------------------------
Cefn-Mawr SuttonWinte x x x x x
- ---------------------------------------------------------------------------------------------------------------------------
Bargoed Wenvoe x x
- ---------------------------------------------------------------------------------------------------------------------------
Carhampton Wenvoe x x x x
- ---------------------------------------------------------------------------------------------------------------------------
Countisbury Wenvoe x x
- ---------------------------------------------------------------------------------------------------------------------------
Easter Compton Wenvoe x x x
- ---------------------------------------------------------------------------------------------------------------------------
Gilfach Wenvoe x x
- ---------------------------------------------------------------------------------------------------------------------------
Greenhill Wenvoe x x
- ---------------------------------------------------------------------------------------------------------------------------
Kewstoke Wenvoe x x x x
- ---------------------------------------------------------------------------------------------------------------------------
Pontardawe Wenvoe x x
- ---------------------------------------------------------------------------------------------------------------------------
Pontvpool Wenvoe x x
- ---------------------------------------------------------------------------------------------------------------------------
Redcliff Bay Wenvoe x x x x
- ---------------------------------------------------------------------------------------------------------------------------
Roadwater Wenvoe x x
- ---------------------------------------------------------------------------------------------------------------------------
Woodcombe Wenvoe x x x x
- ---------------------------------------------------------------------------------------------------------------------------
Llanddona/Prestat Winter Hill x x x x
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
112
<PAGE>
SCHEDULE 9 - TABLE 2 SHEET 1 OF 2
SCHEDULE OF WORK: ANALOGUE MODIFICATIONS AT CO-SITED STATIONS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
SITE CO-SITED INTERFERING MULTIPLEX MODIFY MODIFY PRECISION REPLACE
----------------------------------------
B C D VSB G. DELAY OFFSET DRIVE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Aberdare x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Angus x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Beacon Hill x x x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Belmont
- ------------------------------------------------------------------------------------------------------------------------------------
Bilsdale x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Black Hill x x
- ------------------------------------------------------------------------------------------------------------------------------------
Blaenplwyf x x
- ------------------------------------------------------------------------------------------------------------------------------------
Bluebell Hill x x x x x
- -----------------------------------------------------------------------------------------------------------------------------------
Bressay x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Brierley Hill x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Bristol Ilchester Crescent x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Bristol Kings Weston
- ------------------------------------------------------------------------------------------------------------------------------------
Bromsgrove x x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Brougher Mountain x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Caldbeck
- ------------------------------------------------------------------------------------------------------------------------------------
Caradon Hill x x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Carmel x x x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Chatton x x
- ------------------------------------------------------------------------------------------------------------------------------------
Chesterfield
- ------------------------------------------------------------------------------------------------------------------------------------
Craigkelly x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Crystal Palace x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Darvel x x x x x x
- -----------------------------------------------------------------------------------------------------------------------------------
Divis x x
- ------------------------------------------------------------------------------------------------------------------------------------
Dover x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Durris
- ------------------------------------------------------------------------------------------------------------------------------------
Eitshal x x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Emley Moor x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Fenham x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Fenton x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Fremont Point
- ------------------------------------------------------------------------------------------------------------------------------------
Guildford x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Hannington x x
- ------------------------------------------------------------------------------------------------------------------------------------
Hastings x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Heatherfield x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Hemel Hempstead x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Huntshaw Cross x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Idle x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Keelylang Hill x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Keighley
- ------------------------------------------------------------------------------------------------------------------------------------
Kilvey Hill x x x
- ------------------------------------------------------------------------------------------------------------------------------------
Knock More
- ------------------------------------------------------------------------------------------------------------------------------------
Lancaster x x x x
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
113
<PAGE>
SCHEDULE 9 - TABLE 2 SHEET 2 OF 2
SCHEDULE OF WORK: ANALOGUE MODIFICATIONS AT CO-SITED STATIONS
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
SITE CO-SITED INTERFERING MULTIPLEX MODIFY MODIFY PRECISION REPLACE
------------------------------
VSB G. DELAY OFFSET DRIVE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
B C D
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
Larkstoke X X
- -----------------------------------------------------------------------------------------------------
Limavady X X X X
- -----------------------------------------------------------------------------------------------------
Llanddona X X X
- -----------------------------------------------------------------------------------------------------
Malvern X X X
- -----------------------------------------------------------------------------------------------------
Mendip X X X
- -----------------------------------------------------------------------------------------------------
Midhurst X X X
- -----------------------------------------------------------------------------------------------------
Moel-y-Parc
- -----------------------------------------------------------------------------------------------------
Nottingham
- -----------------------------------------------------------------------------------------------------
Olivers Mount X X X X
- -----------------------------------------------------------------------------------------------------
Oxford X X X
- -----------------------------------------------------------------------------------------------------
Pendle Forest X X X
- -----------------------------------------------------------------------------------------------------
Plympton X X X X
- -----------------------------------------------------------------------------------------------------
Pontop Pike X X X X X X
- -----------------------------------------------------------------------------------------------------
Pontypool
- -----------------------------------------------------------------------------------------------------
Presely X X X X X X
- -----------------------------------------------------------------------------------------------------
Redruth X X X X
- -----------------------------------------------------------------------------------------------------
Reigate
- -----------------------------------------------------------------------------------------------------
Ridge Hill
- -----------------------------------------------------------------------------------------------------
Rosemarkie X X X X X X
- -----------------------------------------------------------------------------------------------------
Rosneath X X X X
- -----------------------------------------------------------------------------------------------------
Rowridge X X X X
- -----------------------------------------------------------------------------------------------------
Rumster Forest X X
- -----------------------------------------------------------------------------------------------------
Saddleworth X X X
- -----------------------------------------------------------------------------------------------------
Salisbury X X X X
- -----------------------------------------------------------------------------------------------------
Sandy Heath X
- -----------------------------------------------------------------------------------------------------
Selkirk X X X X
- -----------------------------------------------------------------------------------------------------
Sheffield
- -----------------------------------------------------------------------------------------------------
Stockland Hill X X X X X
- -----------------------------------------------------------------------------------------------------
Storeton X X X X
- -----------------------------------------------------------------------------------------------------
Sudbury X X X
- -----------------------------------------------------------------------------------------------------
Sutton Coldfield X X
- -----------------------------------------------------------------------------------------------------
Taconeston
- -----------------------------------------------------------------------------------------------------
The Wrekin X X
- -----------------------------------------------------------------------------------------------------
Torosay X X X X X
- -----------------------------------------------------------------------------------------------------
Tunbridge Wells X X
- -----------------------------------------------------------------------------------------------------
Waltham X
- -----------------------------------------------------------------------------------------------------
Wenvoe
- -----------------------------------------------------------------------------------------------------
Whitehawk Hill X X X
- -----------------------------------------------------------------------------------------------------
Winter Hill X X X
- -----------------------------------------------------------------------------------------------------
</TABLE>
114
<PAGE>
SCHEDULE 10
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
116
<PAGE>
SCHEDULE 11 -EMERGENCY EQUIPMENT
/DISASTER RECOVERY PROCEDURES
PART I - EMERGENCY RESERVE EQUIPMENT
BDB Exclusive Equipment:
. 3 off 4kW containerised DTT transmitters including TIE; and
. 3 off 1kW containerised DTT transmitters including TIE.
Interconnection cabling and instructions will be maintained in portable cases in
accordance with an agreed operational procedure.
CTI EXCLUSIVE EQUIPMENT:
. 1 off modular DTT combining system with interconnecting feeder; and
. 2 off Broadband 8 Lambda 4 panel UHF Antennas.
CTI/NTL SHARED EQUIPMENT:
Some of these facilities are shared with NTL. Items are fully maintained under
an annual maintenance plan and include:
. 210m reserve mast;
. 80m reserve tower;
. 16 lambda main UHF antenna,
. 4 lambda UHF antenna;
. 5 inch feeder;
. 3 inch feeder;
. UHF combiner: and
. documentation.
Adaptors and feeders for interconnecting points will be available at all sites.
Emergency facilities will be phased in appropriately as installations progress.
117
<PAGE>
PART II- DISASTER RECOVERY PROCEDURES
In the event of a serious incident CTI will follow the procedures laid down in
the CTI Disasters and Emergencies Procedures Plan which is updated when
necessary and covers the following:
. security procedures;
. electric shock;
. loss of transmission facilities;
mast collapse;
loss of transmitters,
emergency link procedure;
local site plans;
procedural testing;
. other emergencies;
mast rescue;
Falling Ice;
bomb precautions; and
. a telephone list.
NOTIFICATION
In the event that a potentially catastrophic incident is detected, which will
impair or interrupt service from one or more Stations for an extended period,
CTI shall immediately notify the BDB Representative and initiate the CTI
Disasters and Emergencies Plan.
CTI and the BDB Representative will then jointly assess the implications of the
incident.
SERVICE PRIORITY
In the event of failure of more than one service at a Station, the order of
priority for service restoration will be in accordance with the CTI Disaster and
Emergencies Procedures Plan.
CTI will use reasonable endeavours not to show undue preference to any other
customer in the order of priority set out in the CTI Disaster and Emergency
Procedures Plan.
LOSS OF MAINS SUPPLY AND GENERATOR
In the event of fire destroying a mains supply and the backup generator
simultaneously, a containerised generator will be supplied within 24 hours on
hire.
118
<PAGE>
LOSS OF COMPLETE TRANSMITTING STATION
In the event of the loss of a complete transmitting station, CTI will deploy the
containerised emergency transmitters and other equipment necessary to restore
the service.
An emergency container transmitter can be delivered to any site on the mainland
within 24 hours.
MAJOR DAMAGE TO MAST AND/OR ANTENNA SYSTEM
Following notification or identification of potential structural damage and an
initial assessment of potential safety hazards, named personnel will be
contacted to enable contingency plans to be initiated. These people are directly
responsible for the provision of the reserve facilities. Some of these
facilities are shared with NTL.
Service recovery times depend on the severity of damage. It is likely that the
erection time for the 210m mast would be four to five weeks. It could be
possible under favourable conditions to reduce this to about three weeks.
At smaller sites full service would be restored using cherry-pickers and cranes.
TECHNICAL OPERATIONS CENTRE (TOC)
The TOC has been designed to be fully resilient. A back-up to the TOC is located
at Sutton Coldfield providing duplication of the computer systems at the TOC.
Data communications from the Stations to these computer systems is via ISDN or
PSTN backup circuits which are instigated automatically without manual
intervention.
In the event that the TOC needs to be abandoned, staff would transfer to the
backup centre and the operation would be resumed within in one hour with no loss
of monitoring data. The transfer time will be minimised by providing remote or
mobile access to the backup centre.
119
<PAGE>
SCHEDULE 12
ADDITIONAL STATIONS
Until 31 December 2001 additional stations beyond those listed in Schedule 8
will be added to
the Network, as requested by BDB, in accordance with the Change Control
Procedures specified in Schedule 1. The basis for calculating the additional
Charge for each additional station shall be the sum of:
[*]
The provision of additional Stations from 1 January 2002 will be subject to
separate agreement between BDB and CTI.
Once the additional charge is calculated and agreed, Schedule 2 will be adjusted
accordingly.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
120
<PAGE>
EXECUTED by the parties
Signed by
for and on behalf of
BRITISH DIGITAL BROADCASTING PLC:
/s/ Signature
- ---------------------------------------------
Signed by
for and on behalf of
CASTLE TRANSMISSION INTERNATIONAL LTD:
/s/ Signature
- --------------------------------------------
121
<PAGE>
ANNEX 1
[*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
122
<PAGE>
ANNEX 1 - PART 1 [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
123
<PAGE>
ANNEX I - PART II [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
124
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
125
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
126
<PAGE>
ANNEX I - PART III [*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
127
<PAGE>
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
128
<PAGE>
ANNEX 1 - PART IV [*]
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
129
<PAGE>
ANNEX 2 DRAFT MULTIPLEX LICENCE
130
<PAGE>
THE SCHEDULE
Index To Conditions
PART 1
<TABLE>
<S> <C>
1. Definitions and Interpretation................................... 2
2. Provision of Multiplex Service by the Licensee................... 5
3. Fees............................................................. 5
4. Additional Payments.............................................. 6
5. Interest on Late Payments and V.A.T.............................. 7
6. Transmission Arrangements, Technical Standards and Requirements.. 7
7. Availability of Capacity on the Frequencies...................... 8
8. Provision of Information to the Commission....................... 8
9. Renewal of the Licence........................................... 11
10. Fair and Effective Competition................................... 13
11. Restrictions on the Holders of Multiplex Licences................ 15
12. Transferability of the Licence................................... 15
13. Compliance....................................................... 16
14. Prohibition on Conveyance of Unlicensed Services................. 16
15. Government Directions............................................ 16
16. Complaints Received from the Public.............................. 17
17. Power of the Commission to Vary License Conditions............... 17
18. Publication of Tariffs........................................... 18
19. Equal Opportunities.............................................. 18
20. Notices.......................................................... 19
21. Exception and Limitation on the Licensee's Obligations........... 20
22. Sanctions for Breaches of Condition.............................. 21
23. Revocation....................................................... 22
</TABLE>
Annex: The Licensed Service
<TABLE>
<S> <C>
Definitions and Interpretation................................. 25
Part I - Conditions relating to Digital Programme Services..... 26
Part II - Conditions relating to Digital Additional Services... 28
Part III - Conditions relating to Promoting or assisting the
acquisition of equipment........................... 29
Part IV - Conditions relating to the Technical Plan............ 30
Part V - Details of Broadcasting Stations...................... 33
Part VI - Additional Information............................... 40
Part VII - Conditions coming into force on the Date of Grant... 41
Confidential Appendix..........................................
</TABLE>
1
<PAGE>
2
PART 1
1. DEFINITIONS AND INTERPRETATION
(1) In these Conditions and in the Conditions in the Annex unless the context
otherwise requires:
references to any "ACCOUNTING PERIOD" of the Licensee shall be interpreted
in accordance with Section 13(6) of the 1996 Act and the Statement of
Principles on multiplex revenue;
"THE 1990 ACT" means the Broadcasting Act 1990 as amended by the 1996 Act;
"THE 1996 ACT" means the Broadcasting Act 1996;
"BODY" means a body of persons whether incorporated or not, and includes a
partnership;
"BSKYB" means British Sky Broadcasting Group PLC, a company incorporated
under the laws of England (registered number 2247735) whose registered
office is at Grant Way, Isleworth, Middlesex TW7 5QD;
"BSKYB LIMITED" means British Sky Broadcasting Limited, a company
incorporated under the laws of England (registered number 2906991) whose
registered office is at Grant Way, Isleworth, Middlesex TW7 5QD;
"BSB HOLDINGS" means BSB Holdings Limited, a company incorporated under the
laws of England (registered number 2042233) whose registered office is at 3
Burlington Gardens, London W1X 1LB;
"CODE OF PRACTICE ON CHANGES TO EXISTING TRANSMISSION AND RECEPTION
ARRANGEMENTS" means the code governing the standards and requirements
relating to changes and modifications to transmission and reception
arrangements for existing terrestrial television services required as a
result of the transmission of the Licensed Service as drawn up from time to
time revised by the Commission;
"COMMENCEMENT DATE" means the date one year after the Date of Grant, or
such earlier date as the Licensee may notify to the Commission in writing
or such later date as may be agreed in writing between the Commission and
the Licensee;
references to a "CONNECTED PERSON" in relation to the Licensee shall be
interpreted in accordance with paragraph 3 of Part I of Schedule 2 to the
1990 Act;
references to "DIGITAL ADDITIONAL SERVICES" shall be interpreted in
accordance with Section 24 of the 1996 Act;
references to "DIGITAL PROGRAMME SERVICES" shall be interpreted in
accordance with Section 1(4) of the 1996 Act;
"DIGITAL TECHNICAL PERFORMANCE CODE" means the code governing technical
standards and practice in the provision of licensed services and qualifying
services as drawn up and from time to time revised by the Commission;
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3
"DISABLED PERSON" has the same meaning as in the Disability Discrimination
Act 1995;
"FREQUENCIES" means the frequencies designated by UHF Channel numbers in
Part V of the Annex and a "FREQUENCY" means any of the Frequencies;
"INITIAL LICENCE PERIOD" means the period of twelve years from and
including the Commencement Date or, if shorter, the period from and
including the Commencement Date until such date as the Licence is revoked
in accordance with these Conditions;
any reference to a person or group of persons acting together having an
"INTEREST" of a particular percentage (or of more than a particular
percentage) in a body corporate is a reference to a person or group of
persons acting together who:
(a) holds or is beneficially entitled to that percentage (or more than
that percentage) of the shares in that body; or
(b) possesses that percentage (or more than that percentage) of the voting
power in that body;
"LICENCE PERIOD" means the Initial Licence Period or any Subsequent Licence
Period, as the context shall require;
"LICENCED AREA" means the coverage area achieved when the programmes in the
licensed services and the qualifying services included in the Licensed
Service are transmitted by wireless telegraphy from the stations specified
in Part V of the Annex (as varied from time to time pursuant to the proviso
to Condition 2(2)), subject to such stations being operated in accordance
with the Digital Technical Performance Code and otherwise in accordance
with the details set out in Part V of the Annex;
"LICENSED SERVICES" means services licensed by the Commission under Part I
of the 1996 Act;
references to "MULTIPLEX REVENUE" in relation to the Licencee shall be
interpreted in accordance with Sections 14 and 37 of the 1996 Act and the
Statement of Principles drawn up and revised from time to time by the
Commission in consultation with the Secretary of State and the Treasury
pursuant to Part I of Schedule 1 to the 1996 Act;
"PRESCRIBED AMOUNT" means:
(a) where:
(i) the Licence is revoked under Section 11 of the 1996 Act; or
(ii) the first complete accounting period of the Licencee falling within
the Licence Period has not yet ended;
seven percent of the amount which the Commission estimate would have been
the multiplex revenue for that accounting period (as determined in
accordance with Section 14 of the 1996 Act); or
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(b) in any other case, seven percent of the multiplex revenue for the last
complete accounting period of the Licencee so falling (as determined
in accordance with Section 14 of the 1996 Act);
"PROGRAMME", save where otherwise specified, includes an advertisement and
any item included in the Licensed Service;
references to "PROGRAMME-RELATED SERVICES" shall be interpreted in
accordance with Section 12(4)(b) of the 1996 Act;
references to "QUALIFYING SERVICES" shall be interpreted in accordance with
Section 2 of the 1996 Act;
"RACIAL GROUP" has the same meaning as in the Race Relations Act 1976;
"RELEVANT DATE" means the date which the Commission determines to be that
by which it would need to publish a notice under Section (7)(1) of the 1996
Act if it were to grant, as from the date on which the Licence would expire
if not renewed, a fresh license to provide the Licensed Service.
"RELEVANT PERCENTAGE OF MULTIPLEX REVENUE" means such percentage of the
multiplex revenue in relation to each accounting period of the Licencee
during the Licence Period as the Commission may specify pursuant to
Condition 9(5), which percentage may be different for different accounting
periods and may be a nil percentage;
"SUBSEQUENT LICENCE PERIOD" means the period of twelve years from and
including the date on which the Licence is renewed in accordance with
Condition 9 or, if shorter, the period from and including the date on which
the Licence is renewed until such date as it is revoked in accordance with
these Conditions;
"TECHNICAL PLAN" means the technical plan relating to the Licensed Service
which accompanied the Licencee's application for the Licence pursuant to
Section 7(4)(b) of the 1996 Act; and
references to "TECHNICAL SERVICES" shall be interpreted in accordance with
Section 24(3) of the 1996 Act and to "RELEVANT TECHNICAL SERVICES" shall be
interpreted in accordance with Section 12(4)(c) of the 1996 Act.
(2) The Interpretation Act 1978 shall apply for the purpose of interpreting
these Conditions as if they were an Act of Parliament.
(3) Any word or expression used in these Conditions shall unless otherwise
defined herein and/or the context otherwise requires have the same meaning
as it has in the 1990 Act or in the 1996 Act, as the case may be.
(4) For the purposes of interpreting these Conditions headings and titles to
any Condition shall be disregarded.
(5) This Licence shall be governed by English law.
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5
PART 2
2. PROVISION OF MULTIPLEX SERVICE BY THE LICENSEE
(1) The Licencee shall provide the Licensed Service for the Licence Period in
the Licenced Area and in accordance with the Conditions set out in the
Annex.
(2) Subject to the Conditions set out in the Annex, the Licencee shall ensure
that the licensed services and the qualifying services broadcast in the
Licensed Service are transmitted from the stations specified in, and
otherwise in accordance with Part V of the Annex and on each day of the
week. Provided that the Commission may (having first consulted the
Licencee) from time to time by notice to the Licencee amend Part V of the
Annex:
(a) by substituting for any station or stations therein referred to, a
reference to any other station or stations serving substantially the
whole of the area previously served by the stations so substituted;
and/or
(b) by adding to the stations therein referred to a reference to an
additional station or stations serving an additional area, whether or
not such additional area is served in whole or in part by another
station from which the licensed services and the qualifying services
are broadcast in the Licensed Service; and/or
(c) by deleting references to any station or stations where such deletion
is required pursuant to the revocation by the Secretary of State,
pursuant to Section 6(3) of the 1996 Act of the assignment of any
Frequency;
and any such variation shall take effect on such date or event as the
Commission shall in such notice specify whereupon Part V of the Annex shall
be deemed to have been amended so as to include particulars of the
broadcasting stations as so varied.
(3) Nothing in this Licence shall constitute or imply any warranty,
representations or obligation on the part of the Commission as to the size
or location of the areas actually capable of receiving the programmes in
the licensed services and the qualifying services broadcast in the Licensed
Service provided by the Licencee pursuant to the Licence or that licensed
services and qualifying services provided by the holder of any other
license (including a multiplex service license) shall not be capable of
reception in the whole or any part of the Licenced Area.
(4) The Licencee shall not be authorised by or under the Licence to broadcast
or procure the broadcasting of anything other than the Licensed Service.
3. FEES
(1) The Licencee shall pay to the Commission such fees as the Commission may
determine in accordance with the tariff fixed by it and for the time being
in force under Section 4(3) of the 1996 Act, details of which, and of any
revision whereof, the Commission shall provide to the Licencee in writing.
(2) Payment of the fees referred to in Condition 3(1) shall be made in such
manner as the Commission shall specify provided that unless the Commission
specifically otherwise requires:
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6
(a) where the annual amount of the fee is less than the Designated Amount,
it shall be payable on the Date of Grant and on each anniversary
thereof prior to or during the Licence Period; and
(b) where the annual amount of the fee is equal to or more than the
Designated Amount, it shall be payable in advance by equal monthly
instalments commencing on the Date of Grant and continuing thereafter
until the expiry of the Licence Period.
(3) For the purposes of this Condition 3, the "DESIGNATED AMOUNT" means the sum
of (Pounds)25,000, or such other sum as the Commission may from time to
time specify.
4. ADDITIONAL PAYMENTS
(1) The Licencee shall pay to the Commission in respect of each accounting
period of the Licencee falling within the Licence Period an amount
representing the Relevant Percentage of multiplex revenue.
(2) The Commission may:
(a) before the beginning of any accounting period of the Licencee,
estimate the amount representing the Relevant Percentage of multiplex
revenue for that accounting period (and the Licencee shall pay such
estimated amount (the "ESTIMATED AMOUNT") by equal monthly instalments
on the twenty-seventh day of each month throughout that accounting
period); and
(b) at such times as it shall think fit revise the Estimated Amount and
adjust the instalments payable by the Licencee to take account of any
such revision.
(3) (a) The Licencee shall pay to the Commission a sum equal to the amount (if
any) by which the amount of the Relevant Percentage of multiplex
revenue in respect of any accounting period of his exceeds the
Estimated Amount actually paid by him to the Commission in respect of
that period; and
(b) the Commission shall pay or procure the payment to the Licencee of a
sum equal to the amount (if any) by which the amount of the Relevant
Percentage of multiplex revenue in respect of any accounting period of
the Licencee is less than the Estimated Amount actually paid by the
Licencee to the Commission in respect of that period,
and the sum payable by the Licencee shall be paid within 14 days of the
date on which the Commission shall notify the Licencee of the amount of the
Relevant Percentage of multiplex revenue in respect of such accounting
period.
(4) Payments under this Condition 4 shall be made in such manner as the
Commission shall specify.
(5) This Condition shall not have effect:
(a) in relation to the Initial Licence Period; or
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7
(b) in relation to the Subsequent Licence Period if, pursuant to Section
16(8) of the 1996 Act, the Commission specify (with the consent of the
Secretary of State) that no relevant percentage of multiplex revenue
is payable for that period.
5. INTEREST ON LATE PAYMENTS AND V.A.T.
(1) Any payment due from the Licencee under or in respect of this Licence shall
carry interest at three percent over the base rate for the time being of
National Westminster Bank PLC (or if unavailable then the rate published by
another clearing bank as selected by the Commission) from the date such
payment was due until the date of actual payment.
(2) The Licencee's liability to pay to the Commission the amounts payable by
him under Condition 5(1) shall accrue from day to day and shall be
calculated on the basis of a year of 365 days and for the actual number of
days elapsed.
(3) (a) The Licencee shall pay any V.A.T. on any supply for V.A.T. purposes by
the Commission under the Licence.
(b) Without limitation to paragraph (a) above, all sums payable or other
consideration to be given by the Licencee are exclusive of V.A.T.
which shall be paid by the Licencee in addition to such sums or
consideration.
(c) In this Condition 5(3) V.A.T. means value added tax and any similar
tax.
6. TRANSMISSION ARRANGEMENTS, TECHNICAL STANDARDS AND REQUIREMENTS
(1) The Licencee shall do all he can to ensure that the signals carrying the
Licensed Service attain high standards in terms of technical quality and
reliability throughout so much of the Licenced Area as is for the time
being reasonably practicable and in particular, (but without prejudice to
the generality of the foregoing) the Licencee shall do all that he can to
ensure that the relevant provisions of the Digital Technical Performance
Code are observed in all operations under his direct control and by any
third parties involved in the provision of programmes in the licensed
services and qualifying services broadcast in the Licensed Service or in
the provision and operation of a system for the distribution and
transmission of the Licensed Service.
(2) The Licencee shall at all times comply with the Code of Practice on Changes
to Existing Transmission and Reception Arrangements adopted by the
Commission from time to time and without prejudice to the generality of the
foregoing the Licencee shall:
(a) do all that he can to secure that all work required in accordance with
the Code of Practice on Changes to Existing Transmission and Reception
Arrangements in connection with the equipment used for the
transmission of existing terrestrial television services in order to
accommodate the transmission of the Licensed Service is carried out in
a proper manner before the commencement of transmissions of the
Licensed Service from each of the stations specified in Part V of the
Annex;
(b) not commence transmissions of the Licensed Service from any of the
stations specified in Part V of the Annex until the work referred to
in paragraph 2(a) of this Condition in connection with such
transmissions from such stations has been completed;
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8
(c) promptly and in a proper manner carry out all work required in
accordance with the Code of Practice on Changes to Existing
Transmission and Reception Arrangements in order to maintain the
reception of existing terrestrial services by viewers affected by the
changes to the transmission arrangements for those services described
in the said Code without any cost or expense to those viewers; and
(d) promptly and in a proper manner carry out all the work required in
accordance with the Code of Practice on Changes to Existing
Transmission and Reception Arrangements in order to restore the
reception of existing terrestrial television services by viewers
affected by interference caused by the transmission of the Licensed
Service in the cases identified in the said Code without any cost or
expense to those viewers.
(3) The Licensee shall comply with the Guidance Note on Test Transmissions,
governing transmissions made by the Licensee from any of the stations
specified in Part V of the Annex before the commencement of the Licensed
Service from such stations, as drawn up and from time to time reviewed by
the Commission.
(4) The Licensee shall ensure that the Licensed Service uses a transmission
system complying with Article 2 of Council Directive 95/47/EC on the use of
standards for transmission of television signal;
(5) Where the Commission specify a particular Community digital standard in
accordance with Section 142 of the 1996 Act (the "COMMUNITY DIGITAL
STANDARD") the Licensee shall ensure that the Licensed Service uses a
transmission system meeting the Community Digital Standard.
