EXHIBIT 10.7
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated by [*****]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
ATLANTIC CROSSING/AC-1
SUBMARINE CABLE SYSTEM
CAPACITY PURCHASE AGREEMENT
THIS AGREEMENT (as amended, supplemented or otherwise modified from
time to time, this "Agreement"), made and entered into as of this 21st day of
June, 1999, between ATLANTIC CROSSING LTD., a company organized and existing
under the laws of Bermuda and having its principal office in Bermuda (the
"Grantor"), and VIA NET WORKS EUROPE HOLDING B.V., a company organized and
existing under the laws of The Netherlands and having its principal office at
Veena 723C-6, PO Box 3013 AM, Rotterdam, The Netherlands (the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Grantor, (formerly known as Global Telesystems Ltd.),
certain of its subsidiaries, SSI Atlantic Crossing LLC and AT&T Submarine
Systems, Inc., now known as Tyco Submarine Systems Ltd. (together with its
successors and assigns, "TSSL") have entered into the Project Development and
Construction Contract, dated March 18, 1997 (as amended, supplemented or
otherwise modified from time to time, the "Supply Contract"), pursuant to which
TSSL has agreed to design, manufacture, construct, install and deliver a fiber
optic cable system connecting (a) the United States to the United Kingdom, (b)
the United Kingdom to the Netherlands, (c) the Netherlands to Germany and (d)
Germany to the United States (the "System");
WHEREAS, the Grantor, certain of its subsidiaries, SSI Atlantic
Crossing LLC and TSSL have also entered into the Operations, Administration and
Maintenance Agreement, dated as of March 25, 1997 (as amended, supplemented or
otherwise modified from time to time, the "OA&M Agreement"), pursuant to which
TSSL has agreed, in accordance with the terms thereof, to operate, administer
and maintain the System;
WHEREAS, the Purchaser desires to acquire rights with respect to the
Purchased Capacity (as defined herein) on an indefeasible right of use basis
("IRU") and such Purchased Capacity represents capacity on the System between
the System Interface (as defined herein) of the applicable cable stations;
WHEREAS, the Purchased Capacity is comprised of: (a) S Capacity (as
defined herein), which will be conveyed by the Grantor to the Purchaser pursuant
to this Agreement; and (b) to the extent necessary to allow the Purchaser to use
its IRU in the applicable S Capacity, T Capacity (as defined herein), which will
be conveyed by subsidiaries of the Grantor to the Purchaser pursuant to the
Indefeasible Right of Use
Agreement, attached hereto as Annex A; and
WHEREAS, in order to obtain inland connection services in the United
States and the United Kingdom for the purpose of extending the Purchased
Capacity inland to a location in New York City and London (the "Inland
Capacity"), the Purchaser has the option of entering into separate agreements
(the "Inland Capacity Agreements") with subsidiaries or affiliates of the
Grantor located in the United States and the United Kingdom (the "Inland
Affiliates");
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein, covenant and agree with each other as follows:
1. DEFINITIONS. Terms defined in the preamble, in the recitals and Annex B
hereto shall have their respective meanings when used herein and the
following terms shall have the following meanings:
"Access Connection" as defined in Annex B to this Agreement.
-----------------
"Adjusted Pro Rata Share" as defined in Annex B to this Agreement.
-----------------------
"Advisory Committee" as defined in Paragraph 5 of Annex B to this
------------------
Agreement.
"business day" means a day other than a Saturday, Sunday or other day
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on which commercial banks in New York City or Bermuda are authorized
or required to close.
"Dollars" or "$" means United States dollars.
--------------
"European Segment" means Segment S-3a, S-3b and/or S-3c.
----------------
"Grantor's Account" means the bank account of the Grantor maintained
-----------------
with Deutsche Bank AG, New York Branch, at 31 West 52nd Street, New
York, New York 10019 (account number 10-533026-0016) or such other
account as the Grantor may designate to the Purchaser in writing.
Wire instructions for the above-referenced account are as follows:
Account Name: Atlantic Crossing Ltd.
Account Number: 10-533026-0016
Bank Name: Deutsche Bank AG, New York Branch
ABA No.: 026-003-780
Reference: Atlantic Crossing Attn: Lydia Zaininger
"Initial Payment Date" means, with respect to the IRU granted in
--------------------
respect of the Purchased Capacity, the date on which the Purchaser
pays the Grantor (for the benefit of the Grantor and the benefit of
the Subsidiary Grantors), in immediately available Dollars, the
initial amount required to
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be paid by the Purchaser for such Purchased Capacity in accordance
with Section 3(b) of this Agreement.
"Maintenance Costs" as defined in Section 4(a) of this Agreement.
-----------------
"Minimum Capacity Unit" or "MCU" means the minimum capacity to be
--------------------- ---
purchased by the Purchaser in the System. A STM-1 is designated as the
MCU for purposes of this Agreement.
"Operator" means TSSL and its successors and assigns as operator under
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the OA&M Agreement or any successor operator of the System appointed
by Grantor.
"Payment Due Date" means, with respect to the IRU granted in respect
----------------
of any Purchased Capacity, the payment date as set forth in Schedule
II hereto.
"Purchased Capacity" means the S Capacity set forth on Schedule I
------------------
hereto, together with to the extent necessary to allow the Purchaser
to use its IRU in the applicable S Capacity, the applicable T
Capacity.
"Purchase Price" means, with respect to the IRU granted in respect of
--------------
any Purchased Capacity, the amount payable by the Purchaser to the
Grantor (for the benefit of the Grantor and the benefit of the
Subsidiary Grantors) in respect of such Purchased Capacity and set
forth under the heading "Total Purchase Price" on Schedule I to this
Agreement.
"RFS Date" means, with respect to any Segment, the date on which such
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Segment will be available for service, which shall be the date on
which the Grantor certifies that (i) such Segment has achieved the
standard described in Attachment 4 to Annex B hereto, (ii) such
Segment has been accepted by Grantor as ready for commercial service
under the Supply Contract and (iii) the independent engineer engaged
by Grantor's senior lenders has concurred with such acceptance. The
RFS Date for Segment S-1 (and the related T Segments) was May 22,
1998. The RFS Date for Segment S-2 was November 30, 1998. The RFS Date
for Segment S-3a, Segment S-3b, Segment S-3c, Segment S-4 and the
entire System was February 22, 1999.
