COLUMBUS III CABLE SYSTEM
CONSTRUCTION AND MAINTENANCE AGREEMENT
[COLUMBUS III LOGO]
TABLE OF CONTENTS
PARAGRAPH PAGE
1. Definitions 2
2. Columbus III Segments and Subsegments 5
3. Provision and Ownership of Segments and Subsegments and 7
Additional Property
4. Supply of Segment S of Columbus III 7
5. Establishment of Columbus III General Committee 7
6. Procurement Group 9
7. Obligation to Provide Transiting and Other Facilities to Extendd 10
Columbus III Capacity
8. Obligation to Provide Inland System Connections 11
9. Definition of Capital Costs of Segment S of Columbus III 11
10. Allocation and Billing of Capital Costs of Segment S Columbus III 12
11. Acquisition and Transfer of Capacity 14
12. Assignment and Use of Capacity 16
13. Decrease or Increase of the Columbus III Design Capacity 18
14. Duties and Rights as to Operation and Maintenance of Columbus III 19
15. Allocation and Billing of the Operation and Maintenance Costs of 20
Segment S
16. Use of Segment D 21
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TABLE OF CONTENTS
17. Use of Segments A, B, and C 24
18. Keeping and Inspection of Books for Columbus III 26
19. Currency and Place of Payment 27
20. Duration of Agreement and Realization of Assets 27
21. Obtaining of Licences 29
22. Confidential Information 29
23. Privileges for Documents or Communications 30
24. Relationship and Liability of the Parties 30
25. Assignment of Rights and Obligations 31
26. Default 31
27. Settlement of claims by the Parties 32
28. Waiver 33
29. Severability 33
30. Force Majeure 33
31. Paragraph and Subparagraph Headings 34
32. Execution and Interpretation of this Agreement and Supplementary 32
Agreement
33. Settlement of Disputes 35
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34. Successors Bound 35
35. Entire Agreement 35
36. Interpretation 38
Additional Property
37. Testimonium 39
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Schedules
Schedule A Parties to the Agreement
Schedule B Voting Interests
Schedule C Ownership and Allocation of Capital Costs of Segment S
Schedule D Allocation of Operation and Maintenance Costs of Segment S
Schedule E Allocation of Capital Costs of the Cable Stations
Schedule F Allocation of Operation and Maintenance Costs of the Cable
Stations
Schedule G Assignment of Underwritten MIUs in Subsegment S4
Schedule H-0 Total Assignment of Jointly Owned MIUs (by Subsegment)
Schedule H-1 Assignment of Jointly Owned MIUs in Subsegment S1
Schedule H-2 Assignment of Jointly Owned MIUs in Subsegment S2
Schedule H-3 Assignment of Jointly Owned MIUs in Subsegment S3
Schedule H-4 Assignment of Jointly Owned MIUs in Subsegment S4
Schedule H-5 Assignment of Jointly Owned MIUs in Subsegment S5
Schedule H-6 Summary of Jointly Owned MIUs in the Path Mazara (Italy)
to Conil (Spain)
Schedule H-7 Summary of Jointly Owned MIUs in the Path Mazara (Italy)
to Lisboa (Portugal)
Schedule H-8 Summary of Jointly Owned MIUs in the Path Mazara (Italy)
to Hollywood (Florida, U.S.A.)
Schedule H-9 Summary of Jointly Owned MIUs in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule H-10 Summary of Jointly Owned MIUs in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
Schedule I-1 Assignment of Wholly Owned MIUs (by Segment)
Schedule I-2 Summary of Wholly Owned MIUs in the Path Mazara (Italy) to
Conil (Spain)
Schedule I-3 Summary of Wholly Owned MIUs in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule I-4 Summary of Wholly Owned MIUs in the Path Mazara (Italy) to
Hollywood Florida, U.S.A.)
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Schedule I-5 Summary of Wholly Owned MIUs in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule I-6 Summary of Wholly Owned MIUs in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
Schedule J-1 Assignment of Wholly Owned MIUs Pool (by Subsegment)
Schedule J-2 Summary of Wholly Owned MIUs Pool in the Path Mazara (Italy )
to Conil (Spain)
Schedule J-3 Summary of Wholly Owned MIUs Pool in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule J-4 Summary of Wholly Owned MIUs Pool in the Path Mazara (Italy) to
Hollywood (Florida, U.S.A.)
Schedule J-5 Summary of Wholly Owned MIUs Pool in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule J-6 Summary of Wholly Owned MIUs Pool in the Path Lisboa (Portugal)
to Hollywood (Florida, U.S.A)
Schedule K-1 Assignment of Notional Capacity (by Subsegment)
Schedule K-2 Summary of Notional Capacity in the Path Mazara (Italy) to
Conil (Spain)
Schedule K-3 Summary of Notional Capacity in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule K-4 Summary of Notional Capacity in the Path Mazara (Italy) to
Hollywood (Florida, U.S.A.)
Schedule K-5 Summary of Notional Capacity in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule K-6 Summary of Notional Capacity in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
Schedule L-1 Assignment of Allocated Capacity (by Subsegment)
Schedule L-2 Summary of Allocated Capacity in the Path Mazara (Italy) to
Conil (Spain)
Schedule L-3 Summary of Allocated Capacity in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule L-4 Summary of Allocated Capacity in the Path Mazara(Italy) to
Hollywood (Florida, U.S.A.)
Schedule L-5 Summary of Allocated Capacity in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule L-6 Summary of Allocated Capacity in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
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Schedule M-0 Total Assignment of all Standard IRU Capacity sold (by
Subsegment)
Schedule M-1 Assignment of all Standard IRU Capacity sold in Subsegment S1
Schedule M-2 Assignment of all Standard IRU Capacity sold in Subsegment S2
Schedule M-3 Assignment of all Standard IRU Capacity sold in Subsegment S3
Schedule M-4 Assignment of all Standard IRU Capacity sold in Subsegment S4
Schedule M-5 Assignment of all Standard IRU Capacity sold in Subsegment S5
Schedule M-6 Summary of all Standard IRU Capacity sold in the Path Mazara
(Italy) to Conil (Spain)
Schedule M-7 Summary of all Standard IRU Capacity sold in the Path Mazara
(Italy) to Lisboa (Portugal)
Schedule M-8 Summary of all Standard IRU Capacity sold in the Path Mazara
(Italy) to Hollywood (Florida, U.S.A.)
Schedule M-9 Summary of all Standard IRU Capacity sold in the Path Conil
(Spain) to Hollywood (Florida, U.S.A.)
Schedule M-10 Summary of all Standard IRU Capacity sold in the Path Lisboa
(Portugal) to Hollywood (Florida, U.S.A.)
Schedule N Summary of Financial Credits
ANNEXES
Annex 1 Assignment, Routing and Restoration Subcommittee Terms of
Reference
Annex 2 Operation and Maintenance Subcommittee Terms of Reference
Annex 3 Financial and Administrative Subcommittee Terms of Reference
Annex 4 Central Billing Party Terms of Reference
Annex 5 Network Administrator Terms of Reference
Annex 6 Procurement Group Terms of Reference
EXHBITS
Exhibit 1 Columbus III Architecture
Exhibit 2 Columbus III Fiber Pairs Configuration
Exhibit 3 Columbus III Ring Configuration
Exhibit 4 Columbus III Capacity Definitions
Exhibit 5 Columbus III Bodies Structure
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COLUMBUS III CABLE SYSTEM
CONSTRUCTION AND MAINTENANCE AGREEMENT
This Agreement is entered into as of this 11th day of February, 1998,
between and among the Parties signatory hereto (hereinafter collectively called
"Parties"), which Parties are identified in Schedule A attached hereto.
WITNESSETH:
WHEREAS, telecommunications services are being provided between and among
the European Continent on the East, and the North American Continent and its
territories on the West, by means of transatlantic submarine cables and
satellite facilities, and
WHEREAS, it is the intention of the Parties to provide and construct a
submarine cable system called the Columbus III cable system (hereinafter called
"Columbus III") which will be used to provide telecommunications services
between points in or reached via Italy, Spain, Portugal and Florida, U.S.A., and
points beyond, and to operate and maintain it jointly in the most cost effective
manner, and
WHEREAS, a Memorandum of Understanding was signed on the 3rd day of April
1997, and an Addendum No. 1 to the Memorandum of Understanding was signed on the
30th day of July 1997, and
WHEREAS, it is the intention of the Parties to acquire an investment share
corresponding to their capacity requirements for the use of Columbus III through
at least the year 2009, and
WHEREAS, the Parties invited other Telecommunications Entities to become
Parties to this Agreement, and
WHEREAS, the Parties now desire to define the terms and conditions upon
which Columbus III will be provided, constructed, maintained, and operated.
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NOW, THEREFORE, the Parties, in consideration of the mutual covenants
herein expressed, covenant and a-ree with each other as follows:
1. DEFINITIONS
The following, definitions shall apply throughout this Agreement:
(A) Basic System Module:
A Basic System Module of Columbus III shall consist of a 155 Mbps digital
line section with interfaces provided in accordance with all appropriate ITU-T
Recommendations.
(B) Bit Sequence Independence:
The property of a binary transmission channel, telecommunication circuit or
connection, that permits all sequences of binary signal elements to be conveyed
over it at its specified bit rate, without chan-c to the value of any si-nal
elements in accordance with all the appropriate ITU-T Recommendations.
(C) Branching Unit:
A Branching Unit (hereinafter called "BU") shall be a device composed of a
housing, and any associated equipment that is required as a junction point for
Columbus III in order to arrange for the fiber pairs in Segment S of Columbus
III to be separated between the System Interface locations,
(D) Cable Landing Point:
Cable Landing Point shall be the beach joint at the respective cable
landing locations or mean low water line if there is no beach joint.
(E) Capacity (as shown in Exhibit 4):
o Allocated Capacity: The capacity as shown in Schedule L, which
consists of the Notional Capacity, plus the Standard IRU
Capacity.
o Common Reserve Capacity: The capacity which is the difference
between the Design Capacity and the sum of the Allocated Capacity
plus the In-System Restoration Capacity.
o Design Capacity: The capacity which Segment S is technically able
to carry, and which will consist initially of 64 Basic System
Modules, The Design Capacity will consist of the Allocated
Capacity, plus the Common Reserve Capacity, plus the In-System
Restoration Capacity.
o In-System Restoration Capacity: The capacity which at a given
moment is reserved to provide in- System restoration. Such
capacity shall be limited to fifty percent (50%) of the Design
Capacity, unless otherwise decided by the General Committee.
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o Notional Capacity: The capacity as shown in Schedule K, which
consists of the Jointly Owned MIUs, plus the Wholly Owned MIUs,
plus the Underwritten MIUs, plus the Wholly Owned MIUs Pool:
- Underwritten MIUS: The capacity which MARCONI has acquired
in Subsegment S4 with the objective to subsidize such
Subsegment, as shown in Schedule G.
- Jointly Owned MTUS: The capacity acquired at the time of
execution of this Agreement, by one Party for joint use with
another Party, as shown in Schedule H.
- Wholly Owned MIUS: The capacity acquired at the time of
execution of this Agreement, by one Party for its wholly
use, or for jointly use with another Party or
Telecommunications Entity, as shown in Schedule I.
- Wholly Owned MIUs Pool: A pool composed by the aggregate per
Path of those Wholly Owned MIUs that a Party derides to make
available for such a Pool, as shown in Schedule J.
After the execution of this Agreement, the Notional Capacity may vary
as a result of acquisitions from the Underwritten MIUs or from the
Wholly Owned MIUs Pool, and/or movements of capacity to/from the
Wholly Owned MIUs Pool, and/or assignments of capacity to the Parties
after an expansion of the Notional Capacity, and/or assignments of
capacity to one Party as a result of a reassignment of Wholly Owned
MIUs by Path.
o Standard IRU Capacity: The capacity as shown in Schedule M, which
has been sold on a Standard IRU Agreement basis, from the Common
Reserve Capacity, and/or from the Underwritten MIUS, and/or from
the Wholly Owned MIUs Pool.
(F) Country:
The word "Country" shall mean a country, territory or place, as
appropriate.
(G) Dedicated Link:
The portion of Columbus III consisting of a dedicated and fully equipped
optical fiber pair between Lisboa and Ponta Delgada (Azores Islands, Portugal)
with the associated terminal equipment in Lisboa and Ponta Delgada, provided
through the Supply Contract(s), and to be sold to MARCONI.
(H) Designated Financial Credit:
That portion of a Party's Financial Credit that it dccidcs to be used for
future capacity acquisitions by such Party, and not included in the Financial
Credit Pool,s shown in Schedule N.
(I) Financial Credit:
The Credit as shown in Schedule N, obtained by a Party in return for its
respective level of investment, and by XXXXXXX also in return for acquisitions
by a
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third party from the Underwritten MIUs through a Standard IRU Agreement where
Financial Credit was used for payment. Financiai Credit may be used, for
acquisition by a Party of capacity coming from the Underwritten MIUs and/or from
the Common Reserve Capacity using its Designated Financial Credit, or for
receivin- funds derived from the sales of the Common Reserve Capacity through
the Financial Credit Pool.
(J) Financial Credit Pool:
A pool composed by the aggregate of those Financial Credit amounts that a
Party decides to make available for such a Pool, and not included in its
Designated Financial Credit, as shown in Schedule N.
(K) Landing Point Parties:
Landing Point Parties shall mean AT&T, MARCONI, TELECOM ITALIA and
TELEFONICA DE ESPARA.
(L) Minimum Investment Unit:
Minimum Investment Unit (hereinafter called "MIU") shall mean a capacity
designated as the minimum unit of investment in Columbus III mapped onto a VC-12
and allowing the use of a nominal 2 Mbps bearer and all associated overhead bits
for multiplexing in each direction per all the appropriate ITU T
Recommendations.
(M) Multiplex Equipment:
That equipment to be provided for bidirectional use between the MIU access
points and the corresponding System Interface equipment, which shall provide for
grooming of all payload within Columbus III according to all appropriate ITU-T
Recommendations.
(N) Path:
The connectivity in Columbus III between any two System Interfaces,
assuming a direct connection between these System Interfaces and independent of
the physical links used to connect such System Interfaces.
(0) Ready for Customer Service (RFCS) Date:
The date on which Columbus III will be available for customer service. The
RFCS Date is planned to be by September, 1999.
(P) Ready for Provisional Acceptance (RFPA) Date:
The date on which Columbus III is to be accepted from the Supplier(s). The
RFPA Date is planned to be by July, 1999.
(Q) Schedules:
Schedules shall be the initial schedules attached hereto and made a part
hereof and any written amendments thereto or any schedule substituted therefore
in accordance with the provisions of this Agreement.
(R) Standard IRU Agreement,
The standard agreement that provides terms and conditions for acquisition
of capacity on an Indefeasible Right of Use (hereinafter called "IRU") basis,
from the
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Wholly Owned MIUs Pool, and/or Underwritten MIUs, and/or Common Reserve
Capacity.
(S) Standard IRU Holder:
A Party or Telecommunications Entity that has acquired capacity in Columbus
III through a Standard IRU Agreement.
(T) System Interface:
The System Interface location shall be the digital input/output ports
(either optical or electrical) where the 155 Mbps digital line section connects
with other transmission facilities or equipment. The System Interface shall be
at the 155 Mbps level as defined by all the appropriate ITU-T Recommendations.
(U) Telecommunications Entity:
Any entity authorized under the laws of its respective Country, to acquire
and use facilities for the provision of telecommunications services.
2. COLUMBUS III SEGMENTS AND SUBSEGMENTS
(A) In accordance with this Agreement, Columbus III, shall be provided,
constructed, maintained, and operated among Cable Stations in Mazara del Xxxxx
(Italy), Conil (Spain), Lisboa (Portugal) and Hollywood (Florida, U.S.A.).