7. AVAILABILITY OF CAPACITY ON THE FREQUENCIES
(1) The Licensee shall ensure that, during the License Period, at least 90
percent (or such other percentage as the Secretary of State may from time
to time by order specify pursuant to Section 12(5) of the 1996 Act) of
digital capacity on the Frequencies is available for the broadcasting of
digital programme services, qualifying services, programme-related services
or relevant technical services.
(2) For the purpose of Condition 7(1) "QUALIFYING SERVICES" shall be
interpreted in accordance with Section 12(4)(a) of the 1996 Act.
8. PROVISION OF INFORMATION TO THE COMMISSION
(1) The Licensee shall furnish to the Commission in such manner and at such
times as the Commission may reasonably require such documents, accounts,
returns, estimates, reports or other information as the Commission may
require for the purpose of exercising the functions assigned to it by or
under the 1990 Act or the 1996 Act in relation to multiplex services and in
particular (but without prejudice to the generality of the foregoing):
(a) the Licensee will notify the Commission:
(i) of any change in the persons having control over the Licensee, or
in the directors of the Licensee or the directors of any body
corporate which controls the Licensee, within 28 days of the
occurrence of such change;
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9
(ii) of any change in the persons having interests in the Licensee
so that a person or group of persons acting together:
(A) has acquired an interest of more than twenty percent, in
the Licensee or in any body corporate which controls
Licensee; or
(B) having an interest of more than twenty percent, in the
Licensee or in any body corporate which controls the
Licensee, has increased such interest;
within 28 days of the Licensee becoming aware of such change:
(iii) of any change in the persons having interests in the Licensee
where an interest or interests notified to the Commission in
Condition 8(1)(a)(ii)(A) or (B) falls to twenty percent or
below within 28 days of the Licensee becoming aware of such
change; and
(iv) of any change in the persons having interests in the Licensee
where such interest would cause the Licensee to be a
disqualified person pursuant to Schedule 2 to the 1990 Act or
cause any of the restrictions or requirements imposed on or in
relation to the holders of multiplex service licences by or
under Schedule 2 to the 1990 Act not to be complied with to the
extent that such requirements apply to him immediately upon the
Licensee becoming aware of such change;
(b) the Licensee shall, save insofar as such matters have been notified to
the Commission pursuant to paragraph (a) above, notify the Commission
within 28 days of the occurrence of:
(i) all matters, notice of which is required to be given to the
Registrar of Companies under Parts V and/or XXIII of the
Companies Act 1985; or
(ii) (where the Licensee is not incorporated in England and Wales or
Scotland) such similar or analogous matters under the laws of
any applicable jurisdiction is the Commission may from time to
time specify.
(2) The Licensee shall ensure that any person authorised in writing by the
Commission is permitted at reasonable times to enter any premises of the
Licensee or of any connected person in order to:
(a) inspect, examine, operate or test any equipment on the premises which
is used in connection with the provision of the Licensed Service; and
(b) inspect and examine all statutory books and financial and other
business records of the Licensee and to take such copies thereof as
may in the opinion of the Commission be necessary or desirable to
enable it to discharge its functions under the 1990 Act and/or the
1995 Act.
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10
(3) The Licensee shall within 28 days of a request therefor provide the
Commission with such information as it may require for the purposes of
determining or revising the tariff referred to in Condition 3(1).
(4) The Licensee shall as soon as reasonably practicable following a request
therefor provide the Commission with such information as it may require for
the purposes of determining whether the Licensee has acted and is acting in
accordance with the provisions of Condition 10, including, without
limitation, Condition 10(2) and Condition 10(6).
(5) The Licensee shall as soon as reasonably practicable following a request
therefor provide the Commission with such information as it may require for
the purposes of determining wither the Licensee has complied and is
complying with the Conditions set out in the Annex, including, without
limitation, the Conditions set out in Part III of the Annex relating to
acquisition of equipment.
(6) The Licensee shall supply to the Commission:
(a) (i) in relation to himself and any body which controls the Licensee
(where a body corporate) a copy of his annual return at the same
time as it is filed with the Registrar of Companies in
accordance with Section 363 of the Companies Act 1985 and a copy
of his annual report and accounts as soon as possible after they
are circulated to the shareholders of the relevant body
corporate; or
(ii) (where the Licensee is not incorporated in England and Wales or
Scotland) any returns, reports, accounts or other information
under the laws of any applicable jurisdiction which is, in the
opinion of the Commission, analogous or equivalent to the above,
at such times and in such form as the Commission shall from time
to time specify;
(b) half-yearly income and expenditure returns and supplementary annexes
in such form and at such times as the Commission shall require;
(c) statements of his multiplex revenue at such intervals as the
Commission may specify and also in respect of each entire accounting
period of his in such form as the Commission shall require;
(d) post-transmission data in relation to the programmes included in the
licensed service and qualifying services which are broadcast in the
Licensed Service covering such information and in such form as the
Commission shall specify, such data to be delivered to the Commission
as soon after transmission of the programmes to which they relate as
the Commission may require;
(e) tapes/recordings of such parts of the Licensed Services as the
Commission shall from time to time require for the purposes of
monitoring the technical performance of the Licensee;
(f) such technical performance data as the Commission shall from time to
time to time require, at such intervals and in such form as the
Commission shall specify;
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11
(g) such information as the Commission may reasonably require from time to
time for the purposes of determining whether the Licensee on any
ground is a disqualified person by virtue of any of the provisions in
Section 143(5) of the 1996 Act; and
(h) such information as the Commission may reasonably require from time to
time in relation to each person providing digital programme services
broadcast in the Licensed Service as to the number of points
attributable to each such person in respect of such digital programme
services calculated in accordance with paragraph 7 of Part III of
Schedule II of the 1990 Act.
(7) The Licensee shall supply to the Commission in relation to such periods, in
such form and at such times as the Commission shall require, information as
to the percentage of digital capacity available on the Frequencies for the
broadcasting of digital programme services, qualifying services, programme-
related services or relevant technical services.
(8) The Licensee shall inform the Commission when judgment is awarded against
him in any court proceedings brought against him in respect of the
inclusion of the Licensed Services of any defamatory, seditious,
blasphemous, or obscene matter, or any matter which constitutes an
injurious falsehood or slander of title, or any tort or an infringement of
any copyright, moral right, right in a performance, design right,
registered design, service mark, trademark, letters patent, or other
similar monopoly right or a contravention of the provisions of the Official
Secrets Acts, or of any statutory enactment of regulation for the time
being in force, or a criminal offense, or contempt of Court, or breach of
Parliamentary privilege.
(9) The Licensee shall supply the Commission with details of the procedures
(and of any revision of such procedures) adopted by him and required to be
observed by those involved in providing the Licensed Service for the
purposes of Condition 13(2).
(10) The Licensee, if so requested by the Commission, shall at such intervals
and at such times as the Commission shall require attend meetings with the
Commission for the purpose of enabling the Commission to conduct periodic
reviews of the performance by the Licensee of his obligations under the
License.
9. RENEWAL OF THE LICENSE
(1) The Licensee may apply to the Commission for renewal of the License not
earlier than four years before the end of the Initial License Period and
not later than the Relevant Date.
(2) If the Licensee makes an application before the Relevant Date, the
Commission may postpone consideration of it for as long as the Commission
thinks appropriate, having regard to Section 16(10) of the 1996 Act.
(3) If the Licensee makes an application the Commission may (with the consent
of the Secretary of State):
(a) require the Licensee to furnish:
(i) a technical plan which supplements the Technical Plan; and
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(ii) proposals which supplement any proposals submitted by the
Licensee under Section 7(4)(f) of the 1996 Act; and
(b) notify the applicant of the requirements which must be met by the
supplementary technical plan referred to in Condition 9(3)(a)(i) or
the supplementary proposals referred to in Condition 9(3)(a)(ii) and
which relate to he matters referred to in Section 7(4)(b)(i) and (ii)
and (f) of the 1996 Act.
(4) The Commission shall only refuse an application for renewal of the License
by the Licensee made in accordance with the 1996 Act and this Condition if:
(a) it appears to the Commission that the Licensee has failed to comply
with any of the Conditions in this License; or
(b) any supplementary technical plan submitted by the Licensee under
Condition 9(3)(a)(i) fails to meet the requirements notified to the
Licensee under Condition 9(3)(b); or
(c) any of the supplementary proposals submitted by the Licensee under
Condition 9(3)(a)(ii) fails to meet the requirements notified to the
Licensee under condition 9(3)(b); or
(d) the Commission is not satisfied that the Licensee would, if the
License were renewed, provide a service which complied with the
Conditions to be included in the License, as renewed.
(5) On the grant of any such application:
(a) the Commission shall include in the License, as renewed, such further
conditions as appear to the Commission to be appropriate for securing
the implementation of any supplementary technical plan and any
supplementary proposals submitted under Condition 9(3); and
(b) subject to Section 16(9) of the 1996 Act, the Commission may, with the
consent of the Secretary of State, and shall, if so required by him
specify a percentage of multiplex revenue as the percentage of
multiplex revenue for each accounting period of the Licensee that will
be payable by him during the period for which the License is to be
renewed where no relevant percentage of multiplex revenue was
specified under Section (1)(f) of the 1996 Act;
and the Commission may specify under Condition 9(5)(b) either of the things
mentioned in Section 7(2)(b) of the 1996 Act.
(6) Where the Commission has granted an application of the Licensee for renewal
of the License it shall formally renew his License from the date on which
it would otherwise expire and it shall not so renew his License unless it
has notified him of the percentage of multiplex revenue specified by it
under Condition 9(5)(b) and he has, within such period as the Commission
shall specify in the notification, notified it in writing that he consents
to the License being renewed on those terms.
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MISSING
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14
MISSING
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15
11. RESTRICTIONS ON THE HOLDERS OF MULTIPLEX LICENCES
(1) The Licensee shall comply in all respects with the restrictions or
requirements imposed on or in relation to him as the holder of a multiplex
licence by or under Schedule 2 to the 1990 Act to the extent that they apply
to him.
(2) The Licensee shall comply with any direction of the Commission requiring him
to take or arrange for the taking of, any steps specified by the Commission
for the purposes of complying with the requirements imposed by or under
Parts III to V or Schedule 2 to the 1990 Act.
12. TRANSFERABILITY OF THE LICENCE
The Licence is not transferable except with the prior consent in writing of
the Commission which consent shall not be given unless the Commission is
satisfied that the person or persons
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16
to whom it is proposed to transfer the Licence would be in a position to
comply with all of the Conditions hereto throughout the remainder of the
Licence Period.
13 COMPLIANCE
(1) The Licensee shall comply with any direction given to him by the Commission
in respect of any matter, which direction is in the opinion of the
Commission appropriate, having regard to any duties which are or may be
imposed on it or on the Licensee by or under the 1990 Act or the 1996 Act.
(2) Licensee shall adopt procedures and procure that such procedures are
observed by those involved in providing the Licensed Service for the
purposes of ensuring that the provisions of this Licence, the 1990 Act, the
1996 Act, and any codes or guidelines herein or therein referred to (the
"CODES" and "GUIDELINES" respectively) are complied with in connection with
the provision of the Licensed Service. The Licensee shall, without
prejudice to the generality of the foregoing, ensure:
(a) that there are sufficient persons amongst those involved in providing
the Licensed Service who are adequately versed in the requirements of
this Licence, the 1990 Act, the 1996 Act, and the Codes and Guidelines
and that such persons are able to ensure compliance with such
requirements on a day to day basis;
(b) that adequate arrangements exist for the immediate implementation of
such general and specific directions as may from time to time be given
to the Licensee by the Commission; and
(c) that in each department of the Licensee where any of the procedures
referred to in this Condition are to be implemented the member of
staff responsible is of sufficient seniority to ensure immediate
action and that issues relating to compliance may be brought where
necessary directly before senior management for consideration.
14. PROHIBITION ON CONVEYANCE OF UNLICENSED SERVICES
(1) The Licensee shall ensure that:
(a) all digital programme services broadcast under this Licence are
provided by the holder of a licence under Section 18 of the 1996 Act;
and
(b) all digital additional services broadcast under this Licence are
provided by the holder of a licence under Section 25 of the 1996 Act.
(2) This Condition shall not apply to the provision of a digital programme
service or a digital additional service by a person established and
licensed (if required) to provide such a service in another EEA member
state.
15. GOVERNMENT DIRECTIONS
(1) The Licensee shall, if so directed by the Commission from time to time:
(a) publish in the Licensed Service, at such times as may be specified to
the Commission by the Secretary of State or any other Minister of the
Crown, such announcement as
may be specified by a notice given pursuant to Section 10(1) of the
1990 Act (as applied by the 1996 Act), with or without visual images
of any picture, scene or object mentioned in the announcement; or
(b) refrain from including in the programmes included in the Licensed
Service any matter or classes of matter specified to the Commission by
the Secretary of State pursuant to Section 10(3) of the 1990 Act (as
applied by the 1996 Act).
(2) The Licencees may when publishing an announcement in the Licensed Service
in accordance with Condition 15(1)(a) indicate that the announcement is
made in pursuance of a direction by the Commission.
<PAGE>
17
(3) The Licensee shall comply with all directions given to him by the
Commission pursuant to a direction of the Secretary of State for the
purpose of enabling Her Majesty's Government in the United Kingdom or give
effect to any international obligations of the United Kingdom.
(4) Where the Commission:
(a) has given the Licensee a direction to the effect referred to in
Condition 15(1)(b); or
(b) in consequence of the revocation by the Secretary of State of the
notice giving rise to the issuing of such direction, has revoked such
a direction.
or where such a notice has expired, the Licensee may publish in the
Licensed Service an announcement of the giving or revocation of the
direction or of the expiration of the notice, as the case may be.
16. COMPLAINTS RECEIVED FROM THE PUBLIC
(1) (a) The Licensee shall adopt procedures acceptable to the Commission for
handling complaints received from the public in respect of the
Licensed Service and shall ensure that such procedures are duly
observed.
(b) Such procedures shall, inter alia, include a requirement that members
of the public who complain to the Licensee about the Licensed Service
are informed that they have the right to refer the matter complained
of to the Commission.
(2) The Licensee shall for a period of two years keep a written record of any
complaints received from the public in respect of the Licensed Service and
of any response given in relation to any such complaint by the Licensee and
shall make such records available to the Commission in writing at such
times as the Commission may require.
17. POWER OF THE COMMISSION TO VARY LICENCE CONDITIONS
(1) The Commission may by a notice served on the licensee:
(a) vary the Licence Period provided that the Licensee consents to such
variation (and without prejudice to the Commission's powers and duties
under Section 17 of the 1996 Act);
<PAGE>
18
(b) vary any Conditions set out in Parts I, II, III and IV of the Annex
provided that the Licensee consents to such variation; and
(c) vary the Licence in any respect not mentioned in paragraphs (a) and
(b) above provided that the Licensee has been given a reasonable
opportunity to make representations to the Commission concerning the
proposed variation;
Provided always that paragraph (a) and (c) above shall not authorise the
variation of Condition 4 to the extent that Condition requires the payment
by the Licensee to the Commission of in respect of each accounting period
of the Licensee falling within the Licence Period, an amount representing
the Relevant Percentage of multiplex revenue.
(2) If the Licensee applies to the Commission for the variation of Conditions
in the Annex which relate to the characteristics of the digital programme
services to be broadcast in the Licensed Service, the Commission shall
permit the variation requested unless it appears to the Commission that if
the application is granted, the capacity of the digital programme services
broadcast in the Licensed Service to appeal to a variety of tastes and
interests would be unacceptably diminished provided that in deciding
whether or not to permit such variation, the Commission may have regard to
the digital programme services broadcast in all the multiplex services for
the time being provided by the Licensee or any connected person in relation
to the Licensee.
18. PUBLICATION OF TARIFFS
In pursuance of Regulation 12 of the Advanced Television Services
Regulations 1996 (SI 1996/3151), in relation to the delivery of digital
television services, the Licensee shall publish a list of tariffs for the
viewer which takes into account whether associated equipment is supplied or
not provided that it shall be a sufficient compliance by the Licensee if he
ensures that each person who provides a television programme service within
Regulation 12 for broadcasting in the Licensed service complies with this
requirement in full.
19. EQUAL OPPORTUNITIES
(1) The Licensee shall:
(a) make arrangements for promoting, in relation to employment by the
Licensee, equality or opportunity between men and women and between
persons of different racial groups;
(b) make arrangements for promoting, in relation to employment by the
Licensee, the fair treatment of disabled persons; and
(c) review those arrangements from time to time.
(2) In particular (but without limitation to the generality of paragraph 1 of
this Condition) the Licensee:
(a) shall ensure that no job applicant or employee receives less
favourable treatment on the grounds of sex, race, colour, creed,
nationality, or ethnic or national origins or disability, or on such
grounds is disadvantaged by conditions or requirements which cannot be
shown to be justifiable;
<PAGE>
19
(b) shall review his selection criteria and procedures at regular
intervals and will monitor the composition of his workforce and of job
applicants and will take action to correct any inequalities or unfair
treatment which come to his notice; and
(c) if so requested by the Commission shall at such intervals as the
Commission may require provide a statement to the Commission of the
action he has taken to give effect to such equal opportunities and
fair treatment policy, and the Commission may, at its discretion, make
such statement in whole or in part public.
20. NOTICES
(1) Any notice or notification to be served or given under or in relation to
this Licence shall be in writing and may be delivered to the party to be
served or sent by first class post at his proper address (as defined in
Section 199(4) of the 1990 Act) or left at that address.
(2) Any such notice or notification shall be deemed to have been served:
(i) if so delivered or left, at the time of delivery or leaving; or
(ii) if so posted, at 10:00 a.m. on the second business day after it was
put into the post.
(3) In proving such service it shall be sufficient to prove that delivery was
made or that the envelope containing such notice or notification was
properly addressed and posted as a prepaid first class letter or was left
at the proper address, as the case may be.
<PAGE>
20
PART 3
21. EXCEPTION AND LIMITATION ON THE LICENSEE'S OBLIGATIONS
The Licensee shall not be in any way responsible for any failure to provide
the Licensed Service directly or indirectly caused by or arising from any
circumstances beyond the control of the Licensee including (without
limitation) accident or breakdown of any equipment or apparatus (caused
otherwise than by the wrongful act, neglect or default of the Licensee, its
servants or agents), force majeure, war, damage by the Queen's enemies,
riot, rebellion, civil commotion, interference by strike, lockout, sit-in,
picket or other industrial dispute or action.
<PAGE>
21
PART 4
22. SANCTIONS FOR BREACHES OF CONDITION
(1) (a) If the Commission is satisfied that the Licensee has failed to comply
with any Condition of the Licence or with any direction given by the
Commission under the Licence and it has given him a reasonable
opportunity of making representations to it about the matters
complained of, it may serve on the Licence a notice requiring him to
pay to the Commission, within a specified period, a specified
financial penalty.
(b) The amount of any financial penalty imposed pursuant to Condition
22(1)(a) shall not exceed whichever is the greater of (Pounds)50,000
(or such other sum as the Secretary of State may by order specify
under Section 36 of the 1996 Act) or the amount determined under
Condition 22(1)(c).
(c) The amount referred to in Condition 22(1)(b) is:
(i) three per cent of the share of multiplex revenue attributable to
the Licensee for his last complete accounting period (as
determined in accordance with Section 15 of the 1996 Act) in a
case where a penalty under Section 17 of the 1996 Act has not
previously been imposed on the Licensee during any period for
which the Licence has been in force (the "relevant period"); and
(ii) in any other case five per cent or the share of multiplex revenue
attributable to the Licensee for his last complete accounting
period (as determined in accordance with Section 15 of the 1996
Act).
(d) Where any such penalty is imposed when the Licensee's first complete
accounting period falling within the relevant period has not yet
ended, the amount referred to in Condition 22(1)(c) shall not exceed
three, or (as the case may be) five, per cent or the amount which the
Commission estimates to be the share of multiplex revenue attributable
to the License for that accounting period (as determined in accordance
with Section 15 of the 1996 Act).
(2) (a) If the Commission is satisfied that the Licensee has failed to comply
with any Condition of this Licence or with any direction given to him
hereunder and it has given him a reasonable opportunity of making
representations to it about the matters complained of, it may serve on
the Licensee a notice reducing the Licence Period by a specified
period not exceeding two years.
(b) Where the Licence is due to expire on a particular date by virtue of a
notice served on the Licensee under Condition 22(2)(a), the Commission
may, on the application of the Licensee by a further notice served on
him at any time before that date, revoke that notice if it is
satisfied that such revocation is justified by virtue of the conduct
of the Licensee in relation to the operations of the Licensed Service
since the date of the earlier notice.
<PAGE>
22
23. REVOCATION
(1) (a) If the Commission is satisfied that the Licensee is failing to comply
with any Condition of the Licence or with any direction given by the
Commission such that, if that failure were not remedied, it would
justify the revocation of the Licence, the Commission shall serve on
the Licensee a notice.
(i) stating that the Commission is so satisfied.
(ii) specifying the respects in which, in the opinion of the
Commission, the Licensee is failing to comply with any such
Condition or direction; and
(iii) stating that, unless the Licensee takes, within such period as
is specified in the notice, such steps to remedy the failure as
are so specified, the Commission will revoke the Licence.
(b) If at the end of the period specified in any notice under Condition
23(1)(a) the Commission is satisfied that the Licensee has failed to
take the steps specified in the notice and that it is necessary in the
public interest to revoke the Licence, the Commission shall serve on
the License a notice revoking the Licence.
(2) The Commission shall revoke the Licence by notice in writing served on the
Licensee and taking effect as from the time of service in
(a) the Licensee indicates to the Commission before the Commencement Date
that he does not intend to provide the Licensed Service; or
(b) the Commission for any other reason has reasonable grounds for
believing that the Licensee will not provide the Licensed Service
after the Commencement Date and it has served on the Licensee a notice
stating its grounds for believing that he will not provide that
service after that date.
(3) The Commission may revoke the Licence by notice served on the Licensee and
taking effect either forthwith or on a date specified in the notice, in any
of the following circumstances:
(a) if the Licensee ceases to provide the Licensed Service before the end
of the Licence Period and the Commission are satisfied that it is
appropriate to revoke the Licence;
(b) if the Licensee agrees in writing with the Commission that the Licence
should be revoked;
(c) if the Licensee becomes a disqualified person in relation to the
Licence by virtue of Part II of Schedule 2 to the 1990 Act or
otherwise fails to comply with any requirement imposed on or in
relation to the holders of multiplex licences by or under that
Schedule:
<PAGE>
23
(d) if the Commission is satisfied that the Licensee:
(i) in purporting to comply with any of the Conditions of the Licence
has provided information which is false in a material particular
or has withheld any material information with the intention of
causing the Commission to be misled; or
(ii) in connection with his application for the Licence, provided the
Commission with information which was false in a material
particular or withheld any material information with the
intention of causing the Commission to be misled;
(e) if, where the Licensee is a body, a change affecting the nature or
characteristics of the Licensee or any change in the persons having
control over or interests in the Licensee, or any other change giving
rise to a failure to comply with any requirement imposed by or under
Section 2 to the 1990 Act takes place (whether before or after the
Commencement Date), which change is such that, if it fell to the
Commission to determine whether to award the Licence to the Licensee
in the new circumstances of the case, it would be induced by the
change to refrain form awarding the Licence to the Licensee;
(f) without prejudice to the generality of Condition 23(3)(e), if, without
the prior written consent of the Commission:
(i) BSkyB, BSkyB Limited or BSB Holdings or any person connected with
BSkyB, BSkyB Limited or BSB Holdings shall directly or indirectly
have any interest in the shares or possess any voting power or
have any other financial interest in the Licensee or any person
controlling the Licensee; or
(ii) any person having directly or indirectly a material financial
interest in BSkyB, BSkyB Limited or BSB Holdings shall control
the Licensee;
(g) if the Commission ceases to be satisfied that the Licensee is a fit
and proper person to hold the Licence;
(h) if the Licensee fails to comply with any requirement to hold a Licence
under Section 1 of the Wireless Telegraph Act 1949 (as amended) and/or
Section 7 of the Telecommunications Act 1984;
(i) if the Secretary of State shall, pursuant to Section 6(3) of the 1996
Act revoke the assignment of the Frequencies.
(4) For the purpose of Condition 23(3)(f):
(a) a "MATERIAL FINANCIAL INTEREST" in a body corporate means an
interest of five per cent or more of the shares or possession of
five per cent, or more of the voting power in the body corporate;
and
(b) a "FINANCIAL INTEREST" shall not include any payment for services
provided under and agreement for the supply or (digital or
analogue) programme services or additional services.
<PAGE>
24
(5) The Commission shall before serving a notice revoking the Licence or a
notice under Condition 23(2)(b) notify the Licensee of the matters
complained of and give the Licensee a reasonable opportunity to make
representations to it about the matters complained of.
(6) (a) Where the Licence is revoked pursuant to any provision of Part I of
the 1996 Act, or is treated as being revoked under Section 145 of the
1996 Act, the Licensee shall with such period as the Commission shall
notify to him, pay to the Commission a specified financial penalty not
exceeding whichever is the greater of (Pounds)50,000 (or such other
sum as the Secretary of State may by order specify under Section 36 of
the 1996 Act) or the Prescribed Amount:
(b) The Licensee's liability to pay such penalty shall not be affected by
the Licence ceasing (for any reason) to be in force.
(7) If the Licensee is convicted of an offence under Section 144 of the 1996
Act and the court by which the Licensee is convicted makes an order
disqualifying him from holding a licence during a period specified in the
order, or if the Licensee is disqualified from holding a licence, pursuant
to Section 145(3) of the 1996 Act, in consequence of an order disqualifying
an individual from holding a licence, this Licence shall be treated as
being revoked with effect from the time when the order takes effect.
<PAGE>
25
ANNEX
THE LICENSED SERVICE
DEFINITIONS AND INTERPRETATION
In these Conditions, unless the context otherwise requires it:
(a) "CORE PROPOSALS" means the supplementary proposals submitted by the
--------------
Licensee in his application for the Licence in response to Questions A.1 to
A.7 inclusive in Part I of Section A and Financial Questions B.1 to B.17
inclusive in Section B of the Attachment to Part III of the Invitation to
Apply, together with any additional information furnished to the Commission
by the Licensee pursuant to Section 7(6) of the 1996 Act in relation to the
proposed service details of which are set out in Part VI of this Annex;
Terms used in such Core Proposals shall be interpreted in accordance with
the guidance provided by the Commission in the Invitation to Apply;
"INVITATION TO APPLY" means the Invitation to Apply for multiplex service
licences issued by the Commission on 31st October, 1996;
references to a "LETTER", followed by a date, means the letter of that
date, details of which are set out in Part VI of this Annex;
references to a "FINANCIAL QUESTION", followed by a number, means the
question of that number in Section B of the Attachment to Part III of the
Invitation to Apply;
references to a "QUESTION", followed by a number, means the question of
that number in Part 1 of Section A of the Attachment to Part III of the
Invitation to Apply.
(b) In the event of any inconsistency between the Core Proposals and the
Conditions set out in this Annex, the latter shall prevail.
<PAGE>
26
MISSING
<PAGE>
27
MISSING
<PAGE>
28
PART II
CONDITIONS RELATING TO DIGITAL ADDITIONAL SERVICES
The Licensee shall implement the Core Proposals in response to Question A.7.
<PAGE>
29
PART III
CONDITIONS RELATING TO PROMOTING OR ASSISTING THE ACQUISITION OF EQUIPMENT
1. The Licensee shall implement the Core Proposals in response to Question 1.3
and Financial Question B.2(ii) (first three bullet points) and Financial
Question B.3. These Core Proposals include, without limitation, Section B2
(paragraphs 155 to 158 (inclusive) and 171) and Section B3 of the
Licensee's Core Proposals.
2. Without prejudice to the generality of paragraph 1, the License shall make
the expenditures set out in the Appendix to this Annex (which is and shall
be confidential) (the "CONFIDENTIAL APPENDIX") (as varied by the Commission
in writing from time to time) in accordance with the Core Proposals. For
the purposes of this Licence, the Confidential Appendix shall be treated as
though it were set out in and formed part of this Part of the Annex.