"Right of Use Agreement" means the Indefeasible Right of Use
----------------------
Agreement, dated as of the date hereof, made by GT Landing Corp., GT
U.K. Ltd., Global Telesystems GmbH and GT Netherlands B.V. in favor of
purchasers of capacity on the System (including the Purchaser) and
attached as Annex A to this Agreement, as such agreement may be
amended, supplemented or otherwise modified from time to time in
accordance with Paragraph 9 thereof.
"S Capacity" means capacity on the System available on any S Segment.
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"S Segments" the collective reference to Segment S-1, S-2 and S-3a,
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S-3b, S-3c and S-4, as necessary.
"Segment S-1" as defined in Annex B to this Agreement.
-----------
"Segment S-2" as defined in Annex B to this Agreement.
-----------
"Segment S-3a" as defined in Annex B to this Agreement.
------------
"Segment S-3b" as defined in Annex B to this Agreement.
------------
"Segment S-3c" as defined in Annex B to this Agreement.
------------
"Segment S-4" as defined in Annex B to this Agreement.
-----------
"Segment T-1" as defined in Annex B to this Agreement.
-----------
"Segment T-2" as defined in Annex B to this Agreement.
-----------
"Segment T-3" as defined in Annex B to this Agreement.
-----------
"Segment T-4" as defined in Annex B to this Agreement.
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"Segments" the collective reference to the S Segments and the T
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Segments.
"Stub Period" as defined in Section 4(a) hereof.
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"Subsidiary Grantors" the collective reference to GT Landing Corp., GT
-------------------
U.K. Ltd., Global Telesystems GmbH and GT Netherlands B.V. each a
wholly- owned subsidiary of the Grantor.
"Supplier" means TSSL and its successors and assigns as contractor
--------
under the Supply Contract or any successor contractor of the System
appointed by Grantor.
"T Capacity" means capacity on the System available on any T Segment.
----------
"T Segments" the collective reference to Segment T-1, T-2, T-3 and
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T-4.
"Transatlantic Segment" means Segment S-1, S-2 or S-4.
---------------------
"Total Purchase Price" means the aggregate amount payable by the
--------------------
Purchaser to the Grantor (for the benefit of the Grantor and the
benefit of the Subsidiary Grantors) for the IRU of the Purchased
Capacity as set forth on the bottom of Schedule I to this Agreement
opposite the phrase "Total Purchase Price."
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2. PURCHASE OF IRU FOR PURCHASED CAPACITY.
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(a) Purchase Agreement and Grant of IRU. Purchaser hereby agrees to
------------------ ------------
purchase MCU(s) of Purchased Capacity on the terms and conditions set
forth herein and under the Right of Use Agreement. Effective on the
Initial Payment Date, the Grantor, together with the applicable
Subsidiary Grantors pursuant to the Right of Use Agreement, grants to
the Purchaser, for the term of this Agreement, an IRU in the
Purchased Capacity. The purchase and grant of the IRU in the
Purchased Capacity takes place in Bermuda.
(b) Quiet Enjoyment. So long as no event has occurred which entitles
---------------
Grantor to suspend service under this Agreement, the Purchaser shall
be entitled to the quiet enjoyment and use of the rights granted
hereunder free from interference from the Grantor or any person
claiming through Grantor, such as Grantor's lenders.
(c) Annex B. Certain rights and obligations with respect to the IRU of
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the Purchased Capacity are described in Annex B hereto, which is
incorporated herein by reference.
3. PAYMENT FOR CAPACITY.
--------------------
(a) Financing. Grantor shall finance the Purchase Price for the Purchased
---------
Capacity in accordance with Schedule II hereto. Payments by Purchaser
shall (i) be calculated to pay Grantor interest calculated at the
rate set out therein, (ii) be pre-payable, in whole or in part,
without penalty, and (iii) be secured by Grantor retaining a security
interest in the IRU until the Purchase Price is fully paid. Each of
the parties shall, at its expense, take all such actions and make all
such filings and recordings as are reasonably requested to establish,
perfect and protect the other party's interest in such IRU.
(b) Payment of Purchase Price. In exchange for the IRU interest granted
-------------------------
pursuant to this Agreement and the Right of Use Agreement in any
Purchased Capacity, the Purchaser shall, on or before each Payment
Due Date, pay to the Grantor's Account (for the benefit of the
Grantor and the benefit of the Subsidiary Grantors), in immediately
available Dollars, the amounts set forth in Schedule II hereto.
(c) Additional Service Payment. The Purchaser shall be required to make,
--------------------------
at the request of the Grantor, additional payments in respect of the
right of use granted under this Agreement, or the Right of Use
Agreement, for access connection rearrangement requested by the
Purchaser as set forth in Schedule III to this Agreement and such
other reasonable costs in respect of additional services or equipment
to be provided hereunder or in connection herewith as the parties
shall mutually agree.
5
(d) Taxes. All payments made by the Purchaser under this Section 3 shall
-----
be made without any deduction or withholding for or on account of any
tax, duty or other charges of whatever nature imposed by any taxing
or governmental authority in the jurisdiction from which payment by
the Purchaser originates or in any other jurisdiction claiming the
right to impose such tax, duty or charge due to the location of any
business or properties of the Purchaser (collectively "Taxes"). If
the Purchaser is or was required by law to make any deduction or
withholding for or on account of any Taxes from any payment due
hereunder to the Grantor (for the benefit of the Grantor and the
benefit of the Subsidiary Grantors ), then, notwithstanding anything
to the contrary contained in this Agreement, the gross amount payable
by the Purchaser to the Grantor (for the benefit of the Grantor and
the benefit of the Subsidiary Grantors) will be increased so that,
after any such deduction or withholding for Taxes, the net amount
received by the Grantor (for the benefit of the Grantor and the
benefit of the Subsidiary Grantors) will not be less than the Grantor
(for the benefit of the Grantor and the benefit of the Subsidiary
Grantors) would have received had no such deduction or withholding
been required. If any taxing or government authority asserts that the
Purchaser should have made a deduction or withholding for on account
of any Taxes with respect to all or a portion of any payment made
hereunder, the Purchaser hereby agrees to indemnify the Grantor for
such Taxes and hold the Grantor harmless on an after-tax basis from
and against any Taxes, interest or penalties levied or asserted in
connection therewith.