(B) For purposes of this Agreement, Columbus III shall be regarded as
consisting of Segments A, B, C, D and S.
(C) Segment S shall be the whole of the submarine cable and all associated'
equipment provided between and including the System Interfaces and all
associated interconnection equipment at the relevant Cable Stations. Segment S
shall be regarded as consisting of the following Subsegments comprising two
fiber optic pairs each:
(i) Subsegment SI: A submarine cable linking Segment A to BUl and
shall include 1/3 of BUl.
(ii) Subsegment S2: A submarine cable linking Segment B to BUl and
shall include 1/3 of XXX.
(iii)Subsegment S3: A submarine cable linking XXX to BU2 and shall
include 1/3 of BU I and 1/3 of BU2.
(iv) Subsegment S4: A submarine cable linking Segment C to BU2 and
shall include 1/3 of BU2.
(v) Subsegment SS: A submarine cable linking Segment D to BU2 and
shall include 1/3 of BU2.
(D) Segment S shall also include:
(i) all transmission equipment, power feeding equipment, maintenance
equipment and any special test equipment directly associated with
the submersible plant, and
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(ii) the transmission cable equipped with appropriate optical
amplifiers and branching units between the Cable Stations, and
(iii)the sea earth cable and electrode system and/or an appropriate
share thereof, associated with the terminal power feeding
equipment, and
(iv) the associated interconnection equipment, as required to meet the
internal connectivity of Columbus III, to be approved by the
General Committee.
(E) Segment A shall be an appropriate share of a Cable Station located in
Mazara del Xxxxx (Italy).
(F) Segment B shall be an appropriate share of a Cable Station located in
Conil (Spain).
(G) Segment C shall be an appropriate share of a Cable Station located in
Lisboa (Portugal).
(H) Segment D shall be an appropriate share of a Cable Station located in
Hollywood (Florida U.S.A.).
(I) Segments A, B, C and D (hereinafter also called "Cable Station(s)")
shall also include an appropriate share of land and buildings at the specified
locations for the cable landing and for the cable right of way and cable ducts
between the Cable Station and its respective Cable Landing Point, an appropriate
share of common services and equipment (other than services and equipment
associated solely with Columbus III), and the Multiplex Equipment at each of the
locations necessary to establish transmission rates bellow the nominal 155 Mbps
level associated solely with Columbus III, but which is not part of Segment S.
(J) Each Segment or Subsegment shall be regarded as including its related
spare and standby units and components including, but not limited to, repeaters,
branching units, cable lengths, and terminal equipment, or a proportionate share
thereof.
(K) As shown in Exhibits 1, 2 and 3, Columbus III shall be a trunk and
branch architecture configured in a collapsed ring including Segments A, B, C
and D, and Subsegments SI, S2, S3, S4 and S5.
(L) Columbus III shall provide the following Paths:
(i) Mazara del Xxxxx - Xxxxx
(ii) Mazara del Vallo - Lisboa
(iii) Mazara del Xxxxx - Hollywood
(iv) Conit - Hollywood
(v) Lisboa - Hollywood
(M) Columbus III may include, subject to the approval of the General
Committee, a Dedicated Link between Lisboa (Portugal) and Ponta Delgada (Azores
Islands, Portugal) consisting of one fully equipped optical fiber pair with its
associated terminal equipment in the respective Cable Stations. In the case of
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inclusion of such Dedicated Link in Columbus III, the ownership of such
Dedicated Link will be transferred to MARCONI on terms and conditions to be
provided by an appropriate separate agreement to be signed by the Landing Point
Parties on behalf of the Parties.
3. PROVISION AND OWNERSHIP OF SEGMENTS AND SUBSEGMENTS AND ADDITIONAL
PROPERTY
(A) Segment A shall be provided and owned by TELECOM ITALIA.
(B) Segment B shall be provided and owned by TELEFONICA DE ESPA&A.
(C) Segment C shall be provided and owned by MARCONI.
(D) Segment D shall be provided and owned by AT&T.
(E) Each Party responsible for the provision of Segments A, B, C and D
shall be responsible for the land construction and rearrangements and/or
additions to the common plant at the Cable Station in its Country and other
activities not covered in the Supply Contract(s) for its respective Cable
Station.
(F) Segment S shall be provided in accordance with Paragraph 4 of this
Agreement and shall be owned by the Parties in common and undivided shares, in
the proportions set forth in Schedule C.
(G) In this Agreement, references to any Segment or Subsegment, however
expressed, shall be deemed to include, unless the content otherwise requires,
additional property incorporated therein by agreement of the Parties.
4. SUPPLY OF SEGMENT S OF COLUMBUS III
The supply of Segment S and of the associated Multiplex Equipment in each
of the Cable Stations, shall be through contract(s) (hereinafter called "Supply
Contract(s)") to be placed by a procurement group established pursuant to
Paragraph 6 (hereinafter called the "PG"), with Supplier(s) to be selected by
the PG, following the submission and evaluation of proposals from prospective
suppliers through an international call for bids. The placing of a Supply
Contract(s) by the PG shall be subject to prior authorization by the General
Committee.
5. ESTABLISHMENT OF COLUMBUS III GENERAL COMMITTEE
(A) For the purpose of directing the progress of the engineering,
provisioning, installation, bringing into service and continued operation and
maintenance of Columbus III, the Parties shall form a Columbus III General
Committee (hereinafter called the "General Committee"), consisting of one
representative from each of the Parties to this Agreement, which committee shall
make all decisions necessary on behalf of the Parties to effectuate the purposes
of this Agreement.
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(B) TELECOM ITALIA shall provide the General Coordinator. For the conduct
of its meetings, the General Committee shall elect a chairperson for each
meeting.
(C) The General Committee will meet on the call of the General Committee
Coordinator or whenever requested by at least two (2) Parties resenting at least
five percent (5%) of the total voting interests specified in Schedule B and
including at least one Landing Point Party. The General Committee Coordinator
shall give at least thirty (30) days advance notice of each meeting, together
with a copy of the draft agenda. In cases of emergency, such notice period may
be reduced where at least seventy-five percent (75%) of the total voting
interests specified in Schedule B is in agreement. Discussion documents for the
meeting should be made available to members fourteen (14) days before the
meeting, but the General Committee may agree to discuss papers distributed on
less than fourteen (14) days notice. Meetings of the General Committee shall be
considered convened if at least sixty-six percent (66%). of the total voting
interests specified in Schedule B is represented by the attending Parties
(hereinafter called "Quorum").
(D) All decisions made by the General Committee shall be subject, in the
first place, to consultation among the Parties which shall make every reasonable
effort to reach consensus with respect to matters to be decided. However, in the
event consensus cannot be reached, the decision will be carried on the basis of
a vote. Unless other-wise stated in this Agreement, the vote will be carried by
a majority (more than fifty percent (50%)) of the total voting interests
specified in Schedule B,including at least two Landing Point Parties.
(E) Two or more Parties may designate the same person to serve as their
representative at specific meetings of the General Committee and its
Subcommittees. Any Party not represented at a General Committee meeting, but
entitled to vote, may vote on any matter on the agenda of such meeting by either
appointing a proxy in writing, or giving notice in writing of such vote to the
General Committee Coordinator prior to the submission of such matters for vote
at such meeting. A member of the General Committee representing more than one
Party shall separately cast the vote to which each Party he represents is
entitled.
(F) Following the call for a General Committee meeting, if the General
Committee Coordinator has not received confirmation of attendance by the Parties
to ensure that a Quorum for a General Committee meeting will be achieved, or in
case that during the current meeting a majority (more than fifty percent (50%))
of the total voting interests specified in Schedule B has not been reached in a
vote, the General Committee Coordinator shall, within ten (10) days, send out
invitations to all Parties for another General Committee meeting indicating the
circumstances for re. scheduling the meeting with the same working agenda. In
such cases, no Quorum will be required, and any vote will be carried by a
majority (more than fifty percent (50%) of the voting interests cast, including
at least two Landing Point Parties.
(G) To aid the General Committee in the performance of its duties, the
following bodies shall be formed (as shown in Exhibit5):
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i) a capacity Assignment, Routing and Restoration Subcommittee
(hereinafter called"AR&R Subcommittee);
iii) an Operation and Maintenance Subcommittee (hereinafter called
"O&M Subcommittee");
iii) a Financial and Administrative Subcommittee hereinafter called
"F&A Subcommittee");
iv) a Central Billing Party (hereinafter called "CBP"),
v) a Network Administrator (hereinafter called "NA").
These bodies shall be responsible for their respective areas of interest
listed in Annexes 1, 2, 3, 4 and 5, and any other areas of interest designated
by the General Committee. The General Committee may also appoint other bodies to
address specific questions which may arise.
(H) Subcommittees shall meet at least once annually after the date of this
Agreement and more frequently if necessary, until two years following the
Columbus III RFCS Date, and thereafter as is determined by the General
Committee. Meetings of a Subcommittee may be called to consider specific
questions at the discretion of its chairperson or whenever requested by at least
two (2) Parties representing at least five percent (5%) of the total voting
interests specified in Schedule B and including at east one Landing, Point
Party.
(I) After final acceptance of Columbus III, the General Committee shall
determine whether any of its Subcommittees or any other body should remain
inexistence. In the event that the General Committee determines that any of its
Subcommittees or any other body should be dissolved, the General Committee may
have the right to determine, in accordance with Subparagraph S(D) through (F),
the manner in which the Subcommittee's or any body's responsibilities shall be
reassigned.
(J)All decisions made by the General Committee shall be binding on the
Parties. No decisions of the General Committee, its Subcommittees, the PG, the
CBP,the NA or any other body established by the General Committee shall override
any provisions of this Agreement or, in any way diminish the rights or prejudice
'the interests granted to any Party or Parties under this Agreement.
6. PROCUREMENT GROUP
(A) The PG shall be formed, consisting of representatives from AT&T,
MARCONI, TELECOM ITALIAand TELEFONICA DE ESPANA. Subject to Paragraph 4, the PG
shall act on behalf of the Parties to this Agreement in all procurement matters
and be solely responsible for all actions as may be required to contract on a
joint, but not several basis with the Supplier(s) to provide Segment S of
Columbus III.
(B) The responsibilities of the PG are contained in its Terms of Reference
listed in Annex 6.
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(C) In the event that any part of Segment S fails to meet the
specifications in the relevant Supply Contract(s) for its provision or is not
engineered, provided, installed and ready in sufficient time to permit Segment S
to be provisionally accepted on or before the planned RFPA Date, or, if a
Supplier(s) is otherwise in material breach of its Supply Contract(s), the PG
shall immediately notify the General Committee and take such action as may be
necessary to exercise the rights and remedies available under the terms and
conditions of the relevant Supply Contract(s). The PG shall also take any other
action directly against a Supplier(s) as may be necessary to exercise rights and
remedies avaialbe under the relevant Supply Contract(s). Such action by the PG
shall be subject to its Terms of Reference and to any direction deemed necessary
by the General Committee.
(D) Upon request, each of the Parties shall be entitled to receive a copy
of the Supply Contract(s), at the requesting Party's expense and pursuant to the
terms Paragraph 22 of this Agreement.
(E) The PG shall not be liable to any other Party for any loss or damage
sustained by reason of the Supplier(s)' failure to perform in accordance with
the terms and conditions of the Supply Contract(s), or as a result of Segment S
of Columbus III not being ready for provisional acceptance on or before the
planned RFPA Date, or if Columbus III does not perform in accordance with the
technical specifications and other requirements of the Supply Contract(s), or if
Columbus III is not placed into operation. The Parties to this Agreement
recognize that the PG does not guarantee or warrant:
i) the performance of the Supply Contract(s) by the Supplier(s), or
ii) the performance or reliability of Segment S of Columbus III, or
iii) that Columbus III will be placed into operation,
and the Parties hereby agree that nothing in this Agreement shall be construed
as such a warranty or guarantee.
7. OBLIGATION TO PROVIDE TRANSITING AND OTHER FACILITIES TO EXTEND COLUMBUS
III CAPACITY
(A) Except as provided hereinafter in this Subparagraph 7(A), each of the
Landing Point Parties shall use all reasonable efforts to furnish and maintain,
or cause to be furnished and maintained, in efficient working order, for the
other Parties and/or Standard IRU Holders not from that Landing Point Party's
Country, for the duration of this Agreement, such facilities in its respective
Country, as may be reasonably required for extending capacity in Columbus III
assigned to such Parties and/or Standard IRU Holders for the purpose of handling
communications transiting its respective Country. No Party shall be required
under this Agreement to furnish such facilities in its Country to other Parties
and/or Standard IRU Holders from its own Country. The Provision of the
facilities mentioned in this Subparagraph shall be the subject of separate
agreements acceptable to the affected Parties and Standard IRU Holders.
10
(B) At the request of a specific Party, and under a separate agreement,
facilities and equipment shall be supplied by the Landing Point Parties within
the Cable Station to provide interconnection between PDH and SDH di-ital
submarine cable systems to meet the various requirements at the 155 Mbps, 140
Mbps, 45 Mbps, 34 Mbps and 2 Mbps ITU-T Recommendations interfaces.
(C) The digital facilities and/or digital multiplexing equipment provided
pursuant to Subparagraph 7(A) and (B) shall be suitable for extending capacity
in Columbus III and shall be furnished and maintained on terms and conditions
which shall be no less favorable than those granted to other Telecommunications
Entities for transmission facilities of similar type and quantity transiting the
location involved. Such terms and conditions shall not be inconsistent with
applicable governmental regulations in the location in which the facilities are
located.
(D) Upon request, AT&T will provide U.S.A. Parties to this Agreement
suitable space and will provide connection at the Hollywood Cable Station for
operation and control purposes relating to capacity assigned, or to be assigned,
to them in Columbus III. AT&T may provide such space in a building separate from
its Cable Station, but adjacent to the Cable Station. For these purposes, such
U.S.A. Parties shall have the right to provide their own personnel and equipment
in such space and shall reimburse AT&T for the reasonable jointly agreed costs
incurred in complying with this Subparagraph 7(D), including, but not limited
to, the costs of any building additions that may be reasonably required.
8. OBLIGATION TO PROVIDE INLAND SYSTEM CONNECTIONS
Each of the Parties to this Agreement, at its own expense, on or before the
RFPA Date, shall do, or cause to be done, all such acts and things as may be
necessary within its operating territory to provide suitable connection for its
jointly or wholly assigned capacity in Columbus III with its inland
communication systems in its operating territory. With respect to U.S.A.
Parties, their operating territories in the Continental U.S.A. shall be
considered separate and distinct from the operating territory in other U.S.A.
jurisdictions. Such U.S.A. Parties shall provide such connection within the
Continental U.S.A., dependent upon the location of the operating territory to be
served.
9. DEFINITION OF CAPITAL COSTS OF SEGMENT S OF COLUMBUS III
(A) Capital costs of Segment S, as used in this Agreement, refers to costs
incurred in engineering, providing, and constructing Segment S, or causing it to
be engineered, provided, and constructed, or in laying or causing to be laid
cables, repeaters, BUs and joint housings, or in installing or causing to be
installed cable system equipment, and shall include:
i) the costs incurred under the Columbus III MOU, and
ii) those costs payable to the Supplier(s) under the Supply
Contract(s), and
11
iii) other costs incurred under the direction of the PG and those
capital costs directly incurred by the Landing Point Parties, the
CBP, the NA or any other Party authorized by the General
Committee which shall be fair and reasonable in amount and not
included in the Supply Contract(s). and which have been directly
and reasonably incurred for the purpose of, or to be properly
chargeable in respect of such engineering, provision,
construction, installation and laying of Segment S of Columbus
III. Such costs shall include but are not limited to, the costs
of engineering, design, materials, manufacturing, procurement and
inspection, installation, removal (with appropriate reduction for
salvage), cable ship and other ship costs, route surveys,
burying, testing associated with laying or installation, customs
duties, taxes (except income tax imposed upon the net income of a
Party), appropriate financial charges attributable to other
Parties' shares of costs incurred by the Landing Point Parties or
any other Party authorized by the General Committee, at the rate
at which such Party generally incurred such financial charges,
supervision, billing activities, overheads and insurance or a
reasonable allowance in lieu of insurance, if such Party elects
to carry a risk itself, being a risk against which insurance is
usual or recognized or would have been reasonable. Such costs
shall include costs reasonably incurred by the Parties in the
holding of the General Committee and Subcommittees meetings but
excluding attendance by the Parties representatives at such
meetings. Such costs shall also include costs incurred by the
Parties in holding the PG and its working groups meetings and the
attendance by the Parties representatives at such meetings, and
iv) any additional work or property incorporated subsequent to the
RFPA Date by agreement of the Parties, which agreement shall not
be unreasonably withheld.