<PAGE>
30
PART IV
CONDITIONS RELATING TO THE TECHNICAL PLAN
The Licensee shall implement the Core Proposals in response to Question A.2 and
the Letter of 22nd April, 1997 in accordance with the timetable set out below:
PHASE I BROADCASTING STATIONS FROM WHICH THE LICENSED SERVICE MUST BE
BROADCAST FROM THE COMMENCEMENT DATE
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
<PAGE>
31
PHASE 2 BROADCASTING STATIONS FROM WHICH THE LICENSED SERVICE MUST HAVE
COMMENCED BROADCASTING BY THE DATE EIGHT MONTHS AFTER THE COMMENCEMENT
DATE
[*]
PHASE 3 BROADCASTING STATIONS FROM WHICH THE LICENSED SERVICE MUST HAVE
COMMENCED BROADCASTING BY THE DATE SIXTEEN MONTHS AFTER THE
COMMENCEMENT DATE
[*]
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
<PAGE>
32
[*]
This timetable is subject to the necessary national and international clearances
for broadcasting from the stations in question being obtained in due time. If
the Licensee provides evidence satisfactory to the Commission that delays in
obtaining the necessary clearances make it impracticable for the Licensee to
comply with the above timetable in respect of any station, the Licensee shall
commence broadcasting from that station as soon as reasonably practicable after
the clearances have been obtained.
[*] indicates where text has been omitted pursuant to a request for
confidential treatment. The omitted text has been filed with the Securities
and Exchange Commission separately.
<PAGE>
33
PART V
DETAILS OF BROADCASTING STATIONS
MULTIPLEX [B,C,D]
PART V
DETAILS OF BROADCASTING STATIONS - MULTIPLEX B
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Station Name Grid Reference UHF Channel Aerial Height
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Aberdare SO034013 26 333
- --------------------------------------------------------------------------------
Angus NO394407 62 549
- --------------------------------------------------------------------------------
Beacon Hill SX857619 54 249
- --------------------------------------------------------------------------------
Belmont TF218836 66 347
- --------------------------------------------------------------------------------
Bilsdale SE553962 24 690
- --------------------------------------------------------------------------------
Black Hill NS828647 51 539
- --------------------------------------------------------------------------------
Blaenplwyf SN569757 32 325
- --------------------------------------------------------------------------------
Bluebell Hill TQ757613 45 236
- --------------------------------------------------------------------------------
Bressay HU503387 31 299
- --------------------------------------------------------------------------------
Brierley Hill SO916856 59 180
- --------------------------------------------------------------------------------
Bristol King's Weston ST547775 32 144
- --------------------------------------------------------------------------------
Bromsgrove SO948730 23 199
- --------------------------------------------------------------------------------
Brougher Mountain IH350527 26 370
- --------------------------------------------------------------------------------
Caldbeck NY299425 39 578
- --------------------------------------------------------------------------------
Caradon Hill SX273707 21 592
- --------------------------------------------------------------------------------
Carmel SN576153 62 412
- --------------------------------------------------------------------------------
Chatton NU105264 46 348
- --------------------------------------------------------------------------------
Chesterfield SK382764 46 231
- --------------------------------------------------------------------------------
Craigkelly NT233872 26 315
- --------------------------------------------------------------------------------
Crystal Palace TQ339712 28 321
- --------------------------------------------------------------------------------
Darvel NS557341 28 395
- --------------------------------------------------------------------------------
Divis IJ287750 26 505
- --------------------------------------------------------------------------------
Dover TR274397 58 328
- --------------------------------------------------------------------------------
Durris NO763899 51 608
- --------------------------------------------------------------------------------
Eitshal NB305303 25 366
- --------------------------------------------------------------------------------
Emley Moor SE222128 46 565
- --------------------------------------------------------------------------------
Fenham NZ216648 28 170
- --------------------------------------------------------------------------------
Fenton SJ903451 25 241
- --------------------------------------------------------------------------------
Fremont Point XD908280 32 247
- --------------------------------------------------------------------------------
Guildford SU975486 51 172.5
- --------------------------------------------------------------------------------
Hannington SU527568 46 352
- --------------------------------------------------------------------------------
Hastings TQ806100 24 126
- --------------------------------------------------------------------------------
Heathfield TQ566220 47 258.5
- --------------------------------------------------------------------------------
Hemel Hempstead TL088045 66 212
- --------------------------------------------------------------------------------
Huntshaw Cross SS527220 64 349
- --------------------------------------------------------------------------------
Idle SE163374 56 265
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
34
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------
Station Name Grid Reference UHF Channel Aerial Height
- ------------------------------------------------------------------------
<S> <C> <C> <C>
Ilchester Crescent ST577700 44 99
- ------------------------------------------------------------------------
Keelylang Hill HY378102 44 270
- ------------------------------------------------------------------------
Keighley SE069444 34 354
- ------------------------------------------------------------------------
Kilvey Hill SS672940 32 232
- ------------------------------------------------------------------------
Knock More NJ321497 57 418
- ------------------------------------------------------------------------
Lancaster SD490662 32 184
- ------------------------------------------------------------------------
Lark Stoke SP187426 27 277
- ------------------------------------------------------------------------
Limavady IC711296 57 393
- ------------------------------------------------------------------------
Llanddona SH583810 61 258
- ------------------------------------------------------------------------
Malvern SO774464 55 207
- ------------------------------------------------------------------------
Mendip ST564488 65 572
- ------------------------------------------------------------------------
Midhurst SU912250 59 294
- ------------------------------------------------------------------------
Moel-y-Parc SJ123701 64 552
- ------------------------------------------------------------------------
Nottingham SK503435 63 178
- ------------------------------------------------------------------------
Oliver's Mount TA040869 58 188
- ------------------------------------------------------------------------
Oxford SP567105 52 277
- ------------------------------------------------------------------------
Pendle Forest SD825384 31 326
- ------------------------------------------------------------------------
Plympton SX531555 60 164
- ------------------------------------------------------------------------
Pontop Pike NZ148526 62 450
- ------------------------------------------------------------------------
Pontypool ST284990 45 295
- ------------------------------------------------------------------------
Presely SN172306 42 529
- ------------------------------------------------------------------------
Redruth SW690395 49 370
- ------------------------------------------------------------------------
Reigate TQ257521 27 291
- ------------------------------------------------------------------------
Ridge Hill SO630333 39 333
- ------------------------------------------------------------------------
Rosemarkie NH762623 44 323
- ------------------------------------------------------------------------
Rosneath NS258811 60 218
- ------------------------------------------------------------------------
Rowridge SZ447865 32 257
- ------------------------------------------------------------------------
Rumster Forest ND197385 32 455
- ------------------------------------------------------------------------
Saddleworth SD987050 51 398
- ------------------------------------------------------------------------
Salisbury SU136285 62 156
- ------------------------------------------------------------------------
Sandy Heath TL204494 67 197
- ------------------------------------------------------------------------
Selkirk NT500294 63 518
- ------------------------------------------------------------------------
Sheffield SK324870 60 278
- ------------------------------------------------------------------------
Stockland Hill ST222014 32 419
- ------------------------------------------------------------------------
Storeton SJ314841 26 110
- ------------------------------------------------------------------------
Sudbury TL913377 39 160
- ------------------------------------------------------------------------
Sutton Coldfield SK113003 51 395
- ------------------------------------------------------------------------
Tacolneston TM131958 57 215
- ------------------------------------------------------------------------
The Wrekin SJ628082 27 436
- ------------------------------------------------------------------------
The Wrekin B SJ628082 45 436
- ------------------------------------------------------------------------
Torosay NM703358 33 478
- ------------------------------------------------------------------------
Tunbridge Wells TQ607440 45 172
- ------------------------------------------------------------------------
Waltham SK809233 33 418
- ------------------------------------------------------------------------
Wenvoe ST110742 67 311
- ------------------------------------------------------------------------
Whitehawk Hill TQ330045 48 172
- ------------------------------------------------------------------------
Winter Hill SD660144 50 682
- ------------------------------------------------------------------------
</TABLE>
<PAGE>
35
All necessary national and international clearances for broadcasting from these
stations have not been obtained at the Date of Grant. The details given above
may be subject to change and the Licensee's use of each station in connection
with the Licensed Service is subject to such clearances being obtained for that
station.
Note: Aerial heights given in metres above Ordnance Datum.
<PAGE>
PART V
DETAILS OF BROADCASTING STATIONS - MULTIPLEX C
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Station Name Grid Reference UHF Channel Aerial Height
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Aberdare SO034013 29 333
- --------------------------------------------------------------------------------
Angus NO394407 56 549
- --------------------------------------------------------------------------------
Beacon Hill SX857619 56 249
- --------------------------------------------------------------------------------
Belmont TF218836 60 314
- --------------------------------------------------------------------------------
Bilsdale SE553962 27 690
- --------------------------------------------------------------------------------
Black Hill NS828647 55 539
- --------------------------------------------------------------------------------
Blaenplwyf SN569757 29 325
- --------------------------------------------------------------------------------
Bluebell Hill TQ757613 42 236
- --------------------------------------------------------------------------------
Bressay HU503387 66 291
- --------------------------------------------------------------------------------
Brierley Hill SO916856 66 180
- --------------------------------------------------------------------------------
Bristol King's Weston ST547775 30 144
- --------------------------------------------------------------------------------
Bromsgrove SO948730 26 199
- --------------------------------------------------------------------------------
Brougher Mountain IH350527 29 370
- --------------------------------------------------------------------------------
Caldbeck NY299425 45 578
- --------------------------------------------------------------------------------
Caradon Hill SX273707 24 592
- --------------------------------------------------------------------------------
Carmel SN576153 68 398
- --------------------------------------------------------------------------------
Chatton NU105264 47 348
- --------------------------------------------------------------------------------
Chesterfield SK382764 50 231
- --------------------------------------------------------------------------------
Craigkelly NT233872 42 315
- --------------------------------------------------------------------------------
Crystal Palace TQ339712 34 321
- --------------------------------------------------------------------------------
Darvel NS557341 30 395
- --------------------------------------------------------------------------------
Divis IJ287750 48 497
- --------------------------------------------------------------------------------
Dover TR274397 57 328
- --------------------------------------------------------------------------------
Durris NO763899 41 608
- --------------------------------------------------------------------------------
Eitshal NB305303 28 366
- --------------------------------------------------------------------------------
Emley Moor SE222128 50 565
- --------------------------------------------------------------------------------
Fenham NZ216648 32 170
- --------------------------------------------------------------------------------
Fenton SJ903451 28 241
- --------------------------------------------------------------------------------
Fremont Point XD908280 66 227
- --------------------------------------------------------------------------------
Guildford SU975486 47 172.5
- --------------------------------------------------------------------------------
Hannington SU527568 29 352
- --------------------------------------------------------------------------------
Hastings TQ806100 63 126
- --------------------------------------------------------------------------------
Heathfield TQ566220 54 281
- --------------------------------------------------------------------------------
Hemel Hempstead TL088045 50 212
- --------------------------------------------------------------------------------
Huntshaw Cross SS527220 53 338
- --------------------------------------------------------------------------------
Huntshaw Cross B SS527220 51 338
- --------------------------------------------------------------------------------
Idle SE163374 30 265
- --------------------------------------------------------------------------------
Ilchester Crescent ST577700 47 99
- --------------------------------------------------------------------------------
Keelylang Hill HY378102 47 270
- --------------------------------------------------------------------------------
Kilvey Hill SS672940 21 232
- --------------------------------------------------------------------------------
Knock More NJ321497 60 418
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
37
<TABLE>
<CAPTION>
-------------------------------------------------------------------
Station Name Grid Reference UHF Channel Aerial Height
<S> <C> <C> <C>
-------------------------------------------------------------------
Lancaster SD490662 32 184
-------------------------------------------------------------------
Lark Stoke SP187426 27 277
-------------------------------------------------------------------
Limavady IC711296 57 393
-------------------------------------------------------------------
Llanddona SH583810 61 258
-------------------------------------------------------------------
Malvern SO774464 55 207
-------------------------------------------------------------------
Mendip ST564488 65 572
-------------------------------------------------------------------
Midhurst SU912250 59 294
-------------------------------------------------------------------
Moel-y-Parc SJ123701 64 552
-------------------------------------------------------------------
Nottingham SK503435 63 178
-------------------------------------------------------------------
Oliver's Mount TA040869 58 188
-------------------------------------------------------------------
Oxford SP567105 52 277
-------------------------------------------------------------------
Pendle Forest SD825384 31 326
-------------------------------------------------------------------
Plympton SX531555 60 164
-------------------------------------------------------------------
Pontop Pike NZ148526 62 450
-------------------------------------------------------------------
Pontypool ST284990 45 295
-------------------------------------------------------------------
Presely SN172306 42 529
-------------------------------------------------------------------
Redruth SW690395 49 370
-------------------------------------------------------------------
Reigate TQ257521 27 291
-------------------------------------------------------------------
Ridge Hill SO630333 39 333
-------------------------------------------------------------------
Rosemarkie NH762623 44 323
-------------------------------------------------------------------
Rosneath NS258811 60 218
-------------------------------------------------------------------
Rowridge SZ447865 32 257
-------------------------------------------------------------------
Rumster Forest ND197385 32 455
-------------------------------------------------------------------
Saddleworth SD987050 51 398
-------------------------------------------------------------------
Salisbury SU136285 62 156
-------------------------------------------------------------------
Sandy Heath TL204494 67 197
-------------------------------------------------------------------
Selkirk NT500294 63 518
-------------------------------------------------------------------
Sheffield SK324870 60 278
-------------------------------------------------------------------
Stockland Hill ST222014 32 419
-------------------------------------------------------------------
Storeton SJ314841 26 110
-------------------------------------------------------------------
Sudbury TL913377 39 160
-------------------------------------------------------------------
Sutton Coldfield SK113003 51 395
-------------------------------------------------------------------
Tacolneston TM131958 57 215
-------------------------------------------------------------------
The Wrekin SJ628082 27 436
-------------------------------------------------------------------
The Wrekin B SJ628082 45 436
-------------------------------------------------------------------
Torosay NM703358 33 478
-------------------------------------------------------------------
Tunbridge Wells TQ607440 45 172
-------------------------------------------------------------------
Waltham SK809233 33 418
-------------------------------------------------------------------
Wenvoe ST110742 67 311
-------------------------------------------------------------------
Whitehawk Hill TQ330045 48 172
-------------------------------------------------------------------
Winter Hill SD660144 50 682
-------------------------------------------------------------------
</TABLE>
All necessary national and international clearances for broadcasting from these
stations have not been obtained at the Date of Grant. The details given above
may be subject to change and the Licensee's use of each station in connection
with the Licensed Service is subject to such clearances being obtained for that
station.
Note: Aerial heights given in metres above Ordnance Datum.
<PAGE>
38
PART V
DETAILS OF BROADCASTING STATIONS - MULTIPLEX D
<TABLE>
<CAPTION>
-------------------------------------------------------------------
Station Name Grid Reference UHF Channel Aerial Height
<S> <C> <C> <C>
-------------------------------------------------------------------
-------------------------------------------------------------------
Aberdare SO034013 33 333
-------------------------------------------------------------------
Angus NO394407 65 549
-------------------------------------------------------------------
Beacon Hill SX857619 64 249
-------------------------------------------------------------------
Belmont TF218836 57 314
-------------------------------------------------------------------
Bilsdale SE553962 42 687
-------------------------------------------------------------------
Black Hill NS828647 65 573
-------------------------------------------------------------------
Blaenplwyf SN569757 33 325
-------------------------------------------------------------------
Bluebell Hill TQ757613 39 236
-------------------------------------------------------------------
Bressay HU503387 68 291
-------------------------------------------------------------------
Brierley Hill SO916856 62 180
-------------------------------------------------------------------
Bristol King's Weston ST547775 34 144
-------------------------------------------------------------------
Bromsgrove SO948730 30 199
-------------------------------------------------------------------
Brougher Mountain IH350527 33 370
-------------------------------------------------------------------
Caldbeck NY299425 42 578
-------------------------------------------------------------------
Caradon Hill SX273707 27 592
-------------------------------------------------------------------
Carmel SN576153 64 398
-------------------------------------------------------------------
Chatton NU105264 51 348
-------------------------------------------------------------------
Chesterfield SK382764 52 231
-------------------------------------------------------------------
Craigkelly NT233872 39 315
-------------------------------------------------------------------
Crystal Palace TQ339712 29 321
-------------------------------------------------------------------
Darvel NS557341 34 395
-------------------------------------------------------------------
Divis IJ287750 34 497
-------------------------------------------------------------------
Dover TR274397 60 328
-------------------------------------------------------------------
Durris NO763899 44 608
-------------------------------------------------------------------
Eitshal NB305303 32 366
-------------------------------------------------------------------
Emley Moor SE222128 49 565
-------------------------------------------------------------------
Fenham NZ216648 57 159
-------------------------------------------------------------------
Fenton SJ903451 32 241
-------------------------------------------------------------------
Fremont Point XD908280 68 227
-------------------------------------------------------------------
Guildford SU975486 54 169
-------------------------------------------------------------------
Hannington SU527568 48 352
-------------------------------------------------------------------
Hastings TQ806100 60 126
-------------------------------------------------------------------
Heathfield TQ566220 51 258.5
-------------------------------------------------------------------
Hemel Hempstead TL088045 43 212
-------------------------------------------------------------------
Huntshaw Cross SS527220 57 338
-------------------------------------------------------------------
Huntshaw Cross B SS527220 47 338
-------------------------------------------------------------------
Idle SE163374 42 265
-------------------------------------------------------------------
Ilchester Crescent ST577700 51 99
-------------------------------------------------------------------
Keelylang Hill HY378102 51 270
-------------------------------------------------------------------
Kilvey Hill SS672940 31 232
-------------------------------------------------------------------
Knock More NJ321497 56 418
-------------------------------------------------------------------
Lancaster SD490662 30 184
-------------------------------------------------------------------
</TABLE>
<PAGE>
39
<TABLE>
<CAPTION>
-------------------------------------------------------------------
Station Name Grid Reference UHF Channel Aerial Height
<S> <C> <C> <C>
-------------------------------------------------------------------
Lark Stoke SP187426 60 277
-------------------------------------------------------------------
Limavady IC711296 63 393
-------------------------------------------------------------------
Llanddona SH583810 46 258
-------------------------------------------------------------------
Malvern SO774464 26 202
-------------------------------------------------------------------
Mendip ST564488 48 574.5
-------------------------------------------------------------------
Midhurst SU912250 60 294
-------------------------------------------------------------------
Moel-y-Parc SJ123701 34 549
-------------------------------------------------------------------
Nottingham SK503435 59 178
-------------------------------------------------------------------
Oliver's Mount TA040869 64 188
-------------------------------------------------------------------
Oxford SP567105 67 289
-------------------------------------------------------------------
Pendle Forest SD825384 34 326
-------------------------------------------------------------------
Plympton SX531555 56 164
-------------------------------------------------------------------
Pontop Pike NZ148526 53 450
-------------------------------------------------------------------
Pontypool ST284990 68 295
-------------------------------------------------------------------
Presely SN172306 49 529
-------------------------------------------------------------------
Redruth SW690395 50 387
-------------------------------------------------------------------
Ridge Hill SO630333 45 333
-------------------------------------------------------------------
Rosemarkie NH762623 50 323
-------------------------------------------------------------------
Rosneath NS258811 48 218
-------------------------------------------------------------------
Rowridge SZ447865 28 257
-------------------------------------------------------------------
Rumster Forest ND197385 59 411
-------------------------------------------------------------------
Saddleworth SD987050 54 398
-------------------------------------------------------------------
Salisbury SU136285 52 156
-------------------------------------------------------------------
Sandy Heath TL204494 46 267
-------------------------------------------------------------------
Selkirk NT500294 56 518
-------------------------------------------------------------------
Sheffield SK324870 42 278
-------------------------------------------------------------------
Stockland Hill ST222014 34 419
-------------------------------------------------------------------
Storeton SJ314841 33 110
-------------------------------------------------------------------
Sudbury TL913377 50 182
-------------------------------------------------------------------
Sutton Coldfield SK113003 55 395
-------------------------------------------------------------------
Tacolneston TM131958 46 184
-------------------------------------------------------------------
The Wrekin SJ628082 57 434
-------------------------------------------------------------------
Torosay NM703358 31 478
-------------------------------------------------------------------
Tunbridge Wells TQ607440 59 172
-------------------------------------------------------------------
Waltham SK809233 42 418
-------------------------------------------------------------------
Whitehawk Hill TQ330045 61 172
-------------------------------------------------------------------
Winter Hill SD660144 63 650
-------------------------------------------------------------------
Winter Hill 3 SD660144 40 555
-------------------------------------------------------------------
</TABLE>
All necessary national and international clearances for broadcasting from these
stations have not been obtained at the Date of Grant. The details given above
may be subject to change and the Licensee's use of each station in connection
with the Licensed Service is subject to such clearances being obtained for that
station.
Note: Aerial heights given in metres above Ordnance Datum.
<PAGE>
40
PART VI
ADDITIONAL INFORMATION
1. Letter of 20th March, 1997 and attached memorandum and schedules from the
Licensee to the Commission in reply to a letter of 12th March, 1997 from
the Commission to the Licensee.
2. Letter of 17th April, 1997 from the Licensee to the Commission in reply to
a letter of 10th April, 1997 from the Commission to the Licensee.
3. Letter of 22nd April, 1997 and attached note and diagram from the Licensee
to the Commission in reply to a letter of 15th April, 1997 from the
Commission to the Licensee.
4. Letter of 28th April, 1997 from the Licensee to the Commission in reply to
a letter of 21st April, 1997 from the Commission to the Licensee.
<PAGE>
EXHIBIT 10.37
CONTRACT BETWEEN
BRITISH TELECOMMUNICATIONS PLC
AND
CASTLE TRANSMISSION INTERNATIONAL LIMITED
FOR THE PROVISION OF
DIGITAL TERRESTRIAL TELEVISION
NETWORK DISTRIBUTION SERVICE
<PAGE>
1
INDEX
- -----
1. Interpretation
2. Provision of the Service
3. Acceptance Tests
4. BT Equipment and Site Requirements, and Customer's Content Signals
Responsibilities
5. Connection of Equipment to the Service
6. Access and Site Regulations
7. Use of the Service
8. Intellectual Property Rights
9. Intellectual Property Right Indemnities
10. Confidentiality
11. Charges and Deposits
12. Limitation of Liability
13. Matters Beyond Either Party's Reasonable Control
14. Escalation and Dispute Resolution
15. Termination of this Contract by Notice
16. Breaches of this Contract
17. Changes to this Contract
18. Insurance
19. Assignment
20. Entire Agreement
21. Notices
SCHEDULES
1. Description of the Service
2. Charges for the Service
3. Late Delivery Payments and Abatements
4. Functional Design Specification
5. Implementation Plan
6. Acceptance Tests
7. Network Management Service
8. Specifications of Customer's Content Signals
9. Persons permitted to receive confidential information
10. Contract Change Order Form
<PAGE>
2
THIS CONTRACT is made 19 May 1998
BETWEEN
BRITISH TELECOMMUNICATIONS PLC whose registered office is at 81 Newgate Street,
London EC1A 7AJ, registered in England No. 1800000 ("BT").
AND
CASTLE TRANSMISSION INTERNATIONAL LIMITED whose registered office is at Warwick
Technology Park, Gallows Hill, Heathcote Lane, Warwick CV34 6TN, registered in
England No. 3196207 ("the Customer")
INTRODUCTION
1. The Customer has requested BT to provide a Digital Terrestrial
Television Network Distribution Service ("DTTV Service").
2. BT and the Customer have agreed the DTTV Service will be provided on
the terms and conditions of this Contract.
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 In this Contract the following words and phrases have the following
meanings:
GENERAL DEFINITIONS :
"Abatements" means the payments described in Part 3 of Schedule
3.
"Acceptance Criteria" means the acceptance criteria described in Part
2 of Schedule 6
"Acceptance Tests" means the acceptance tests described in Part 1
of Schedule 6.
<PAGE>
3
"ASI" means Asynchronous Serial Interface, a DVB
transport stream specification.
"ASI mux" or "ASI means a BT proprietory interface device which
multiplex" combines or separates a number of individual
transport streams for carriage over the DTTV
Distribution Network.
"Broadcasting means the Independent Television Commission
Authority" as defined in the Broadcasting Acts 1990 and
1996, or, in the case of the BBC the
government department and/or governing body
having jurisdiction over the BBC's broadcasting
activities under any Charter establishing the
BBC or any amendment thereto.
"BT Equipment" means equipment (including software) placed
on a Site by BT for the provision of the Service.
"BT's Licence" means the Licence granted to BT under Section
7 of the Telecommunications Act 1984.
"BT's Licensed Area means the United Kingdom other than the area
in the United in which Kingston Communications (Hull) plc is
Kingdom" licensed to run telecommunication systems
under its licence granted to it under Section 7 of
the Telecommunications Act 1984
"Charges" means the charges payable by the Customer for
the Service in accordance with Clause 11 and
Schedule 2.
"CNAP" means a Core Network Access Point, being a
primary point at which access and/or egress
<PAGE>
4
can be provided to the DTTV Distribution
Network.
"Connection Point" means a block terminal, a socket for a
removable plug, a distribution frame, or any
other device supplied and installed by BT at
Playout Centres and/or at Transmitter Sites.
"Customer's Content means video, audio and data signals of the
Signals" Customer, or of any third party the Customer
allows to use the Service, having the technical
characteristics and specifications described in
Schedule 8.
"Customer means equipment directly connected to the
Equipment" DTTV Distribution Network used by the
Customer, or by any third party the Customer
allows to use the Service.
"Day" means, for the purposes of Schedule 3, Day as
described in Part 1 of Schedule 3.
"Digital Network means the industry body of that name established
Group" to facilitate the introduction of digital
television in the United Kingdom.
"Distribution Input means an interface (physical, electrical and data)
Interface" at which the Customer or its agent delivers the
Customer's Contents Signals to BT for distribution
across the DTTV Distribution Network, having the
characteristics described in Part 1 of Schedule 1.
"Distribution Output means an interface (physical, electrical and data)
Interface" at which BT delivers the Customer's
<PAGE>
5
Contents Signals back to the Customer or its
agent after completing its passage through the
DTTV Distribution Network, having the
characteristics described in Part 1 of Schedule 1.
"DTTV Distribution means the network to be established by BT for
Network" providing the Service.
"DTTV Multiplex means a multiplex service as defined in the
Service" Broadcasting Act 1996.
"DVB" means the standards developed by the Digital
Video Broadcasting Project.
"Emergency" means an emergency of any kind including any
circumstance whatever resulting from major
accidents, natural disasters and incidents
involving toxic or radio-active materials.
"Emergency means in respect of any locality :-
Organisations" (i) the relevant public police, fire, ambulance
and coastguard services for that locality; and
(ii) any other similar organisation providing
assistance to the public in Emergencies in respect
of which BT provides a public emergency call
service.
"Full Testing means the Full Testing Service as described in
Service" Part 1 of Schedule 1.
"Functional Design means the document describing the technical
Specification" characteristics and specifications relating to the
Service as described in Schedule 4.
<PAGE>
6
"Group Company" means a subsidiary or holding company of BT or
of the Customer (as appropriate), or a subsidiary
of that holding company, all as defined by Section
736 of the Companies Act 1985.
"Implementation means the BT implementation plan for delivery
Plan" and testing of the Service as described in
Schedule 5.
"Late Delivery means the payments described in Part 1 of
Payments" Schedule 3.
"Loss of Service" means Loss of Service as defined in Part 2 of
Schedule 3.
Minimum Period means the period from signature of this Contract
to the expiry of the 12th anniversary of 31
October 1998 or such later date as may be
substituted pursuant to the provisions of Sub-
clause 17.2.1, and as such period may be
extended by the Customer pursuant to the
provisions of Sub-clause 15.1.
"Multiplier" means the Multiplier as described in Part 1 of
Schedule 3.
"Network means the network management service and fault
Management reporting procedure as described in Schedule 7 to
Service" be provided under this Contract in relation to the
Service.
"Operational Service means the date as defined in paragraph 1.4 (b) of
Date" Schedule 2.