4. OPERATION AND MAINTENANCE OF SYSTEM.
-----------------------------------
(a) Maintenance Payments. The Purchaser shall pay to the Grantor (for the
--------------------
benefit of the Grantor and the benefit of the Subsidiary Grantors),
in immediately available Dollars, amounts ("Maintenance Costs") which
are based on its allocated share of the costs for operating,
maintaining and repairing the System in accordance with and subject
to the limitations set forth in Paragraph 8 of Annex B. Maintenance
Costs shall be payable quarterly in advance on each January 1, April
1, July 1 and October 1, commencing with the first January 1 after
the applicable Payment Due Date, except that on the applicable
Payment Due Date for the Purchased Capacity the Purchaser shall make
a proportional payment for the period (the "Stub Period") from the
applicable Payment Due Date to the first January 1 thereafter.
(b) Maintenance. (i) The Grantor shall use reasonable commercial efforts
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to cause the System to be maintained in efficient working order and
in accordance with industry standards and the Maintenance Performance
Standards set forth in Schedule IV to this Agreement which is
incorporated herein by reference. The Grantor represents that (A) the
OA&M Agreement (the "OA&M Agreement") is in full force and effect and
that neither the Grantor nor, to the best of the Grantor's knowledge,
any other
6
party to the OA&M Agreement is in material default of any provision
thereof; (B) that the OA&M Agreement requires and at all times the
Grantor shall require TSSL to provide routine, preventive and
corrective maintenance for the System in accordance with performance
standards that at least meet prudent industry standards; and (C) the
Grantor shall maintain the OA&M Agreement in full force and effect
and will use reasonable commercial efforts to cause TSSL to perform
its obligations under the OA&M Agreement and the Supply Contract.
(ii) The Grantor together with the Subsidiary Grantors will have
sole responsibility for negotiating, executing and
administering contracts and all other aspects related to the
construction, operation, maintenance and repair of the System.
(iii) Should any condition exist in any Segment that may impair the
integrity of the System, the Grantor shall initiate and
coordinate planned maintenance (or shall cause such action to
occur), on such relevant Segment which may include the
deactivation of such Segment. The Grantor shall, to the extent
reasonably practicable, advise the Purchaser in writing at
least sixty (60) days (or such shorter period as may be
necessary), prior to initiating a planned maintenance
operation, of the timing, scope and costs of such planned
maintenance operation.
(iv) In addition to fulfilling its obligations as set forth in
Section 4(b)(i), in the event of disruption of service due to
force majeure or other emergency, the Grantor shall cause
service to be restored as quickly as reasonably possible, and
the Grantor shall take such measures as are reasonably
necessary to obtain such objective.
(v) In addition to fulfilling its obligations as set forth in
Section 4(b)(i), the Grantor shall provide the Customer Care
Center services as described in Schedule V to this Agreement,
which is incorporated by reference herein.
(vi) In fulfilling its obligations as set forth in Section 4(b)(i),
the Grantor shall not provide any preference for the repair of
its or any other party's facilities, but rather shall perform
such services in a manner that does not discriminate against
the Purchaser.
5. INVOICES; DEFAULT INTEREST.
--------------------------
(a) Invoices. The Grantor (and/or the Subsidiary Grantors) or its
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authorized agent (which may include the Operator), shall render
invoices under this Agreement in Dollars, and the Purchaser shall pay
such amount in Dollars. The Purchaser shall make all payments by
means of a wire transfer to Grantor's Account (for the benefit of the
Grantor and the Subsidiary
7
Grantors). Any payments required to be made pursuant to this
Agreement shall be made on the later of (i) the date when due or (ii)
thirty (30) business days after an invoice is received from Grantor
by Purchaser. In the event the Purchaser has a dispute, in respect of
payment(s), and such dispute is of a reasonable, good faith,
commercial and uncapricious nature, the Purchaser shall be entitled
to withhold such payment(s) until the dispute is resolved. The
Purchaser shall, however, be obliged to use best efforts to assist in
resolving such dispute referred to in this Section 5(a).
(b) Default Interest. Any invoice rendered under this Agreement which is
----------------
not paid when due, shall accrue interest at the annual rate of six
percent (6%) above the rate for U.S. dollar LIBOR for one month as
quoted in The Wall Street Journal on the first business day of the
-----------------------
month in which such payment is due. Such interest shall accrue from
the day following the date payment was due until it is paid in full.
In the event that applicable law does not allow the imposition of
"default interest" at the rate established in accordance with this
Section 5(b), such "default interest" shall be at the highest rate
permitted by applicable law. For purposes of this Section, "paid"
shall mean that funds are available for immediate use by the Grantor.
6. DEFAULT
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(a) Subject to Section 5(a) hereof, if the Purchaser fails to make any
payment required by this Agreement on the date that it is due, or if
the Purchaser is otherwise in breach of this Agreement, and such
payment default continues unremedied for a period of at least five
(5) days or such other breach continues for a period of at least
thirty (30) days, the Grantor, or its authorized agent, may notify
the Purchaser in writing of such payment default or other breach and
if full payment is not received or such other breach is not fully
remedied within fifteen (15) days of such notification, the Grantor:
(i) may suspend all service provided to Purchaser hereunder and under
the Right of Use Agreement (including suspending Purchaser's right to
use the Purchased Capacity), until such payment default or other
breach has been cured (including payment of default interest, if any)
and (ii) shall be entitled to pursue any and all rights and legal and
equitable remedies (including its rights and remedies to enforce the
Purchaser's obligations under this Agreement).