(B) Any amounts received by, or credited to, a Party or the CBP as a
consequence of letters of Guarantee, liquidated damages, or other similar
amounts resulting from the failure of the Supplier(s) to fully perform any
provision of the Supply Contract(s), shall accrue to the benefit of all the
Parties in proportion to their Ownership as specified in Schedule C.
10. ALLOCATION AND BILLING OF CAPITAL COSTS OF SEGMENT S OF COLUMBUS III
(A) The capital costs of Segment S, as defined in Paragraph 9, shall be
allocated in the proportions set forth in Schedule C.
(B) The CBP shall receive bills from the Supplier(s) for the costs included
in the Supply Contract(s), which shall be verified by the PG. The NA, the PG and
its working groups, the Landing Point Parties and any other Party authorized by
the General Committee shall promptly render bills to the CBP for the cost of
items directly incurred by them in accordance with Paragraph 9 of this
Agreement. Such bills shall contain a reasonable detail to substantiate the
bills. The CBP shall
12
promptly render bills for such amounts to each of the Parties in accordance with
Schedule C, not more frequently than once a month and only for bills exceeding
one hundred U.S. dollars (100 U.S. S). On the basis of such bills, each Party
shall pay to the CBP the amount owed within forty-five (45) days from the date
the bill was rendered by the CBP.
(C) In the case of bills containing costs billed on a preliminary billing
basis, promptly after the actual costs involved are determined, the CBP shall
make such appropriate adjustments and render any necessary bills or arrange for
any necessary credits, as appropriate.
(D) As soon as practicable after the RFPA Date, the CBP shall compute the
amount of each Party's share of the capital costs of Segment S in accordance
with Schedule C, shall make appropriate adjustments and shall render bills or
arrange for any necessary refunds by way of final settlement, in order that each
Party may bear its proper share of the capital costs of Segment S.
(E) For the purpose of this Agreement, financial charges shall be computed,
as applicable, at a rate equal to the lowest publicly announced prime rate or
minimum commercial lending rate or the appropriate Interbank Offer Rate, however
described, and as determined on the fifteenth (15th) day of each month during
which the said financial charges apply, for ninety (90) day loans in the
currencies of the United States of America, Portugal, Spain, and Italy of the
following, banks or bank association computed on a daily basis from the date the
said amount is incurred until the date payment is due.
(i) Bills rendered by AT&T:
Citibank, N.A., New York City, or
Chase Manhattan Bank N.A., New York City
(ii) Bills rendered by XXXXXXX:
Interbank Lisbon Offered Rate (LISBOR)
(iii)Bills rendered by TELEFONICA DE ESPA&A:
Madrid Interbank Offered Rate (MIBOR)
as published by Banco de Espana.
(iv) Bills rendered by TELECOM ITALIA:
The Prime Rate A.B.I. published by the "Sole 24 Ore" newspaper.
If the General Committee shall authorize Parties other than those Parties listed
above to render bills, it shall also specify the applicable rates.
(F) Bills not paid when due shall accrue extended payment charges from the
day following the date on which payment was due in accordance with Subparagraph
10(B), until paid. If the due date is not a business day in the Country of the
Party being invoiced, the due date shall be postponed to the next business day.
For purposes Of this Agreement, extended payment charges shall be computed at
two hundred percent (200%) of the rates as specified in Subparagraph 10(E), from
the day
13
following the date on which payment was due until paid. For purposes of this
Agreement "paid" shall mean that the funds are available for immediate use,
except that any unavailability arising from restrictions on the payee's ability
to use the funds immediately not caused by the payer shall not in any way result
in financial charges to the payer thereunder, except as indicated in Paragraph
26.
(G) In the event that applicable law only allows the imposition of
financial charges and extended payment charges at a rate below that establihed
in accordance with this Paragraph 10, financial charges and extended payment
charges shall be at the highest rate permitted by the applicable law.
(H) Credits for refunds of appropriate financial charges and bills for
extended payment charges will not be rendered if the amount of charges involved
is less than one hundred U.S. dollars (100 U.S.$) or equivalent currency.
(I) A bill shall be deemed to have been accepted by a Party or Standard IRU
Holder to whom it is rendered if that Pary or Standard IRU Holder does not
present a written objection fifteen (15) days before the date when payment is
due. If such objection is made, the billing Party and the Party or Standard IRU
Holder concerned shall make every reasonable effort to settle promptly the
dispute concerning the bill in question. If the objection is sustained and the
billed Party or Standard IRU Holder has paid the disputed bill, the agreed upon
overpayment shall be refunded to the objecting Party or Standard IRU Holder by
the billing Party promptly together with any extended payment charges calculated
thereon at a rate determined in accordance with Subparagraph 10(F) of this
Agreement, from the date of payment of the bill to the date on which the refund
is transmitted to the objecting Party or Standard IRU Holder. If the objection
is not sustained and the billed Party or Standard IRU Holder shall pay such bill
promptly together with any extended payment charges calculated thereon at a rate
determined in accordance with Subparagraph 10(F) of this Agreement, from the day
following the date on which payment was due until paid. Nothing in this
Subparagraph 10(I) shall relieve a Party or Standard IRU Holder from paying
those parts of a bill that are not in dispute.
11. ACQUISITION AND TRANSFER OF CAPACITY
(A) Capacity in Columbus III shall be jointly or wholly acquired by Parties
or Telecommunications Entities in increments of MIUs in a Path, or in Subsegment
S4 for the Underwritten MIUs.
(B) Acquisition of capacity on an ownership basis is only at the time of
executive on of this Agreement. The MIU price of the capacity between System
Interfaces in a Path is the one resulting from the addition of the MIU cost of
each Subsegment, assuming connectivity through a direct link between the
involved System Interfaces, in accordance with Exhibit 1. The MIU cost in a
Subsegment is determined by dividing the capital cost of that Subsegment,
including all costs of associated equipment between the System Interfaces as
described in Subparagraphs 2(C) and (D), by the Notional Capacity of that
Subsegment at the time of execution of this Agreement.
14
(C) After the execution of this Agreement:
i) any transfer of capacity from a Party shall be made on an other
than ownership basis as may be agreed between such Party and other
Party or a Telecommunications Entity, and
ii)any acquisition of capacity by a Party or Telecommunications Entity
shall be made on a Standard IRU Aareement basis from the Wholly Owned
MIUS Pool, or from the Common Reserve Capacity, or from the
Underwritten MIUS.
(D) Any transfer or acquisition of capacity after the execution of this
Agreement shall be made according to the following prioritization, through a
right of first refusal:
i) transfer from a Party of a half-interest in a Wholly Owned MIU to
a Party or Telecommunications Entity for joint use with the owner
of such Wholly Owned MIU;
ii) acquisition of a whole or two half-interests in a MIU on a per
Path basis from the Wholly Owned MIUs Pool;
iii) acquisition of a whole or two half-interests in a MIU on a per
Path basis from the Common Reserve Capacity.
(E) In the Paths Mazara del Vallo - Lisboa and/or Lisboa - Hollywood, the
acquisition from the Underwritten MIUs will have priority over the acquisition
from the Wholly Owned MIUs Pool as provided in Subparagraph I I(D)ii). In order
to ensure the full connectivity between the two System Interfaces in each such
Paths, the Underwritten MIUs shall be matched with capacity to be acquired from
the Common Reserve Capacity on a Subsegment basis.
(F) Notwithstanding Subparagraph II(D), transfer from a Party of a
half-interest in a Jointly Owned MIU to a Telecommunications Entity located in
the same Country and licensed after the execution of this Agreement shall have
first priority, by prior agreement of the owner of the corresponding
half-interest of such a MIU.
(G) The MIU price in the case of transfer of capacity from a Party provided
in Subparagraph 11(F) shall not be higher than the Standard IRU Capacity price
in force at the moment of such transfer.
(H) Acquisition of capacity by a Party using its Designated Financial
Credit shall only be from the Underwritten MIUs and/or from the Common Reserve
Capacity, and shall follow the prioritization according to Subparagraphs II (D)
and
(I) The MIU price in the case of acquisition of capacity by a Party using
its Designated Financial Credit shall correspond to the lowest price between the
MIU price as defined in Subparagraph II (B) and fixed at the RFCS Date, and the
Standard IRU Capacity price in force at the moment of such acquisition.
(J) The funds derived from the acquisition of a whole or two half-interests
in a MIU on a per Path basis from the Wholly Owned MIUs Pool as in Subparagraph
15
11(D)ii) shall be distributed among the Parties according to their participation
in the Wholly Owned MIUs Pool on a per Path basis as specified in Schedule J.
(K) The funds derived from the acquisition of a whole or two-interests in a
MIU from the Common Reserve Capacity, on a per Path basis as in Subparagraph I I
(D)iii) or on a Subsegment basis as in Subparagraph I I (E), shall be
distributed first among the Parties according to their participation in the
Financial Credit Pool as specified in Schedule N. Following the exhaust of the
Financial Credit Pool, such funds shall be distributed among the Parties
according to their Ownership as specified in Schedule C.
(L) The funds derived from the acquisition of Underwritten MIUs as in
Subparagraph II (E), shall be distributed to MARCONI.
(M) For the acquisition of capacity by a Party or Telecommunications Entity
on a Standard IRU Agreement basis, the NA, together with an ad-hoc working group
if required, will develop the pricing criteria, the terms and conditions of a
Standard IRU Agreement, and the sales procedures for approval by the General
Committee. Following such approval, the NA shall'be authorized to execute such
Standard IRU Agreements with Parties or Telecommunications Entities on behalf of
the respective concerned Parties. The NA shall modify the relevant Schedules as
appropriate and provide such Schedules to the CBP for its accounting activities.
No provisions of the Standard IRU Agreement shall override the provisions of
this Agreement. The Standard IRU Capacity price may be reviewed from time to
time, if necessary by the General Committee. Where a Telecommunications Entity
requesting acquisition of capacity on a Standard IRU Agreement basis is not a
Party, such sale may be denied by the General Committee in the case such
Telecommunications Entity status has not been confirmed.
(N) A Party may include in or remove from the Wholly Owned MIUs Pool any
quantity of its Wholly Owned MIUS, twice a year at a specified date, or as
determined by the General Committee.
(0) A Party may move any amount of its Financial Credit, from the Financial
Credit Pool to its Designated Financial Credit, or from its Designated Financial
Credit to the Financial Credit Pool, twice a year at a specified date, or as
determined by the General Committee.
(P) No provisions of any agreement for the transfer of capacity on an other
than ownership basis shall override"the provisions of this Agreement.
12. ASSIGNMENT AND USE OF CAPACITY
(A) MIU(S) may be wholly or jointly used by Party(s), and/or
Telecommunications Entity(s).
(B) A Party may re quest to reassign one or more of its Wholly Owned MIUs
from one Path to different Path(s), twice a year at a specified date, or as
determined by the General Committee. Such reassignment shall be in a number of
Wholly Owned MIU(S) in the new chosen Path(s), which corresponds to the same
value of the Wholly
16
Owned MIU(S) in the old Path. The number of Wholly owned MIU(S) in the new
chosen Path(s) is calculated by multiplying the number of Wholly Owned MIU(S) in
the old Path by the MIU price of the old Path as defined in Subparagraph 1 1 (B)
and fixed at the RFCS Date, and dividing that product by the MIU price of the
new Path(s) as defined in Subparagraph II (B) and fixed at the RFCS Date. Any
fraction of a Wholly Owned MIU in the new chosen Path(s) may be:
i) waived without any compensation, or
ii) completed to an exact number of the corresponding Wholly Owned
MIUs in the new chosen Path(s) at the requesting Party's charge.
In such a case the relevant funds shall be distributed among the
Parties according to their Ownership as specified in Schedule C.
Such additional fraction of Wholly Owned MIU shall be paid at a
Standard IRU Capacity price in force at the moment of such
acquisition. Any Wholly Owned MIU resulting from the combination
of a fractional interest of the reassigned capacity together with
a fractional interest on a Standard IRU Capacity basis, shall be
considered as Standard IRU Capacity.
It is not permitted to include in the Wholly Owned MIUs Pool any Wholly
Owned MIU which has been reassigned from its oriinal Path to a different Path.
The Party requesting to reassign one or more of its Wholly Owned MIUs from
one Path to different Path(s) shall also pay the costs regarding the use of the
Cable Stations in the new chosen Path(s) as provided in Paragraph 16 and/or 17
as appropriate, the operation and maintenance costs in the new chosen Path(s),
and any administrative costs that this reassignment of Wholly Owned MIUs may
involve. The NA shall modify the relevant Schedules as appropriate. The NA and
the AR&R Subcommittee will jointly define, as necessary, procedures to be
applied in case of reassignments of Wholly Owned MIUs by Path, for approval by
the General Committee.
(C) The General Committee may decide on an expansion of the Notional
Capacity. For such decision the agreement of the Parties holding interests in
the Wholly Owned MIUs Pool, and/or in the Financial Credit Pool, and/or
holdinUnderwritten MIUs is required. All the Parties shall obtain their
corresponding share of such expansion of the Notional Capacity according, to
Schedule B, to be assigned in Wholly Owned MIUs or by such method as the General
Committee may agree.
(D) MIUs shall be initially arranged so as to ensure complete fascicles of
MIUs in the smallest number of such fascicles possible, as the Parties or
Standard IRU Holders may desire. A MIU and fascicles of MIUs shall be capable of
supporting Bit Sequence Independence transmission rates of VC-4, VC-3 and VC-12
as per all appropriate ITU-T Recommendations.
(E) MIUs may be rearranged, if so requested by Parties or Standard IRU
Holders, so far as reasonably possible, to ensure complete fascicles of MIUS,
provided:
i) the agreement of the relevant Landing Point Parties is obtained;
and
17
ii) the agreement of other Parties or Standard IPU Holders with
arranged MIUs that would be affected by the proposed
rearrangement is obtained; and
iii) all costs arising from the prop be paid by the Parties or
Standard IRLJ Holders requesting it.
Such agreement in (i) and (ii) shall not be unreasonably withheld.
(F) The communications capability of any MIU may be optimized by the
Parties or Standard IRU Holders to whom such MIUs are assigned by the use of
equipment which will more efficiently use the MIUS, provided that the use of
such equipment does not cause an interruption of, or interference to, the use of
any other MIUS, or prevent the use of similar equipment by other Parties or
Standard IRU Holders. Such equipment, if used, shall not constitute a part of
Columbus III.
(G) The NA and the AR&R Subcommittee will jointly define, as necessary,
procedures for the use of the In-System Restoration Capacity in order to provide
in system restoration, taking advantage of the collapsed ring configuration of
Columbus 111, for approval by the General Committee. However, in order to
satisfy expansions of the Notional Capacity and/or acquisitions of capacity on a
Standard IR'U Agreement basis from the Common Reserve Capacity, the General
Committee may decide to reduce the amount of the In-System Restoration Capacity.