<PAGE>
7
"Phase 1 means the Phase 1 Transmitter Sites as defined
Transmitter Sites" in Part 1 of Schedule 3 and as described in Part
2 of Schedule 1.
"Phase 2 means the Phase 2 Transmitter Sites as defined
Transmitter Sites" in Part 1 of Schedule 3 and as described in Part
2 of Schedule 1.
"Playout Centre" means a playout centre detailed in Part 3 of
Schedule 1.
"Playout Centre means the owner of a Playout Centre.
Owner"
"Preliminary Testing means the Preliminary Testing Service as
Service" described in Part 1 of Schedule 1.
"Region" means a region listed in the Table at the end of
Part 1, Schedule 1, paragraph 2.
"Service" means the service or, where appropriate, the
services or part of a service, to be provided by
BT to the Customer as described or referred to in
Part 1 of Schedule 1.
"Service Connection means the initial Service Connection Charge
Charge" payable by the Customer as described in
Schedule 2.
"Service Delivery means the respective service delivery dates set
Dates" out in Schedule 1, Part 2, column 6 by which a
fully operational Service is to be provided to the
Customer at the respective Transmitter Sites set
out in Schedule 1, Part 2, column 2.
"Service Full Testing means the respective service full testing dates
Dates" setout in Schedule 1, Part 2, column 5 by which
the Full Testing Service is to be provided for
Acceptance Tests at the respective Transmitter
Sites set out in Schedule 1, Part 2, column 2.
<PAGE>
8
"Service Preliminary means the respective service preliminary Testing
Testing Dates" Dates set out in Schedule 1, Part 2, column 4 by
which the Preliminary Testing Service is to be
provided for Acceptance Tests to the respective
Transmitter Sites set out in Schedule 1, Part 2,
column 2.
"Service Rental means the annual Service Rental Charge payable
Charge" by the Customer as described in Schedule 2.
"Site" means the Playout Centre(s) and Transmitter
Site(s) as detailed in Schedule 1.
"SNAP" means a Separacy Network Access Point, being
a separate, secondary point at which access or
egress can be provided to the DTTV Distribution
Network.
"Transmitter Site" means a transmitter site detailed in Schedule 1,
Part 2, column 2.
"Transmitter Site means the owner of a Transmitter Site as detailed
Owner" in Schedule 1, Part 2, column 3.
1.2 The Schedules form part of this Contract. References to Clauses or Sub-
clauses are to Clauses or Sub-clauses of this Contract; references to
paragraphs are to paragraphs of the appropriate Schedule. Clause headings
are inserted for convenience only, and will not affect the interpretation
of this Contract.
<PAGE>
9
1.3 References to Statutes or to Statutory Instruments include any modification
or re-enactment of the same.
1.4 Except where the context otherwise requires, references to the singular
will include the plural, and vice versa.
2. PROVISION OF THE SERVICE
2.1 BT will provide the Service to the Customer on the terms of this Contract.
2.2 BT will provide the Preliminary Testing Service, the Full Testing Service,
and fully operational Service to the Transmitter Sites by the respective
Service Preliminary Testing Dates, Service Full Testing Dates, and Service
Delivery Dates, but if BT does not do so, its only financial liability to
the Customer will be to pay Late Delivery Payments in the circumstances
described in Part 1 of Schedule 3.
2.3 BT has designed the network it will use to provide the Service to achieve
a minimum 99.99% availability of Service. However, in the nature of any
service it cannot be guaranteed that faults will never arise. The Customer
will be entitled to Abatements for Loss of Service in the circumstances
described in Part 3 of Schedule 3, and BT will provide a fault monitoring,
reporting and repair service as part of the Network Management Service.
2.4 The performance and functionality of the Service will not be affected by
dates, prior to, during or after 1 January 2000. In particular:
<PAGE>
10
(a) No value for current date will cause any interruption in operation.
(b) Date-based functionality will behave consistently for dates prior
to, during and after 1 January 2000.
(c) In all interfaces and data storage, the century in any date will be
specified either explicitly or by unambiguous algorithms or
inferencing rules.
(d) Year 2000 will be recognised as a leap year.
2.5 BT may from time to time give the Customer advice concerning matters
essential to health, safety or the quality of any telecommunications
service provided by BT to the Customer or any other customer.
2.6 In the event of an Emergency, BT may suspend the Service in order to
give Emergency Organisations or departments of central or local
government access to the Service in accordance with requests made under
Condition 9 of BT's Licence, or in order to comply with orders or
directions of a competent authority in exercise of statutory or other
executive powers in connection with such Emergency, and suspension in
such circumstances will be treated as an event arising under Clause 13.
2.7 (a) BT will co-operate with the Customer's own customer DTTV Multiplex
Service operators' systems integrators as required to enable the
integration of the DTTV Distribution Network with the Customer's own
customer multiplex and distribution systems, and generally in the
provision of the Service during the term of this Contract.
Correspondingly, the Customer will procure that such third parties co-
operate with BT in the installation and operation of the DTTV
Distribution Network.
(b) BT will deploy its people as necessary to enable the Services to be
available to the relevant Transmitter Sites for testing in accordance
with the provisions of Clause 3 and to enable fully operational Services
to commence on the Service Delivery Dates.
<PAGE>
11
3. ACCEPTANCE TESTS
3.1 BT will give the Customer 5 working days' prior notice of BT's intention to
carry out Acceptance Tests at Sites to be specified in the notice. The
Customer's nominated representatives will be entitled to attend the
Acceptance Tests, but as witnesses only. BT will accommodate as many of
the Customer's nominated representatives for such attendance as it
reasonably can, and in any event a minimum of three. BT will at all times
remain in control of testing the Service while the Acceptance Tests are
carried out.
3.2 Provided BT considers that the Acceptance Tests demonstrate that the
Service meets the Acceptance Criteria, BT will notify the Customer in
writing of the satisfactory completion of the Acceptance Tests with copies
of the results as soon as they are available. The Customer will respond as
soon as reasonably practicable and in any event within 5 working days of
receipt of such written notification and copy results, failing which the
Service will be deemed to be acceptable and ready for provision to the
Sites specified in such BT notice. Where the Customer does not respond to
this notice, any subsequent Late Delivery Payments that may become due as a
result of such failure to respond will be reduced in accordance with the
number of days taken by the Customer to respond to this notice.
3.3 If the Customer notifies BT that in its opinion the Service does not meet
the Acceptance Criteria, BT will rectify the Service as soon as reasonably
practicable in order that it meets the Acceptance Criteria. If BT disputes
the Customer's notice the matter will be regarded as a technical dispute
for the purposes of Clause 14 and dealt with accordingly.
4. BT EQUIPMENT AND SITE REQUIREMENTS, AND CUSTOMER'S CONTENT SIGNALS
RESPONSIBILITIES
4.1 In order to be able to provide the Service, BT requires the Customer (at
its own expense) to seek to arrange for the following at the Sites (up to
the respective boundaries of the Sites):
<PAGE>
12
(a) obtain and maintain all necessary landlords' consents, planning
permissions, way-leaves and other third party consents (including
those of Playout Centre Owners, and Transmitter Site Owners) needed
to install, commission, maintain, operate and use the BT Equipment at
the Sites and connect and operate the Service at the Sites, including
consents for any necessary alterations to buildings;
(b) pay all necessary connection charges, site rents, or any other fees
required or levies made by third parties (including landlords, Playout
Centre Owners, and Transmitter Site Owners) in connection with
operating the Service at the Sites;
(c) provide a suitable environment, accommodation, foundations, power
supplies, connection points, support and other facilities at the
Sites, including all necessary trunking, conduits and cable trays, as
detailed in section 11 of the Functional Design Specification in
accordance with the relevant installation standards;
(d) take up or remove, any fitted or fixed floor coverings, ceiling
tiles, suspended ceiling and partition covers, as BT advises are
reasonably necessary, and carry out afterwards any making good or
decorator's work as required;
and BT will not be liable for any failure to provide Service which is due
or mainly due to the requirements described in Sub-clauses 4.1 (a), (b),
(c) and (d) not being met in accordance with timescales as set out in the
Implementation Plan or not being maintained for the duration of the
Contract, in each case to the extent that such requirements are not met or
maintained.
4.2 The Customer's Content Signals at the Distribution Input Interfaces will be
delivered in compliance with the specifications and standards described in
Schedule 8. Whilst it is acknowledged that failure to provide continuous
Customer's Content Signals does not constitute a breach of this Contract,
the Customer will use reasonable endeavours to provide continuous
Customer's Content Signals at the Distribution Input Interfaces. BT will
not be liable for any failure to provide Service which is due
<PAGE>
13
or mainly due to Customer's Content Signals not being delivered
continuously at the Distribution Input Interfaces, and/or not being
delivered in compliance with the specifications and standards described in
Schedule 8, in each case to the extent that Customer's Content Signals are
not so delivered. The Customer acknowledges that BT is not responsible for
delivery of the Customer's Content Signals up to the Distribution Input
Interfaces nor for onward carriage of the Customer's Content Signals from
the Distribution Output Interfaces nor for any payments in relation
thereto.
4.3 The Customer is responsible for the BT Equipment at all Sites and must not
add to, modify or in any way interfere with such BT Equipment, nor allow
anyone else (other than someone authorised by BT) to do so. The Customer
will be liable to BT for any loss of or damage to such BT Equipment, except
where such loss or damage is due to fair wear and tear, an event covered by
Clause 13, or is caused by BT or anyone acting on BT's behalf.
4.4 BT will not be liable for any failure to provide Service which is due or
mainly due to any interference, modification, addition to, or loss or
destruction of, BT Equipment at any Site except where such loss or damage
is due to fair wear and tear or is caused by BT or anyone acting on BT's
behalf.
5. CONNECTION OF EQUIPMENT TO THE SERVICE
5.1 Any equipment connected to or used with the Service must be connected and
used in accordance with any instructions, safety and security procedures
applicable to the use of that equipment.
5.2 Any equipment which is attached (directly or indirectly) to the Service
must be technically compatible with the Service and approved for that
purpose under any relevant legislation.
<PAGE>
14
6. ACCESS AND SITE REGULATIONS
6.1 In order to be able to provide the Service, BT requires the Customer (at
its own expense) to seek to arrange for access, for anyone duly authorised
for this purpose by BT, to any Site and any other premises outside BT's
control, at all reasonable times. During a period from 3 months prior to
each Service Preliminary Testing Date to each Service Delivery Date, the
Customer will seek to arrange continuous 24-hour access for BT to relevant
Sites, but in any event BT will require a minimum level of access to
relevant Sites as described in Schedule 5. Subsequently, to carry out any
major planned works or maintenance, BT will require 24-hour access at Sites
from time to time on giving 3 days' notice. BT may also require immediate
24-hour access at Sites to rectify faults in Service. Otherwise, BT will
normally only require access during its usual working hours but may, on
reasonable notice, require access at other times which the Customer will
seek to arrange.
6.2 BT employees and anyone acting on BT's behalf will observe the Customer's,
or the relevant Site owner's, reasonable Site regulations in force from
time to time as advised in writing to BT or drawn to BT's attention at the
Site. In the event of any conflict between such Site regulations and this
Contract, this Contract will prevail.
6.3 The Customer will provide a suitable and safe working environment at all
Sites for BT employees and anyone acting on BT's behalf.
6.4 BT will not be liable for any failure to provide Service which is due or
mainly due to the access requirements described in Sub-clause 6.1 not being
met, to the extent that such requirements are not met, or to a suitable and
safe working environment not being provided for BT employees or for anyone
acting on BT's behalf at any Site, to the extent that such environment is
not provided.
<PAGE>
15
7. USE OF THE SERVICE
7.1 It is the Customer's responsibility to obtain and keep in force any licence
necessary for the Customer to use the Service, and not to permit any third
party to use the Service where such third party does so in the absence of,
or in breach of, any licence necessary for it to do so. Without prejudice
to the generality of the foregoing, this includes any licence or consent
required from a Broadcasting Authority.
7.2 The Service must not be used in a way that:
(a) places BT in breach of BT's Licence, or in breach or contravention of
the Telecommunications Act 1984, or of the Broadcasting Acts 1990 or
1996, or gives rise to proceedings being taken against BT under
Section 13 of the Broadcasting Act 1990; or
(b) does not comply with any advice given by BT under Sub-clause 2.5 or
which does not comply with Clause 5.
7.3 The Customer must indemnify BT against any claims or legal proceedings
which are brought or threatened against BT :
(a) by any third party because the Service is used in breach of Sub-clause
7.1 or 7.2; or
(b) by any third party the Customer permits to use the Service if the
Service not available for use by that third party because of any
failure of the Service; or
(c) by any third party because the Customer's Content Signals are in
breach of any duty of confidentiality or privacy, or infringe or
prejudice any intellectual property rights, or are defamatory or
obscene, or are otherwise unlawful.
<PAGE>
16
7.4 (a) Where any of such claims or proceedings described in Sub-clause 7.3
are of a criminal nature, or are likely to affect BT's Licence or any
rights or obligations of BT arising out of BT's Licence, or BT's
compliance with, breach or contravention of, or exercise of any rights
under, the Telecommunications Act 1984 or the Broadcasting Acts 1990
or 1996, BT will retain conduct and control of such claims or
proceedings but it will be a condition of this indemnity that BT will
notify the Customer promptly in writing (so far as practicable) of any
such claims or proceedings, make no admission in relation to the same
without prior consultation with the Customer, and keep the Customer as
fully informed as practicable as to the progress of such claims or
proceedings.
(b) In relation to any other such claims or proceedings, it will be a
condition of this indemnity that BT must :-
(i) notify the Customer promptly in writing of such claim or
proceeding;
(ii) make no admission in relation to the same;
(iii) allow the Customer to conduct all negotiations and proceedings,
subject to regular consultation with BT, and give the Customer
all reasonable assistance in doing so (the Customer will pay
BT's reasonable costs and expenses for such assistance).
7.5 If as a result of use of Service in contravention of Sub-clause 7.1 or 7.2
BT is prevented by an injunction or other order of a court of competent
jurisdiction from providing the Service, or receives an order or
instruction from a competent authority to cease providing the Service, or,
in its reasonable opinion, after consultation with the Customer, is exposed
to criminal liability if it continues to provide the Service, without
prejudice to its right to terminate this Contract BT may suspend the
Service until such court order is lifted or, in the case of criminal
liability, BT receives such
<PAGE>
17
assurances as BT reasonably considers to be sufficient that there will be
no criminal liability arising from restoration of the Service.
7.6 The limitations and exclusions of liability contained in Clause 12 do not
apply to this Clause.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Where software is provided to enable the Customer to use the Service, BT
grants the Customer a non-exclusive, non-transferable licence to use the
software for that purpose.
8.2 The Customer will not, without BT's prior written consent, copy or (except
as permitted by law) decompile or modify the software, nor copy the manuals
or documentation. The Customer will be entitled to a minimum of 3 copies
of appropriate software, manuals and documentation.
8.3 The Customer will sign any agreement reasonably required by the owner of
the copyright in the software to protect the owner's interest in that
software, provided this does not result in any adverse financial
consequences for the Customer.
9. INTELLECTUAL PROPERTY RIGHT INDEMNITIES
9.1 BT will indemnify the Customer against all claims and proceedings arising
from infringement of any intellectual property rights by reason of BT's
provision of the Service to the Customer. As a condition of this indemnity
the Customer must:
(a) notify BT promptly in writing of any allegation of infringement;
(b) make no admission relating to the infringement;
(c) allow BT to conduct all negotiations and proceedings, subject to
regular consultation with the Customer, and give BT all reasonable
assistance in
<PAGE>
18
doing so (BT will pay the Customer's reasonable costs and expenses for
such assistance); and
(d) allow BT to modify the Service, or any item provided as part of the
Service, so as to avoid the infringement, provided that the
modification does not materially affect the performance of the Service
or increase the Customer's costs. For these purposes any reduction in
availability of Service will be regarded as material.
9.2 The indemnity in Sub-clause 9.1 does not extend to infringements caused by
any Customer equipment, software, or services, or any combination of them,
used in conjunction with the Service, except in all cases where such
matters are permitted under this Contract. The Customer will indemnify BT
against all claims, proceedings and expenses arising from such
infringements on the same terms (mutatis mutandis) as the indemnity by BT
contained in Sub-clause 9.1.
9.3 The limitations and exclusions of liability contained in Clause 12 do not
apply to this Clause.
10. CONFIDENTIALITY
10.1 The parties will keep in confidence any information (whether written or
oral) of a confidential nature (including software and manuals) obtained
under this Contract and will not disclose that information to any person,
other than those persons listed in Schedule 9 who need to know the
information, without the written consent of the other party.
10.2 This Clause 10 will not apply to:
(a) any information which has been published, other than through a breach
of this Contract;
(b) information lawfully in the possession of the recipient before the
disclosure under this Contract took place;
<PAGE>
19
(c) information obtained from a third party who the recipient reasonably
believed was free to disclose it; and
(d) information which a party is required to disclose to a competent
regulatory authority, or information which a party is requested to
disclose and, if it did not, could be required by law to do so.
10.3 This Clause 10 will remain in effect for as long as the information remains
confidential, unless the parties otherwise agree.
11. CHARGES AND DEPOSITS
11.1 The Charges for the Service, calculated in accordance with the BT Price
List, are as set out in Schedule 2. Charges will commence and fall due as
specified in Schedule 2.
11.2 The Customer will pay the Charges within 45 days of the date of BT's
invoice, provided that the invoice date will not be earlier than the
payment dates described in Schedule 2. BT may charge daily interest on
late payments at a rate equal to 4% per annum above the base lending rate
of Midland Bank plc.
12. LIMITATION OF LIABILITY
12.1 BT accepts liability for late provision and the quality of the Service,
other than where caused by an event covered by Clause 13, but only to the
extent stated in Sub-clauses 2.2 and 2.3 and Schedule 3.
12.2 Each party accepts unlimited liability for death or personal injury
resulting from its negligence. Sub-clauses 12.3 and 12.4 do not apply to
such liability.
12.3 Except for the Customer's obligations under Clauses 7, 11 and 15 and
Schedule 2, and BT's obligations under Clause 9, neither party will be
liable to the other, either in contract, tort (including negligence) or
otherwise for any direct or indirect loss of profits, business or
anticipated savings, nor for any indirect or consequential loss or damage.
<PAGE>
20
12.4 Except for the Customer's obligations under Clauses 7, 11 and 15 and
Schedule 2, and BT's obligations under Clause 9, Sub-clauses 2.2 and 2.3
and Schedule 3, each party's liability to the other in contract, tort
(including negligence) or otherwise in relation to this Contract is limited
to (Pounds)2 million for any one incident or series of related incidents
and to (Pounds)4 million for all incidents in any period of 12 months.
12.5 Each provision of this Contract, excluding or limiting liability, operates
separately. If any part is held by a court to be unreasonable or
inapplicable, the other parts will continue to apply.
13. MATTERS BEYOND EITHER PARTY'S REASONABLE CONTROL
13.1 If either party is unable to perform any obligation under this Contract
because of a matter beyond that party's reasonable control (for the
purposes of this Clause 13, a "Force Majeure event"), such as lightning,
flood, exceptionally severe weather, fire, explosion, war, civil disorder,
or acts of local or central Government or other competent authorities or
events beyond the reasonable control of that party's suppliers, that party
will have no liability to the other for that failure to perform. The
period of such excused non-performance will be limited to the duration of
the Force Majeure event, and the party unable to perform any obligation
because of the Force Majeure event will give prompt notice to the other of
any claim that the performance of its obligations under this Contract is
prevented or adversely affected by a Force Majeure event (giving details so
far as practicable of the nature of the Force Majeure event preventing or
adversely affecting performance and the estimated duration of non-
performance), will give similar notice when its performance is resumed or
ceased to be adversely affected, and will use all reasonable endeavours to
recommence performance as soon as practicable, to mitigate and eliminate
the consequences of the Force Majeure event, and to inform the other party
of the steps which it is taking or proposing to take to do so.
<PAGE>
21
13.2 In the event of any failure by BT to provide Service to any single Region
or to all Regions because of a Force Majeure event, except for any such
Force Majeure event that also constitutes a breach by the Customer of its
obligations under this Contract, or a failure to meet BT's requirements as
described in Clauses 4 and 6, or an event described in Sub-clause 4.4 (for
the purposes of this Clause 13, an "Excluded Event") :-
(a) BT will consider all practicable options, depending on the nature and
extent of any such failure, that are available to restore Service at
the earliest practicable opportunity, including the use of alternative
temporary facilities. Where BT considers the use of alternative
temporary facilities would achieve an earlier restoration of Service
than the repair of the normal facilities used to provide Service, BT
will use all reasonable endeavours to provide such alternative
temporary facilities as soon as reasonably practicable to provide the
Service. Such alternative temporary facilities will be deemed to be
acceptable if they meet the Acceptance Criteria;
(b) where BT is unable to either repair the normal facilities used to
provide Service or provide such alternative temporary facilities
within 42 days of the commencement of the non-performance, the
Customer will be entitled, by written notice expiring at the end of
such 42-day period, to require this Contract to be amended such that
the part of the Service affected by such non-performance is removed
from this Contract and the Customer and BT are each relieved of their
respective obligations to pay for and provide the part of the Service
affected by such non-performance for the remainder of the term of the
Contract;
(c) the Customer will only be liable to pay 50% of the annual rental
charges (apportioned on a daily basis over a year) applying to the
parts of the Service affected by such failure for the duration of such
failure.
<PAGE>
22
13.3 For the avoidance of doubt, the provisions of Sub-clause 13.2 will not
apply in the event of any failure by BT to perform any obligations because
of an Excluded Event, and in such a case the Customer will remain liable
for payment of the full Charges.
14. ESCALATION AND DISPUTE RESOLUTION
14.1 If a dispute arises between the parties to this Contract, the parties will
use their reasonable endeavours to settle the dispute in accordance with
the following procedures:
(a) a dispute which has not been settled by the Customer's
representative and the BT representative within 7 days of the matter being
raised, may be escalated by either party to the first level by written
notice to the other party;
(b) if the dispute is not resolved at the first level within 7 days
of escalation either party may refer the dispute to the second level.
The parties' representatives and the people to whom a dispute must be
escalated at the first and second levels are as notified by either party to
the other from time to time.
14.2 If the dispute is a technical dispute and is still not resolved 28 days
after escalation to the second level then the dispute may be referred to a
single arbitrator to be agreed by BT and the Customer, or , failing
agreement, to be appointed by the President of the Institution of
Electrical Engineers, in accordance with and subject to the provisions of
the Arbitration Acts 1950 to 1979 or any statutory modification or re-
enactment of those Acts.
14.3 If a dispute is other than a technical dispute and is not resolved after
the procedures set out in Sub-Clause 14.1 have been followed then, if the
parties agree, the dispute will be referred to a mediator:
<PAGE>
23
(a) the mediator will be appointed by agreement of the parties. In
the event of a failure to agree within 3 days of a proposal by
one party, the mediator will be appointed by the Centre for
Dispute Resolution (CEDR);
(b) within 14 days of the appointment of the mediator the parties
will meet with the mediator in order to agree the procedure to be
adopted for the negotiations;
(c) all negotiations connected with the dispute will be conducted in
confidence and without prejudice to the rights of the parties in
any further proceedings;
(d) if the parties reach agreement on the resolution of the dispute
the agreement will be put in writing and once signed by the
parties will be binding on them;
(e) if the parties are not prepared to agree to the dispute being
referred to a mediator or fail to reach agreement within 2 months
of the mediator being appointed then either party may exercise
any remedy that it has under this Contract.
15. TERMINATION OF THIS CONTRACT BY NOTICE
15.1 This Contract will terminate automatically at the expiry of the Minimum
Period unless both parties agree to extend or renew it, provided that the
Customer may extend the duration of the Minimum Period of this Contract for
a period of up to nine months upon giving BT written notice not later than
the eleventh anniversary of the first Service Delivery Date.
15.2 If the Customer terminates this Contract or the Service during the Minimum
Period (other than in accordance with a right under in this Contract) the
Customer must pay BT a sum equal to the Charges for the remaining part of
the Minimum Period, discounted, in recognition of the Charges being paid in
<PAGE>
24
a lump sum to BT upon termination, by using the 3 month Sterling London
Interbank Offer Rate quoted by Midland Bank plc, London on the date of
termination. Such sum will be paid by the Customer within 45 days of BT's
invoice, and BT may charge daily interest on late payment in accordance
with Sub-clause 11.2.
15.3 In mitigation of BT's losses on termination in breach by the Customer as
described in Sub-clause 15.2 :-
(a) BT will use all reasonable endeavours to contract to provide DTTV Service
to other customers using the facilities used to provide the Service under
this Contract, provided that BT will not be required to contract on a basis
other than the standard prices, terms and conditions applicable to the DTTV
Service. Provided the Customer has paid the sum described in Sub-clause
15.2, BT will pay to the Customer the money it obtains from any such other
customer(s) (less BT's reasonable costs and expenses (if any) incurred in
contracting with any such customer(s)) to the extent that the money
obtained from such other customer(s) relates to facilities utilised to
provide the Service under this Contract and provided that such payment(s)
will not exceed in total the sum paid by the Customer under Sub-clause
15.2. Such payment(s) will be made by BT within 45 days of receipt, and
the Customer may charge interest on late payment at a rate equal to 4% per
annum above the base lending rate of Midland Bank plc; and
(b) If BT has not been able to so contract with another customer within 12
months of such termination in breach by the Customer, BT will use all
reasonable endeavours to redeploy and reutilise any of the facilities used
to provide Service under this Contract on reasonable terms, subject to any
regulatory considerations that may apply. Provided the Customer has paid
the sum described in Sub-clause 15.2, BT will pay to the Customer any money
it obtains from such redeployment or reutilisation less BT's reasonable
costs and expenses (if any) incurred in such redeployment or reutilisation,
provided that such payments will not exceed in total the sum paid by the
Customer under Sub-clause 15.2. Such payment(s) will be made by BT
<PAGE>
25
within 45 days of receipt, and the Customer may charge interest on late
payment at a rate equal to 4% per annum above the base lending rate of
Midland Bank plc.
15.4 In addition to any rights of termination specified elsewhere in this
Contract, if the industry for digital terrestrial television services as a
whole fails, such that all holders of Broadcasting Authority licences or
other UK government authorisations permanently cease to provide digital
television services and all Broadcasting Authority licences or other UK
government authorisations are permanently terminated, surrendered,
withdrawn or otherwise revoked or ceased, then :-
(a) if such event occurs on or after the fifth anniversary of the first
Service Delivery Date, the Customer will be entitled to terminate the
Contract on giving BT twelve calendar months' written notice, without
liability for any further payment other than the Charges payable
during the notice period; or
(b) if such event occurs prior to the fifth anniversary of the first
Service Delivery Date, the Customer may terminate this Contract on one
month's written notice, subject to payment, prior to expiry of the
notice, of a sum equivalent to all Charges payable by the Customer
from the date such notice was given up to the fifth anniversary of the
first Service Delivery Date, discounted by using the 3 month Sterling
London Interbank Offer Rate quoted by Midland Bank plc, London on the
date of termination.
15.5 If the Customer (other than as a result of an event described in Sub-clause
16.1 (d) or as a result of any breach by the Customer of its Broadcasting
Authority licence or other UK government authorisation) permanently ceases,
in good faith, to provide one or more of the DTTV Multiplex Services for
which it has a Broadcasting Authority licence or other UK government
authorisation, such that its Broadcasting Authority licence or other UK
government authorisation is permanently terminated, surrendered, withdrawn
or otherwise revoked or ceased, and is not
<PAGE>
26
transferred or reissued to a connected company, then :-
(a) the Customer will use all reasonable endeavours in good faith to
effect a transfer to any replacement licensee or other UK government
authorisee of the part of the Service used to provide such permanently
ceased DTTV Multiplex Service, but if such transfer does not take
place, then
(b) the Customer will be entitled, by written notice, to require this
Contract to be amended such that the part of the Service used to
provide such permanently ceased DTTV Multiplex Service is removed from
this Contract and the Customer and BT are each relieved of their
respective obligations to pay for and provide such part of the Service
from the fifth anniversary of the first Service Delivery Date, or if
such notice is given after the fifth anniversary of the first Service
Delivery Date, from twelve calendar months from the date of the
notice.