(b) If the Grantor is in breach of this Agreement and such breach
continues for a period of at least thirty (30) days, the Purchaser
may notify the Grantor in writing of such breach and if such breach
is not fully remedied within fifteen (15) days of such notification,
the Purchaser shall, for so long as such breach continues, be
entitled to pursue any and all rights and legal and equitable
remedies, including its rights and remedies to enforce Grantor's
obligations under this Agreement and further including the right to
terminate this Agreement and receive a pro-rata refund of the
Purchase
8
Price based upon the remaining term. The Purchaser's right to pursue
any and all rights and legal and equitable remedies shall continue
for so long as such breach continues, provided, however, that a
subsequent cure of any such breach by Grantor shall not prejudice (i)
any right or remedy properly exercised by the Purchaser prior to the
time such cure has been effected, or (ii) the Purchaser's right to
claim damages with respect to the period prior to the time such cure
has been effected.
7. USE OF CAPACITY.
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(a) The operation of the Purchased Capacity and any equipment associated
therewith shall be such as not to interrupt, interfere with, or
impair service over any of the facilities comprising the System, or
impair privacy of any communications over such facilities, cause
damage to plant or create hazards to employees, affiliates or
connecting companies of the Grantor, any Subsidiary Grantor, the
Purchaser, or any other user, owner or operator of the System or the
public. The Purchaser shall bear the cost of any additional
protective apparatus reasonably required to be installed because of
the use of such facilities by the Purchaser, any lessees or permitted
transferees of the Purchaser, or any customer or customers of the
Purchaser or of any such lessee or transferee provided, however, that
this Section 7(a) shall only apply to the extent that such use is
outside the ordinarily anticipated use of such facilities. The
Grantor will cause all other purchasers of capacity in the System to
undertake obligations comparable to those of the Purchaser set forth
in this Section, and the Purchaser shall cause all permitted users of
the IRU in the Purchased Capacity to undertake comparable
obligations.
(b) The Purchased Capacity granted to the Purchaser shall be made
available to the Grantor (or its subsidiaries, its agents or the
Operator), at such times agreeable to the Purchaser and the Grantor,
to permit the Grantor and the Subsidiary Grantors to conduct such
tests and adjustments as may be necessary for such capacity to be
maintained in efficient working order.
8. DURATION OF AGREEMENT.
---------------------
(a) This Agreement shall become effective on the day and year set forth
in the preamble hereto and shall continue in operation until the
twenty-fifth (25th) anniversary of the RFS Date for the System.
(b) The termination of this Agreement (whether under this Section or
otherwise) shall not relieve either party from any liabilities
arising prior to such termination.
(c) Upon the termination of this Agreement, so long as Purchaser is not
in default hereunder, the Purchaser may elect to extend its rights in
the System, for so long as the System exists or has not been retired,
by giving written notice to Grantor and paying to Grantor one (1)
Dollar. Such election to extend shall not affect or delay the
termination of the Grantor's
9
obligations under this Agreement. Upon such election to extend and
payment, the Purchaser, together with all other purchasers of capacity
on the System that also elect to so extend, shall become the sole
owners of the System. The ownership interests of the Purchaser and
such other purchasers shall be in proportion to the amount of capacity
covered by IRU's previously granted to the Purchaser and such other
purchasers. The Grantor shall execute and deliver such documentation
as may be reasonably required to effect such transfer of ownership.
Without limitation to the generality of the foregoing provisions,
Grantor shall have no obligation to operate or maintain the System
during such extension.
(d) The parties hereto shall discuss with each other and the other
purchasers of capacity on the System establishing a procedure for the
early retirement of the System if such retirement appears to be
commercially appropriate.
9. APPROVALS; LICENSES.
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The performance of this Agreement by each party hereto is contingent upon
the obtaining and continuance of such approvals, consents, governmental
authorizations, licenses and permits as may be required or reasonably
deemed necessary by such party for performance by such party hereunder and
as may be satisfactory to it. The parties shall use (and in the case of the
Grantor, shall cause the Subsidiary Grantors to use) reasonable efforts to
obtain and continue, and to have continued, such approvals, consents,
licenses and permits. No license under patents is granted by the Grantor or
any of the Subsidiary Grantors or shall be implied or arise by estoppel in
the Purchaser's favor with respect to any apparatus, system or method used
by the Purchaser in connection with the use of the capacity granted to it
hereunder or under the Right of Use Agreement.
10. DISCLAIMER.
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(a) The Grantor and the Subsidiary Grantors have entered into the Supply
Contract to obtain plant, equipment and services necessary to allow
the Purchased Capacity to be placed into operation on the applicable
scheduled RFS Date. UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT,
ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED
TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE ARE SPECIFICALLY DISCLAIMED.
(b) In order to make it more convenient for the Purchaser to connect the
Purchased Capacity to inland networks, the Grantor and the Subsidiary
Grantors have permitted certain Inland Carriers to collocate at the
cable stations located at each T Segment. Neither the Grantor, any
Subsidiary Grantor or any of their respective affiliates warrants or
guarantees any agreement between the Purchaser and any Inland Carrier
and neither the Grantor, any Subsidiary Grantor or any of their
respective affiliates shall
10
have any liability to the Purchaser for any failure of any Inland
Carrier to perform the terms and conditions of any such agreement.
11. LIMITATIONS OF LIABILITY.
------------------------
(a) Except as otherwise provided in this Agreement or in the Right of Use
Agreement, in no event shall the Purchaser, the Grantor or any
Subsidiary Grantor be liable to the other for consequential,
incidental, indirect or special damages, including, but not limited
to, loss of revenue, loss of business opportunity, or the costs
associated with the use of external restoration facilities, including,
without limitation, for any loss or damage sustained by reason of any
failure in or breakdown of the System or the facilities associated
with the System, the failure of any Inland Carrier to perform the
terms and conditions of any agreement to which it and the Purchaser
are parties or for any interruption of service, whatever the cause and
however long it shall last.
(b) Neither the Grantor nor any Subsidiary Grantor shall be liable to the
Purchaser for any loss or damage which may be suffered by the
Purchaser by reason of any circumstances beyond the control of the
Grantor and the Subsidiary Grantors and having an adverse effect on
the provision of any part of the System in which the Purchaser is
entitled to capacity or has any other right or interest under this
Agreement or under the Right of Use Agreement. Failure by a
subcontractor of any of the parties to comply with its contractual
commitments to such party shall not be deemed to be an event beyond
the reasonable control of such party for the purposes of this Section
11.