(H) The NA and the AR&R Subcommittee will jointly define, as necessary,
procedures, terms and conditions for the temporary utilization of the Common
Reserve Capacity for purposes of restoration of other cable systems, for
approval by the General Committee. The General Committee shall accord priority
to expansions of the Notional Capacity, and acquisitions of capacity on a
Standard IRU Agreement basis from the Common Reserve Capacity, over restoration
of other cable systems.
(I) The NA and the AR&R Subcommittee will jointly define, as necessary,
procedures, terms and conditions for the temporary utilization of the Common
Reserve Capacity for purposes of the provision of temporary or occasional
services, for approval by the General Committee. The General Committee shall
accord priority to restoration of other cable systems, over the provision of
temporary or occasional services.
13. DECREASE OR INCREASE OF THE COLUMBUS III DESIGN CAPACITY
(A) Whenever only fifteen percent (15%) of half of the Desicin Capacity
remains as Common Reserve Capacity, distribution of such capacity will be
determined by the General Committee.
(B) In the event that the Design Capacity is less than the Allocated
Capacity specified in Schedule L, the capacity assigned to the Parties and
Standard IRLJ Holders shall be reduced in the proportions in which the capacity
in the relevant Subsegments was assigned to the Parties and Standard IRU Holders
immediately preceding such decrease in the Design Capacity. The assignment of
fractional
18
interests in capacity of less than one MIU resulting from such reductions will
be determined by the General Committee.
(C) The General Committee may decide to increase the Design Capacity. For
such decision the agreement of the Parties holding interests in the Wholly Owned
MIUs Pool, and/or in the Financial Credit Pool, and/or holding Underwritten MIUs
is required. All the Parties shall share the costs associated with such increase
of the Design Capacity according to Schedule B. The increase of the Design
Capacity shall be followed by an expansion of the Notional Capacity, as the
General Committee may agree.
14. DUTIES AND RIGHTS AS TO OPERATION AND MAINTENANCE OF COLUMBUS III
(A) TELECOM ITALIA shall be responsible for the operation and maintenance
of Segment A, and for the operation and maintenance of that portion of Segment S
beginning at its respective Cable Landing Point and extending toward Segment A,
on behalf of the Parties and Standard IRU Holders.
(B) TELEFONICA DE ESPANA shall be responsible for the operation and
maintenance of Segment B, and for the operation and maintenance of that portion
of Segment S beginning at its respective Cable Landing Point and extending
toward Segment B, on behalf of the Parties and Standard IRU Holders.
(C) MARCONI shall be responsible for the operation and maintenance of
Segment C, and for the operation and maintenance of that portion of Segment S
beginning at its respective Cable Landing Point and extending toward Segment C,
on behalf of the Parties and Standard IRU Holders.
(D) AT&T shall be responsible for the operation and maintenance of Segment
D, and for the operation and maintenance of that portion of Segment S beginning
at its respective Cable Landing Point and extending toward Segment D, on behalf
of the Parties and Standard IRU Holders.
(E) AT&T, MARCONI, TELECOM ITALIA and TELEFONICA DE ESPAN'A (hereinafter
called, the "Maintenance Authorities") shall jointly be responsible for the
operation and maintenance of Segment S from the respective Cable Landing Points
and extending seawards, on behalf of the Parties and Standard IRU Holders. The
responsibilities for the operation and maintenance of Segment S shall be
identified and reviewed by the O&M Subcommittee for the General Committee
approval.
(F) The Maintenance Authorities shall use all reasonable efforts to
economically maintain Columbus III in efficient working order and with an
objective of achieving effective and timely repairs when necessary, and in a
manner consistent with applicable international submarine cable maintenance
practices. Any of the Maintenance Authorities shall have the right to deactivate
Columbus III, or any Segment or Subsegment thereof, in order to perform the
duties imposed upon them in this Paragraph 14. Prior to such deactivation,
coordination shall be made with all the Maintenance Authorities, and reasonable
notice shall be given to other Parties and Standard IRU Holders.
19
(G) To the extent possible, sixty (60) days prior to initiating action, the
Maintenance Authority involved shall advise the other Parties and Standard IRU
Holders in writing of the timing, scope and costs of significant planned
maintenance operations, of significant changes to existing operations and
maintenance methods, and of contractual arrangements for cable ships that will
have a significant impact on the operation or maintenance of Columbus III.
Should one or more Parties representing at least five percent (5%) of the total
voting interests specified in Schedule B, including at least one Landing Point
Party, wish to review such an operation or change prior to its occurrence, the
Maintenance Authority involved shall be notified in writing within thirty (30)
days of such advice. Upon notification from the Maintenance Authority, the
General Committee Coordinator shall initiate action to convene an ad-hoc meeting
of the O&M Subcommittee for such review.
(H) Each Party concerned shall give necessary information relating to the
operation and maintenance of the equipment which that Party may have designed or
procured and which is used in Columbus III, to each Party by whom that
equipment, by reason of the provisions of this Paragraph 14, is to be operated
and maintained. Each Maintenance Authority shall provide and have prompt access
to all system maintenance information, necessary to the performance of its
duties, appropriate to those parts of Columbus III not covered by its authority.
All information given or to which access is offered herein shall be subject to
Paragraph 22.
(I) In no circumstances shall any Party or Standard IRU Holder be liable to
any of the other Parties or Standard IRU Holders for any loss, whether direct or
indirect, or damage sustained by reason of any delay in provision, failure in,
damage to or breakdown of the facilities constituting Columbus III or any
interruption of service, whatsoever, may have been the cause of such delay in
provisioning of service, failure, damage, breakdown, or interruption and for
however long it shall last.
(J) Each Party to this Agreement, at its own expense, shall have the right
to inspect from time to time the operation and maintenance of any portion of
Columbus III and to obtain copies of the maintenance records. For this purpose
the Maintenance Authorities shall retain records, as defined by the O&M
Subcommittee, including recorder charts, for a period of not less than five (5)
years from the date of the record. If these records are destroyed at the end of
this period, a summary of important events shall be retained for the life of
Columbus III.
(K) The Maintenance Authorities shall be entitled to negotiate agreements
in respect of the crossing of Segment S with other undersea plant. After the
agreement of the General Committee is obtained, the Maintenance Authorities may
sign such agreements on behalf of the Parties, and shall provide all Parties
with copies of such agreements on request.
15. ALLOCATION AND BILLING OF THE OPERATION AND MAINTENANCE COSTS OF
SEGMENT S
(A) The costs of operation and maintenance of Segment S shall be allocated
in the proportions specified in Schedule D.
20
(B) The costs of operation and maintenance to which Subparagraph 15(A)
refers are the costs reasonably incurred in operating and maintaining the
facilities involved, including, but not limited to, the cost of attendance,
testing, adjustments, storage of plant and equipment, repairs (including repairs
at sea), cable ships, maintenance and repair devices that are or may hereafter
become available (including standby costs), re-burial and the replacement of
plant, tools and test equipment, customs duties, taxes (except income tax
imposed upon the income of a Party) paid in respect of such facilities,
appropriate financial charges attributable to other Parties' shares of costs
incurred by a Maintenance Authority at the rate at which the appropriate
Maintenance Authority generally incurred such financial charges, supervision,
overheads and costs and expenses reasonably incurred on account of claims made
by or against other persons in respect of such facilities or any part thereof
and damages or compensation payable by the Parties concerned on account of such
claims. Costs and expenses and damages or compensation payable to the Parties on
account of such claims shall be shared by them in the same proportions as they
share the costs of operation and maintenance of Segment S under Subparagraph
15(A).
(C) The General Committee may authorize the purchase and use of special
tools and test equipment for use on board cable ships which are required for the
maintenance and repair of Segment S. The related costs may include, but not be
limited to, the costs, or an appropriate share thereof, for the purchase,
storage and maintenance of this equipment. The General Committee will determine
the manner in which these costs will be billed to the Parties and Standard IRU
Holders.
(D) The Maintenance Authorities or the CBP, as appropriate, shall render
bills to the Parties and Standard IRU Holders not more frequently than quarterly
in accordance with procedures to be established by the General Committee for the
expenditures and/or compensations herein referred. From time to time the
Maintenance Authorities shall also furnish such further details of such bills as
the other Parties or Standard IRU Holders may reasonably require. On the basis
of such bills, each Party or Standard IRU Holder shall pay such amounts as may
be owed within forty-five (45) days from the date the bills are rendered.
(E) The billing process as specified in Paragraph 10 shall also be
applicable to all bills rendered pursuant to this Paragraph 15.
16. USE OF SEGMENT D
(A) The owner of Segment D, shall grant to the Parties and Standard IRU
Holders an Indefeasible Right of Use of Segment D including any addition thereto
(hereinafter called "Cable Station IRU"), for the purpose of using its capacity
in Columbus III in Hollywood (Florida, U.S.A.), and carrying on the related
activities in accordance with this Agreement, commencing on the RFPA Date, or
the date a Standard IRU Holder acquires such capacity, and continuing for the
duration of this Agreement.
(B) If a Cable Station becomes unavailable for any reason, the owner of
that Cable Station, in agreement with the Parties hereto, shall take all
necessary measures
21
to ensure that another appropriate Cable Station will be available for Columbus
III for the duration of this Agreement on,terms and conditions similar to those
contained in this Agreement.
(C) For the Cable Station IRU involved, the portion of the capital costs,
and operation and maintenance costs of the Cable Station, including any
additions thereto, allocable to Columbus III shall be on the basis of use. Where
the use of a Cable Station or certain Cable Station equipment situated therein,
such as power supply or testing and maintenance equipment, is shared, by
agreement of the Parties, by Columbus III and other communications systems
terminating at that Cable Station, the capital costs, and operation and
maintenance costs of such shared Cable Station equipment (not solely
attributable to a particular cable system or systems) will be allocated among
the cable systems involved in the proportions in which each uses the shared
Cable Station equipment. For such purposes, use of a shared Cable Station or of
shared Cable Station equipment therein attributable to a particular system shall
be determined on the basis of the ratio of:
i) the installed costs of the Cable Station equipment (excluding
shared equipment) associated with the particular cable system to;
ii) the installed cost of the Cable Station equipment (excluding
shared equipment) associated with all systems, including Columbus
III, which makes use of the shared facility.
(D) Capital costs, as used in this Paragraph 16 with reference to the
provision of each Cable Station (including land, access roads, cable
right-of-way, ducts and buildings at such Cable Stations), or to causing them to
be provided and constructed, or to install or causing to be installed Cable
Station equipment, shall include all expenditures incurred which shall be fair
and reasonable in amount and either shall have been directly and reasonably
incurred for the purpose of, or shall be properly chargeable in respect of, such
provision, construction, and installation, including, but not limited to, the
purchase costs of land, building costs, amounts incurred for the respective
development, engineering, design, materials, manufacturing, procurement and
inspection, installation, removing (with appropriate reduction for salvage),
testing associated with installation, custom duties, taxes (except income tax
imposed upon the income of a Party), financial charges attributable to other
Parties, shares of costs, supervision, overheads and insurance or a reasonable
allowance in lieu thereof. Losses against which insurance was not provided, or
for which an allowance in lieu thereof was not taken, shall constitute capital
costs. Operation and maintenance costs as used in this Paragraph 16 with
reference to each of the Cable Stations shall include costs reasonably incurred
in maintaining and operating the facilities involved, including, but not limited
to, the cost of attendance, testing, adjustments, repairs and replacements,
customs duties, taxes (except income tax imposed upon the income of a Party)
paid in respect of such facilities, billing activities, administrative costs,
financial charges attributable to other Parties, shares of costs, and costs and
expenses reasonably incurred on account of claims made by or against other
persons in respect of such facilities or any part thereof and damages or
compensation payable by the Cable Station owner on account of such claims.
Costs, expenses, damages, or compensation payable to the Cable Station owner on
account of claims made against
22
other persons shall be shared by the Parties and Standard IRU Holders acquiring
a Cable Station IRU in the same proportions as they share the operation and
maintenance costs of the aforementioned Cable Station.
(E) The capital costs, and operation and maintenance costs of the Cable
Station shall be borne only by the Parties and Standard IRU Holders accessing
Columbus III at such Cable Station, and shall be shared by them in the
proportions specified in Schedules E and F.
(F) The Cable Station owner shall determine the initial payment, or
subsequent payments associated with an increase or decrease of capacity, for the
net capital costs of the applicable Cable Station (i.e., capital cost less
accrued depreciation determined in accordance with the generally accepted
accounting practices of the Country of the Cable Station owner), which will be
due from the Parties and Standard IRU Holders to the parties of the other cable
systems and communications systems already terminating at the Cable Station,
that are entitled to a share of such payments at the time the Cable Station IRU
commences pursuant to Subparagraph 16(A) of this Agreement.
(G) Payments due by the Parties under Subparagraph 16(F) accordance with
the following settlement plan:
i) One hundred twenty (120) days before the planned RFCS Date, the
Cable Station owners shall each render a bill to the CBP, on an
actual or preliminary billing basis for the amount referred to in
Subparagraph 16(F).
ii) Sixty (60) days before the planned RFCS Date, the CBP shall
render bills to the Parties hereto, on an actual or preliminary
billing basis for their proportionate shares of the amount
referred to in Subparagraph 16(F).
iii) In the case of preliminary bills, appropriate adjustments will be
made as soon as practicable after the actual costs are
determined.
iv) The billed Party shall pay such bills to the CBP on or before the
date on which the Cable Station IRU is granted to the Parties
hereto, or the date that the respective Cable Station is
available for the landing and termination of Columbus III,
whichever is later.
v) Within sixty (60) days after receiving such payment, the CBP
shall pay the respective Cable Station owner.
(H) Parties and Standard IRU Holders shall be billed individually for and
shall pay its proportionate share of the operation and maintenance costs of the
Cable Station allocable to this Agreement, commencing at the time the Cable
Station IRU is granted to the Party or Standard IRU Holder, or the date that the
respective Cable Station is available for the landing and termination of
Columbus III, whichever is later.
(I) In the event of sale or other disposition of Segment D, or any part
thereof, such Cable Station owner shall share with the other Parties and
Standard IRU Holders
23
any net proceeds, or costs, of such sale or disposition received, or expenses,
by the Cable Station owner in the proportions in which the Parties' and Standard
IRU Holders' interests in the subject to the sale or disposition are specified
in Schedule E at the time of the sale or disposition.
(J) In the event that a Cable Station owner elects, upon termination of
this Agreement, to retain the ownership of all or part of its Cable Station,
such Cable Station owner shall pay each of the other Parties and Standard IRU
Holders the net book cost of such Segment in the proportions in which the
Parties' and Standard IRU Holders' interests are specified in Schedule E at the
time this Agreement is terminated.
(K) Notwithstanding Subparagraph 16(A) of this Agreement, a Party or
Standard IRU Holder granted a Cable Station IRU in Segment D may, prior to the
commencement of that Cable Station IRU, elect to renounce its Cable Station IRU
and to instead have use of Segment D for the duration of this Agreement on such
terms and conditions as are agreed upon between that Party or Standard IRU
Holder and the owner of the respective Cable Station by separate agreement. In
such event the provisions of Subparagraphs 16(A) through (G) shall apply in
relation to such use except insofar as they may be modified by such separate
agreement. These separate agreements shall not confer on a Party or Standard IRU
Holder any financial or other benefit of substance to which the Party or
Standard IRU Holder would not otherwise be entitled under this Agreement.
(L) A Cable Station IRU can be transferred to any Telecommunications Entity
only by the Party holding such Cable Station IRU, solely for that capacity
acquired on an ownership basis.
(M) In the case of reassignment of Wholly Owned MIU(s) as provided in
Subparagraph 12(B), the requesting Party shall pay the additional costs (capital
costs for the Cable Station IRU, and operation and maintenance costs)
corresponding to the increased number of Wholly Owned MIU(s) using the Cable
Stations in the new chosen Path(s), without any reimbursement for the costs
already paid corresponding to the decreased number of Wholly Owned MIU(s) using
the Cable Stations in the previous Path.