16. BREACHES OF THIS CONTRACT
16.1 Either party may terminate this Contract without notice if the other:
(a) commits a material breach of this Contract, which is capable of
remedy, and fails to remedy the breach as soon as is reasonably
practicable or in any event within 30 days of a written notice to do
so; or
(b) commits a material breach of this Contract which cannot be remedied;
or
(c) is repeatedly in breach of this Contract; or
(d) is the subject of a bankruptcy order, or becomes insolvent, or makes
any arrangement or composition with or assignment for the benefit of
their creditors, or goes into voluntary (otherwise than for
reconstruction or
<PAGE>
27
amalgamation) or compulsory liquidation or a receiver or administrator is
appointed over their assets.
16.2 If the Customer commits any of the acts detailed in Sub-clauses 16.1 (a) or
(c), or an event detailed in Sub-clause 16.1 (d) happens to the Customer,
(except for acts or events covered by Sub-clause 7.5), BT may suspend the
Service without prejudice to its right to terminate this Contract, provided
that in the case of a suspension under Sub-clauses (a) or (c) BT must,
after the expiry of 45 days, either resume Service or exercise its right to
terminate this Contract. Where the Service is suspended under this Clause,
the Customer must pay the charges for the Service until this Contract is
terminated.
16.3 If this Contract is terminated by BT during the Minimum Period because of
an event specified in Sub-clause 16.1, the Customer must pay BT a sum
calculated in accordance with Sub-clause 15.2.
16.4 If either party delays in acting upon a breach of this Contract that delay
will not be regarded as a waiver of that breach. If either party waives a
breach of this Contract that waiver is limited to that particular breach.
17. CHANGES TO THIS CONTRACT
17.1 Changes to the Service
(a) If the Customer wishes to change the location of the Playout Centres
from which, or the Transmitter Sites to which, the Service is
provided, or to make any other changes to the Service, it must notify
BT in writing.
(b) The parties will discuss the proposed change.
(c) Within a reasonable time of receipt of a proposed change, or the date
of the discussions under Sub-clause 17.1(b), BT will notify the
Customer in writing whether or not BT can accommodate the change, and
of the likely
<PAGE>
28
timescale, financial, contractual, technical and other effects (if
any) of the proposed change.
(d) Within a reasonable time of notification of the effects of a
proposed change the Customer will advise BT whether it wishes this
Contract to be amended to incorporate the change and BT will carry
out such change on the terms agreed.
PROVIDED THAT BT agrees that, in any event :-
(i) where the Customer requires the Service to be provided to additional
transmitter sites (other than the Transmitter Sites), subject to the
maximum specified in paragraph 2 of Schedule 2, the formula to be
applied to calculate the Charges for additional transmitter site
access payable by the Customer in such circumstances will be that
set out in paragraph 2 of Schedule 2, and BT will comply with any
such request subject to completion of the appropriate Contract
Change Order and to six months' prior written notice of the new
Service Preliminary Testing Date;
(ii) where the Customer requests BT to reconfigure the Service to meet
any changes to its (or its own customer DTTV Multiplex Service
operators') regional distribution requirements, BT will consider
such requests and if feasible, carry out any such changes, provided
the Customer will pay any reasonable additional charge;
(iii) where appropriate, if the Customer requests BT to make changes to
the Service which are for the benefit of one of the Customer's own
customer digital television multiplex operators, any proposals BT
makes for consequential adjustment of the Charges will be calculated
solely in relation to such customer of the Customer.
<PAGE>
29
17.2 Changes to dates
17.2.1 Where the actual industry launch date for digital terrestrial television
services, as agreed with all other customers for the DTTV Service, is
later than 31 October 1998, the Customer will be entitled to substitute
the earlier of such actual industry launch date or 31 January 1999 for
31 October 1998 in the definition of the Minimum Period in Clause 1, so
that the Minimum Period expires of the 12th anniversary of such
substituted date, by giving three months' prior written notice to BT
expiring not later than 31 October 1998. Where such notice is given:-
(a) the Service Preliminary Testing Dates, the Service Full Testing
Dates, and the Service Delivery Dates (both for Phase 1 and Phase
2 Transmitter Sites) will each be commensurately deferred unless
the parties agree otherwise; and
(b) amendments reflecting such deferral of dates will be deemed to be
made to Part 1 of Schedule 3, such that Late Delivery Payments
will apply only in respect of the respective deferred dates; and
(c) the Implementation Plan will be amended to reflect such deferral
of dates.
17.2.2 If the Customer is unable to use the Service at any particular Phase 2
Transmitter Site due to inability to obtain frequency clearance to
transmit from such Phase 2 Transmitter Site, then, subject to giving
four months prior written notice expiring not later than the Service
Preliminary Testing Date for such Phase 2 Transmitter Site, the Customer
may either postpone delivery of Service to such Phase 2 Transmitter
Site, or substitute an alternative transmitter site for delivery of the
Service, provided that:-
(a) When frequency clearance is obtained in respect of such Phase 2
Transmitter Site or any substituted transmitter site, the Customer
will give BT six months' prior written notice of the new Service
Preliminary Testing Date applying to the provision of Preliminary
Testing Service to such
<PAGE>
30
Phase 2 Transmitter Site, and the new Service Full Testing Date for
provision of Full Testing Service to such deferred or substituted
Phase 2 Transmitter Site will be not earlier than 31 days after the
new Service Preliminary Testing Date, and the new Service Delivery
Date for provision of fully operational Service to such deferred or
substituted Phase 2 Transmitter Site will not be earlier than 30
days after the new Service Full Testing Date; and
(b) amendments reflecting such deferral of dates will be deemed to be
made to Part 1 of Schedule 3, such that Late Delivery Payments will
apply only in respect of any delays beyond the respective deferred
dates; and
(c) the Implementation Plan will be amended to reflect such deferral of
dates.
17.2.3 If any changes are agreed to any of the Service Preliminary Testing
Dates, Service Full Testing Dates, or Service Delivery Dates in relation
to any Transmitter Site, then such changes will, unless otherwise
agreed, have effect to change such other Dates in relation to that Site
to reflect their current respective intervals, and to invoke a review of
the Implementation Plan in order to make appropriate changes to reflect
such revised Dates.
17.3 At agreed intervals of not less than 4 years the parties will
collaborate on a technical review of the BT Equipment and other
distribution equipment available on the market. Where opportunities are
identified, from such technical review, to improve or enhance the
Service, or to operate the Service more cost effectively the parties
will co-operate in good faith. Should there be such an opportunity to
operate the Service more cost-effectively BT will share with the
Customer and other customers for the DTTV Service any benefits arising
from such technology improvement with due regard to the need for BT to
achieve a reasonable rate of return on both the item(s) of new BT
Equipment which is/are required to be installed and of the original BT
Equipment which is/are required to be replaced or is/are rendered
obsolete as a result of the implementation of such improvements.
<PAGE>
31
17.4 Where the parties agree a change to this Contract it will be recorded in
writing on a Contract Change Order Form in the form set out in Schedule 10
and will then form part of this Contract when signed by both parties.
18. INSURANCE
Throughout the period of this Contract both parties will maintain
appropriate insurance against loss, damages, claims or actions arising from
personal injury, public liability and any other liability for which either
is required by law to insure.
19. ASSIGNMENT
Neither party may assign or transfer any of their rights or obligations
under this Contract, without the written consent of the other, except that
BT may assign or transfer its rights or obligations (or both) to a BT Group
Company without consent, and BT will not unreasonably refuse consent to the
Customer's transferring its rights and obligations under this Contract to
another DTTV Multiplex Service operator or to a Group Company of the
Customer.
20. ENTIRE AGREEMENT
20.1 This Contract contains the whole agreement between the parties and
supersedes all previous written or oral agreements relating to its subject
matter.
20.2 The parties acknowledge and agree that:
(a) they have not been induced to enter into this Contract by any
representation, warranty or other assurance not expressly incorporated
into it; and
(b) in connection with this Contract their only rights and remedies in
relation to any representation, warranty or other assurance are for
breach of this
<PAGE>
32
Contract and that all other rights and remedies are excluded, except
in the case of fraud.
21. NOTICES
Notices given under this Contract must be in writing and may be delivered
by hand or by courier, or sent by telex or first class post to the
following addresses:
(a) to BT: Senior Business Manager Terrestrial Services, Broadcast
Services, 125 Shaftesbury Avenue, London WC2H 8BE or any alternative
address which BT notifies to the Customer;
(b) to the Customer at the address to which the Customer asks BT to send
invoices, the address of the Customer's premises or, if the Customer
is a limited company, its registered office.
Signed on behalf of
British Telecommunications plc /s/ J. P. Swingewood
...................................
Name J. P. Swingewood
...................................
Position Director Multimedia Services
...................................
Signed on behalf of
Castle Transmission International Ltd ...................................
Name: Alan Rees /s/ Alan Rees
...................................
Chief Operating Officer (signature)
<PAGE>
33
SCHEDULE 1
----------
DESCRIPTION OF THE SERVICE
--------------------------
INDEX
- -----
Part 1 : Service
Part 2 : Transmitter Sites, Transmitter Site Owners, Service Preliminary
Testing Dates, Service Full Testing Dates, Service Delivery Dates
Part 3 : Playout Centres
Part 4 : Regional Distribution from Playout Centres to Transmitter Sites
Part 5 : Transmitter Site Provisioning Plans
<PAGE>
34
SCHEDULE 1
----------
PART 1: SERVICE
------------------
1. GENERAL
1.1 The Service is a uni-directional service, provided via a diversely routed
network for the distribution of the Customer's Content Signals provided
from a Distribution Input Interface to a Distribution Output Interface, in
accordance with the description as detailed in this Schedule and the
Functional Design Specification.
1.2 The DTTV Distribution Network will provide capacity for the carriage of
Service Information ("SI") from a central SI Collation Site, which will be
located at either British Digital Broadcasting Plc's premises at Marco Polo
House, 346, Queenstown Road, London SW8 4NE, or at the Channel 4 Television
Corporation's premises at Channel 4, 124, Horseferry Road, London SW1P 2TX
(to be agreed) ("the central SI Collation Site"), to Transmitter Sites
designated as Service Insertion Points ("SIPs"). BT will accept the
Customer's DTTV Multiplex Services feeds and deliver these signals to
agreed main and daughter Transmitter Sites. The SI capacity will be
diversely routed. The network design will ensure that the two feeds are
physically and electrically separate. BT will provide 5 Mbit/s of capacity
relating to all digital multiplexes from the central SI Collation Site
throughout the DTTV Distribution Network for use by all customers for the
DTTV Service.
Part 4 of Schedule 1 provides a list of SIP Transmitter Sites and their
associated daughter Transmitter Sites, which may be subject to review,
following discussion by the Digital Network Group.
The industry's arrangements for the carriage of SI have yet to be defined.
The exact arrangements will be defined when the solution is known. Provided
that such arrangements are notified to BT by not less than four
<PAGE>
35
months prior to the first Service Delivery Date, BT will provide capacity
to the Customer for carriage of SI to each Transmitter Site by its
respective Service Delivery Date.
1.3 Service monitoring and management systems will provide both BT and the
Customer with appropriate network status and management information in
accordance with the Network Management Service described in Schedule 7.
The Network Management Service will be available to each Transmitter Site
from its respective Service Full Testing Date.
1.4 Initially, the Service will be provided via two unswitched DVB ASI
transport streams at each Distribution Output Interface, but BT will
provide, by no later than the expiry of twelve calendar months after the
first Service Delivery Date, an output switching facility at each
Transmitter Site and RPOC (but not at Playout Centres) providing two
continuous DVB ASI transport streams such that, in the event of a single
failure, output switching and restoration can take place, provided that,
in respect of Transmitter Sites where the Service Full Testing Date occurs
after the expiry of twelve calendar months after the first Service
Delivery Date, such switching facility will be made available on their
respective Service Full Testing Dates. Such switching facility will not
include any switching or restoration associated with SI.
2. CUSTOMER-SPECIFIC SERVICE DESCRIPTION
2.1 Service for Customer's Content Signals originating from BDB
2.1.1 The Customer will provide two identical feeds of each of the Customer's
Content Signals in respect of each of BDB's three DTTV Multiplex Services
to BT Distribution Input Interfaces (designated Feed A and Feed B) for
interconnection with BT provided ASI multiplexes located within the BDB
London Playout Centre detailed in Schedule 1, Part 3, Table 1.
2.1.2 Access to the DTTV Distribution Network will be provided from BDB's London
Playout Centre via seperately routed fibre optic circuits. One route will
terminate
<PAGE>
36
at a BT CNAP. The second route will terminate at a (separate) BT SNAP.
2.1.3 The Customer's Content Signals will be conveyed throughout the diversely
routed fibre optic DTTV Distribution Network capacity via further CNAPs
and SNAPs. The network will be designed such that the A Feed and B Feed
will be physically and electrically separate.
2.1.4 The DTTV Distribution Network will support a maximum of the seven
regional feeds for BDB set out in the Table at the end of this paragraph
2.1 below. Each regional feed will be carried to the relevant CNAP and
SNAP where it will be combined with the appropriate regional feed for the
Customer's Content Signals originating from the BBC.
2.1.5 At the terminal CNAP and SNAP for each region, diversely routed capacity
will be provided by BT to convey the A and B Feed to the SIP Transmitter
Sites and their respective associated Dependent Transmitter Sites shown
in Schedule 1, Part 4, Table 1. The network design will be designed such
that the two feeds will be physically and electrically separate. At
Sites, BT will aim for physical separacy of A and B Feeds of 4 metres,
unless constrained by local conditions or restrictions imposed by Site
owners.
2.1.6 Each of the three BDB DTTV Multiplex Services will have a nominal total
bitrate of 24.1 Mbit/s (together totalling 72 Mbit/s from BDB's London
Playout Centre), being useable bitrate without error correction or system
overheads, but excluding SI capacity.
2.1.7 Subject to paragraph 1.2 above, the DTTV Distribution Network will
provide capacity for the carriage of SI from the central SI Collation
Site to Transmitter Sites. At the respective Transmitter Sites shown in
column 2, Table 2, Part 4, Schedule 1 ("SIP Transmitters") BT will accept
feeds for SI for both BDB and BBC DTTV Multiplex Services and deliver
them to their respective associated Transmitter Sites shown in column 2,
Table 2, Part 4, Schedule 1 ("Dependent Transmitters"). The network will
be designed such that the two feeds will be physically and electrically
separate.
<PAGE>
37
2.1.8 Circuits from CNAPs and SNAPs to Transmitter Sites will be provided using
a mixture of fibre, line systems and radio technology. Part 5 of Schedule
1 sets out provisioning plans for each Transmitter Site.
TABLE
<TABLE>
<CAPTION>
REGION DESTINATION 1 DESTINATION DESTINATION DESTINATION
2 3 4
------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 Midlands Birmingham
------------------------------------------------------------------------------
2 South Southampton Plymouth Jersey/1/
------------------------------------------------------------------------------
2 South Bristol
------------------------------------------------------------------------------
2 South Norwich
------------------------------------------------------------------------------
3 North Manchester Leeds Carlisle Newcastle
------------------------------------------------------------------------------
4 Scotland Glasgow Aberdeen
------------------------------------------------------------------------------
5 N Ireland Belfast
------------------------------------------------------------------------------
6 Wales Cardiff
------------------------------------------------------------------------------
7 London London
------------------------------------------------------------------------------
</TABLE>
NOTES :
/1/ Exact arrangements for Jersey are under discussion
2.2 Service for Customer's Content Signals originating from BBC
2.2.1 The Customer will provide two identical feeds of the Customer's Content
Signals in respect of the BBC's DTTV Multiplex Service from each of the
Playout Centres detailed in Schedule 1, Part 3, Table 2 to BT
Distribution Input Interfaces (designated Feed A and Feed B) for
interconnection with BT provided ASI multiplexes located within each
Playout Centre.
2.2.2 Access to the DTTV Distribution Network will be provided from each
Playout Centre via diversely routed fibre optic circuits. One route will
terminate at a BT CNAP. The second route will terminate at a (separate)
BT SNAP.
2.2.3 At the terminal CNAP and SNAP for each region, diversely routed capacity
will be provided by BT to convey the A and B Feed to the SIP Transmitter
Sites and their
<PAGE>
38
respective associated Dependent Transmitter Sites shown in Schedule 1,
Part 4, Table 2. The network will be designed such that the two feeds
will be physically and electrically separate. At Sites, BT will aim for
physical separacy of A and B Feeds of 4 metres, unless constrained by
local conditions or restrictions imposed by Site owners.
2.2.4 The BBC DTTV Multiplex Service will have a nominal total bitrate of 24.1
Mbit/s from each Playout Centre, being useable bitrate without error
correction or system overheads, but excluding SI capacity. Where there
are sub-regions, two may be combined into a single feed distribution feed
with the appropriate feed delivered to each Transmitter Site.
2.2.5 For SI capacity, see paragraphs 1.2 and 2.1.7 above.
2.2.6 Circuits from CNAPs and SNAPs to Transmitter Sites will be provided using
a mixture of fibre, line systems and radio technology. Part 5 of Schedule
1 sets out provisioning plans for each Transmitter Site.
3. PRELIMINARY TESTING SERVICE AND FULL TESTING SERVICE
3.1 Preliminary Testing Service will consist of one feed of Customer's
Content Signals to the relevant Transmitter Sites. BT will make
reasonable endeavours to provide two feeds of Customer's Content Signals
(Feed A and Feed B), available for network testing by the Customer, to
the relevant Transmitter Sites, but in the event of only one such feed
being available this will be acceptable for the purposes of the
Preliminary Testing Service. Preliminary Testing Service will not include
SI or Network Management Service.
3.2 Full Testing Service will consist of the provision of two feeds of
Customer's Content Signals (Feed A and Feed B), available for network
testing by the Customer, to the relevant Transmitter Sites. Full Testing
Service will include Network Management Service, but will not include SI.
3.3 Fully operational Service will consist of the provision of two feeds of
Customer's Content Signals (Feed A and Feed B) to the relevant
Transmitter Sites.
<PAGE>
39
Fully operational Service will include output switching facilities, to be
introduced in accordance with paragraph 1.4 above, and will also include
Network Management Service and, subject to paragraph 1.2 above, SI.
4. DISTRIBUTION INPUT AND OUTPUT INTERFACE CHARACTERISTICS
4.1 Distribution Input Interfaces will comply with the following:-
4.1.1 Electrical:-
(a) Customer's transport streams must be DVB compliant in ASI format,
being non-interleaved, byte stuffed ASI streams optimised for
maximum linearity conforming to DVB BLUE BOOK A010 REV 1.0
"Interfaces for CATV/SMATV Headends and Similar Professional
Equipment", May 1997. (BT cannot provide full monitoring of the
ASI streams if data interleaving is present);
(b) signals to preferably have RS encoding 188/204;
(c) termination / source impedance to be 75 ohms unbalanced;
(d) the input signal will preferably be continuous and will be error
free;
4.1.2 Physical:-
(a) a MUSA patch panel will be provided with each set of BT terminal
equipment. The patch panel will act as the Customer to BT signal
interface point;
(b) all Customer connections will be by means of BNC connectors at
the rear of the patch panel;
(c) test access points will be provided using MUSA U-Links.
<PAGE>
40
4.2 Distribution Output Interfaces will comply with the following:-
4.2.1 Electrical:-
(a) signal interface will be DVB ASI as DVB BLUE BOOK A010 REV 1.0
"Interfaces for CATV/SMATV Headends and Similar Professional
Equipment", May 1997;
(b) termination / source impedance will be 75 ohms unbalanced;
4.2.2 Physical:-
(a) a MUSA patch panel will be provided near each set of BT terminal
equipment as a BT to Customer signal hand over point;
(b) all Customer connections will be by means of BNC connectors at
the rear of the patch panels;
(c) test access points will be provided using MUSA U-Links.
<PAGE>
41
SCHEDULE 1
----------
PART 2 : TRANSMITTER SITES, TRANSMITTER SITE OWNERS, SERVICE PRELIMINARY
------------------------------------------------------------------------
TESTING DATES, SERVICE FULL TESTING DATES, SERVICE DELIVERY DATES.
-----------------------------------------------------------------
PHASE 1
- -------
<TABLE>
<CAPTION>
SERVICE
NUMBER TRANSMITTER TRANS- PRELIMINARY SERVICE SERVICE
SITES MITTER SITE TESTING TESTING DELIVERY
OWNER DATES DATES DATES
<S> <C> <C> <C> <C> <C>
1 Pontop Pike CTI [*] [*] [*]
2 Belmont NTL [*] [*] [*]
3 Wenvoe CTI [*] [*] [*]
4 Blackhill NTL [*] [*] [*]
5 Caldbeck NTL [*] [*] [*]
6 Caradon Hill NTL [*] [*] [*]
7 Emley Moor NTL [*] [*] [*]
8 Durris NTL [*] [*] [*]
9 Craigkelly NTL [*] [*] [*]
10 Winter Hill NTL [*] [*] [*]
11 Stockland Hill NTL [*] [*] [*]
</TABLE>
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
42
<TABLE>
<CAPTION>
NUMBER TRANSMITTER TRANS- SERVICE
SITES MITTER PRELIMINARY SERVICE SERVICE
SITE TESTING TESTING DELIVERY
OWNER DATES DATES DATES
<S> <C> <C> <C> <C> <C>
12 Sutton Coldfield CTI [*] [*] [*]
13 Crystal Palace CTI [*] [*] [*]
14 Bilsdale CTI [*] [*] [*]
15 Mendip CTI [*] [*] [*]
16 Waltham CTI [*] [*] [*]
17 Hannington CTI [*] [*] [*]
18 Divis CTI [*] [*] [*]
19 Rowridge CTI [*] [*] [*]
20 Sandy Heath NTL [*] [*] [*]
21 Oxford CTI [*] [*] [*]
22 Moel y Parc CTI [*] [*] [*]
23 Sudbury CTI [*] [*] [*]
24 Fremont Point NTL [*] [*] [*]
</TABLE>
*THE AGREEMENT OF THE DATES FOR THIS TRANSMITTER SITE IS SUBJECT TO JERSEY
- --------------------------------------------------------------------------
TELECOM DELIVERY WHICH BT WILL USE ALL REASONABLE EFFORTS TO OBTAIN.
- -------------------------------------------------------------------
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
43
PHASE 2
- -------
<TABLE> SERVICE
<CAPTION> PRELIMINARY SERVICE SERVICE
NUMBER TRANSMITTER TRANS-MITTER TESTING TESTING DELIVERY
SITES SITE OWNER DATES DATES DATES
<S> <C> <C> <C> <C> <C>
25 Bluebell Hill CTI [*] [*] [*]
26 Tacolneston CTI [*] [*] [*]
27 Darvel NTL [*] [*] [*]
28 Angus NTL [*] [*] [*]
29 Midhurst CTI [*] [*] [*]
30 Selkirk NTL [*] [*] [*]
31 Rumster Forest NTL [*] [*] [*]
32 Kilvey Hill CTI [*] [*] [*]
33 Ridge Hill NTL [*] [*] [*]
34 Saddleworth NTL [*] [*] [*]
35 Heathfield CTI [*] [*] [*]
36 Blaenplwyf CTI [*] [*] [*]
37 Beacon Hill NTL [*] [*] [*]
38 Carmel CTI [*] [*] [*]
39 Sheffield CTI [*] [*] [*]
</TABLE>
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
<TABLE>
<CAPTION>
SERVICE
PRELIMINARY SERVICE SERVICE
NUMBER TRANSMITTER TRANS-MITTER TESTING TESTING DELIVERY
SITES SITE OWNER DATES DATES DATES
<S> <C> <C> <C> <C> <C>
40 Limavady CTI [*] [*] [*]
41 Nottingham NTL [*] [*] [*]
42 Dover NTL [*] [*] [*]
43 Whitehawk Hill CTI [*] [*] [*]
44 Fenham CTI [*] [*] [*]
45 Llandona CTI [*] [*] [*]
46 Guildford CTI [*] [*] [*]
47 Presely NTL [*] [*] [*]
48 Rosemarkie CTI [*] [*] [*]
49 Hemel CTI [*] [*] [*]
Hempstead
50 Lancaster NTL [*] [*] [*]
51 Bristol IC CTI [*] [*] [*]
52 Idle NTL [*] [*] [*]
53 Brougher CTI [*] [*] [*]
Mountain
54 Redruth CTI [*] [*] [*]
55 Hastings CTI [*] [*] [*]
56 Chesterfield NTL [*] [*] [*]
57 Bromsgrove CTI [*] [*] [*]
</TABLE>
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
45
<TABLE>
<CAPTION>
SERVICE
PRELIMINARY SERVICE SERVICE
NUMBER TRANSMITTER TRANS-MITTER TESTING TESTING DELIVERY
SITES SITE OWNER DATES DATES DATES
<S> <C> <C> <C> <C> <C>
58 Pendle Forest NTL [*] [*] [*]
59 Chatton NTL [*] [*] [*]
60 Reigate CTI [*] [*] [*]
61 Malvern CTI [*] [*] [*]
62 Rosneath NTL [*] [*] [*]
63 Bristol Kings CTI [*] [*] [*]
Weston
64 Fenton CTI [*] [*] [*]
65 Storeton CTI [*] [*] [*]
66 Tunbridge Wells CTI [*] [*] [*]
67 The Wrekin CTI [*] [*] [*]
68 Plympton NTL [*] [*] [*]
69 Salisbury CTI [*] [*] [*]
70 Larkstoke CTI [*] [*] [*]
71 Keighly NTL [*] [*] [*]
72 Huntshaw Cross NTL [*] [*] [*]
73 Knock More NTL [*] [*] [*]
74 Aberdare CTI [*] [*] [*]
75 Eitshal CTI [*] [*] [*]
</TABLE>
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
46
<TABLE>
<CAPTION>
SERVICE
NUMBER TRANSMITTER TRANS- PRELIMINARY SERVICE SERVICE
SITES MITTER SITE TESTING TESTING DELIVERY
OWNER DATES DATES DATES
<S> <C> <C> <C> <C> <C>
76 Brierley Hill CTI [*] [*] [*]
77 Olivers Mount CTI [*] [*] [*]
78 Keelylang Hill CTI [*] [*] [*]
79 Pontypool CTI [*] [*] [*]
80 Torosay CTI [*] [*] [*]
81 Bressay CTI [*] [*] [*]
</TABLE>
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
47
SCHEDULE 1
----------
PART 3 : PLAYOUT CENTRES
-------------------------
TABLE 1 : BDB PLAYOUT CENTRE
-----------------------------
British Digital Broadcasting
Marco Polo House
346, Queenstown Road,
London, SW8 4NE.