(c) (i) Neither the Grantor nor any Subsidiary Grantor shall be liable to
the Purchaser for any loss or damage which may be suffered by the
Purchaser as a result of, related to, or in connection with, the
Purchaser's compliance or non-compliance with any applicable state,
federal, foreign governmental, international (foreign or domestic) or
other law related to the transfer of the IRU in, or the use of, the
Purchased Capacity.
(ii) The Purchaser shall not be liable to the Grantor or any
Subsidiary Grantor for any loss or damage which may be suffered by
Grantor or any Subsidiary Grantor as a result of, related to, or in
connection with, Grantor's or Subsidiary Grantor's non-compliance with
any applicable state, federal, foreign governmental, international
(foreign or domestic) or other law related to the transfer by Grantor
of the IRU to the Purchaser in, or Grantor's operation, ownership or
use of, the System.
11
12. SETTLEMENT OF DISPUTES.
----------------------
(a) The parties hereto shall endeavor to settle amicably by mutual
discussions any disputes, differences, or claims whatsoever related to
this Agreement.
(b) Failing such amicable settlement, any controversy, claim or dispute
arising under or relating to this Agreement, including the existence,
validity, interpretation, performance, termination or breach thereof,
shall finally be settled by arbitration in accordance with the
International Arbitration Rules of the American Arbitration
Association ("AAA"). There shall be three (3) arbitrators (the
"Arbitration Tribunal"), the first of which shall be appointed by the
claimant in its notice of arbitration, the second of which shall be
appointed by the respondent within thirty (30) days of the appointment
of the first arbitrator and the third of which shall be jointly
appointed by the party-appointed arbitrators within thirty (30) days
thereafter. The language of the arbitration shall be English. The
Arbitration Tribunal will not have authority to award punitive damages
to either party. Each party shall bear its own expenses, but the
parties shall share equally the expenses of the Arbitration Tribunal
and the AAA. This Agreement shall be enforceable, and any arbitration
award shall be final, and judgment thereon may be entered in any court
of competent jurisdiction. The arbitration shall be held in New York,
New York, USA.
13. INCREASE OF INITIAL DESIGN CAPACITY.
-----------------------------------
The Grantor and the Subsidiary Grantors shall have authority to increase,
at their own cost and expense, the Initial Design Capacity of the System.
14. GOVERNING LAW.
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This agreement shall be governed by and construed in accordance with the
laws of the State of New York, United States of America without regard to
the conflicts of laws rules of such State or any other jurisdiction that
would apply the law of a different jurisdiction.
15. WAIVER OF IMMUNITY.
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The parties hereto acknowledge that this Agreement is commercial in nature,
and each party hereto expressly and irrevocably waives any claim or right
which it may have to immunity (whether sovereign immunity, act of state or
otherwise) for itself or with respect to any of its assets in connection
with an arbitration, arbitral award or other proceeding to enforce this
Agreement, including, without limitation, immunity from service of process,
immunity of any of its assets from pre- or post-judgment attachment or
execution and immunity from the jurisdiction of any court or arbitral
tribunal.
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16. EXPORT CONTROL.
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The parties hereto acknowledge that to the extent any products, software or
technical information provided under this Agreement or the Right of Use
Agreement are or may be subject to any applicable export laws and
regulations, the parties hereto agree that they will not use, distribute,
transfer or transmit the products, software or technical information (even
if incorporated into other products) except in compliance with such export
laws and regulations (or licenses or orders issued pursuant thereto). If
requested by either party hereto the other party agrees to sign all
necessary export-related documents as may be required to comply therewith.
17. REPRESENTATIONS; INDEMNITY
--------------------------
(a) The Grantor hereby represents and warrants to Purchaser that (i)
Grantor is a corporation duly organized and validly existing under the
laws of Bermuda; (ii) the execution, delivery and performance of this
Agreement by Grantor has been duly authorized by all necessary
corporate action on the part of Grantor and this Agreement is a valid,
binding and enforceable obligation of Grantor enforceable in
accordance with its terms and (iii) the execution, delivery and
performance of this Agreement by Grantor does not violate, conflict
with or constitute a breach of, the organizational documents or any
order, decree or judgment of any court, tribunal or governmental
authority binding on Grantor.
(b) Purchaser hereby represents and warrants to Grantor that (i) Purchaser
is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization; (ii) the
execution, delivery and performance of this Agreement by Purchaser has
been duly authorized by all necessary corporate action on the part of
Purchaser and this Agreement is a valid, binding and enforceable
obligation of Purchaser enforceable in accordance with its terms; and
(iii) the execution, delivery and performance of this Agreement by
Purchaser does not violate, conflict with or constitute a breach of,
the organizational documents or any order, decree or judgment of any
court, tribunal or governmental authority binding on Purchaser.
(c) Each Party hereby represents and warrants to the other party that it
has obtained all approvals, consents, governmental authorizations,
licenses and permits as may be required to enter into this Agreement,
and grant or acquire, as the case may be, the IRU in the Purchased
Capacity and otherwise to perform its obligations hereunder.
(d) The foregoing representations and warranties shall survive the
execution and delivery of this Agreement.
13
(e) Subject to Section 11, the Purchaser agrees to indemnify and hold
harmless the Grantor and the Subsidiary Grantors and their respective
affiliates, officers, directors, employees, agents, representatives,
successors and assigns from and against any loss, damage, expense or
cost arising out of or in connection with: (i) any breach or violation
by the Purchaser of applicable law or governmental regulation and (ii)
any claims of whatever nature by third parties with respect to the
services provided by the Purchaser.
(f) Subject to Section 11, the Grantor agrees to indemnify and hold
harmless the Purchaser and its affiliates, officers, directors,
employees, agents, representatives, successors and assigns from and
against any loss, damage, expense or cost arising out of or in
connection with: (i) any breach or violation by the Grantor or any
Subsidiary Grantor of applicable law or governmental regulation, and
(ii) any claims of whatever nature by third parties with respect to
the services provided by the Grantor or any Subsidiary Grantor.
18. RELATIONSHIP OF THE PARTIES.
---------------------------
This Agreement shall not form a joint venture or partnership or similar
business arrangement between the parties hereto and the Subsidiary
Grantors, and nothing contained herein or in the Right of Use Agreement
shall be deemed to constitute a partnership or joint venture or similar
business arrangement.