17. USE OF SEGMENTS A, B AND C
(A) The respective owners of Segments A, B and C, shall grant to the
Parties and Standard IRU Holders a Right to Use of Segments A, B and C
respectively including any addition thereto (hereinafter called "Cable Station
Right to Use"), for the purpose of using its capacity in Columbus III in Lisboa
(Portugal), Conil (Spain) and Mazara del Xxxxx (Italy) respectively, and
carrying on the related activities in accordance with this Agreement, commencing
on the RFPA Date, or the date a Standard IRU Holder acquires such capacity, and
continuing for the duration of this Agreement.
(B) If a Cable Station becomes unavailable for any reason, the owner of
that Cable Station, in agreement with the Parties hereto, shall take all
necessary measures
24
to ensure that another appropriate Cable Station will be available for Columbus
III for the duration of this Agreement on terms and conditions similar to those
contained in this Agreement.
(C) The capital costs, and operation and maintenance costs of the Cable
Stations shall be borne only by the Parties and Standard IRU Holders accessing
Columbus III at such Cable Station, and shall be shared by them in the
proportions specified in Schedules E and F.
(D) For the Cable Station Right to Use, the relevant Parties and Standard
IRU Holders shall pay a lump sum to the respective Cable Station owner to cover
an appropriate share of the capital costs reasonably incurred in providing such
Segment.
(E) In determining the capital costs of the Cable Station Right to Use, the
Landing Point Parties have taken into account the estimated cost of the
provision and construction of each of the Cable Stations, or causing them to be
provided and constructed, and installing or causing to be installed Cable
Station equipment, in accordance with the accounting practices of each Landing
Point Party. This includes all such expenditure reasonably incurred and includes
but is not limited to, the purchase costs of land, building costs, access road,
cable rights of way, amounts incurred for development, engineering, design,
materials, manufacturing, procurement and inspection, installation, removing
(with appropriate reduction for salvage), testing associated with installation,
customs duties, taxes (except income tax imposed upon the net income of a
Party), appropriate financial charges, supervision, overheads and insurance or a
reasonable allowance in lieu thereof, or losses against which insurance was not
provided, or for which an allowance in lieu thereof was not provided.
(F) In determining the operation and maintenance cost of the Cable Station
Right to Use, the Landing Point Parties have taken into account an estimate of
costs reasonably incurred in operating and maintaining the facilities involved,
including, but not limited to, the cost of attendance, testing, adjustments,
repairs and replacements, customs duties, taxes (except income tax as imposed
upon the net income of a Party) paid in respect of such facilities, billing
activities, administrative costs, appropriate financial charges, and costs and
expenses reasonably incurred on account of claims made by or against other
persons in respect of such facilities or any part thereof, and damages or
compensation payable by the Cable Station owner on account of such claims,
costs, expenses, damages, or compensation payable to or by the terminal station
owner on account of claims made against other persons.
(G) Payments due by the Parties under Subparagraph 17(E) shall be made in
accordance with the following settlement plan:
i) One hundred twenty (120) days before the planned RFCS Date, the
Cable Station owners shall each render a bill to the CBP, on an
actual or preliminary billing basis for the amount referred to in
Subparagraph 17(D).
ii) Sixty (60) days before the planned RFCS Date, the CBP shall
render bills to the Parties, on an actual or preliminary billing
basis for their proportionate shares of the amount referred to in
Subparagraph 17(D).
25
iii) In the case of preliminary bills, appropriate adjustments will be
made as soon as practicable after the actual costs are
determined.
iv) The billed Party shall pay such bills to the CBP on or before the
date on which the Cable Station Right to Use is granted to the
Parties, or the date that the respective Cable Station is
available for the landing and termination of Columbus III,
whichever is later.
v) Within sixty (60) days after receiving such payment, the CBP
shall pay the respective Cable Station owner.
(H) Parties and Standard IRU Holders shall be billed individually for and
shall pay its proportionate share of the operation and maintenance costs of the
Cable Station allocable to this Agreement, commencing at the time the Cable
Station Right to Use is granted to the Party or Standard IRU Holder, or the date
that the respective Cable Station is available for the landing and termination
of Columbus III, whichever is later.
(I) Nothing contained in this Agreement shall be deemed to vest in any
Party or Standard IRU Holder, other than the owner of the respective Cable
Station, any salvage rights in that Cable Station, or in any Cable Station
substituted therefor.
(J) Notwithstanding Subparagraph 17(A) of this Agreement, a Party or
Standard IRU Holder granted a Cable Station Right to Use in Segments B, C or D
may, prior to the commencement of that Cable Station Right to Use, elect to
renounce its Cable Station Right to Use and to instead have use of Segments B, C
or D for the duration of this Agreement on such terms and conditions as are
agreed upon between that Party or Standard IRU Holder and the owner of the
respective Cable Station by separate agreements. In such event the provisions of
Subparagraphs 17(A) through (I) shall apply in relation to such use except
insofar as they may be modified by such separate agreements. These separate
agreements shall not confer on a Party or Standard IRU Holder any financial or
other benefit of substance to which the Party or Standard IRU Holder would not
otherwise be entitled under this Agreement.
(K) A Cable Station Right to Use can be transferred to any
Telecommunications Entity only by the Party holding such Cable Station Right to
Use, solely for that capacity acquired on an ownership basis.
(L) In the case of reassignment of Wholly Owned MIU(s) as provided in
Subparagraph 12(B), the requesting Party shall pay the additional costs (lump
sum for the Cable Station Right to Use, and operation and maintenance costs)
corresponding to the increased number of Wholly Owned MIU(s) using the Cable
Stations in the new chosen Path(s), without any reimbursement for the costs
already paid corresponding to the decreased number of Wholly Owned MIU(s) using
the Cable Stations in the previous Path.
18. KEEPING AND INSPECTION OF BOOKS FOR COLUMBUS III
(A) AT&T, MARCONI, TELECOM ITALIA and TELEFONICA DE ESPANA shall each keep
and maintain such books, records, vouchers, and accounts of all costs
26
that are incurred in the planning, engineering, provision, and installation of
Segment S and not. included in the Supply Contract(s), as defined in Paragraph
9, which they incur directly for a period of five (5) years from the RFPA Date,
or the date the work is completed, whichever is later.
(B) The CBP shall keep and maintain such books, records, vouchers, and
accounts with respect to its billing of costs incurred by the Terminal Parties
and any other Party having incurred costs for implementation of Columbus III, as
authorized by the General Committee, and costs billable under the Supply
Contract(s), including any subcontracts, for a period of five (5) years from the
RFPA Date, or the date on which the work is completed, whichever is later.
(C) Any Party keeping and maintaining books, records, vouchers, and
accounts of costs pursuant to Subparagraphs 18(A) and (B) shall afford the
Parties the right to review or audit said books, records, vouchers, and accounts
of costs. In affording the right to review, any such Party shall be permitted to
recover, from the Party or Parties requesting the review, the reasonable costs
incurred in complying with the review or audit. The Party or Parties requesting
the review shall bear the entire cost of the review or audit. Such right shall
only be exercisable through the F&A Subcommittee in accordance with the F&A
Subcommittee's audit procedures.
(D) Any exercising of the right to review specified in this Paragraph 18
shall be effected by periodic audits, as requested by one or more Parties and as
directed by the F&A Subcommittee. AT&T, MARCONI, TELECOM ITALIA and TELEFONICA
DE ESPANA expressly agree to such audits.
(E) If requested by the General Committee, a final audit shall be
conducted. The costs of such audit shall be borne by the Parties in proportion
to Schedule B.
19.CURRENCY AND PLACE OF PAYMENT
All bills under this Agreement from one Party or the CBP to another Party
shall be rendered in U.S. dollars and shall be payable in U.S. dollars to the
payee's principal office, or other designated office. Each Party incurring costs
in other than U.S. dollars shall convert same to U.S. dollars in accordance with
the buying rate of the Central Bank in such Party's Country in effect at the
time the bill is rendered. The General Committee may vary these procedures at
its discretion.
20.DURATION OF AGREEMENT AND REALIZATION OF ASSETS
(A) This Agreement shall become effective on the day and year first above
written and shall continue in operation for at least twenty-five (25) years
after the RFPA Date (hereinafter called, the "Initial Period"), and can be
terminated thereafter by agreement of the Parties. Any Party may terminate its
participation in this Agreement by giving at least one year's notice in writing
to the other Parties expiring at the end of the Initial Period or at any time
thereafter. Upon the effective date of termination of participation of a Party,
the Schedules of this Agreement will be appropriately modified and the remaining
Parties to this Agreement shall assume
27
capital, operation and maintenance interests of the Party terminating its
participation in proportion to their interests assigned immediately preceding
such effective date of termination, except for the continuing rights and
obligations of the terminating Party as specified in Subparagraphs 20(C), (D)
and (E) of this Agreement. No credit of capital costs will be made to a Party
that terminates its participation in accordance with this Subparagraph 20(A).
Termination of this Agreement or termination of the participation of any Party
therein shall not terminate Subparagraphs 20(C), (D) and (E) of this Agreement
or prejudice the operation or effect, or diminish any other right or obligation
of any Party hereto accrued or incurred prior to such termination.
(B) This Agreement may, however, be terminated at any time during the
Initial Period with the agreement in writing of all the Parties. If unanimous
agreement cannot be reached between all the Parties, this matter will be
referred to the General Committee for decision in accordance with Subparagraph
5(D), but in this case requiring a ninety percent (90%) majority of the total
voting interests specified in Schedule B.
(C) The interests of the Parties or of any Party in Columbus III which come
to an end by reason of the termination of this Agreement or the termination of
the participation of any Party therein shall be deemed to continue for as long
as is necessary for effectuating the purposes of Subparagraphs 20(D) and (E) of
this Agreement, and Columbus III shall accordingly thereafter be held as
respects such interests upon the appropriate trusts by the Parties who are the
owners thereof. Should the doctrine of trusts not be recognized under the laws
of the Country where the property to which such interests relate is located,
then the Party or Parties who are the owners thereof shall nevertheless be
expressly bound to comply with the provisions of Subparagraphs 20(D) and(E) of
this Agreement.
(D) Upon termination of this Agreement, the Parties shall use all
reasonable efforts to liquidate within one year such assets as included in
Segment S as may then exist by sale or other disposition between the Parties or
by sale to other entities or persons, but no sale or disposition shall be
effected except by agreement between or among the Parties to this Agreement who
have interests in the subject thereof at the time this Agreement is terminated.
In the event agreement cannot be reached, the decision will be made in
accordance with Subparagraph 5(D) of this Agreement. The net proceeds, or costs,
of every sale or other disposition shall be divided between or among the Parties
to this Agreement in proportion to the percentages shown on Schedule C
immediately prior to the first time any Party terminates its participation in
this Agreement, or this Agreement is terminated pursuant to Subparagraph 20(A),
whichever occurs first. The Parties shall execute such documents and take such
action as may be necessary to effectuate any sale or other disposition made
pursuant to this Paragraph 20.
(E) Unless the General Committee shall otherwise determine, a Party's
termination of its participation in this Agreement, or the termination of this
Agreement pursuant to Subparagraph 20(A), or a Party's default, shall not
relieve that Party or the Parties hereto from any liabilities arising on account
of claims made by third parties in respect of such facilities or any part
thereof and damages or compensation payable on account of such claims, or, any
amounts due related to the
28
Party's pro-rata share of costs pursuant to this Agreement or obligations which
may arise in relation to Columbus III due to any law, order or regulation made
by any government or supranational legal authority pursuant to any international
convention, treaty or agreement. Any such liabilities or costs incurred or
benefits accruing in satisfying such obligations shall be divided among the
Parties hereto in the proportions of the voting interests specified in Schedule
B immediately prior to the first time any Party terminates its participation in
this Agreement or this Agreement is terminated, pursuant to Subparagraph 20(A),
whichever occurs first.
21. OBTAINING OF LICENSES
(A) The performance of this Agreement by the Parties is contingent upon the
obtaining and continuance of such governmental approvals, consents,
authorizations, licenses and permits as may be required or be deemed necessary
by the Parties and as may be satisfactory to them.
(B) Each Party in its respective Country shall be responsible for matters
relating to the obtaining and continuance of governmental approvals, consents,
authorizations, licenses and permits for the construction and utilization of
Columbus III and the Parties shall use all reasonable efforts to obtain and to
have continued in effect such approvals, consents, authorizations, licenses and
permits for the construction and utilization of Columbus III pursuant to the
terms and conditions of this Agreement.
(C) If any Party ceases to maintain the continuance of all governmental
approval, consents, licenses and permits for the utilization of its capacity in
Columbus III, then that Party, for the purposes of this Paragraph 21, will be
considered to no longer be a signatory to this Agreement, and this Party's
capacity will be treated as per Subparagraph 26(C).
22. CONFIDENTIAL INFORMATION
(A) Ownership of any technical information or data whether in written,
graphic or other tangible form (hereinafter called "Information") shall remain
with the Party providing the Information, or with the third party that has
provided the Information for disclosure only to the Parties to this Agreement.
(B) Parties warrant that they do not intend to, and will not knowingly,
without the prior written consent of the Supplier(s), disclose or transmit
directly or indirectly:
i) Information obtained by or through the Supplier(s), or
ii) any immediate product (including processes, materials and
services) produced directly by the use of the Information
obtained by or through the Supplier(s), or
iii) any commodity produced by such immediate product if the immediate
product of the Information obtained by or through the Supplier(s)
is a
29
plant capable of producing a commodity or is a major component of
such plant.
(C) Information furnished by one Party to another shall be kept
confidential by the Party receiving it, and shall be used only for the purposes
of designing, constructing, operating and maintaining Columbus III, and may not
be used for any other purposes without the prior written consent of the Party
owning the Information.
(D) The provisions in Subparagraphs 22(A) through (C) will not apply to
information which:
i) was previously known to the receiving Party free of any
obligation to keep it confidential, or
ii) has come into the public domain other than by a breach of
confidentiality by the receiving Party, or
iii) is received from a third Party without similar restriction and
without breach of this Agreement; or
iv) is independently developed.
(E) Nothing in this Paragraph 22 shall prohibit the disclosure required
under any applicable law, rule or regulation or pursuant to the direction of any
Governmental Entity or Agency having competent jurisdiction over any Party or
pursuant to the rules of governance of a Party provided that the disclosing
Party uses all reasonable means to make such disclosure under a non-disclosure
or confidential agreement acceptable to the Parties and/or to the owner of the
Information.
23. PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS
Each Party hereto specifically reserves, and is granted by each of the
other Parties, in any action, arbitration or other proceeding between or among
the Parties or any of them in a Country other than that Party's own Country, the
right of privilege, in accordance with the laws of that Party's own Country,
with respect to any documents or communications which are material and pertinent
to the subject matter of the action, arbitration or proceeding as respects which
privilege could be claimed or asserted by that Party in accordance with those
laws, and such privilege, whatever may be its nature and whenever it be claimed
or asserted, shall be allowed to that Party as it would be allowed if the
action, arbitration or other proceeding had been brought in a court of, or
before an arbitrator in, the Party's own Country.
24. RELATIONSHIP AND LIABILITY OF THE PARTIES
(A) The relationship between or among the Parties shall not be that of
partners and nothing therein contained shall be deemed to constitute a
partnership between or among them, or to merge their assets or other liabilities
or undertakings. The common enterprises among the Parties shall be limited to
the express provisions of this Agreement. Except as otherwise provided herein,
the liability of the Parties shall be several and not joint or collective
30
(B) Each Party agrees to indemnify each of the other Parties in respect of
all costs, expenses, damages and demands, arising out of or in connection with
any claim against, or liability of, the latter as an owner of Columbus III where
such claim is made by, or the liability is to, any third party not being a Party
hereto and arises out of or in connection with Columbus III. Subject to there
being no conflict of interest, each Party so indemnifying shall have the right,
at its sole cost and expense, to observe but not directly participate in any
discussions, meetings or conferences held prior to or during any settlement or
legal proceedings resulting from any such claim or liability.