<PAGE>
48
SCHEDULE 1
----------
PART 3 : PLAYOUT CENTRES
-------------------------
TABLE 2 : BBC PLAYOUT CENTRES
------------------------------
BBC Belfast
Broadcasting House,
Ormeau Avenue,
Belfast BT2 8HQ
BBC Bristol
Broadcasting House,
Whiteladies Road,
Bristol BS8 2LR
BBC Cambridge
Broadcasting House,
104 Hills Road,
Cambridge CB2 1LD
BBC Cardiff
Broadcasting House,
Llandaff,
Cardiff CF5 2YQ
BBC Glasgow
Queen Margaret Drive,
Glasgow G12 8DG
BBC Leeds
Broadcasting Centre,
Woodhouse Lane,
Leeds LS2 9PX
BBC Manchester
New Broadcasting House,
PO Box 27,
Oxford Road,
Manchester M60 1SJ
BBC Newcastle
Broadcasting Centre,
Barrack Road,
Newcastle upon Tyne NE99 2NE
<PAGE>
49
BBC Norwich
St. Catherine's Close,
All Saints' Green,
Norwich,
Norfolk NR1 3ND
BBC Nottingham
Island Business Park,
London Road,
Nottingham [POSTCODE TBA]
BBC Pebble Mill
Broadcasting Centre,
Pebble Mill Road,
Birmingham B5 7QQ
BBC Plymouth
Broadcasting House,
Seymour Road,
Mannamead,
Plymouth PL3 5BD
BBC Southampton
Broadcasting House,
Havelock Road,
Southampton SO14 7PU
BBC TV Centre
White City
London W12
<PAGE>
50
SCHEDULE 1
----------
PART 4 : REGIONAL DISTRIBUTION FROM PLAYOUT CENTRES TO TRANSMITTER SITES
-------------------------------------------------------------------------
TABLE 1 : BDB REGIONAL DISTRIBUTION
------------------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
BDB REGION SIP TRANSMITTER DEPENDENT TRANSMITTERS
- --------------------------------------------------------------------------------------
<S> <C> <C>
London Crystal Palace TS Guildford TS, Reigate TS, Hemel Hempstead TS
- --------------------------------------------------------------------------------------
South Heathfield TS Hastings TS
- --------------------------------------------------------------------------------------
Midlands Beckley TS
- --------------------------------------------------------------------------------------
Midlands Ridge Hill TS
- --------------------------------------------------------------------------------------
Midlands Sutton Coldfield TS Bromsgrove TS, Larkstoke TS, Brierley Hill TS,
The Wrekin TS, Fenton TS, Malvern TS
- --------------------------------------------------------------------------------------
Midlands Waltham TS Nottingham TS
- --------------------------------------------------------------------------------------
N. Ireland Divis TS Limavady TS, Brougher Mt. TS
- --------------------------------------------------------------------------------------
North Belmont TS
- --------------------------------------------------------------------------------------
North Bilsdale TS
- --------------------------------------------------------------------------------------
North Caldbeck TS
- --------------------------------------------------------------------------------------
North Emley Moor TS Idle TS, Olivers Mount TS, Keighley TS
- --------------------------------------------------------------------------------------
North Pontop Pike TS Fenham TS, Chatton TS
- --------------------------------------------------------------------------------------
North Sheffield TS Chesterfield TS
- --------------------------------------------------------------------------------------
North Winter Hill TS Saddleworth TS, Storeton TS, Pendle Forest
Lancaster TS,
- --------------------------------------------------------------------------------------
Scotland Black Hill TS Craigkelly TS, Torosay TS, Roseneath TS,
Darvel TS
- --------------------------------------------------------------------------------------
Scotland Durris TS Eitshall TS, Angus TS, Rosemarkie TS, Rumster
Forest TS, Bressay TS, Knocksmore TS,
Keelylang TS
- --------------------------------------------------------------------------------------
North Selkirk TS
- --------------------------------------------------------------------------------------
South Bluebell Hill TS Tunbridge Wells TS, Dover TS
- --------------------------------------------------------------------------------------
South Fremont Point TS
- --------------------------------------------------------------------------------------
South Hannington TS
- --------------------------------------------------------------------------------------
South Mendip TS Bristol KW TS, Bristol IC TS
- --------------------------------------------------------------------------------------
South Rowridge TS Salisbury TS, Midhurst TS, Whitehawk Hill TS
- --------------------------------------------------------------------------------------
South Sandy Heath TS
- --------------------------------------------------------------------------------------
South Stockland Hill TS Beacon Hill TS
- --------------------------------------------------------------------------------------
South Redruth TS
- --------------------------------------------------------------------------------------
South Huntshaw Cross TS
- --------------------------------------------------------------------------------------
South Caradon Hill TS Plympton TS
- --------------------------------------------------------------------------------------
South Tacolneston TS Sudbury TS
- --------------------------------------------------------------------------------------
Wales Wenvoe TS Presely TS, Llandonna TS, Carmel TS,
Blaenplwyf TS, Aberdare TS, Pontypool TS,
Moel y Parc TS, Kilvey Hill TS
- --------------------------------------------------------------------------------------
</TABLE>
<PAGE>
51
SCHEDULE 1
----------
PART 4 : REGIONAL DISTRIBUTION FROM PLAYOUT CENTRES TO TRANSMITTER SITES
-------------------------------------------------------------------------
TABLE 2 : BBC REGIONAL DISTRIBUTION
------------------------------------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------
BBC SOURCE SIP TRANSMITTER DEPENDENT TRANSMITTERS
- --------------------------------------------------------------------------------------
<S> <C> <C>
Belfast Divis TS Limavady TS, Brougher Mt. TS
- --------------------------------------------------------------------------------------
Birmingham Ridge Hill TS
- --------------------------------------------------------------------------------------
Birmingham Sutton Coldfield TS Bromsgrove TS, Larkstoke TS, Brierley Hill
TS, The Wrekin TS, Fenton TS, Malvern TS
- --------------------------------------------------------------------------------------
Bristol Mendip TS Bristol KW TS, Bristol IC TS
- --------------------------------------------------------------------------------------
Cambridge Sandy Heath TS
- --------------------------------------------------------------------------------------
Cardiff Wenvoe TS Presely TS, Llandonna TS, Carmel TS,
Blaenplwyf TS, Aberdare TS, Pontypool TS,
Moel y Parc TS, Kilvey Hill TS
- --------------------------------------------------------------------------------------
Glasgow Black Hill TS Craigkelly TS, Torosay TS, Roseneath TS,
Darvel TS
- --------------------------------------------------------------------------------------
Glasgow Durris TS Eitshall TS, Angus TS, Rosemarkie TS,
Rumster Forest TS, Bressay TS, Knocksmore
TS, Keelylang Hill TS
- --------------------------------------------------------------------------------------
Glasgow Selkirk TS
- --------------------------------------------------------------------------------------
Leeds Belmont TS
- --------------------------------------------------------------------------------------
Leeds Emley Moor TS Idle TS, Olivers Mount TS, Keighley TS
- --------------------------------------------------------------------------------------
Leeds Sheffield TS Chesterfield TS
- --------------------------------------------------------------------------------------
Manchester Winter Hill TS Saddleworth TS, Storeton TS, Pendle Forest
TS, Lancaster TS
- --------------------------------------------------------------------------------------
Newcastle Bilsdale TS
- --------------------------------------------------------------------------------------
Newcastle Caldbeck TS
- --------------------------------------------------------------------------------------
Newcastle Pontop Pike TS Fenham TS, Chatton TS
- --------------------------------------------------------------------------------------
Norwich Tacolneston TS Sudbury TS
- --------------------------------------------------------------------------------------
Nottingham Waltham TS Nottingham TS
- --------------------------------------------------------------------------------------
Plymouth Fremont Point TS
- --------------------------------------------------------------------------------------
Plymouth Stockland Hill TS Beacon Hill TS
- --------------------------------------------------------------------------------------
Plymouth Plymouth TS
- --------------------------------------------------------------------------------------
Plymouth Huntshaw Cross TS
- --------------------------------------------------------------------------------------
Plymouth Caradon Hill TS Plympton TS
- --------------------------------------------------------------------------------------
Southampton Bluebell Hill TS Tunbridge Wells TS, Dover TS
- --------------------------------------------------------------------------------------
Southampton Hannington TS
- --------------------------------------------------------------------------------------
Southampton Rowridge TS Salisbury TS, Midhurst TS, Whitehawk Hill TS
- --------------------------------------------------------------------------------------
TV Centre Beckley TS
- --------------------------------------------------------------------------------------
TV Centre Crystal Palace TS Guildford TS, Reigate TS, Hemel Hempstead TS
- --------------------------------------------------------------------------------------
TV Centre Heathfield TS Hastings TS
- --------------------------------------------------------------------------------------
</TABLE>
<PAGE>
52
SCHEDULE 1
----------
PART 5 : TRANSMITTER SITE PROVISIONING PLANS
---------------------------------------------
<TABLE>
<CAPTION>
- -----------------------------------------
TRANSMITTER FEED A FEED B
LOCATION
- -----------------------------------------
<S> <C> <C>
Crystal Palace TS Fibre Fibre
- -----------------------------------------
Winter Hill TS Fibre Fibre
- -----------------------------------------
Sutton Coldfield TS Fibre Fibre
- -----------------------------------------
Emley Moor TS Fibre Fibre
- -----------------------------------------
Waltham TS Fibre Fibre
- -----------------------------------------
Black Hill TS Fibre Fibre
- -----------------------------------------
Sandy Heath TS Fibre Fibre
- -----------------------------------------
Pontop Pike TS Fibre Fibre
- -----------------------------------------
Bilsdale TS Fibre Radio
- -----------------------------------------
Mendip TS Fibre Fibre
- -----------------------------------------
Bluebell Hill TS Fibre Fibre
- -----------------------------------------
Hannington TS Fibre Fibre
- -----------------------------------------
Divis TS Fibre Fibre
- -----------------------------------------
Midhurst TS Fibre Radio
- -----------------------------------------
Talconeston TS Fibre Fibre
- -----------------------------------------
Beckley TS (Oxford) Fibre Fibre
- -----------------------------------------
Wenvoe TS Fibre Fibre
- -----------------------------------------
Sudbury TS Fibre Fibre
- -----------------------------------------
Craigkelly TS Fibre Fibre
- -----------------------------------------
Ridge Hill TS Fibre Radio
- -----------------------------------------
Stockland Hill TS Fibre Fibre
- -----------------------------------------
Whitehawk Hill TS Fibre Fibre
- -----------------------------------------
Sheffield TS Fibre Fibre
- -----------------------------------------
Nottingham TS Fibre Fibre
- -----------------------------------------
Caradon Hill TS Fibre Fibre
- -----------------------------------------
Caldbeck TS Fibre Fibre
- -----------------------------------------
Chatton TS Fibre Fibre
- -----------------------------------------
Hemel Hempstead TS Fibre Fibre
- -----------------------------------------
Kilvey Hill TS Fibre Fibre
- -----------------------------------------
Reigate TS Radio Radio
- -----------------------------------------
Dover TS Fibre Fibre
- -----------------------------------------
Bristol IC TS Fibre Fibre
- -----------------------------------------
Beacon Hill TS Fibre Fibre
- -----------------------------------------
Redruth TS Fibre Fibre
- -----------------------------------------
</TABLE>
<PAGE>
53
<TABLE>
<S> <C> <C>
- -----------------------------------------
Limavady TS Fibre Radio
- -----------------------------------------
Chesterfield TS Fibre Fibre
- -----------------------------------------
Bristol KW TS Fibre Fibre
- -----------------------------------------
Tunbridge Wells TS Fibre Fibre
- -----------------------------------------
Pontypool TS Fibre Radio
- -----------------------------------------
Bromsgrove TS Fibre Fibre
- -----------------------------------------
Brougher Mt. TS Fibre Radio
- -----------------------------------------
Salisbury TS Fibre Fibre
- -----------------------------------------
Aberdare TS Fibre Fibre
- -----------------------------------------
Angus TS Fibre Radio
- -----------------------------------------
Belmont TS Fibre Fibre
- -----------------------------------------
Blaen Plwyf TS Fibre Fibre
- -----------------------------------------
Bressay TS Radio Radio
- -----------------------------------------
Brierly Hill TS Fibre Fibre
- -----------------------------------------
Carmel TS Fibre Radio
- -----------------------------------------
Darvel TS Fibre Fibre
- -----------------------------------------
Durris TS Fibre Fibre
- -----------------------------------------
Eitshall TS Radio Radio
- -----------------------------------------
Fenham TS Fibre Fibre
- -----------------------------------------
Fenton TS Fibre Fibre
- -----------------------------------------
Fremont Point TS Fibre Fibre
- -----------------------------------------
Guildford TS Fibre Fibre
- -----------------------------------------
Hastings TS Fibre Fibre
- -----------------------------------------
Heathfield TS Fibre Fibre
- -----------------------------------------
Huntshaw Cross TS Fibre Radio
- -----------------------------------------
Idle TS Fibre Fibre
- -----------------------------------------
Keelylang TS Radio Radio
- -----------------------------------------
Keighley TS Fibre Fibre
- -----------------------------------------
Knock more TS Radio Radio
- -----------------------------------------
Lancaster TS Fibre Radio
- -----------------------------------------
Lark stone TS Fibre Fibre
- -----------------------------------------
Llandonna TS Fibre Radio
- -----------------------------------------
Malvern TS Fibre Fibre
- -----------------------------------------
Moel y Parc TS Fibre Radio
- -----------------------------------------
Olivers Mount TS Fibre Fibre
- -----------------------------------------
Pendle Forest TS Fibre Fibre
- -----------------------------------------
Plympton TS Fibre Fibre
- -----------------------------------------
Preseli TS Fibre Fibre
- -----------------------------------------
Rosemarkie TS Fibre Radio
- -----------------------------------------
Rosneath TS Fibre Radio
- -----------------------------------------
Rowridge TS Fibre Radio
- -----------------------------------------
</TABLE>
<PAGE>
54
<TABLE>
<S> <C> <C>
- -----------------------------------------
Runster Forest TS Fibre Radio
- -----------------------------------------
Saddleworth TS Fibre Fibre
- -----------------------------------------
Selkirk TS Fibre Fibre
- -----------------------------------------
Storeton TS Fibre Fibre
- -----------------------------------------
The Wrekin TS Fibre Radio
- -----------------------------------------
Torosay TS Radio Radio
- -----------------------------------------
</TABLE>
<PAGE>
55
SCHEDULE 2
----------
CHARGES FOR THE SERVICE
-----------------------
1. CHARGES
1.1 The Charges payable to BT by the Customer will be as follows:
(a) a Service Connection Charge for Access Circuits of [*] as at 1998
prices; and
(b) an annual Service Rental Charge of [*] as at 1998 prices in
accordance with paragraph 1.2 below.
1.2.1 The Service Rental Charge is calculated in accordance with BT's Price
List entry for DTTV Distribution Network Service (DTTV) contained in
Section 19, Part 2 of BT's Price List; and BT's Price List entry for
Digital Video Broadcasting (DVB) Tariff contained in Section 19, part 2
of BT's Price List.
1.2.2 The Service Rental Charge is subject to indexation in accordance with
paragraph 1.3 of this Schedule. The Service Connection Charge is not
subject to indexation. The Charges are subject to VAT, which will be
added to the Charges and payable by the Customer. The Charges will not
otherwise vary during the term of this Contract, unless there is an
agreed variation in the Customer's requirements.
1.2.3 Service Rental Charges include the following elements:
a) Access Circuits (DVB)
---------------------
Charges for this element of the Service cover the conveyance of DVB
stream(s) from the Customer's premises to the DTTV Distribution
Network and are calculated in accordance with BT's Price List entry
for Digital Video Broadcasting (DVB) Tariff contained in Section 19,
part 2 of BT's Price List.
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
56
The charge for Access Circuits for the Customer is [*] p.a. at 1998
prices.
b) DTTV Distribution Network Service (DTTV)
----------------------------------------
Applicable Charges consist of:
(i) National Distribution Charges covering the conveyance of the
Customer's multiplexed DVB transport stream(s) from the
regionally associated CNAP and SNAP to the 14 regional CNAPS
and SNAPS comprising the National Distribution element of the
DTTV network.
The charge for this element of the Service is [*] p.a. at 1998
prices.
(ii) Local Distribution Charges covering the conveyance of the
Customer's multiplexed DVB transport stream(s) from the 14
regional CNAPS and SNAPS to the relevant Transmitter Sites.
The charge for this element of the Service is [*] p.a. at 1998
prices, but see NOTE below.
NOTE: Local Distribution Charges
--------------------------
During the rollout of Service to the Transmitter Sites Local
Distribution Charges will progressively increase in accordance
with Service Delivery Dates (subject to 1.4 (b) below) as the
Service is provided to more Transmitter Sites, and the Charges
shown above in 1.2(b)(ii) will be levied in accordance with
the number of Transmitter Sites to which Service is provided.
Service to Transmitter Sites will be charged for on
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
57
the basis of an average price for distribution to Transmitter
Sites, calculated as follows:-
total Local Distribution Charges = Y
--------------------------------
81
Where Y is the Local Distribution Charge per Transmitter Site
to which Service is provided. Y is then multiplied by the
number of Transmitter Sites to which Service is provided.
1.2.4 Total Service Rental Charges (on the basis that all Service Delivery
Dates are met by BT) at 1998 prices are therefore as follows:
<TABLE>
<CAPTION>
Description Year 1 Year 2 Year 3
----------- ------ ------ ------
onwards
-------
<S> <C> <C> <C>
Access Charges [*] [*] [*]
National Distribution Charges [*] [*] [*]
Local Distribution Charges [*] [*] [*]
TOTAL [*] [*] [*]
</TABLE>
In the event of any changes to the delivery programme, the Local
Distribution Charges may vary from those indicated in the above
tabulation, as the Local Distribution Charges are payable (subject to 1.4
(b) below) from the relevant Service Delivery Dates.
1.3 Charges will be annually increased on each anniversary of the first
Service Delivery Date in accordance with the following formula:
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
58
C1 = [*]
where:
C1 = Charges for the current year,
C0 = Charge for the previous year,
X = The arithmetic mean of the percentage increases in the Retail Price
Index for each of the 12 months immediately preceding each anniversary of the
first Service Delivery Date over the Retail Price Index for each of the
corresponding 12 months immediately preceding those 12 months.
PROVIDED THAT:-
(a) in the event that the above formula results in a negative or zero
figure increase for any period, then there will be no increase for
that period;
(b) in the event that the RPI is not available in time for BT to
calculate a revised Service Rental Charge on an anniversary of the
first Service Delivery Date, then BT will invoice the Customer at
the previous year's Service Rental Charge until the RPI is
available, when an appropriate adjustment will be made to a
following invoice;
(c) should the RPI cease or fail to be published or should any changes
occur to the basis of the RPI, BT and the Customer will make a fair
and reasonable adjustment to RPI or, if appropriate, substitute a
revised formula which in either event will have substantially the
same effects as those specified in this paragraph 1.3.
1.4 The terms of payment for the Charges as above will be as follows:-
(a) the Service Connection Charge under 1.1(a) above will be payable in
two equal instalments on the first and second anniversaries of the
first Service Delivery Date;
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
59
(b) The Service Rental Charge under 1.1(b) above will be payable every two
calendar months in advance, with the first payment being due on the
first Service Delivery Date, PROVIDED THAT if Service is not provided
to a Transmitter Site on the relevant Service Delivery Date and the
delay is due to BT, the Service Rental Charge is payable from the date
on which Service is provided to that Transmitter Site ("the
Operational Service Date").
2. ADDITIONAL TRANSMITTER SITES
The formula to be used to calculate the Charges for additional transmitter
site access in accordance with Sub-clause 17.1 (i) will be that the Service
Rental Charges for Service to the additional transmitter sites will be
based on the Service Rental Charges as described in paragraph 1 above, but
subject to a maximum annual charge of [*] at 1998 prices (plus value added
tax) per annum per site, such maximum figure being subject to annual
indexation in accordance with paragraph 1.3 above from the first
anniversary of the first Service Delivery Date to the time the Service is
provided to the additional transmitter site(s), provided that such maximum
annual charge will only apply to up to an aggregate maximum of 24
additional transmitter sites nominated by the Customer, and where all such
sites and circuits to them are within BT's Licensed area in the United
Kingdom. The additional Service Rental Charges for Service being provided
to such additional transmitter sites will be subject to annual increase in
accordance with paragraph 1.3 above. The annual charge referred to above
will be apportioned per DTTV Multiplex Service (currently 5) according to
any shared utilisation with other customers for the DTTV Service.
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
60
SCHEDULE 3
----------
LATE DELIVERY PAYMENTS AND ABATEMENTS
-------------------------------------
INDEX
- -----
Part 1: Late Delivery Payments
Part 2: Loss of Service Definition
Part 3: Abatements
<PAGE>
61
SCHEDULE 3
----------
PART 1: LATE DELIVERY PAYMENTS
------------------------------
1. GENERAL
In the event of delivery of Preliminary Testing Service after the Service
Preliminary Testing Dates, of delivery of Full Testing Service after the
Service Full Testing Dates, and/or of delivery of full Service after the
Service Delivery Dates, where the delay is due to BT, the Customer will be
entitled to claim Late Delivery Payments from BT calculated and payable in
accordance with this Part 1 of Schedule 3.
BT will, wherever practicable, co-ordinate its activities with the
transmitter providers' build project timetables and to this intent will use
reasonable endeavours to provide relevant Service to the Phase 1
Transmitter Sites (as defined below), subject to requirements in Clauses 4
and 6 being met within appropriate earlier timescales, one month prior to
relevant Dates, but will not be liable for Late Delivery Payments (or at
all) in the event of any such Service not being available on any such Date.
2. LATE DELIVERY PAYMENTS FOR LATE DELIVERY OF PRELIMINARY TESTING SERVICE AND
FULL TESTING SERVICE TO PHASE 1 TRANSMITTER SITES
2.1 Where Preliminary Testing Service is not made available to all of the
Transmitter Sites listed under the heading Phase 1 in Part 2 of Schedule 1
(the "Phase 1 Transmitter Sites") by midnight on their common Service
Preliminary Testing Date, and/or where Full Testing Service is not made
available to all of the Phase 1 Transmitter Sites by midnight on their
common Service Full Testing Date, where the delay is due to BT in each
case, Late Delivery Payments will be calculated as follows:-
<PAGE>
62
2.2 For Preliminary Testing Service, Late Delivery Payments will be based on
Table 1A below. The amount payable will be a single payment, being the
figure shown opposite the Day on which Preliminary Testing Service is
provided to all the Phase 1 Transmitter Sites, multiplied by the number of
DTTV Multiplex Services for which the Customer (or, where appropriate, the
Customer's own customer DTTV Multiplex Service providers) have Broadcasting
Authority licences (not exceeding 4) and which are affected by the delay
("the Multiplier"). Where Preliminary Testing Service is not provided to
all the Phase 1 Transmitter Sites until after Day 30, the amount payable
will be the amount shown opposite Day 30, multiplied by the Multiplier.
2.3 For Full Testing Service, Late Delivery Payments will be based on Table 1B
below. The amount payable will be a single payment, being the figure shown
opposite the Day on which Full Testing Service is provided to all the Phase
1 Transmitter Sites, multiplied by the Multiplier. Where Full Testing
Service is not provided to all the Phase 1 Transmitter Sites until after
Day 30, the amount payable will be the amount shown opposite Day 30,
multiplied by the Multiplier.
2.4 If the Customer claims Late Delivery Payments under paragraphs 2.1 to 2.3
above, the Customer will not be entitled to receive the relevant Service to
any of the Phase 1 Transmitter Sites. However, if the Customer wishes to
accept provision of the relevant Service to some, but not all, of the Phase
1 Transmitter Sites on the relevant Date, then the Customer will be
entitled to claim Late Delivery Payments of a pro-rata proportion of the
relevant sum shown in Table 1A or B (as appropriate), where the amount
payable will be calculated as follows:-
<PAGE>
63
Number of Phase 1 Figure shown
Transmitter Sites in opposite Day
respect of which on which relevant
relevant Service is Service is
not available provided to all
_________________ X Phase 1 X Multiplier
Total number of Transmitter
Phase 1 Transmitter Sites (or if after
Sites Day 30, then figure
shown opposite
Day 30)
2.5 Any Phase 1 Transmitter Sites for which a Service Preliminary Testing Date
and/or a Service Full Testing Date are either not agreed, or are not common
to the Service Preliminary Testing Date or the Service Full Testing Date
for the other Phase 1 Transmitter Sites, will be deemed to be Phase 2
Transmitter Sites (see below) and accordingly Late Delivery Payments under
this paragraph 2 and the following paragraph 3 will not be payable in
respect of delivery of relevant Service to such Transmitter Sites.
3. LATE DELIVERY PAYMENTS FOR LATE DELIVERY OF FULL SERVICE TO PHASE 1
TRANSMITTER SITES
In addition to any Late Delivery Payments payable under paragraph 2 above,
for each of the Phase 1 Transmitter Sites where full Service is not
provided by midnight on their common Service Delivery Date where the delay
is due to BT, the Customer will be entitled to claim a further Late
Delivery Payment which will be [*] per Transmitter Site per day of such
delay multiplied by the Multiplier, subject to a maximum overall total
daily payment for all such Transmitter Sites of [*] multiplied by the
Multiplier.
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
64
4. LATE DELIVERY PAYMENTS FOR LATE DELIVERY OF PRELIMINARY TESTING SERVICE,
FULL TESTING SERVICE, AND FULL SERVICE TO PHASE 2 TRANSMITTER SITES
In respect of the Transmitter Sites listed under the heading Phase 2 in
Part 1 of Schedule 1 or deemed to be a Phase 2 Transmitter Site under
paragraph 2.5 above (the "Phase 2 Transmitter Sites"), the Customer will be
entitled to claim Late Delivery Payments in accordance with either Option A
or Option B as set out below, provided that the Customer elects which
Option will apply prior to signature of this Contract:-
OPTION A
--------
The Customer will be entitled to claim Late Delivery Payments for late
delivery of Preliminary Testing Service and Full Testing Service on the
same basis as set out in paragraph 2 of this Part 1 of Schedule 3, but
where the provisions of paragraph 2 will apply separately to each group of
Phase 2 Transmitter Sites which share the same Dates, and in the case of
each such group, the amounts shown in Table 1A and Table 1B are each
reduced by four-fifths. Additionally, where full Service is not provided to
any Phase 2 Transmitter Site by midnight on its Service Delivery Date where
the delay is due to BT, the Customer will be entitled to claim a Late
Delivery Payment of [*] per day of such delay multiplied by the Multiplier.
OPTION B
--------
No Late Delivery Payments will be payable where Preliminary Testing Service
is not delivered on the Service Preliminary Testing Date, or where Full
Testing Service is not delivered on the Service Full Testing Date, but
where full Service is not provided to any Phase 2 Transmitter Site by
midnight on its Service Delivery Date where the delay is due to BT, the
Customer will be entitled to claim a Late Delivery Payment of [*] per day
of such delay multiplied by the Multiplier.
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
65
CUSTOMER'S ELECTION
-------------------
The Customer elects Option A
5. MAXIMUM OVERALL TOTAL OF LATE DELIVERY PAYMENTS
All Late Delivery Payments will be subject to a maximum overall annual
total, commencing on the first Service Preliminary Testing Date and
expiring on the last Operational Service Date, of one half of the total
Service Rental Charge for Year 3 as set out in paragraph 1.2.4 of Schedule
2 (or pro rata for the last year).
6. GENERAL SCOPE AND LIMITATIONS OF LATE DELIVERY PAYMENTS
6.1 Late Delivery Payments will be in full and final satisfaction of any claims
against BT by the Customer relating to delay in provision of the relevant
Service and BT will not be liable to the Customer for any failure to
provide the relevant Service by any dates specified in this Contract save
to the extent set out in this Part 1 of Schedule 3.
6.2 Late Delivery Payments will not be payable:-
(a) Where Preliminary Testing Service, Full Testing Service, or full
Service is not available on the relevant date due to the BT's
requirements under Clauses 4 or 6 not being met, or an event described
in Sub-clause 4.4, or to delays in obtaining wayleave consents, or to
any event falling within Clause 13, or any other cause not due to BT;
or
(b) In relation to Late Delivery Payments for Preliminary Testing Service
and/or Full Testing Service, to the extent that the Customer does not
incur costs as a consequence of the delay.
<PAGE>
66
7. PAYMENT OF LATE DELIVERY PAYMENTS
Late Delivery Payments will be calculated monthly in arrears and payable
within 45 days of the date of the invoice from the Customer. The Customer
may charge daily interest on late payments at a rate equal to 4% per annum
above the base lending rate of Midland Bank plc.
<PAGE>
67
TABLE 1
-------
LATE DELIVERY PAYMENT FORMULA
FOR PHASE 1 TRANSMITTER SITES
<TABLE>
<CAPTION>
TABLE 1A TABLE 1B
PRELIMINARY TESTING FULL TESTING
SERVICE SERVICE
======================== ==========================
DAY AMOUNT DAY AMOUNT
- ----------------------- --------------------------
<S> <C> <C> <C>
1 [*] 1 [*]
2 [*] 2 [*]
3 [*] 3 [*]
4 [*] 4 [*]
5 [*] 5 [*]
6 [*] 6 [*]
7 [*] 7 [*]
8 [*] 8 [*]
9 [*] 9 [*]
10 [*] 10 [*]
11 [*] 11 [*]
12 [*] 12 [*]
13 [*] 13 [*]
14 [*] 14 [*]
15 [*] 15 [*]
16 [*] 16 [*]
17 [*] 17 [*]
18 [*] 18 [*]
19 [*] 19 [*]
20 [*] 20 [*]
21 [*] 21 [*]
22 [*] 22 [*]
23 [*] 23 [*]
24 [*] 24 [*]
25 [*] 25 [*]
26 [*] 26 [*]
27 [*] 27 [*]
28 [*] 28 [*]
29 [*] 29 [*]
30 [*] 30 [*]
======================== ==========================
</TABLE>
Where each Day commences Where each Day commences
at 00.01 hours and ends at 00.01 hours and ends
at 24.00 hours, and Day 1 at 24.00 hours, and Day 1
is the day after the Service is the day after the Service
Preliminary Testing Date, et seq. Full Testing Date, et seq.