19. NO THIRD PARTY BENEFICIARIES.
----------------------------
This Agreement does not provide and is not intended to provide third
parties (including, but not limited to, customers of the Purchaser, any
permitted transferee of the Purchased Capacity or any other permitted user
of the Purchased Capacity) with any remedy, claim, liability,
reimbursement, cause of action, or any other right, except for the
Subsidiary Grantors and assignees pursuant to an assignment which is
permitted under Section 20(c) of this Agreement. Furthermore, the Purchaser
acknowledges that, except as set forth in the Right of Use Agreement, it is
not a third party beneficiary of any agreement entered into by the Grantor
or the Subsidiary Grantors including, but not limited to, the Supply
Contract and the OA&M Agreement.
20. ASSIGNMENT.
----------
(a) This Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto, the Subsidiary
Grantors and their respective successors and permitted assigns.
(b) The Grantor shall solely be responsible for complying with all of the
terms binding on the "Grantor" hereunder and shall not be permitted to
assign, transfer or otherwise dispose of any or all of its right,
title or interest
14
hereunder or delegate any or all of its obligations hereunder to any
person or entity except that the Grantor and the Subsidiary Grantors
------
shall be permitted to (i) effect a collateral assignment of their
respective rights hereunder to one or more lenders to Grantor or its
affiliates and (ii) assign, transfer or otherwise dispose of any or
all of their rights hereunder and under the Subsidiary IRU Agreement
and delegate any or all of their obligations hereunder and under the
Subsidiary IRU Agreement to any present or future affiliated company
of the Grantor or to an entity controlled by, under the same control
as, or controlling, the Grantor. The Grantor shall give the Purchaser
notice of any such assignment, transfer or other disposition or any
such delegation.
(c) The Purchaser shall solely be responsible for complying with all of
the terms binding on the "Purchaser" hereunder and shall not be
permitted to assign, transfer or otherwise dispose of any or all of
its right, title or interest hereunder or under the Subsidiary IRU
Agreement (except for leases, licenses and transfers of the right to
use Capacity to the extent set forth in Section 25(d) below) or
delegate any or all of its obligations hereunder or under the
Subsidiary IRU Agreement to any person or entity except (i) a
collateral assignment of its rights hereunder to one or more lenders
to the Purchaser or its affiliates, and (ii) to any present or future
affiliated company of the Purchaser or to an entity controlled by,
under the same control as, or controlling, the Purchaser; and (iii)
incident to the transfer of all or substantially all of its business
or a substantial portion of its business (which shall include, without
limitation, a transfer of assets); provided, however, that the
--------
Purchaser shall remain responsible for the performance of its
obligations hereunder to the extent the assignee fails to perform such
obligations.
(d) (i) The Purchaser may enter into one or more agreements to lease or
license the right to use any Purchased Capacity, so long as all such
leases or licenses with any particular lessee or licensee (including
all affiliates thereof) involve in the aggregate less than one (1) MCU
of Purchased Capacity;
(ii) The Purchaser may transfer a right to use any Purchased Capacity
to a Carrier Party, so long as all such transfers to any particular
transferee (including all affiliates thereof) involve in the aggregate
less than one MCU of Purchased Capacity;
(iii) Purchaser may not enter into any arrangements to lease, license
or transfer a right to use an aggregate (in any combination of such
arrangements) of one or more MCUs of Purchased Capacity to any
particular lessee, licensee or transferee (including all affiliates
thereof).
15
(iv) No lease, license or transfer permitted by this Section 25(d)
shall involve any delegation or other transfer of any of Purchaser's
obligations or liabilities hereunder. Each lessee, licensee and
transferee of any right to use Purchased Capacity shall derive all of
its rights solely through the Purchaser and such rights shall be
enforceable solely against the Purchaser. No such lessee, licensee or
transferee shall become a third party beneficiary of this Agreement or
obtain any right, title or interest in, to or under this Agreement or
the Subsidiary IRU Agreement or the ability to enforce any provision
hereof or thereof nor shall any thereof have any rights or claims
against the Grantor for any reason whatsoever. The rights of any
lessee, licensee or transferee of a right to use any Purchased
Capacity shall be subject and subordinate to all the terms of this
Agreement (including the Grantor's right to suspend service in the
event of a default by Purchaser hereunder) and Purchaser shall remain
primarily liable hereunder for the performance of all the terms of
this Agreement to the same extent as if such lease, license or
transfer had not occurred. Any such lease, license or transfer
agreement shall prohibit further assignment, transfer or other
disposition of Purchased Capacity except in accordance with the terms
of this Section 25.
(e) The Grantor will cause to be maintained a Customer Care Center to
provide service to the Purchaser and other users of the System. Only
Carrier Parties which have acquired and hold the right to use one or
more whole MCUs of Capacity shall be entitled to utilize the services
of the Customer Care Center. Every entity which has the right to use
one or more MCUs of Capacity shall promptly contact the Customer Care
Center and provide all such information reasonably requested by the
Customer Care Center.
(f) Any assignment, transfer or other disposition by either Party which is
in violation of this Section shall be void and of no force and effect.
21. CONDITION TO PURCHASER'S OBLIGATIONS.
------------------------------------
The Purchaser's obligation to pay for an IRU with respect to any Purchased
Capacity shall terminate if the RFS Date for such Purchased Capacity has
not occurred by June 30, 1999. In any such event, the Purchaser may
terminate this Agreement in its entirety and receive a complete refund of
all amounts paid hereunder or the Purchaser may terminate this Agreement
only with respect to such Purchased Capacity in which case the Grantor
shall refund all amounts paid by the Purchaser, if any, with respect to
such Purchased Capacity as to which Purchaser's obligation has terminated
within thirty (30) days after the applicable date.
16
22. NOTICES.
-------
Each notice, demand, certification or other communication given or made
under this Agreement shall be in writing and shall be delivered by hand or
sent by registered mail or by facsimile transmission to the address of the
respective party as shown below (or such other address as may be designated
in writing to the other party hereto in accordance with the terms of this
Section):
If to the Purchaser: VIA Net Works Europe Holding B.V.
c/o VIA NET WORKS, Inc.