(C) Under no circumstances shall any Party be liable to any other Party in
contract, tort, (including negligence or breach of statutory duty) or otherwise
for loss, whether direct or indirect, of profits, property, traffic, business or
anticipated savings, or for any indirect or consequential loss or damage in
connection with the operation of this Agreement howsoever caused. Such causes
shall include, but not be limited to:
i) any delay in the provision of Columbus III;
ii) any damage to, breakdown in or failure of Columbus III;
iii) any interruption of service,
whatever may be the reason for such loss, damage or delay and for however long
it shall continue.
25. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
Except as otherwise provided in this Agreement, during the continuance of
this Agreement no Party shall without the consent, which consent shall not be
unreasonably withheld, of the other Parties sell, assign, transfer, or dispose
of its rights or obligations under this Agreement or of any interest in Columbus
III except to a present or future majority owned subsidiary or affiliate or to a
successor in connection with the sale or transfer of all or substantially all of
the business of such Party or to an entity, under the common control, directly
or indirectly of its parent corporation, or to a statutory assignee, or to a
corporation controlling, or under the same control as, such Party, in which case
written notice shall be given in a timely manner by the Party making said sale,
assignment, transfer or disposition.
26. DEFAULT
(A) Except as provided in Subparagraph 26(B), if any Party or Standard IRU
Holder fails to make any payment required by this Agreement on the date when it
is due and such default continues for a period of at least two (2) months after
the date when payment is due, the CBP or the billing Party shall notify the
billed Party or Standard IRU Holder in writing of its intent to notify the
General Committee of the status of the matter and to request the reclamation of
capacity. If full payment is not received from the billed Party or Standard IRU
Holder within three (3) months of such notification, the CBP or the billing
Party may notify the General Committee of
31
the status of the matter and request that the General Committee reclaim the
capacity in Columbus III assigned to the defaulting Party or Standard IRU
Holder.
(B) For bills not paid for a period of at least two (2) months after the
time for the submission of a written objection and related to costs due and
included in the Supply Contract(s), the CBP or the billing Party may at the
direction of the F&A SC, redistribute this bill among the remaining Parties on a
pro-rata share basis in accordance with the procedures specified in Paragraph
10. Any subsequent payment, including accrued interest, by the defaulting Party
shall be distributed among the remaining Parties. At the time of default, the
CBP or the billing Party shall notify the General Committee which shall decide
upon any appropriate action.
(C) The General Committee shall have the option of reclaiming the capacity
assigned to a Party or Standard IRU Holder that is in default of this Agreement,
if such default has existed for the period as specified in Subparagraph 26(A).
The General Committee shall consider any extenuating circumstances not within
the specific control of the defaulting Party or Standard IRU Holder and the
interest of any Party or Standard IRU Holder that has jointly assigned capacity
with the defaulting Party or Standard IRU Holder, in determining whether or not
to reclaim the capacity assigned to such defaulting Party or Standard IRU
Holder. If the General Committee reclaims any capacity in Columbus III assigned
to such defaulting Party or Standard IRU Holder pursuant to this Agreement,
reclaimed capacity of the defaulting Party or Standard IRU Holder and its
matching corresponding capacity shall be reassigned by the General Committee to
the remaining Parties hereto on terms mutually acceptable to such remaining
Parties; and the remaining Parties shall not be obligated to make any payments
to the defaulting Party or Standard IRU Holder for the reclaimed capacity. The
rights or obligations under this Agreement of a defaulting Party or Standard IRU
Holder shall terminate as of the time the General Committee reclaims all of the
capacity previously assigned to the defaulting Party or Standard IRU Holder. The
matching capacity shall also be reclaimed and the Parties and Standard IRU
Holders affected will be reimbursed with the income derived by the sale of the
defaulted capacity. This Agreement shall be appropriately amended to reflect the
default of a Party or Standard IRU Holder and the reassignment of the interest
herein of such defaulting Party or Standard IRU Holder to succeeding Parties.
(D) The CBP and the F&A Subcommittee will jointly define as necessary,
procedures, terms and conditions to be applied in case of default by any Party
or Standard IRU Holder, for approval by the General Committee.
27. SETTLEMENT OF CLAIMS BY THE PARTIES
(A) If any Party is obliged by a final judgment of a competent tribunal, or
under a settlement approved by all the Parties, to discharge any claim,
including all costs and expenses associated therewith, resulting from the
implementation of this Agreement, the Party which has discharged the claim shall
be entitled to receive from the other Parties and Standard IRU Holders
reimbursement in the proportions set out in Schedule D.
32
(B) If a claim is brought against a Party, it shall, as a condition of
reimbursement under Subparagraph 27(A), give written notice thereof to the other
Parties as soon as practicable and shall not admit liability nor settle, adjust,
or compromise the claim without their consent.
(C) Each Maintenance Authority shall be authorized to pursue claims in its
own name, on behalf of the Parties, in the event of any damage or loss to
Columbus III. Each Maintenance Authority shall have authority to file
appropriate lawsuits or other proceedings, to settle or compromise any claims
and to execute releases and settlement agreements on behalf of the Parties as
necessary to effect a settlement or compromise. Appropriate notification from
the Maintenance Authority shall be provided to the General Committee in
consideration of such action. In addition, the concurrence of the General
Committee shall be obtained prior to settling or compromising any claim on
behalf of the Parties. Any money received by the claimant Party as a result of
an award by a competent tribunal or under a settlement approved by all the
Parties shall be shared among all the Parties and Standard IRU Holders in the
proportions set out in Schedule D.
(D) Notwithstanding the above, where a claim is brought against AT&T,
MARCONI, TELECOM ITALIA or TELEFONICA DE ESPANA in respect of a sacrificed
anchor and/or loss of, or damage to, fishing gear, that Party may settle such a
claim if for an amount no greater than twenty five thousand U.S. dollars (25,000
U.S. $) or its equivalent in other currencies or such an amount as agreed by the
Parties from time to time, and obtain reimbursement under Subparagraph 27(A).
28. WAIVER
Silence, lateness to invoke, or the waiver by any Party of a breach of, or
a default under, any of the provisions of this Agreement, or the failure of any
Party, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege thereunder shall not thereafter
be construed as a waiver of any subsequent breach or default of a similar
nature, or as a waiver of any such provision, right, or privilege thereunder.
29. SEVERABILITY
If any of the provisions of the Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather the entire Agreement shall
be construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of the Parties shall be
construed and enforced accordingly.
30. FORCE MAJEURE
If the performance of this Agreement, or of any obligation hereunder (other
than payment obligation) is prevented, restricted or interfered with by reason
of, including but not limited to:
33
i) acts of God, such as earthquakes, fires or floods;
ii) war, revolution, civil commotion, acts of public enemies,
blockade or embargo;
iii) acts of a Government in its sovereign capacity;
iv) labor difficulties, including, without limitation, strikes,
slowdowns, picketing or boycotts; or
v) any circumstances, foreseeable or unforeseeable, beyond the
reasonable control and without the fault or negligence of the
Party affected.
The Party affected, upon giving written notice to the other Party as soon
as possible after either learning of such event or after the date when such
Party should have known of such event, shall be excused from such performance on
a day-to-day basis to the extent of such prevention, restriction, or
interference (and the other Party shall likewise be excused from performance of
its obligations on a day-to-day basis to the extent such Party's obligations are
related to the performance so prevented, restricted or interfered with);
provided, however, that the Party so affected shall use its best efforts to
avoid or remove such causes of non-performance and both Parties shall proceed
whenever such causes are removed or cease.
31. PARAGRAPH AND SUBPARAGRAPH HEADINGS
The headings of the Paragraphs and Subparagraphs do not form part of this
Agreement and shall not have any effect on the interpretation thereof.
32. EXECUTION AND INTERPRETATION OF THIS AGREEMENT AND SUPPLEMENTARY
AGREEMENTS
(A) This Agreement shall be executed by the Parties, or by certain Parties
designated by the General Committee on behalf of all the Parties herein, in one
counterpart in the English language. The General Committee Coordinator shall be
the custodian of such counterpart. The Parties shall be provided a copy of this
Agreement and any amendments thereof, of any Supplementary Agreements and of
revised Schedules. A notarized copy of this Agreement and any amendments
thereof, and of any Supplementary Agreement shall be provided to a Party upon
request, and at the requesting Party's expense.
(B) This Agreement and any of its provisions may be altered or added to
only by another agreement in writing and signed by a duly authorized person on
behalf of each Party to this Agreement. This provision shall not apply to any
Schedule modified in accordance with any other provision of this Agreement and
any Schedule so modified shall be deemed to be a part of this Agreement in
substitution for the immediately preceding version of that Schedule. The NA
shall be responsible for issuing such modified Schedule(s).
34
(C) The General Committee Coordinator shall cancel from this Agreement any
Party that has not executed such Agreement on or before the 12th day of April,
1998. The NA shall remove such Parties from the Schedules accordingly.
(D) Notwithstanding Paragraph 11, new Parties, or increases of ownership by
the existing Parties, will be permitted until April 12, 1998.
33.SETTLEMENT OF DISPUTES
(A) If a dispute should arise under this Agreement between or among the
Parties, they shall make every reasonable effort to resolve such dispute.
However, in the event that they are unable to resolve such dispute the matter
shall be referred to the General Committee which shall either resolve the matter
or determine the method by which the matter should be resolved (including
arbitration, if appropriate). This procedure shall be the sole and exclusive
remedy for any dispute which may arise under this Agreement between or among the
Parties. The performance of this Agreement by the Parties shall continue during
the resolution of any dispute. Any decision regarding this Subparagraph shall be
taken by the General Committee on the basis of a majority of eighty percent
(80%) of the total voting interests specified in Schedule B.
(B) If any difference shall arise between or among the Parties or any of
them respecting the interpretation or effect of this Agreement or any part or
provision thereof or their rights and obligations thereunder, and by reason
thereof, there shall arise the need to decide the question by what municipal or
national law this Agreement or such part or provision thereof is governed, the
following facts shall be excluded from consideration, namely, that this
Agreement was made in a particular Country and that it may appear by reason of
its form, style, language or otherwise to have been drawn preponderantly with
reference to a particular system of municipal or national law; the intention of
the Parties being that such facts shall be regarded by the Parties and in all
courts and tribunals wherever situated as irrelevant to the question aforesaid
and to the decision, thereof.
34. SUCCESSORS BOUND
This Agreement shall be binding on the Parties, their successors, and
permitted assigns.
35.ENTIRE AGREEMENT
This Agreement supersedes all prior oral or written understandings between
the Parties and constitutes the entire agreement between the Parties with
respect to the subject matter of this Agreement. This Agreement includes the
following documents which are attached hereto and incorporated herein by
reference:
35
Schedule A Parties to the Agreement
Schedule B Voting Interests
Schedule C Ownership and Allocation of Capital Costs of Segment S
Schedule D Allocation of Operation and Maintenance Costs of Segment S
Schedule E Allocation of Capital Costs of the Cable Stations
Schedule F Allocation of Operation and Maintenance Costs of the Cable
Stations
Schedule G Assignment of Underwritten MIUs in Subsegment S4
Schedule H-0 Total Assignment of Jointly Owned MIUs (by Subsegment)
Schedule H-I Assignment of Jointly Owned MIUs in Subsegment S 1
Schedule H-2 Assignment of Jointly Owned MIUs in Subsegment S2
Schedule H-3 Assignment of Jointly Owned MIUs in Subsegment S3
Schedule H-4 Assignment of Jointly Owned MIUs in Subsegment S4
Schedule H-5 Assignment of Jointly Owned MIUs in Subsegment S5
Schedule H-6 Summary of Jointly Owned MIUs in the Path Mazara (Italy) to
Conil (Spain)
Schedule H-7 Summary of Jointly Owned MIUs in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule H-8 Summary of Jointly Owned MIUs in the Path Mazara (Italy) to
Hollywood (Florida, U.S.A.)
Schedule H-9 Summary of Jointly Owned MIUs in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule H-10 Summary of Jointly Owned MIUs in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
Schedule I-1 Assignment of Wholly Owned MIUs (by Subsegment)
Schedule I-2 Summary of Wholly Owned MIUs in the Path Mazara (Italy) to
Conil (Spain)
Schedule I-3 Summary of Wholly Owned MIUs in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule I-4 Summary of Wholly Owned MIUs in the Path Mazara (Italy) to
Hollywood (Florida, U.S.A.)
Schedule I-5 Summary of Wholly Owned MIUs in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule I-6 Summary of Wholly Owned MIUs in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
36
Schedule J-1 Assignment of Wholly Owned MIUs Pool (by Subsegment)
Schedule J-2 Summary of Wholly Owned MIUs Pool in the Path Mazara (Italy) to
Conil (Spain)
Schedule J-3 Summary of Wholly Owned MIUs Pool in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule J-4 Summary of Wholly Owned MIUs Pool in the Path Mazara (Italy) to
Hollywood (Florida, U.S.A.)
Schedule J-5 Summary of Wholly Owned MIUs Pool in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule J-6 Summary of Wholly Owned MIUs Pool in the Path Lisboa (Portugal)
to Hollywood (Florida, U.S.A.)
Schedule K-1 Assignment of Notional Capacity (by Subsegment)
Schedule K-2 Summary of Notional Capacity in the Path Mazara (Italy) to
Conil (Spain)
Schedule K-3 Summary of Notional Capacity in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule K-4 Summary of Notional Capacity in the Path Mazara (Italy) to
Hollywood (Florida, U.S.A.)
Schedule K-5 Summary of Notional Capacity in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule K-6 Summary of Notional Capacity in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
Schedule L-1 Assignment of Allocated Capacity (by Subsegment)
Schedule L-2 Summary of Allocated Capacity in the Path Mazara (Italy) to
Conil (Spain)
Schedule L-3 Summary of Allocated Capacity in the Path Mazara (Italy) to
Lisboa (Portugal)
Schedule L-4 Summary of Allocated Capacity in the Path Mazara (Italy) to
Hollywood (Florida, U.S.A.)
Schedule L-5 Summary of Allocated Capacity in the Path Conil (Spain) to
Hollywood (Florida, U.S.A.)
Schedule L-6 Summary of Allocated Capacity in the Path Lisboa (Portugal) to
Hollywood (Florida, U.S.A.)
Schedule M-0 Total Assignment of all Standard IRU Capacity sold (by
Subsegment)
Schedule M-1 Assignment of all Standard IRU Capacity sold in Subsegment S1
Schedule M-2 Assignment of all Standard IRU Capacity sold in Subsegment S2
Schedule M-3 Assignment of all Standard IRU Capacity sold in Subsegment S3
Schedule M-4 Assignment of all Standard IRU Capacity sold in Subsegment S4
Schedule M-5 Assignment of all Standard IRU Capacity sold in Subsegment S5
Schedule M-6 Summary of all Standard IRU Capacity sold in the Path Mazara
(Italy) to Conil (Spain)
37
Schedule M-7 Summary of all Standard IRU Capacity sold in the Path Mazara
(Italy) to Lisboa (Portugal)
Schedule M-8 Summary of all Standard IRU Capacity sold in the Path Mazara
(Italy) to Hollywood (Florida, U.S.A.)
Schedule M-9 Summary of all Standard IRU Capacity sold in the Path Conil
(Spain) to Hollywood (Florida, U.S.A.)
Schedule M-10 Summary of all Standard IRU Capacity sold in the Path Lisboa
(Portusal) to Hollywood (Florida, U.S.A.)