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
68
SCHEDULE 3
----------
PART 2: LOSS OF SERVICE DEFINITION
----------------------------------
1. The network is designed to achieve an overall end-to-end network
availability between each Distribution Input Interface pair of Customer's
Content Signals and each associated Distribution Output Interface pair of
Customer's Content Signals of not less than 99.99% over a rolling 6 month
period.
2. Loss of Service will be considered to have happened when both feeds of
Customer's Content Signals to a Transmitter Site have been declared as
unavailable simultaneously, or a feed is declared unavailable within 1
(one) minute of the other feed being declared available (after the other
feed had previously been declared unavailable). In the first case the Loss
of Service will be credited for Abatements purposes in complete seconds
until one of the feeds is declared available. In the second case a Loss of
Service of 1 (one) minute minus the time in complete seconds during which
both links were available will be credited for Abatements purposes.
3. A feed to a Transmitter Site will be deemed to be unavailable whenever one
of the following conditions is satisfied (these conditions being based on
ETSI Technical Recommendation ETR 290 (May 1997), Title: Digital Video
Broadcasting (DVB) Measurement Guidelines for DVB Systems, Ref: DTR/JTC -
00DVB - 22):-
(a) [*] or
(b) [*] or
(c) [*] or
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
69
(d) [*] or
(e) [*] or
(f) [*] or
PROVIDED THAT where more than one of the above events occur simultaneously
or overlap, only one of such events, in the order of precedence listed
above, will give rise to Abatements.
4. Feeds will be deemed available (after they have previously been declared
unavailable) when the following conditions apply. Each clear condition is
associated with the fault condition above:-
(a) [*] or
(b) [*] or
(c) [*] or
(d) [*] or
(e) [*] or
(f) [*]
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
70
SCHEDULE 3
----------
PART 3: ABATEMENTS
--------------------
1. GENERAL
If Loss of Service occurs after the first Operational Service Date which is
due to BT, then the Customer will be entitled to claim an Abatement of the
Service Rental Charge in accordance with this Part 3 of Schedule 3. For
the purposes of Abatements, Loss of Service will be calculated over a
rolling 365 day period.
2. ABATEMENTS FOR LOSS OF SERVICE
Should a Loss of Service to any of the Transmitter Sites occur after its
Operational Service Date then subject to paragraphs 3 and 4 below, the
Customer will be entitled to claim an Abatement of the Service Rental
Charge in accordance with the formula set out in Table 1 below. The maximum
Abatement of Service Rental Charge to apply to a Loss of Service to any
Transmitter Site in any consecutive period of one year commencing on the
first Operational Service Date for the remainder of the term of this
Contract (or part year for the last such period), will be as set out in
Table 1 below (or a proportionate part of such maximum for the last such
period).
3. MAXIMUM OVERALL ANNUAL TOTAL OF ABATEMENTS
Abatements will be subject to a maximum overall annual total, commencing on
the first Operational Service Date and expiring on the last day of the
Contract, of one half of the total Service Rental Charge for Year 3 as set
out in paragraph 1.2.4 of Schedule 2 and as increased in accordance with
the formula set out in paragraph 1.3 of Schedule 2 at the date of
calculation (or pro rata for the last year).
<PAGE>
71
4. GENERAL SCOPE AND LIMITATIONS OF ABATEMENTS
4.1 Payment or credit of Abatements will be in full and final satisfaction of
any claims against BT by the Customer relating to the quality of the
Service and BT will not be liable to the Customer for any faults, Loss of
Service or other failures in the quality of the Service save to the extent
set out in this Part 3 of Schedule 3
4.2 No Abatement of the Service Rental Charge for Loss of Service to any
Transmitter Site will apply if such Loss of Service is due to any one of
the following circumstances:-
(a) where the failure is due to any matter covered by Clause 13; or
(b) interruption, withdrawal or suspension of the Service in accordance
with Sub-clause 2.6, 7.5 or 16.2, or to carry out planned upgrades to
the Service at agreed times (including installation of output
switching); or
(c) failure by the Customer to comply with its obligations under this
Contract, including but not limited to those under Clauses 5 or 7; or
(d) BT's requirements under Clauses 4 or 6 not being met, or an event
occurring as described in Sub-clause 4.4; or
(e) a failure or fault not attributable to the Service, including but not
limited to faults attributable to the Customer's Equipment, or other
networks or services connected to the Service, or other circumstances
under the Customer's control; or
(f) the Loss is due to the Customer's Content Signals being absent or
degraded or incorrectly routed prior to the Distribution Input
Interface.
<PAGE>
72
5. PAYMENT OF ABATEMENTS
5.1 Within 10 working days following any period of Loss of Service, BT will
forward to the Customer a consolidated report of any Loss of Service to the
Transmitter Sites specifying the dates, times and durations of any such
Loss of Service and specifying any applicable Abatement as determined by,
and meeting the conditions outlined in this Part 3 of Schedule 3, which the
Customer will be entitled to claim.
5.2 Unless otherwise agreed with the Customer, Abatements claimed by the
Customer will be set off against the next instalment(s) of the Service
Rental Charge, except for any Abatements claimed after the final instalment
has been paid, where BT will pay any Abatements claimed within 45 days of
the date of the invoice from the Customer. The Customer may charge daily
interest on late payment of such invoice at a rate equal to 4% per annum
above the base lending rate of Midland Bank plc.
<PAGE>
73
TABLE 1
-------
ABATEMENT FORMULAE
------------------
Abatements for Category A Transmitter Sites (One only, being Crystal Palace
- ---------------------------------------------------------------------------
Transmitter Site)
- -----------------
- ---------------------------------------------------------------------
Total loss of service in any Annual derived abatement of Annual
365 day period. Rental charge (per Station)
T= 0 to 30 secs [*]
T= 30 secs to 240 mins [*]
T= above 240 mins [*]
- ---------------------------------------------------------------------
Where X(T) = [*]
ln is natural logarithm.
T is the cumulative Loss of Service in minutes rounded to the nearest whole
minute.
Abatements for Category B Transmitter Sites (All Transmitter Sites other than
- -----------------------------------------------------------------------------
Crystal Palace Transmitter Site)
- --------------------------------
- ---------------------------------------------------------------------
Total loss of service in any Annual derived abatement of Annual
365 day period. Rental charge (per Station)
T= 0 to 30 secs [*]
T= 30 secs to 240 mins [*]
T= above 240 mins [*]
'''''''''''''
- ---------------------------------------------------------------------
Where X(T) = [*]
ln is natural logarithm.
T is the cumulative Loss of Service in minutes rounded to the nearest whole
minute.
NOTE: These formulae will apply on a per Transmitter Site basis
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
74
SCHEDULE 4
----------
FUNCTIONAL DESIGN SPECIFICATION
-------------------------------
The Functional Design Specification is a detailed technical description of the
Service, of which the current version is:-
"An Integrated Distribution Network for Digital Terrestrial Television
Functional Design Specification
for Castle Transmission International
Issue: Draft 0.2"
It does not form part of the Contract, but may be used by the parties for
reference and clarification purposes. In the event of any conflict between the
Functional Design Specification and the Contract, the Contract will prevail.
The parties recognise that the technical description and specification of the
Service may change from time to time, and that any such agreed changes will be
incorporated within a revised Functional Design Specification, in addition to
any changes that may be agreed to the Contract consequent on such changes.
<PAGE>
75
SCHEDULE 5
----------
IMPLEMENTATION PLAN
-------------------
BT will produce an Implementation Plan for delivery and testing of the Service,
which will include timescales for fulfilment of BT and Customer requirements and
obligations (including the BT requirements and Customer's obligations under Sub-
clauses 4.1 and 6.1), and which both parties will use all reasonable efforts to
agree as soon as practicable, PROVIDED THAT in any event the Customer
acknowledges that, as a minimum:-
(a) BT will require the requirements described in Sub-clause 4.1 to be
fulfilled not less than two calendar months prior to the relevant Service
Preliminary Testing Date at each Site; and
(b) BT will require the following minimum levels of access referred to in Sub-
clause 6.1:-
(i) continuous 24-hour access to all relevant Sites for all internal work
during a period from 2 months prior to each Service Preliminary
Testing Date to each Service Delivery Date;
(ii) access 7 days per week from 08.00 hours to 18.00 hours to all
relevant Sites for all external work during a period from 3 months
prior to each Service Preliminary Testing Date to 1 month prior to
each Service Preliminary Testing Date, then continuous 24-hour access
to all relevant Sites for all external work during a period from 1
month prior to each Service Preliminary Testing Date to each Service
Delivery Date.
If the Customer is unable to arrange access in accordance with (b) above at any
Transmitter Sites, the Customer may propose an alternative detailed timetable
(including proposed dates and hours of access for internal and external work)
for BT's access to such Transmitter Sites. BT will review these proposals and
indicate whether or not BT can accept them (which will be at BT's sole
discretion) in relation to each Transmitter
<PAGE>
76
Site. Where BT accepts such proposals, BT's requirements under Sub-clause 6.1
shall be deemed to be modified accordingly in relation to such Transmitter
Site(s), and Late Delivery Payments shall apply accordingly. Where BT does not
accept such proposals, BT will use reasonable endeavours to carry out the
relevant work within the Customer's proposed timetable but will have no
liability to the Customer for late provision of Service and accordingly no Late
Delivery Payments will be payable. BT's acceptance of any such proposals will
only be valid if made in writing and signed by BT's DTTV Service Project
Manager, such BT DTTV Service Project Manager to be advised by BT to the
Customer from time to time.
<PAGE>
77
SCHEDULE 6
----------
ACCEPTANCE TESTS
----------------
PART 1 : GENERAL METHODOLOGY
-----------------------------
BT will conduct Acceptance Tests in accordance with the following
methodology to satisfy conformance with the Acceptance Criteria. These
tests will take place in four main stages:-
(a) the Customer will have the built in diagnostic features of the ASI
equipment demonstrated to them at BT laboratories. These features will
enable remote verification that the DTTV Distribution Network is
satisfying the service parameters during commissioning and through out
the life of the network;
(b) individual links will be commissioned by BT. Copies of the
commissioning reports for each circuit within the network on which
their signals are carried will be made available to the Customer;
(c) the Customer's nominated representatives, in accordance with Sub-
clause 3.1, will be invited to be present at a five randomly picked
Transmitter Sites where the diagnostic features of the ASI equipment
will again be verified with other test equipment. At this time the
Customer will also verify that the network monitoring system is
reporting as expected;
(d) the DTTV Distribution Network will then be finally commissioned, using
the diagnostic features of the ASI mux and the network monitoring
system, ensuring that the Service meets the Acceptance Criteria.
2. The Acceptance Tests for the Preliminary Testing Service, the Full Testing
Service, and fully operational Service will be as follows:-
<PAGE>
78
(a) following the installation of a single link for the Preliminary
Testing Service, BT will verify the link performance between the
Playout Centre and the Transmitter Site. Acceptance Testing for the
Preliminary Testing Service will consist of a link performance check
which will be limited to a verification that the ASI performance is
error-free and formatted in accordance with DVB-PI-154 TM1449:
Interfaces for CATV/SATV Headends and Similar Professional Equipment
(EN 50083-9) (the "Specification");
(b) following the installation of the second link, BT will verify the link
performance between the Playout Centre and the Transmitter Site. A
link performance check will be limited to a verification that the ASI
performance is error-free and formatted in accordance with the
Specification. If these conditions are met, both links will then be
subject to longer duration stability testing, where the diagnostic
features of the ASI Mux will be used in conjunction with the network
monitoring system to demonstrate that [*]. Should errors occur during
link testing then the stability check will be restarted until a [*].
These results will be presented to the Customer as demonstration that
the results of the Acceptance Tests for the Full Testing Service and
the fully operational Service meet the Acceptance Criteria.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
79
SCHEDULE 6
----------
PART 2: ACCEPTANCE CRITERIA
----------------------------
For the Preliminary Testing Service, the Acceptance Criteria will be that
the ASI stream is error-free and formatted in accordance with the
Specification as defined in paragraph 2, Part 1, Schedule 6, measured as
described in paragraph 2, Part 1, Schedule 6.
For the Full Testing Service, and the fully operational Service, the
Acceptance Criteria will be that there are no transport stream errors
introduced by the distribution system recorded by the Network Management
Service for a continuous period of [*], measured as described in
paragraph 2, Part 1, Schedule 6.
Please see paragraph 3, Part 1, Schedule 1 for description of the
respective facilities comprising the Preliminary Testing Service, the Full
Testing Service and fully operational Service.
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
80
SCHEDULE 7
----------
NETWORK MANAGEMENT SERVICE
--------------------------
1. NETWORK MANAGEMENT
1.1 Network Management facilities will be provided to coincide with Service
Full Testing Dates. Network Management provides the framework within which
the Service will be managed. A more detailed description of the facilities
that will be provided by BT and the features and functionality is contained
in the Functional Design Specification.
1.2 Network technical performance information will be made available to the
Customer, and any network failures will be reported to the status display
and statistics will be maintained and be available at the status display.
This status display will provide a continuous overview of the network and
the status of the signals. If a Loss of Service occurs, alarms will appear
on the status display. The displays will also provide facilities to
ascertain the reason for the alarm(s) and to store the cumulative Service
statistics for a rolling 12 month period.
1.3 Network reports will be available as described in the Functional Design
Specification.
2. FAULT REPORTING
The BT Service Management Centre (SMC) will manage the Service. The SMC
will monitor the Service 24 hours/day, 365 days/year and will provide a
reporting service to the Customer for incidents on the Service. If a Loss
of Service occurs the Customer can contact BT at the SMC on the following
numbers:-
The telephone number for the SMC is: 0800 212857
The facsimile number for the SMC is: 0(1)71 261 4279
<PAGE>
81
SCHEDULE 8
----------
SPECIFICATION OF CUSTOMER CONTENT SIGNALS
-----------------------------------------
1. The Customer will provide in respect of each DTTV Multiplex Service, two
outputs of Customer's Content Signals to be carried over the DTTV
Distribution Network from each Playout Centre. Each output of Customer's
Content Signals will be identical and (subject to Sub-clause 4.2)
continuous under normal conditions, and will have a nominal bitrate of [*]
. Customer's Content Signals must comply with the characteristics described
in paragraph 4.1, Part 1, Schedule 1.
2. Customer interfaces to the network will be provided in accordance with
paragraph 4, Part 1, Schedule 1.
[*] Indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been filed with the Securities and Exchange
Commission separately.
<PAGE>
82
SCHEDULE 9
----------
PERSONS PERMITTED TO RECEIVE CONFIDENTIAL INFORMATION
-----------------------------------------------------
1. BOTH PARTIES
Their employees or professional advisers who need to know the information
2. ADDITIONALLY FOR BT
The employees of a BT Group Company who need to know the information BT's
suppliers who need to know the information
3. ADDITIONALLY FOR THE CUSTOMER
The employees of the following who need to know the information:-
British Digital Broadcasting Plc
The British Broadcasting Corporation
Any Group Company of the Customer
The Customer's suppliers
<PAGE>
83
SCHEDULE 10
-----------
CONTRACT CHANGE ORDER FORM
--------------------------
________________________________________________________________________________
CHANGE ORDER NUMBER: DATE:
- -------------------- -----
The Contract dated ...................................Reference
- ---------------------------------------------------------------
Number.........................................
- -----------------------------------------------
between British Telecommunications plc of 81, Newgate Street, London, EC1A 7AJ
- ------------------------------------------------------------------------------
(hereinafter called "BT")
- -------------------------
and (Customer)
- --------------
for the supply of :- DTTV Service
- ---------------------------------
is amended as follows:-
- -----------------------
________________________________________________________________________________
1. DESCRIPTION
________________________________________________________________________________
________________________________________________________________________________
2. AMENDMENT TO CLAUSE
-------------------
________________________________________________________________________________
3. ORIGIN AND REASON FOR CHANGE ORDER
----------------------------------
________________________________________________________________________________
<PAGE>
84
________________________________________________________________________________
4. CHARGES
-------
I) THE TOTAL CHANGE IN THE CHARGES FOR CARRYING OUT THE AMENDMENT IN
ACCORDANCE WITH THE TERMS OF THIS CHANGE ORDER IS:
II) THE CHARGES ARE AMENDED TO:-
________________________________________________________________________________
5. COMMENCEMENT DATE
-----------------
The Commencement Date is amended to:-
________________________________________________________________________________
6. REMARKS
-------
________________________________________________________________________________
7. GENERAL
-------
Except as amended herein or by any other formal Contract Change Orders duly
signed by xx and BT, the terms of the Contract dated..................
Reference Number.................. will remain in full force and effect.
The terms of this Contract Change Order are agreed.
________________________________________________________________________________
8. PREVIOUS CONTRACT CHANGE ORDERS
-------------------------------
Number Date
------ ----
________________________________________________________________________________
<PAGE>
85
SIGNED BY )
---------
a duly authorised person on )
behalf of )
British Telecommunications plc )
Name )
Position )
SIGNED BY )
---------
a duly authorised person on )
behalf of xxxx plc
Name )
Position )
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EXHIBIT 10.38
SITE MARKETING AGREEMENT
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THIS AGREEMENT, made this 25th day of June, 1998, between BELLSOUTH
MOBILITY INC, Georgia corporation with its principal office located at 1100
Peachtree Street, N.E., Suite 1000, Atlanta, Georgia 30309, hereinafter
designated "BellSouth" and CROWN COMMUNICATION INC., D/B/A CROWN COMMUNICATIONS,
a Delaware corporation with its principal offices located at Southpointe, 375
Southpointe Boulevard, Canonsburg, Pennsylvania 15317, hereinafter designated
"Crown".
WITNESSETH:
WHEREAS, BellSouth, through various related entities operates a wireless
communications network in the states of Indiana, Kentucky, Tennessee,
Mississippi, Alabama, Georgia, Florida and Louisiana which is comprised in part
of cellular communications tower sites as to which BellSouth owns the fee or has
a ground lease (or a license or easement similar in effect to a ground lease),
which cellular tower sites include structures such as freestanding towers, guyed
towers and monopoles, hereinafter referred to as "Tower Sites" (the term "Tower
Sites" shall exclude buildings, equipment shelters, huts, or sheds and space
occupied by BellSouth at the Tower Sites);
WHEREAS, Crown is in the business of managing, developing, constructing,
maintaining, marketing and operating networks of communications tower
facilities, including the management of wireless communications sites and
networks owned by third party providers of wireless communications services;
WHEREAS, BellSouth desires to optimize the utilization and value of its
Tower Sites by leasing space at the Tower Sites for the co-location of
communications equipment for any type of wireless and broadcast communications
services;
WHEREAS, BellSouth and Crown intend to engage in additional negotiations to
explore the formation of a more permanent entity to serve their mutual interests
with regard to the ownership, management and utilization of the Tower Sites; and
WHEREAS, BellSouth and Crown are desirous of establishing terms and
conditions which will apply to the marketing of the Tower Sites by Crown
initially in the State of Kentucky.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, BellSouth and Crown agree as follows:
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1. SITE MARKETING AGREEMENT
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1.1 MARKETING SITES.
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(a) BellSouth hereby agrees that Crown shall serve as BellSouth's
exclusive marketing agent of the Tower Sites in the state(s) listed on Exhibit
"A" hereto (the "Territory") for the purpose of leasing, subleasing or licensing
certain spaces for wireless communications antennas and related space for
equipment sheds at the Tower Sites which now exist or may exist or may exist in
the future in the Territory and as BellSouth's agent for collecting rent on the
terms and conditions hereinafter set forth. The parties by mutual agreement may
add other states to the Territory by appropriately amending Exhibit "A" hereto.
(b) BellSouth retains the right as principal to lease tower space at the
Tower Sites in the Territory for its own account. Without limitation of this
right, BellSouth does not presently anticipate exercising this right except as
necessary to obtain space on a reciprocal basis with owners of other towers.
(c) Crown's rights as exclusive marketing agent shall also be subject to
existing agreements between BellSouth and third party providers of wireless
communications services, all of which are identified in Exhibit "A" attached
hereto, and to future agreements which BellSouth may identify to Crown and which
when so identified shall be deemed listed on Exhibit "A" attached hereto. These
future agreements shall be additional co-location agreements on terms and
conditions substantially similar to the terms of the co-location agreements
listed on Exhibit "A", and agreements relating to Tower Sites resulting from
build-to-suit agreements with persons other than Crown, particularly Tower Sites
where BellSouth has a ground lease (or a license or easement similar in effect
to a ground lease).
(d) As consideration for the execution of this Agreement and for serving
as exclusive marketing agent of the Tower Sites, Crown agrees to actively market
available space for wireless communications antennas and related space for
equipment sheds at the Tower Sites, on the same basis as Crown markets Crown's
owned wireless communications tower facilities, in order to lease, sublease or
license such available space at the Tower Sites to third party providers or
users of wireless communications services.
(e) As exclusive marketing agent of the Tower Sites in the Territory,
Crown shall provide all sales and marketing functions, along with the receipt of
all third party payments as set forth in Section 5 below.
(f) As consideration for Crown's being designated as the exclusive
marketing agent of the Tower Sites in the Territory, Crown agrees that during
the term of this Agreement, Crown and Crown's subsidiaries, affiliates and
assigns shall not market, within the states encompassed by this Agreement, any
wireless communications tower sites unless such tower sites are owned or
developed by Crown or Crown's subsidiaries, affiliates or assigns; provided
however that any such tower sites developed by Crown (or its subsidiaries,
affiliates or assigns) after the date hereof in the State or States listed on
Exhibit "A" hereto shall be designed so as not to compete
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with BellSouth's then existing Tower Sites. For purposes of this Agreement,
the term "affiliate" shall be defined as any person which controls the named
party, is controlled by the named party or is under common control with the
named party.
1.2 INFORMATION TO MARKET SITES. In order to assist Crown in its efforts
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to actively market BellSouth's Tower Sites, BellSouth agrees to furnish to
Crown, within ten (10) business days of the date first written above, at no cost
to Crown, all information regarding the Tower Sites which has been compiled by
BellSouth and is located at its offices at 1100 Peachtree Street, N.E., Atlanta,
Georgia 30367 as of the date of this Agreement and to continue to furnish all
such future information to Crown as it becomes available at said location.
BellSouth shall not be required to request information from its offices in the
field unless it elects to do so in its sole discretion. Such information shall,
if available, include but not be limited to Prime Leases (as defined below),
construction drawings of compound and antenna support structures, surveys,
environmental assessments, mechanical drawings (power, telco, HVAC, grounding,
etc.), soils investigations and reports, permits and approvals.
2. MASTER LEASE AGREEMENT
----------------------
2.1 MASTER LEASE. Simultaneously with the execution of this Agreement,
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BellSouth and Crown shall enter into the Master Lease Agreement attached hereto
as Exhibit "B". This Master Lease Agreement contains the terms and conditions
upon which spaces for wireless communications antennas and related space for
equipment sheds at a Tower Site will be leased or licensed by BellSouth to Crown
and, in turn, subleased or sublicensed by Crown to third parties. That portion
of a Tower Site which is leased or licensed by BellSouth pursuant to this
Agreement will be individually referred to as a "Tower Space Site".
2.2 TOWER SPACE SITE LEASE ACKNOWLEDGMENTS. Crown shall not lease a Tower
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Space Site from BellSouth unless at the same time it has a third party (the
"Sublessee") willing to lease, sublease or license the same, Tower Space Site
from Crown. When Crown and a Sublessee agree on the particular terms for the
lease or license of a Tower Space Site complying with the Master Lease
Agreement, BellSouth, Crown and the Sublessee will execute a Site Lease
Acknowledgment ("SLA") in the form attached to the Master Lease Agreement.
Instead of having the Master Lease apply to the SLA, Crown and a Sublessee which
is a party to an agreement listed in Exhibit "A" may elect to have the agreement
to which the Sublessee is a party apply, in which case said master agreement
shall govern all relations among BellSouth, Crown, and the Sublessee as if it
were the Master Lease.
2.3 SLA PROCESS. Crown shall indicate that it has a third party with an
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interest in subleasing a particular Tower Space Site by completing an SLA,
having the Sublessee execute the SLA, and forwarding it to BellSouth for
execution, subject to compliance with Section 1.2 of the Master Lease Agreement.
Crown shall execute the SLA when received from BellSouth and return it to
BellSouth. Crown shall not have any right to any marketing fees in respect of
any
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SLA that it has not fully executed and returned to BellSouth in accordance with
Section 1.2 of the Master Lease Agreement.
3. TERM
----
3.1 TERM. Except as provided on Exhibit "C" hereto or in Section 3.2
----
below, the term of this Agreement shall be for one hundred (100) days from the
date first written above (such one hundredth (100/th/) day is referred to herein
as the "Termination Date") after which the provisions of Section 18.2.1 shall
apply.
3.2 EXTENSION TO FACILITATE FORMATION OF PERMANENT ENTITY. In the event
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that within one hundred (100) days of the date first written above, the parties
have entered into an agreement to form a permanent entity as contemplated by
Section 17, the term of this Agreement shall extend to the time of the last
closing to occur under said agreement of the tower assets in the states listed
on Exhibit "A" hereto or the abandonment or termination of said agreement at
which time this Agreement shall automatically terminate, and Sections 18.2.2 or
18.2.3, as applicable, shall apply. Notwithstanding the termination of this
Agreement, Crown shall be entitled to its marketing fee due to Crown pursuant to
the provisions of Section 5 hereof in respect of SLAs which are executed by
BellSouth during the term of this Agreement.
4. ASSIGNMENT OF CROWN'S RIGHTS AND OBLIGATIONS IN SLAS
----------------------------------------------------
At any time after the Commencement Date as defined in an SLA, BellSouth may
elect pursuant to Sections 1.3 and 19.2 of the Master Lease Agreement to have
Crown to assign to it all Crown's rights and obligations under the SLA, after
which Crown shall cease to be the lessee of BellSouth and the Sublessor of
Sublessee, and BellSouth shall be the direct lessor of Sublessee, and Sublessee
shall be the direct lessee of BellSouth. With respect to an SLA governed by one
of the agreements listed on Exhibit "A", upon BellSouth's providing a notice to
Crown that it elects to receive an assignment from Crown of an SLA, Crown shall
be deemed similarly to have assigned its rights and obligations under such SLA
to BellSouth without further act. Crown shall ensure that all SLAs provide that,
by virtue of such assignments BellSouth shall assume all the obligations of
Crown to Sublessee set forth in the SLA and the Master Lease Agreement or the
other applicable master agreement, and recognize all the rights of Sublessee,
including the right to quiet enjoyment of the Tower Space Site, and Sublessee
shall attorn to BellSouth, agreeing to pay rent directly to BellSouth or as
BellSouth may direct, and agreeing with BellSouth to comply with all other
provisions of the Master Lease Agreement or the other applicable master
agreement and the SLA. Upon BellSouth's request as to any assignment, Crown
shall execute an Assignment in the form of Exhibit "7" to the Master Lease
Agreement to evidence such assignment.