121000 Sunset Hills Road, Suite 110
Reston, VA 20190 USA
Attention: Matt S. Nydell, Esq., V.P., General
Counsel and Secretary
Fax No.: 703-464-0608
If to the Grantor: Atlantic Crossing Ltd.
Wessex House
45 Reid Street
Hamilton HM12, Bermuda
Attn: President
Fax No.: 441-296-8606
Any change to the name, address and facsimile numbers may be made at any
time by giving fifteen (15) days prior written notice in accordance with
this Section. Any such notice, demand or other communication shall be
deemed to have been received, if delivered by hand, at the time of delivery
or, if posted, at the expiration of seven (7) days after the envelope
containing the same shall have been deposited in the post maintained for
such purpose, postage prepaid, or, if sent by facsimile, at the date of
transmission if confirmed receipt is followed by postal notice.
23. SEVERABILITY.
------------
If any provision of this Agreement is found for any reason and to any
extent by an arbitral, judicial or regulatory authority having jurisdiction
to be invalid or unenforceable, the remainder of this Agreement and
application of such provision to other persons or circumstances shall be
interpreted so as best to reasonably effect the intent of the parties
hereto. The parties further agree to replace such void or unenforceable
provision with a provision which will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable
provision.
17
24. HEADINGS.
--------
The Section headings of this Agreement are for convenience of reference
only and are not intended to restrict, affect or influence the
interpretation or construction of provisions of such Section.
25. COUNTERPARTS.
------------
This Agreement may be executed in counterparts, each of which when executed
and delivered shall be deemed an original. Such counterparts shall together
(as well as separately) constitute one and the same instrument.
26. ENTIRE AGREEMENT.
----------------
This Agreement together with the Schedules, Annexes and Attachments thereto
supersedes all prior oral or written understandings between the parties
hereto and constitutes the entire agreement with respect to the subject
matter herein. This Agreement shall not be modified or amended except by a
writing signed by authorized representatives of the parties hereto.
27. PUBLICITY AND CONFIDENTIALITY.
-----------------------------
(a) The provisions of this Agreement and any non-public information,
written or oral, with respect to this Agreement ("Confidential
Information") will be kept confidential and shall not be disclosed, in
whole or in part, to any person other than affiliates, officers,
directors, employees, agents or representatives of a party
(collectively, "Representatives") who need to know such Confidential
Information for the purpose of negotiating, executing and implementing
this Agreement. Each party agrees to inform each of its
Representatives of the non-public nature of the Confidential
Information and to direct such persons to treat such Confidential
Information in accordance with the terms of this Section 27. Nothing
herein shall prevent a party from disclosing Confidential Information
(i) upon the order of any court or administrative agency, (ii) upon
the request or demand of, or pursuant to any regulation of, any
regulatory agency or authority, (iii) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (iv)
to a party's legal counsel or independent auditors, (v) to prospective
lenders , and (vi) to any actual or proposed assignee, transferee or
lessee of all or part of its rights hereunder provided that such
actual or proposed assignee agrees in writing to be bound by the
provisions of this Section 27.
(b) The foregoing shall not restrict either party from publicly announcing
that it has entered into this Agreement with the parties hereto, but
without including any details contained in this Agreement.
18
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date first written above.
ATLANTIC CROSSING LTD.
By: /s/ Doug Molyneux
---------------------
Name: Doug Molyneux
-------------------
Title: Vice President
------------------
VIA NET WORKS EUROPE HOLDING B.V.
By: VIA NET.WORKS, INC., its
Managing Director
By: /s/ Matt Nydell
-----------------------
Name: Matt Nydell
---------------------
Title: VP & General Counsel
--------------------
19
AMENDMENT NO. 1 TO
CAPACITY PURCHASE AGREEMENT
This Amendment No. 1 (the "Amendment") is made as of the 23 day of August,
1999, by and between Atlantic Crossing Ltd. ("Grantor") and VIA Net Works Europe
Holding B.V. ("Purchaser"),
WHEREAS, Grantor and Purchaser are parties to that certain Capacity
Purchase Agreement dated as of June 21, 1999 (the "Agreement"); and
WHEREAS, the parties wish to make certain clarifications in the Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants contained herein, and for other good and valuable consideration,
covenant and agree with each other as follows:
A. Amendment to the Agreement. Sections 8(d) and 8(f) of Annex B to the
--------------------------
Agreement - Details Relating to Capacity Purchase Agreement, shall be deleted in
their entirety and Section 8(e) of Annex B shall be amended to delete the words
"Except as provided in clause (d) above" at the beginning of such Section. This
Amendment shall be effective as of June 21, 1999 as if such Amendment had been
made upon execution of the Agreement.
B. Terms and Conditions of the Agreement. Except for the above amendments,
-------------------------------------
all terms and conditions of the Agreement are unamended and shall remain in full
force and effect.
C. Governing Law. This Amendment shall be governed by and construed in
-------------
accordance with the laws of the State of New York, United States of America,
without regard to the conflicts of laws rules of such State or any other
jurisdiction that would apply the law of a different jurisdiction.
IN WITNESS WHEREOF, Grantor and Purchaser have executed this Amendment as
of the day and year first above written.
ATLANTIC CROSSING LTD.
By: /s/ Doug Molyneux
------------------------------
Name: Doug Molyneux
-------------------------
Title: Director
------------------------
VIA NET WORKS EUROPE HOLDING
B.V.
By: VIA NET.WORKS, INC., its Managing
Director
By: /s/ Matt Nydell
---------------------------------
Name: Matt Nydell
----------------------------
Title: VP & General Counsel
---------------------------
2
*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.*****
ADDENDUM TO AGREEMENTS
DATED JUNE 21, 1999
BETWEEN EACH OF
ATLANTIC CROSSING LTD.,
GT LANDING CORP. AND
GT U.K. LTD.
AND
VIA NET WORKS EUROPE HOLDING B.V.