Schedule N Summary of Financial Credits
Annex 1 Assignment, Routing and Restoration Subcommittee Terms of
Reference
Annex 2 Operation and Maintenance Subcommittee Terms of Reference
Annex 3 Financial and Administrative Subcommittee Terms of Reference
Annex 4 Central Billing Party Terms of Reference
Annex 5 Network Administrator Terms of Reference
Annex 6 Procurement Group Terms of Reference
Exhibit 1 Columbus III Architecture
Exhibit 2 Columbus III Fiber Pairs Configuration
Exhibit 3 Columbus III Ring Configuration
Exhibit 4 Columbus III Capacity Definitions
Exhibit 5 Columbus III Bodies Structure
36. INTERPRETATION
Where the sense requires, words denoting the singular only shall also
include the plural and vice versa. References to persons shall include firms and
companies and vice versa. Reference to the male shall include the female.
37. TESTIMONIUM
IN WITNESS WHEREOF, the Parties have severally subscribed these presents or
cause them to be subscribed in their names and on their behalf by their
respective officers thereunto duly authorized.
Signed on behalf of XXXXXXX, S. DE X.X. DE C.V
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of XXXXXXXXX, N.V.
/s/
------------------------------
a person authorised to act in that behalf.
Signed on behalf of AT&T CORP.
/s/
------------------------------
a person authorised to act in that behalf.
Signed on behalf of BAHAMAS TELECOMMUNICATIONS COMPANY
/s/
------------------------------
a person authorised to act in that behalf.
39
Signed on behalf of BARAK I.T.C.
/s/
-------------------------------
a person authorised to act in that behalf.
Signed on behalf of BELL SOUTH CHILE S.A.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of BULGARIAN TELECOMMUNICATIONS COMPANY LTD.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of CABLE & WIRELESS PANAMA, S.A.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of COMPANHIA PORTUGUESA RADIO XXXXXXX X.X.
/s/
--------------------------------
a person authorised to act in that behalf.
40
Signed on behalf of COMPANIA ANONIMA NACIONAL TELEFONOS DE VENEZUELA
/s/
-----------------------------
a person authorised to act in that behalf.
Signed on behalf of CYPRUS TELECOMMUNICATIONS AUTHORITY
/s/
-----------------------------
a person authorised to act in that behalf.
Signed on behalf of EMPRESA BRASILEIRA DE TELECOMUNICACOES S.A.
/s/
-------------------------------
a person authorised to act in that behalf.
Signed on behalf of EMPRESA NACIONAL DE TELECOMUNICACIONES DE COLOMBIA
/s/
-------------------------------
a person authorised to act in that behalf.
Signed on behalf of GOLDEN LINES INTERNATIONAL COMMUNICATIONS SERVICES LTD.
/s/
--------------------------------
a person authorised to act in that behalf.
41
Signed on behalf of IDB WORLDCOM SERVICES INC.
---------------------------------
a person authorised to act in that behalf.
Signed on behalf of lNSTITUTO COSTARRICENSE DE ELECTRICIDAD
/s/
----------------------------------
a person authorised to act in that behalf.
Signed on behalf of MCI INTERNATIONAL INC.
/s/
-----------------------------
a person authorised to act in that behalf.
Signed on behalf of PACIFIC GATEWAY EXCHANGE (BERMUDA) LIMITED
/s/
-------------------------------
a person authorised to act in that behalf.
Signed on behalf of PT INDOSAT (PERSERO) TBK.
/s/
-------------------------------
a person authorised to act in that behalf.
42
Signed on behalf of SERVEI DE TELECOMUNICACIONS D'ANDORRA
/s/
-----------------------------
a person authorised to act in that behalf.
Signed on behalf of SOCIETE NATIONALE DES TELECOMMUNICATIONS DU SENEGAL
/s/
-----------------------------
a person authorised to act in that behalf.
Signed on behalf of STARTEC GLOBAL COMMUNICATION CORPORATION
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of SWISSCOM AG
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELECOM ITALIA, S.p.A.
/s/
---------------------------------
a person authorised to act in that behalf.
43
Signed on behalf of TELECOMJNICACIONES INTERNACIONALES DE
ARGENTINA, TELINTAR S.A.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELEFONICA DE ESPANA, S.A.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELEFONICA DEL PERU
/s/
--------------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELEFONOS DE MEXICO, S.A. DE C.V.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELEFONICA LARGA DISTANCIA DE PUERTO RICO, INC.
/s/
--------------------------------
a person authorised to act in that behalf.
44
Signed on behalf of TELEGLOBE USA, INC.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELEPUERTO SAN ISIDRO, S.A.
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELESUR
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of TELKOM SA LIMITED
/s/
--------------------------------
a person authorised to act in that behalf.
Signed on behalf of THE ST. XXXXXX AND SAN XXXX TELEPHONE COMPANY INC.
/s/
---------------------------------
a person authorised to act in that behalf.
45
Signed on behalf of TRANSOCEANIC COMMUNICATIONS INCORPORATED
/s/
-----------------------------
a person authorised to act in that behalf.
Signed on behalf of TURK TELEKOMUNIKASYON A.S.
/s/
-----------------------------
a person authorised to act in that behalf.
Signed on behalf of UKRANIAN STATE ENTERPRISE OF INTERNATIONAL AND LONG-
DISTANCE TELECOMMUNICATIONS & TV UKRTEC
/s/
-------------------------------
a person authorised to act in that behalf.
46
SCHEDULE A
PARTIES TO THE AGREEMENT
ALESTRA, S. DE X.X. DE C.V., a corporation organized and existing under the laws
of Mexico and having its principal office at Av. Paseo de las Palmas # 275, Piso
0, Xxx. Xxxxx xx Xxxxxxxxxxx, 00000 Xxxxxx, D.F. MEXICO, (herein called
"ALESTRA", which expression shall include its successors and assigns).
ANTELECOM, N.V., having an office at Xxxxxxxxxxxxxx 00, Xxxxxxx, Xxxxxxxxxxx
Antilles (herein called "ANTELECOM", which expression shall include its
successors).
AT&T CORP., a corporation organized and existing under the laws of the State of
New York and having its principal office at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000, XXX (herein called "AT&T", which expression shall include its
successors).
BAHAMAS TELECOMMUNICATIONS CORPORATION, a Corporation established and existing
by virtue under the Bahamas Telecommunications Corporation Act of 1996 and
having its principal place of business at Xxxx X. Xxxxxxx and Dolphin Drives,
P.O. Box N-3048, Nassau, Bahamas (herein called "BATELCO", which expression
shall include its successors).
BARAK I.T.C., a corporation organized and existing under the laws of Israel and
having its principal office at 00 Xxxxxxxxx Xx., Xxxxxxxxxx Xxxx Xxxxx, Xxxx
Xx'xxxx, 00000 Israel, herein called "BARAK", which expression shall include its
successors and assigns.
BELL SOUTH CHILE S.A., a company organized under the laws of Chile and having
its principal office at Av. E1 Bosque Sur 000, Xxxx 00, Xxx Xxxxxx, Xxxxxxxx,
Xxxxx (herein called "BELL SOUTH-CHILE", which expression shall include its
successors).
BULGARIAN TELECOMMUNICATIONS COMPANY LTD., a company existing under the laws of
Bulgaria whose registered office is at 0000 Xxxxx 0, Xxxxxxxx Xxxxxxxxx (herein
called "BTC BULGARIA", which expression shall include its successors).
CABLE & WIRELESS PANAMA, S.A., an entity organized and existing under the laws
of the Republic of Panama and having its office at Apartado 9A-659, Panama 9A,
Republic of Panama (herein called "C&W PANAMA", which expression shall include
its successors).
COMPANHIA PORTUGUESA RADIO XXXXXXX X.X., a corporation organized and existing
under the laws of Portugal and having its principal office at Av. Xxxxxx Xxxx
No. 2, 1600 Lisboa, Portugal (herein called "MARCONI", which expression shall
include its successors).
COMPANIA ANONIMA NACIONAL TELEFONOS DE VENEZUELA, a company organized under the
laws of Venezuela and having its principal office at Av. Libertador, Edif.
Administrativo, Caracas, Venezuela (herein called "CANTV", which expression
shall include its successors).
1
CYPRUS TELECOMMUNICATIONS AUTHORITY, a corporate body established by law. having
its main office at Telecommunications Street, PO Box 4929, CY-1396 Nicosia,
Cyprus (herein called "CYTA", which expression shall include its successors).
EMPRESA BRASILEIRA DE TELECOMUNICACOES S.A. Xxxxxxx Xxxxxxxxxx Xxxxxx - 0000,
Xxx xx Xxxxxxx, 00000-000, Xxxxxx (herein called "EMBRATEL", which expression
shall include its successors).
EMPRESA NACIONAL DE TELECOMUNICACIONES DE COLOMBIA, an entity having its
principal office at XxXxx 00 X 00-00, Xxxxx Xx xx Xxxxxx, Xxxxxxxx (herein
called "TELECOM COLOMBIA", which expression shall include its successors).
GOLDEN LINES INTERNATIONAL COMMUNICATIONS SERVICES LTD., a company organized and
existing under the laws of Israel and having its principal office at 00 Xxxxxxx
Xx., Xxxxxx Xxxxxxx, Petach Tikvah, 49170 Israel (herein called "GOLDEN LINES",
which expression shall include its successors).
IDB WORLDCOM SERVICES INC., a corporation organized and existing under the laws
of the State of Delaware, United States of America and having an office at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX (hereinafter called "WORLDCOM" or
"WCOM", which expression shall include its successors).
INSTITUTO COSTARRICENSE DE ELECTRICDAD, a government owned decentralized
institution, having its Telecomunications Operations Office at San Xxxxx xx
Xxxxxx de Oca, PO Box 10032, San Xxxx 1000, Costa Pica (herein called "ICE",
which expression shall include its successors).
MCI INTERNATIONAL INC., a corporation organized and existing under the laws of
the State of Delaware and having its principal office at 0 Xxxxxxxxxxxxx Xxxxx,
Xxx Xxxxx, Xxx Xxxx, XXX (herein called "MCII", which expression shall include
its successors).
PACIFIC GATEWAY EXCHANGE (BERMUDA) LIMITED whose expression shall include its
successors, whose registered office is at Xxxxxxx Xxxx Xxxxxxx, Clarendon House,
0 Xxxxxx Xxxxxx, Xxxxxxxx XXXX, Xxxxxxx and whose mailing address is at 000
Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxxx, XX 00000, XXX (herein called "PGE").
PT INDOSAT (PERSERO) Tbk., registered as a company for international
telecommunications of the Republic of Indonesia and existing under the laws of
Indonesia and having its principal office at Xxxxx Xxxxx Xxxxxxx Xxxxx Xx. 00,
Xxxxxxx 00000, Xxxxxxxxx, hereinafter called "INDOSAT", which expression shall
include its successors.
SERVEl DE TELECOMUNICACIONS D'ANDORRA, a company organized under the laws of
Andorra and having its pricipal office at Av. Meritxell 112, Andorra xx Xxxxx,
Andorra (herein called "STA", which expression shall include its successors).
2
SOCIIETE NATIONALE DES TELECOMMUNICATIONS DU SENEGAL, 0, Xxx Xxxxxx Xxxxx,
Xxxxx, Senegal (herein called "SONATEL", which expression shall include its
successors).
STARTEC GLOBAL COMMUNICATION CORPORATION, a corporation organized and existing
under the laws of the State of Maryland, USA and having its head office at 00000
Xxxxx Xxxx Xxxxx, Xxxxxxxx, XX 00000, XXX (herein called "STGC", which
expression shall include its successors and assigns).
SWISSCOM AG, a company existing under the laws of Switzerland, having its
principal offices at Xxxxxxxxxxxxxxx 00, XX-0000 Xxxxx / Xxxxxxxxxxx (herein
called "SWISSCOM", which expression shall include its successors).
TELECOM ITALIA, S.p.A., a corporation organized under the laws of Italy and
having its principal office at Xxx Xxx Xxxxxxxx 00-00000 Xxxxxx, Xxxxx (herein
called "TI", which expression shall include its successors).
TELECOMUNICACIONES INTERNACIONALES DE ARGENTINA, TELINTAR S.A., 25 xx Xxxx 457,
0 Xxxx, 0000 Xxxxxxx Xxxxxxx, Xxxxxxxxx (herein called "TELINTAR", which
expression shall include its successors).
TELEFONICA DE ESPANA, S.A., a corporation organized and existing under the laws
of Spain and having its principal office at Gran Xxx 00, Xxxxxx, Xxxxx (herein
called "TLFN", which expression shall include its successors).
TELEFONICA DEL PERU, a corporation organized and existing under the laws of Peru
and having its principal office at Av. Arequipa N 1155, Lima 1, Peru (herein
called "TLFN-PERU", which expression shall include its successors).
TELEFONOS DE MEXICO, S.A. DE C.V., a corporation duly organized and existing
under the laws of Mexico and having an office at Parque Xxx 000, X0xxxx X.X.,
Xxxxxx (herein called "TELMEX", which expression shall include its successors).
TELEFONICA LARGA DISTANCIA DE PUERTO RICO, INC., Metro Office Park, Building Xx.
0, Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxx Xxxx 00000 (herein called "TLDI", which
expression shall include its successors).
TELEGLOBE USA, INC., a corporation organized and existing under the laws of the
state of Delaware, and having its principal office at 0000 Xxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxx (hereinafter called "TELEGLOBE", which expression shall include
its successors) for the use of its wholly owned or otherwise affiliated,
authorized international carriers.
TELEPUERTO SAN ISIDRO, S.A., a corporation organized and existing under the laws
of the Dominican Republic and having its principal office at Lope de Xxxx,
Xxxxxxx 00, Xxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxxx (herein called "TRICOM", which
expression shall include its successors).
3
TELESUR, a company organized under the laws of Suriname and having an office at
Xxxxxxxxxxx Xx. 00, X.X. Box 1839, Paramaribo, Suriname, (herein called
"TELESUR" which expression shall include its successors).
TELKOM SA LIMITED, a public company with limited liability, registered under the
laws of the Republic of South Africa with registration number 91/05476/06 and
having its registered office at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx xx Xxxxx
Xxxxxx, herein referred to as "TELKOM SA", which expression shall include its
successors.
THE ST. XXXXXX AND SAN XXXX TELEPHONE COMPANY INC., an entity organized and
existing under the laws of the U.S. Virgin Islands and having its principal
office at Xx. 0 Xxxxxxx Xxxxx, Xx. Xxxxxx, X.X.X.X. 00803-1915, St. Xxxxxx, U.S.
Virgin Islands (herein called "TRESCOM", which expression shall include its
successors).
TRANSOCEANIC COMMUNICATIONS INCORPORATED, a wholly owned subsidiary of AT&T, a
corporation organized and existing under the laws of the State of Delaware, and
having an office at 000 Xx. Xxxxxx Avenue, Morristown, New Jersey 07960, USA
(herein called "XXXX", which expression shall include its successors).
TURK TELEKOMUNIKASYON A.S., a corporation organized and existing under the laws
of Turkey, having its main office at Xxxxxx Xxxx Bulvari, 06103
Aydinlikevler-Ankara, Turkey (herein called "TURK TELEKOM", which expression
shall include its successors).
UCRAINIAN PUBLIC COMPANY OF INTERNATIONAL AND LONG-DISTANCE TELECOMMUNICA-TIONS
UKRTEC, having its main office at Xxxxxxxxxxxx 0, 000000 Xxxx, Xxxxxxx (herein
called "UKRTEC", which expression shall include its successors).