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5. FEES
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5.1 THIRD PARTY RENTALS. Crown shall receive a marketing fee as
-------------------
calculated in Section 5.3 for any SLA which is executed by Crown and Tenant
pursuant to this Agreement and the Master Lease Agreement, so long as such
Tenant utilizes a Tower Site within six months after such Tenant executes such
SLA and (a) with respect to which SLA Crown was the actual procuring cause or
(b) with respect to which SLA any of the entities listed on Exhibit "B" hereto
is the third party, regardless whether Crown is the actual procuring cause and
regardless of the process through which such third party may occupy a Tower
Site. For purposes of this Agreement, "Third Party Rentals" shall be defined as
gross rents or other consideration paid by third parties, commencing at any time
from the date first written above and continuing for so long as such third
party, its successors and assigns, utilizes the Tower Site. Third Party Rentals
shall specifically include gross rents or other recurring consideration paid by
Sublessees who have, prior to the expiration or termination of this Agreement,
who have executed an SLA to either Crown or BellSouth. The calculation of such
Third Party Rentals shall not include payments to BellSouth for services such as
installation fees, maintenance fees, professional service fees, site development
fees, tap-in fees, bolt-on fees, or fees for any services provided for or on
behalf of such third parties by BellSouth or its agents (not including Crown,
its affiliates or agents) in connection with their installations, all of which
amounts shall be paid directly to BellSouth, and not through Crown.
5.2 ELECTION BY BELLSOUTH TO RECEIVE PAYMENTS DIRECTLY. At any time
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BellSouth may elect to have all the Sublessees make payments directly to
BellSouth, by notifying Crown and the Sublessees of such election.
5.3 DISTRIBUTION OF THIRD PARTY RENTALS. Crown shall receive a marketing
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fee of [*] percent ([*]) of Third Party Rentals. The remaining [*] percent ([*])
of the Third Party Rentals shall be paid to or retained by BellSouth, as
applicable.
5.4 COLLECTIONS; PAYMENT OF FEES. Payments due Crown and BellSouth
----------------------------
pursuant to the terms of this Agreement shall be made in the following manner:
At the-beginning of each month, the party receiving the Third Party Rentals (the
"Receiving Party shall calculate the total amount of Third Party Rentals
actually collected during the prior month. Crown, if applicable, shall collect
Third Party Rentals solely as the agent of BellSouth and not for its own
account. The Receiving Party shall use commercially reasonable efforts to
collect the Third Party Rentals in the same manner as it would collect from its
own tenants. Any reasonable out-of-pocket expenses actually and necessarily
(based on standards the Receiving Party applies in its own collections) incurred
by the Receiving Party in collection, including by or through an attorney, shall
be reimbursable to the Receiving Party out of and shall reduce the Third Party
Rentals. In the event Crown is the Receiving Party, Crown shall remit to
BellSouth the Third Party Rentals, less the amount of Crown's marketing fee in
respect thereof, within thirty (30) days of the end of the prior month, free and
clear of any claims and without any set-off or recoupment. In the event
BellSouth is the Receiving Party, BellSouth shall remit to Crown the
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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Third Party Rentals, less the amount retained by BellSouth as set forth in
Section 5.3, within thirty (30) days of the end of the prior month, free and
clear of any claims and without any set-off or recoupment. Overdue amounts from
the Receiving Party shall bear interest at a rate of one and one-half percent
(1.5%) per month on such amount. All monthly payments shall be predicated upon
actual Third Party Rentals collected by the Receiving Party during the prior
month. Crown and BellSouth specifically acknowledge that they shall have no
recourse against the other as a result of a failure of payment or other breach
of obligation by any third party related to Third Party Rentals. The calculation
of Third Party Rentals shall not include payments to either BellSouth or Crown
by Sublessees for services such as installation, maintenance fees, professional
service fees, site development fees, tap-in fees, bolt-on or fees for any third
party services provided by that party to said Sublessees, subject to that
party's compliance with Section 4.3 of the Master Lease Agreement as to such
payments.
6. EXAMINATION OF RECORDS
----------------------
The Receiving Party agrees to, at all times during this Agreement and
during the existence of any SLAs related thereto, maintain financial records,
including books of account, which detail all Third Party Rentals and all out of
pocket expenses incurred by the Receiving Party in connection with the
collection of Third Party Rentals. The Receiving Party shall make the same
available to the other party upon request, and that party may conduct or cause
to be conducted, at its sole expense, an independent audit of the Receiving
Party's financial records, books of account, and other records and documents
related to the calculation and payment of gross rental and license payments
pursuant to the terms set forth above. If any such audit concludes that in any
month the Receiving Party's calculation of Third Party Rentals is more than five
percent (5%) less than the actual amount thereof, the Receiving Party shall
reimburse the other party for all fees, costs and expenses paid by that party
for the audit.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
7.1 MUTUAL. Each of Crown and BellSouth represents, warrants and
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covenants to the other:
7.1.1 It has full right, power and authority to make this Agreement
and to enter into the Master Lease Agreement and the SLAs;
7.1.2 The making of this Agreement and the performance thereof will
not violate any laws, ordinances, restrictive covenants or
other agreements under which either party is bound;
7.1.3 Each party is or will be qualified to do business in all states
in which the Tower Sites are located;
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7.1.4 All persons signing on behalf of either party are authorized to
do so by appropriate corporate or partnership action; and
7.1.5 Neither party shall engage in any activity which serves to
impede the performance of any process embodied in this
Agreement and each party agrees to act in good faith and to
utilize commercially reasonable efforts to accomplish the
purposes of this Agreement. Examples of a breach of this
provision are the lack of a good faith marketing effort by
Crown or the arbitrary denial by BellSouth of approvals of SLAs
pursuant to this Agreement.
7.2 NO BROKERS. BellSouth and Crown represent to each other that neither
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has had any dealings with any real estate brokers or real estate agents in
connection with this Agreement. Each party shall be responsible for the payment
of any fees, commissions, costs, expenses or other sums due with respect to any
other advisor or agents retained by that party.
8. DEFAULT
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8.1 CROWN'S DEFAULT. The occurrence of any one or more of the following
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events shall constitute an "event of default" by Crown under this Agreement:
8.1.1 If Crown fails to pay any sums payable by Crown pursuant to
this Agreement within five (5) business days of Crown's receipt
of written request for payment;
8.1.2 If any petition is filed by or against Crown, under any section
or chapter of the present or any future federal Bankruptcy Code
or under any similar law or statute of the United States or any
state thereof (and with respect to any petition filed against
Crown, such petition is not dismissed within ninety (90) days
after the filing thereof), or Crown is adjudged bankrupt or
insolvent in proceedings filed under any section or chapter of
the present or any future Bankruptcy Code or under any similar
law or statute of the United States or any state thereof;
8.1.3 If a receiver, custodian or trustee is appointed for Crown or
for any of the assets of Crown and such appointment is not
vacated within sixty (60) days of the date of appointment;
8.1.4 If Crown makes a transfer in fraud of creditors;
8.1.5 If there is a breach of any representation, warranty or
covenant set forth in this Agreement excluding any SLA and the
non-payment of any sums by Crown, which is not cured within the
Cure Period; for purposes hereof,
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during the first 100 days of this Agreement, the "Cure Period"
shall mean within ten (10) days of receipt of written notice,
and thereafter (if the Agreement is not terminated after 100
days) the "Cure Period" shall mean within sixty (60) days of
receipt of written notice;
8.1.6 If there is a breach of any representation, warranty or
covenant of Crown set forth in any SLA or in the Master Lease
Agreement, excluding the nonpayment of any sums by Crown, which
is not cured within sixty (60) days of receipt of written
notice.
8.2 BELLSOUTH'S REMEDIES. If an event of default occurs with respect to
--------------------
Section 8.1.2, 8.1.3, or 8.1.4 above, without limiting any other remedies it may
have, BellSouth may terminate this Agreement and the Master Lease Agreement, in
which event Crown shall immediately assign its rights and obligations under all
SLAs to BellSouth and BellSouth shall accept such assignments. If an event of
default occurs with respect to Section 8.1.1, 8.1.5 or 8.1.6 above, BellSouth
may terminate such SLAs as to Crown, in which event Crown shall assign only its
rights and obligations under the applicable SLAs to BellSouth and BellSouth
shall accept such assignments; provided however that if Crown is or has been in
default of the lesser of: five percent (5%) of the total SLAs in any one State
or fifty (50) SLAs then in effect, BellSouth may terminate this Agreement as
provided in the first sentence of this Section 8.2.
8.3 BELLSOUTH'S DEFAULT. If BellSouth is in breach of any representation,
-------------------
warranty or covenant set forth in this Agreement and such breach is not cured
within sixty (60) days of receipt of written notice thereof.
8.4 CROWN'S REMEDIES. In the event of a default by BellSouth, Crown may,
----------------
without limiting any other remedies it may have, at Crown's option upon written
notice:
8.4.1 Terminate the applicable SLA as to Crown; and
8.4.2 Assign to BellSouth all its improvements in the Tower Space
Sites to which the SLAs relate.
Crown may elect any one or more of the foregoing remedies with respect to
any particular SLA.
8.5 REMEDIES FOR BREACH OF GOOD FAITH. In the event of a breach by either
---------------------------------
party of the covenant set forth in Section 7.1.5, the other party may
unilaterally terminate this Agreement and the Master Lease Agreement upon five
(5) business days written notice to the breaching party. In addition to any
other remedies available as described above in this Section 8, or in Section
18.2, or otherwise, the party breaching Section 7.1.5 shall be liable to the
other party, notwithstanding any other provision in this Agreement to the
contrary, for that party's actual damages, plus costs and attorneys' fees, but
not for any special, incidental or consequential damages of any nature
whatsoever. The party alleged to have breached Section 7.1.5 may, in order to
preclude the
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unilateral termination of this Agreement, bring an action in equity, including a
request for preliminary injunctive relief, challenging the alleged breach of
Section 7.1.5.
8.6 DUTY TO MITIGATE DAMAGES. BellSouth and Crown shall endeavor in good
------------------------
faith to mitigate damages arising under this Agreement
8.7 NOTICES AS TO OTHER DEFAULTS. If, with respect to any indebtedness or
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obligation to pay money in excess of $10,000,000, the lender or payee shall
assert that Crown or Crown Castle (as defined below) is in default as to any
required payment, or if Crown or Crown Castle should default in making any such
payment timely, or in the observance of any other covenants or obligations with
respect to such indebtedness or obligation to pay money, or if Crown or Crown
Castle should be required to notify any lender of the existence of any such
default then Crown shall give BellSouth prompt notice of such circumstances,
describing them with particularity.
8.8 CROWN'S ENTITLEMENT TO MARKETING FEES. Notwithstanding any provision
-------------------------------------
to the contrary contained in this Agreement, the Master Lease Agreement and any
SLA, Crown shall be entitled to its marketing fees as set forth in Section 5 so
long as Crown or BellSouth receives the payment of Third Party Rentals,
notwithstanding any event of default by either party and regardless whether such
event of default result in the termination of this Agreement, the Master Lease
Agreement and any SLA; provided however that Crown shall not be entitled to
receive any further marketing fees from BellSouth with respect to the SLAs if
Crown fails to perform with respect to the acquisition of the Tower Sites in the
event of a BellSouth election to put its Tower Sites as described in Exhibit "C"
attached hereto. In such event, the right to withhold any further payment of
the marketing fees otherwise payable to Crown shall be BellSouth's sole legal
remedy and no further legal or equitable remedies shall be available to
BellSouth.
9. ENTIRE AGREEMENT
----------------
It is agreed and understood that this Agreement, including the Master Lease
Agreement and all SLAs, contain all the agreements, promises and understandings
between BellSouth and Crown and that no verbal or oral agreements, promises or
understandings shall be binding upon either BellSouth or Crown in any dispute,
controversy or proceeding at law, and any addition, variation or modification to
this Agreement shall be void and ineffective unless made in writing signed by
the parties.
10. GOVERNING LAW
-------------
The laws of the State of Georgia, disregarding conflict of law principles,
shall govern this Agreement. Each party submits to the jurisdiction of any
federal or state court sitting in Fulton County, Georgia with the exception that
disputes pertaining exclusively to the real estate interests of a particular
Site shall be litigated in the jurisdiction in which the Site is located.
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11. ASSIGNMENT
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(a) This Agreement may not be sold, subleased, assigned or transferred by
Crown without prior approval or consent of BellSouth; provided, however, that
Crown may assign its interest to its parent company, any subsidiary or affiliate
or to any successor-in-interest or entity acquiring 51% or more of its stock or
assets, subject to this Agreement.
(b) This Agreement may not be sold, subleased, assigned or transferred by
BellSouth without prior approval or consent of Crown; provided, however, that
BellSouth may sublease, assign or transfer its interest to (i) a third party so
long as such party has a net worth (computed in accordance with generally
accepted accounting principles) equal to or greater than $25 million or (ii) its
parent company, any subsidiary or affiliate or to any successor-in-interest or
entity acquiring 51% or more of its stock or assets, subject to this Agreement.
(c) BellSouth consents to the assignment by Crown of the marketing fees
payable to Crown pursuant to this Agreement. Any such assignment shall be
subject and subordinate to all rights and interests of BellSouth under this
Agreement including, without limitation, BellSouth's-rights to collect directly
from the Sublessees set forth in Section 5.4; provided that, such assignment
shall not constitute assumption by the Financing Entity of any obligations under
this Agreement unless and until the Financing Entity elects to assume Crown's
rights and obligations herein in the event Crown defaults under the Financing
Agreement or any agreement with the Financing Entity related thereto. Any
attempted assignment by Crown of any of its rights as BellSouth's lessee under
the Master Lease Agreement, or as the Sublessee's sublessor under the Master
Lease Agreement, except as expressly permitted pursuant to the terms of the
Master Lease Agreement, shall be absolutely null and void ab initio, and without
-- ------
any force and effect. Crown shall not have any interest under this Agreement or
the Master Lease Agreement which is capable of being pledged or assigned as
security to the Financing Entity, other than Crown's marketing fees, as
described and subject to the limitations set forth above. Any such assignment
of Crown's marketing fees to the Financing Entity as security does not relieve
Crown of any liabilities or obligations for performance identified in this
Agreement.
12. SEVERABILITY
------------
If any provision of this Agreement or any SLA is invalid or unenforceable
with respect to any party, the remainder of this Agreement, or the application
of such provision to persons other than those as to whom it is held invalid or
unenforceable, is not to be affected and each provision of this Agreement is
valid and enforceable to the fullest extent permitted by law.
13. NO WAIVER
---------
No provision of this Agreement shall be deemed to have been waived by
either party unless the waiver is in writing and signed by the party against
whom enforcement is attempted. The rights granted in this Agreement are
cumulative of every other right or remedy that the enforcing party
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may otherwise have at law or in equity or by statute and the exercise of one or
more rights or remedies will not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
14. REPRESENTATION
--------------
The parties acknowledge and agree that they have been represented by
counsel and that each of the parties has participated in the drafting of this
Agreement. Accordingly, it is the intention and agreement of the parties that
the language, terms and conditions of this Agreement are not be construed in any
way against or in favor of any party hereto by reason of the responsibilities in
connection with the preparation of this Agreement.
15. NOTICES
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Any notice or demand required to be given in this Agreement shall be made
by first class mail, or reliable overnight courier, to the address of the other
party set forth below:
As to Crown: Crown Communications
Southpointe
375 Southpointe Boulevard
Canonsburg, PA 15317
Attn: Legal Department
With a copy to: Sittig, Cortese & Wratcher
1515 Frick Building
Pittsburgh, PA 15219
Attn: William R. Sittig, Jr.
As to BellSouth: BellSouth Mobility Inc
1100 Peachtree Street, NE, 10/th/ Floor
Atlanta, GA 30367
Attn: President
With a copy to: BellSouth Mobility Inc
Legal Department
1100 Peachtree Street, NE, 10/th/ Floor
Atlanta, GA 30367
Attn: General Counsel
Any such notice or demand by mail shall be deemed to be received two (2)
business days following deposit in the United States first class mail addressed
as required above or, if delivered
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by overnight courier, one (1) business day following deposit with such
courier. BellSouth or Crown may from time to time designate any other address
for this purpose by giving written notice to the other party.
16. BINDING EFFECT
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This Agreement shall extend to and bind the heirs, personal
representatives, successors and permitted assigns of the parties hereto.
17. ADDITIONAL NEGOTIATIONS
-----------------------
Crown and BellSouth, by execution of this Agreement, acknowledge their
mutual intent to explore the formation of a permanent entity to serve their
mutual interests regarding the future ownership, management and utilization of
the Tower Space Sites. In the event that no successor entity is created by
Crown and BellSouth, the terms and conditions set forth herein and in each SLA
shall continue in full force and effect subject only to the expiration and
termination provisions set forth herein. The foregoing represents an expression
of the parties' mutual intent and shall not be construed to represent a binding
or enforceable agreement of the parties or create any obligations of the parties
to form any such entity or enter into any binding or enforceable agreement in
respect thereof. No such obligations of the parties shall arise unless and
until the parties enter into definitive written agreements with respect thereto.
18. TERMINATION
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18.1 TERMINATION UPON CERTAIN DEFAULTS.
----------------------------------
18.1.1 In the event BellSouth exercises its rights to terminate this
Agreement and the Master Lease Agreement upon Crown's default as set forth in
Section 8.5, the appointment of Crown as BellSouth's exclusive marketing agent
and as BellSouth's agent to collect rents shall be terminated, Crown shall be
deemed to have assigned all its SLAs to BellSouth, without further act, and
BellSouth shall be deemed to have accepted such assignments, the restrictions on
Crown's right to market towers for others in the Territory shall terminate, and
BellSouth shall no longer have any obligation to pay any marketing fees
whatsoever to Crown under this Agreement.
18.1.2 In the event Crown exercises its rights to terminate this Agreement
and the Master Lease upon BellSouth's default as set forth in Section 8.5, or in
the event BellSouth exercises its rights to terminate this Agreement and the
Master Lease Agreement under Section 8.2, the appointment of Crown as
BellSouth's exclusive marketing agent and as BellSouth's agent to collect rents
shall be terminated, Crown shall be deemed to have assigned all its SLAs to
BellSouth, without further act, and BellSouth shall be deemed to have accepted
such assignments, the
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restrictions on Crown's right to market towers for others in the Territory shall
terminate, but BellSouth shall continue to be obligated to pay marketing fees
due to Crown under this Agreement with respect to Third Party Rentals.
18.2 TERMINATION IN THE EVENTS FORESEEN IN SECTION 3.
-----------------------------------------------
18.2.1 In the event this Agreement terminates by the expiration of its
term pursuant to Section 3.1, the appointment of Crown as BellSouth's exclusive
marketing agent and as BellSouth's agent to collect rents shall be terminated,
Crown shall be deemed to have assigned all its SLAs to BellSouth, without
further act, and BellSouth shall be deemed to have accepted such assignments,
the restrictions on Crown's right to market towers for others in the Territory
shall terminate, but BellSouth shall continue to be obligated to pay marketing
fees due to Crown under this Agreement with respect to Third party Rentals.
18.2.2 In the event that the parties have entered the agreement to form
a permanent entity as contemplated by Section 17, and the closings of the tower
assets in all the states listed on Exhibit "A" hereto have occurred under that
agreement, then the appointment of Crown as BellSouth's exclusive marketing
agent and as BellSouth's agent to collect rents shall be terminated, Crown shall
be deemed to have assigned all its SLAs to BellSouth, without further act, and
BellSouth shall be deemed to have accepted such assignments, the restrictions on
Crown's right to market towers for others in the Territory shall terminate, and
BellSouth shall no longer have any obligation to pay any marketing fees
whatsoever to Crown under this Agreement.
18.2.3 In the event that the parties have entered the agreement to form a
permanent entity as contemplated by Section 17, and that agreement has been
abandoned or terminated, then, with respect to this Agreement, the appointment
of Crown as BellSouth's exclusive marketing agent and as BellSouth's agent to
collect rents shall be terminated, Crown shall be deemed to have assigned all
its SLAs to BellSouth, without further act, and BellSouth shall be deemed to
have accepted such assignments, the restrictions on Crown's right to market
towers for others in the Territory shall terminate, but BellSouth shall continue
to be obligated to pay marketing fees due to Crown under this Agreement with
respect to Third Party Rentals.
19. PRIOR AGREEMENTS
----------------
This Agreement revokes and supersedes any other oral or written agreements
between the parties, whether or not in writing, that pertain to the subject
matter described herein, except for that certain Mutual Nondisclosure Agreement
entered into between BellSouth Corporation and Crown Castle International Corp.
("Crown Castle") as of April 17,1998 (the "Nondisclosure Agreement") and the
Master Lease Agreement.
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20. NON-DISCLOSURE
--------------
The parties agree that without the express written consent of the other
party, neither party shall reveal, disclose or promulgate to any third party the
terms of this Agreement or any portion thereof, except to such third party's
auditor, accountant, attorney or investment-banker or to a governmental agency
if required by regulation, subpoena or government order to do so. Any such
disclosure shall be made in compliance with the terms and conditions of the
Nondisclosure Agreement. The foregoing two sentences shall survive any
termination of this Agreement. Crown has indicated to BellSouth that Crown
Castle contemplates filing a Form S-1 with the Securities and Exchange
Commission to register common stock. Prior to filing such Form S-1, Crown shall
cause Crown Castle to provide BellSouth with an opportunity to review and
comment on any disclosures of this Agreement in said Form S-1. If Crown Castle
intends to name BellSouth in the Form S-1 as party to this Agreement, BellSouth
shall have the right to approve any such disclosures, which approval shall not
be unreasonably withheld or delayed.
21. SURVIVAL
--------
All those sections whose survival is required to give effect to all
continuing obligations set forth in the termination provisions of this Agreement
shall survive the termination of this Agreement, and in case of doubt, a section
shall be construed as having survived.
22. COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts with the same
effect as if all signing parties had signed the same document. All counterparts
shall be construed together and constitute the same instrument. Signatures by
facsimile shall have the same force and effect as original signatures.
(SIGNATURES ON PAGE 15)
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on
the day and year first written above.
ATTEST: BELLSOUTH MOBILITY INC.
/s/ John A. Harwood /s/ Mark L. Feilder
- ----------------------------- ----------------------------
Mark L. Feidler
President
ATTEST: CROWN COMMUNICATION INC. d/b/a
CROWN COMMUNICATIONS
_____________________________ By: /s/ Robert A. Crown
-------------------------
Robert A. Crown
President and Chief Executive Officer
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
Crown Castle International Corp. ("CCIC") hereby guarantees the performance of
all duties and obligations of Crown Communication Inc. with respect to the terms
of this Agreement. CCIC further warrants that the signatories below possess the
requisite authority to execute this Guaranty.
ATTEST: CROWN CASTLE
INTERNATIONAL CORP.
_____________________________ By: /s/ David L. Ivy
-------------------------
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Exhibit "A" to the Site Marketing Agreement
-------------------------------------------
LIST OF STATES AS TO WHICH THIS SITE
MARKETING AGREEMENT IS APPLICABLE
Kentucky, only.
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Exhibit "B" to the Site Marketing Agreement
-------------------------------------------
EXISTING BELLSOUTH THIRD PARTY AGREEMENTS
1. Master Antenna Site Lease Agreement between AT&T Wireless Services, Inc.
d/b/a AT&T Wireless Services and BellSouth Cellular Corp. dated March
9,1998;
2. Master Antenna Site Lease Agreement between Nextel South Corp. and
BellSouth Cellular Corp. dated November 21, 1997;
3. Master Antenna Site Lease Agreement between BellSouth Cellular Corp. and
American Cellular Communications Corporation and RAM Mobile Data USA
Limited Partnership dated March 13, 1998;
4. Master Antenna Site Lease Agreement between ALLTEL Communications, Inc. and
BellSouth Cellular Corp. dated April 2,1998;
5. Master Antenna Site Lease Agreement between BellSouth Cellular Corp. and
Powertel, Inc. dated March 26, 1998; and
6. Master Antenna Site Lease Agreement between Sprint Spectrum L.P. and
BellSouth Cellular Corp. dated February 24, 1998.
7. Master Antenna Site Lease Agreement between Telecorp Holding Corp. and
BellSouth Cellular Corp. dated May 13, 1999.
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Exhibit "C" to the Site Marketing Amendment
-------------------------------------------
SPECIAL TERMINATION PROVISIONS AS TO
TOWERS SITES LOCATED IN THE STATE OF KENTUCKY
In the event that the parties fail to timely enter into an agreement to form the
permanent entity described in Section 3.2, BellSouth shall, in BellSouth's
discretion, elect one of the three following options: (i) to put to Crown all of
BellSouth's Tower Sites in the state of Kentucky, for a price to be agreed upon
based upon the fair market value of the Tower Sites, which price, however, shall
in no event be less than $75,000,000; (ii) to extend the term of this Agreement
for an additional term of five (5) years, or (iii) to form a joint venture with
Crown on mutually agreed terms whereby BellSouth will put its Tower Sites to the
joint venture in the manner and for the values, described below, as if BellSouth
had exercised its put to Crown, and Crown will make a cash contribution to the
joint venture equal to the value of BellSouth's Tower Sites, determined in the
same manner as below, as if BellSouth had exercised its put to Crown, but in no
event shall such values be less than $75,000,000. Prior to the Termination Date,
BellSouth must notify Crown of its election. In the event BellSouth fails to
timely provide such notice, the term of this Agreement, as to the Tower Sites
located in the State of Kentucky only, will automatically be extended for an
additional term. of five (5) years. In the event BellSouth timely notifies Crown
of its election to put its Tower Sites in the state of Kentucky to Crown, the
term of this Agreement, as to the Tower Sites located in the state of Kentucky
only, will automatically be extended until the time of closing on the sale to
Crown of BellSouth's Tower Sites in Kentucky. Such put of Tower Sites shall be
in the form of subleases of the Tower Sites whereby all the economic interest
(and burdens) in the Tower Sites are transferred to Crown, BellSouth reserving
to itself all space it currently occupies and a right of first refusal on any
new spaces proposed to be leased to others. In such event, BellSouth shall pay
rent to Crown for the space that it currently occupies on each Tower Site at the
rate of $[*] per month, as adjusted from time to time according to a formula to
be agreed upon, plus an additional amount to be mutually agreed upon for
sectorized Tower Sites if applicable. As to Tower Sites where BellSouth cannot
obtain any required consent of the ground lessor or of the minority holders in
any affiliate of BellSouth which is the ground lessee, BellSouth shall retain
the Tower Sites, and the acquisition price will be reduced pro rata based on the
number of Tower Sites retained over the total of Tower Sites in Kentucky. In
addition, the acquisition price shall be reduced by the present value of current
payments due to Crown over the balance of the terms of the applicable SLAs with
respect to Tower Sites being transferred, which present value shall be reduced
by historical bad debt experience. In the event that Crown and BellSouth cannot
agree upon a fair market value for said Tower Sites within fifteen (15) days of
the Termination Date, then Crown and BellSouth agree; that Lehman Brothers shall
act as an independent third party appraiser to establish the fair market value
of the Tower Sites. It is understood that the fair market value of the Tower
Sites shall include all revenues arising from the Tower Sites on an undivided
basis. The decision of the independent third party appraiser shall be final and
binding and shall be construed as and enforced in the same manner as a decision
rendered pursuant to binding arbitration. Crown shall purchase the Tower Sites
as soon as practicable after the decision of the independent third party
appraiser and all regulatory and contractual consents are obtained, but in no
event later than ninety (90) days after determination of the fair market value
by the independent third party appraiser.
[*] indicates where text has been omitted pursuant to a request for confidential
treatment. The omitted text has been Filed with the Securities and Exchange
Commission separately.
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After the closing of Crown's purchase of the Tower Sites, this Agreement shall
terminate, with the following consequences: the appointment of Crown as
BellSouth's exclusive marketing agent and as BellSouth's agent to collect rents
shall be terminated, Crown shall be deemed to have assigned all its SLAs to
BellSouth, without further act, and BellSouth shall be deemed to have accepted
such assignments, the restrictions on Crown's right to market towers for others
in Kentucky shall terminate, and BellSouth shall no longer have any obligation
to pay any marketing fees whatsoever to Crown under this Agreement. If after the
expiration of such ninety (90) days Crown does not purchase the Tower Sites,
this Agreement shall terminate, with the following consequences; the appointment
of Crown as BellSouth's exclusive marketing agent and as BellSouth's agent to
collect rents shall be terminated, Crown shall be deemed to have assigned all
its SLAs to BellSouth, without further act, and BellSouth shall be deemed to
have accepted such assignments, the restrictions on Crown's right to market
towers for others in Kentucky shall terminate, and BellSouth shall not be
obligated to pay any marketing fees due to Crown under this Agreement. In any
event, BellSouth and Crown shall each pay one-half of Lehman Brothers'
reasonable fees and expenses.
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