4
ANNEX 1
COLUMBUS III CABLE SYSTEM
ASSIGNMENT, ROUTING AND RESTORATION SUBCOMMITTEE
TERMS OF REFERENCE
a) The responsibilities of the Assignment, Routing and Restoration
Subcommittee (hereinafter called "AR&R Subcommittee") shall include the
following:
i. Jointly develop with the NA, for approval by the General Committee, a
routing plan for the assignment of capacity.
ii. Jointly define with the NA, for approval by the General Committee:
a. Procedures for reassignments of Wholly Owned MIUs by Path.
b. Procedures for the use of the In-System Restoration Capacity.
c. Procedures, terms and conditions for the restoration of other
cable systems.
d. Procedures, terms and conditions for the provision of temporary
or occasional services.
iii. Study and recommend extension arrangements.
iv. Recommend the digital interworking arrangements including
multiplexing, digital circuit multiplication, conversion equipment,
digital cross connect equipment, synchronization plans, performance
monitoring equipment, test procedures, alarms, etc.
v. Study and recommend performance criteria for equipment and systems
referenced in iv) above.
vi. Monitor the development and timely provision of compatible interface
equipment arrangements.
vii. Oversee the establishment of a central record for capacity assignment
and utilization, to be managed by the NA.
viii.Determine pre-service test points, types of tests, test parameters,
test duration, and test limits on digital facilities operating on
Columbus III at bit rates below and including 155.52 Mbps if extended
into a terrestrial network.
ix. Plan and schedule the pre-service tests including tests on the cable
sections and end to end tests for those primary rate blocks that will
carry initial service.
x. Coordinate activities during the pre-service testing program,
including the exchange of necessary technical, contact and
coordination information among the Columbus III users prior to the
start of the testing program.
xi. Develop and recommend to the General Committee a restoration plan
including technical and commercial conditions and principles to be
followed in the restoration plans for Columbus III capacity.
1
xii. Monitor the deployment of other international digital transmission
systems in the area and recommend technical principles to be followed
in using Columbus III as a restoration medium for such other
transmission systems.
xiii.Determine and act on any required transmission testing of Columbus
III restoration configurations.
xiv. Study and insure the integration of Columbus III with the existing PDH
systems.
xv. Evaluate long-term technical performance of the digital facilities
routed through Columbus III.
xvi. To review expenditures to date against budget and forecast cost to
completion as they relate to the functions of this Subcommittee.
xxxx.Xx review project variations and proposed project changes as they
relate to the functions of this Subcommittee.
b) The AR&R Subcommittee shall direct the NA and shall work in liaison with
the other Subcommittees, the CBP and the PG as appropriate.
c) The AR&R Subcommittee shall report on a regular basis or as requested by
the General Committee.
d) All Parties shall have the right to be represented in this Subcommittee.
e) The AR&R Subcommittee shall carry out any other responsibilities as the
General Committee may direct
f) MCII shall provide the Chairperson of the AR&R Subcommittee.
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ANNEX 2
COLUMBUS III CABLE SYSTEM
OPERATION AND MAINTENANCE SUBCOMMITTEE
TERMS OF REFERENCE
a) The responsibilities of the Operation and Maintenance Subcommittee
(hereinafter called "O&M Subcommittee ") shall include the following:
i. Review the Operation and Maintenance Document to be used for Columbus
III as proposed by the Maintenance Authorities which will include the
review and preparation of testing, operating and maintenance methods
for the efficient operation of Columbus III, prior to submission to
the General Committee for approval.
ii. Review the Maintenance Authorities' recommendation regarding the
inclusion of Columbus III in a Cable Maintenance Agreement and review
the relevant agreement to be signed by the Maintenance Authorities,
after the General Committee approval.
iii. Make recommendations to the PG on the provision of maintenance
equipment and spares other than that, if any, not being provided under
the Supply Contract.
iv. Review any recommendation made by the PG for pooling equipment with
other cable systems.
v. Study other matters and provide assistance as required to resolve
problems affecting maintenance of Columbus III as may be identified by
the Maintenance Authorities and/or the PG.
vi. Liaise as required with the Maintenance Authorities for other cable
systems concerning the preparation of plans and procedures for the
provision, disposition, maintenance and replacement of any jointly
owned equipment or spares which may be agreed to be provided by the
owners of cable systems involved.
vii. Review the Operation and Maintenance budget developed by the
Maintenance Authorities, for approval by the General Committee and
provide this budgetary information to the F&A Subcommittee.
b) In the performance of the above responsibilities, the O&M Subcommittee
shall work in liaison with the other Subcommittees and the PG as
appropriate.
c) The O&M Subcommittee shall report on a regular basis or as requested by the
General Committee.
d) All Parties shall have the right to be represented in this Subcommittee.
e) The O&M Subcommittee shall carry out any other responsibilities as the
General Committee may direct.
f) TELEFONICA DE ESPANA shall provide the chairperson of the O&M Subcommittee.
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ANNEX 3
COLUMBUS III CABLE SYSTEM
FINANCIAL AND ADMINISTRATIVE SUBCOMMITTEE
TERMS OF REFERENCE
a) The responsibilities of the Financial and Administrative Subcommittee
(hereinafter called "F&A Subcommittee") shall include the following:
i. Jointly develop with the CBP, detailed billing, specific time
intervals for all associated functions, financial and accounting
procedures based on the terms and conditions of this Agreement, for
approval by the General Committee, including but not limited to:
a. Payments between the Parties and the Supplier concerning the
construction of Columbus III.
b. Payments among the Parties and among the Standard IRU Holders.
c. Payments resulting from adjustments of Schedules.
d. Currency exchange costs.
e. Circumstances of default.
ii. Jointly develop with the NA, the administrative procedures for the
transfer of capacity among the different types of Capacity, and for
the use of the Financial Credits, for approval by the General
Committee.
iii. Investigate and develop detailed procedures for reclamation of taxes
by the Parties, if appropriate.
iv. Develop any other billing, financial and accounting procedures as
necessary, for approval by the General Committee.
v. Prepare a budget for approval by the General Committee showing:
a. Fixed costs by major cost elements.
b. Costs incurred by all budgetary cost elements.
c. Division of costs among Segments and Subsegments, where
applicable.
d. Semi-annual cash flows per calendar year.
e. Billing amounts by calendar quarter.
vi. Monitor the following items by comparison with the budget:
a. Expenditures to date.
b. Expenditures outstanding.
c. Variations and reasons therefore.
vii. Establish audit procedures as appropriate, in accordance with this
Agreement and the Supply Contract.
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viii.The F&A Subcommittee, if instructed by the General Committee, shall
carry out, or cause to be carried out, a detailed investigation of
project expenditures, including the conducting of an audit, in
accordance with the terms of this Agreement.
ix. Assist the General Committee as necessary in the interpretation of the
financial terms of this Agreement.
x. Advise the General Committee on any budgetary implications of proposed
engineering variations to the project.
b) The F&A Subcommittee shall direct the CBP, and shall maintain liaison with
the PG, the NA, and as necessary with any other Subcommittees.
c) The F&A Subcommittee shall report on a regular basis or as requested to the
General Committee.
d) All Parties shall have the right to be represented in this Subcommittee.
e) The F&A Subcommittee shall carry out any other responsibilities as the
General Committee may direct.
f) XXXXXXX shall provide the chairperson of the F&A Subcommittee.
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ANNEX4
COLUMBUS III CABLE SYSTEM
CENTRAL BILLING PARTY
TERMS OF REFERENCE
a) The responsibilities of the Central Billing Party (hereinafter called
"CBP") shall include the following:
i. Provide a centralized billing function to the Parties in order to:
a. Render bills to and receive payment from the Parties and make
payments to the Supplier and Parties as appropriate.
b. Provide for direct billing to and receive payments from Standard
IRU Holders as appropriate.
c. Render bills to and receive payments from the Parties and
Standard IRU Holders regarding operation and maintenance and
restoration costs as appropriate.
d. Minimize cross billing among the Parties.
e. Minimize the number of financial transactions.
f. Minimize the billing, payment and costs associated with such
financial transactions and multiple currencies.
ii. Jointly develop with the F&A Subcommittee, detailed billing, specific
time intervals for all associated functions, financial and accounting
procedures based on the terms and conditions of this Agreement, for
approval by the General Committee including but not limited to:
a. Payments between the Parties and the Supplier concerning the
construction of Columbus III.
b. Payments among the Parties and among the Standard IRU Holders.
c. Payments resulting from adjustments of Schedules.
d. Currency exchange costs.
e. Circumstances of default.
iii. Monitor the amount of each Party's share of costs of Segment S and
make any necessary refunds in order that adjustments, as soon as
practicable, and render any necessary bills and under the terms and
conditionsay bear its proper share of the costs as provided of this
Agreement.
iv. Report to the General Committee any default in payment by any of the
Parties or Standard IRU Holders as provided in this Agreement.
v. Maintain records of all its billing activities for a period of five
(5) years.
vi. Provide a point of contact for explanations regarding bills.
vii. Keep all the documentation on which the bills are rendered.
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b) The CBP shall assist, as necessary, the F&A Subcommittee in carrying out
its tasks assigned by the General Committee.
c) The CBP shall report at least once every three months or as requested, to
the General Committee through the F&A Subcommittee.
d) AT&T shall be the CBP and provide the central billing functions as outlined
herein.
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ANNEX 5
COLUMBUS III CABLE SYSTEM
NETWORK ADMINISTRATOR
TERMS OF REFERENCE
a) The responsibilities of the Network Administrator (hereinafter called "NA")
shall include the following:
i. Jointly develop with the AR&R Subcommittee, for approval by the
General Committee a routing plan for the assignment of capacity.
ii. Jointly define with the AR&R Subcommittee, for approval by the General
Committee:
a. Procedures for reassignments of Wholly Owned MIUs by Path.
b. Procedures for the use of the In-System Restoration Capacity.
c. Procedures, terms and conditions for the restoration of other
cable systems.
d. Procedures, terms and conditions for the provision of temporary
or occasional services.
iii. Arrange, monitor, record and maintain the following:
a. Capacity assignments and utilization.
b. In-system restoration.
c. Restoration of other cable systems.
d. Temporary or occasional services.
iv. Register, monitor and review capacity allocation in each Path in order
to identify and avoid excess activation and bottlenecks in Columbus
III.
v. Update and distribute the Schedules of this Agreement to the Parties.
vi. Coordinate and administer the arrangement for the capacity used for
the provision of restoration of other cable systems.
vii. Coordinate and administer the arrangement for the capacity used for
the provision of temporary or occasional services.
viii.Provide support to the AR&R Subcommittee in developing the
restoration plan for Columbus III.
ix. Provide support to the AR&R Subcommittee in identifying capacity
requirements for restoration of other cables via Columbus III.
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x. Work with the Landing Point Parties to monitor the availability of
inland extensions and cable access facilities and transit facilities
necessary to meet service and restoration requirements.
xi. Develop together with an ad-hoc working group if required, the pricing
criteria, terms and conditions of a Standard IRU Agreement and sales
procedures for approval by the General Committee.
xii. Verify the availability of capacity in the Paths prior to execution of
Standard IRU Agreements, of other cable systems restoration
agreements, or of temporary or occasional services agreements.
xiii.Execute Standard IRU Agreements, restoration of other cable systems
agreements, or temporary or occasional services agreements on behalf
of the Parties and in accordance with this Agreement.
xiv. Upon receipt of a matching request from two corresponding Parties
and/or Standard IRU Holders, coordinate the implementation of the
COLUMBUS III capacity by the Landing Point Parties; administer the
provision of a cable assignment of capacity owned or acquired through
a Standard IRU Agreement, and manage all such requests associated with
capacity, for activation or deactivation within 5 (five) business
days, or as otherwise directed by the General Committee.
xv. Jointly develop with the F&A Subcommittee, the administrative
procedures for the transfer of capacity among the different types of
Capacity, and the use of the Financial Credits, for approval by the
General Committee.
b) The NA shall work as appropriate in the performance of the above
responsibilities in liaison with the Subcommittees and the Landing Point
Parties.
c) The NA shall assist, as necessary, the AR&R Subcommittee in carrying out
its tasks assigned by the General Committee.
d) The NA shall report at least once every three months or as requested, to
the General Committee through the AR&R Subcommittee.
e) AT&T shall be the NA and shall provide the network administrator functions
as outlined herein.
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ANNEX 6
COLUMBUS III CABLE SYSTEM
PROCUREMENT GROUP
TERMS OF REFERENCE
a) The responsibilities of the Procurement Group (hereinafter called "PG")
shall include the following:
i. The PG will pursue the activities previously undertaken by the IPG
under the Memorandum Of Understanding.
ii. Develop procedures and documentation for:
a) The solicitation of proposals from Supplier(s) and any testing or
evaluation services.
b) The analysis and comparison of Suppliers' proposals.
c) The selection of the Supplier(s).
d) The negotiation with the Supplier(s).
iii. Execute the Supply Contract(s) with the Supplier(s) on behalf of the
Parties following the approval of the General Committee.
iv. Designate representatives to examine test and inspect equipment,
material, supplies and installation activities.
v. Coordinate and control development and construction of Segment S of
Columbus III, oversee the provision of Segments A, B, C and D, and
review work reports for all Segments.
vi. Be responsible for the interpretation of all provisions of the Supply
Contract(s). The General Committee shall be finally responsible for
the interpretation of the provisions concerning damages, warranty and
extensions of time.
vii. Review the Supply Contract(s) expenditures to date against budget and
forecast to completion.
xxxx.Xxxxxx and negotiate variations, amendments and proposed project
changes to the Supply Contract(s). Approve such variations, amendments
and changes provided that the overall cumulative value of the changes
to the Supply Contract(s) does not increase the value of the Supply
Contract(s) by more than one percent (1%) of its initial value.
Changes exceeding this cumulative value will be referred to the
General Committee for approval. All project changes shall be reported
to the General Committee.
ix. Develop the specifications for increasing the Design Capacity, if so
required by the General Committee.
x. Provide to the F&A Subcommittee and the General Committee, as
appropriate, timely information regarding the costs of the project and
the cost and description of any project changes. Develop procedures in
consultation with the F&A Subcommittee to allocate capital costs to
the appropriate Columbus III Segments.
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xi. Oversee overall Columbus III integration and operating compatibility
of Segment S and review all contractual matters pertaining to such
integration.
xii. Coordinate and administer testing procedures and results related to
acceptance tests and warranty provisions to evaluate compliance with
technical specifications as provided for in the Supply Contract(s).
xiii.Make recommendations to the General Committee regarding the issuance
of certificates of acceptance. After authorization by General
Committee, issue appropriate certificates of acceptance, under the
Supply Contract(s).
xiv. Approve invoices rendered by the Supplier(s), in accordance with the
terms of the Supply Contract(s), and by the Terminal Parties, in
accordance with the budget approved by the General Committee.
xv. Purchase all the necessary Multiplex Equipment, maintenance equipment
and spares on the recommendation of the AR&R and O&M Subcommittees
with all the relevant information forwarded to the General Committee.
xvi. Maintain books, records, vouchers and accounts of all costs that are
incurred under the Supply Contract(s).
xvii.Ensure the compatibility of the provision of the Supply Contract(s)
with the terms and the conditions of this Agreement.
b) The PG shall work as appropriate in the performance of the above
responsibilities in liaison with the Subcommittees.
c) To aid the PG in the performance of its duties some working groups may be
established as deemed necessary.
d) The PG shall report to the General Committee at least once every three
months during the construction period, or as may be requested.
e) The PG shall carry out any other responsibilities as the General Committee
may direct.
f) The Chairperson of the PG shall rotate among the PG Parties.
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EXHIBIT 1
COLUMBUS III CABLE SYSTEM
Columbus III Architecture
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EXHIBIT 2
COLUMBUS III CABLE SYSTEM
Columbus III Fiber Pairs Configuration
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EXHIBIT 3
COLUMBUS III CABLE SYSTEM
Columbus III Ring Configuration
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EXHIBIT 4
COLUMBUS III CABLE SYSTEM
Columbus III Capacity Definitions
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Note: Schedule N is a Summary of Financial Credits (U.S. $)
EXHIBIT 5
COLUMBUS III CABLE SYSTEM
Columbus III Bodies Structure
[GRAPHIC OMITTED]