This Addendum is made and entered into concurrently with (i) a Capacity
Purchase Agreement (the "CPA") of even date herewith by and between Atlantic
Crossing Ltd. ("Grantor") and VIA Net Works Europe Holding B.V. ("Purchaser"),
(ii) an Indefeasible Right of Use Agreement in Inland Capacity (United States)
(the "US Backhaul Agreement") of even date herewith by and between GT Landing
Corp. and Purchaser, and (iii) an Indefeasible Right of Use Agreement in Inland
Capacity (United Kingdom) (the "UK Backhaul Agreement") of even date herewith by
and between GT U.K. Ltd. and Purchaser. The CPA, the US Backhaul Agreement and
the UK Backhaul Agreement are referred to collectively as the "Agreements". If
there is any inconsistency between the terms and conditions of this Addendum and
the Agreements, the terms and conditions of this Addendum shall control.
Capitalized terms used in this Addendum without separate definition shall have
the meanings set forth in the Agreements.
1. Interim Lease Arrangement. Notwithstanding anything in the Agreements to
-------------------------
the contrary, Grantor hereby Leases on an interim basis the Purchased Capacity
to Purchaser in accordance with the terms and conditions of this Addendum (the
"Interim Lease"). This Interim Lease shall be in lieu of the transfer of an IRU
in the Purchased Capacity and the Inland Capacity as described in the
Agreements. This Interim Lease shall commence as of the Effective Date and shall
remain in effect for an initial term of six months (the "Initial Term"). In
consideration of the Purchased Capacity and the Inland Capacity to be provided
to Purchaser, Purchaser shall make Interim Lease payments of US [*****] per
quarter, payable on or before the first day of each quarter.
2. Conversion to Purchase Agreement. Purchaser shall have the option to
--------------------------------
convert the Interim Lease into a purchase of an IRU in the Purchased Capacity
and the Inland Capacity in accordance with the terms and conditions originally
set forth in the Agreements. Such option shall be exercisable in Purchaser's
sole discretion at any time during the Initial Term; provided, however, that
Purchaser shall be required to exercise such option within 15 days after
Purchaser receives such licenses as Purchaser requires in
order to hold title to the IRU in the Purchased Capacity and the Inland Capacity
in Europe. Upon exercise of the option, Purchaser shall provide written notice
of exercise to Grantor, which notice shall be accompanied by payment of the
remaining portion of the down payment for the Purchased Capacity and the Inland
Capacity as set forth in Part B of Schedule II of the CPA. In determining the
remaining portion of the down payment for the Purchased Capacity and the Inland
Capacity, Purchaser shall receive full credit for any Interim Lease payments
made pursuant to this Addendum. Following the exercise of such conversion
option, Purchaser shall pay the remaining balance of the Purchase Price for the
Purchased Capacity and the Inland Capacity in accordance with the terms and
conditions originally set forth in the Agreements.
3. Conversion to Three Year Lease. If Purchaser is unable to obtain such
------------------------------
licenses as Purchaser requires in order to hold title to the IRU in the
Purchased Capacity and the Inland Capacity in Europe and does not otherwise
Ichoose to exercise the purchase option described in Section 2 of this Addendum
during the Initial Term, the parties shall, effective as of the termination of
the Initial Term, convert the Interim Lease into a three year lease with
payments as agreed by the parties. To the extent reasonably possible, all other
terms applicable to the three year lease shall be the same as the terms set
forth in the Agreements. The parties shall cooperate with one another and shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments, in addition to those otherwise required by this Addendum, as
may be reasonably required to reflect such three year lease.
4. OA&M Charges. OA&M charges on the System are not included in Interim
------------
Lease payments and shall be made separately during the Initial Term in
accordance with the CPA. If Purchaser is unable to convert the Interim Lease
into a purchase of the Purchased Capacity within the Initial Term and
subsequently enters into the three year lease, the OA&M charges will be credited
to the Purchaser against the next following three year lease payment(s).
5. Exception to Purchaser Representations and Warranties. Grantor hereby
-----------------------------------------------------
acknowledges that Purchaser has disclosed to Grantor that Purchaser is in the
process of obtaining the licenses it needs in order to hold title to the IRU in
the Purchased Capacity and the Inland Capacity in Europe and that the need to
obtain such licenses is an exception to Purchaser's representations and
warranties as set forth in Section 17(c) of the CPA and Section 13 (c) of each
of the US Backhaul Agreement and the UK Backhaul Agreement.
6. Terms and Conditions of Agreements. During the Initial Term, the parties
----------------------------------
shall construe any terms of the Agreements in such a manner as to be consistent
with the Interim Lease provided herein. Except for the amendments set forth in
this Addendum, all terms and conditions of the Agreements are unamended and
shall remain in full force and effect, including without limitation terms and
conditions requiring Grantor to provide maintenance for the System.
2
IN WITNESS WHEREOF, the parties have executed this Addendum concurrently
with the execution of the Agreement.
ATLANTIC CROSSING LTD.
By: /s/ Doug Molyneux
-------------------------------------
Name: Doug Molyneux
-----------------------------
Title: Vice President
----------------------------
GT LANDING CORP.
By: /s/ Doug Molyneux
-------------------------------------
Name: Doug Molyneux
-----------------------------
Title: Under a Power of Attorney
----------------------------
GT U.K. LTD.
By: /s/ Doug Molyneux
-------------------------------------
Name: Doug Molyneux
-----------------------------
Title: Under a Power of Attorney
----------------------------
VIA NET WORKS EUROPE HOLDING
B.V.
By: VIA NET.WORKS, INC., its
Managing Director
By: /s/ Matt Nydell
----------------------------
Name: Matt Nydell
----------------------
Title: VP & General Counsel
--------------------
3
*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.*****
Description of Purchased Capacity
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
(a) (b) (c) (d) (e) (f)
Payment Due Date
Date of Transaction Appropriate S-Segment and Related Number of Whole MCUs Price per Whole MCU Purchase Price
T-Segments (d)x(e)
Note (1)
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
May 1999 On activation Brookhaven, New York One (1) [*****] [*****]
to (See Note 2) (See Note 2)
Whitesands, England
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
-------------------- ----------------- ---------------------------------- -------------------- -------------------- ---------------
Total Purchase Price [*****]
Less Payment Received (May 28) [*****]
Net Purchase Price Due [*****]
Purchase Price to be Financed [*****]
Note:
(1) The S-Segment and related T-Segments are set forth for purposes of
showing the point of entry and exit with respect to Purchased
Capacity. Purchased Capacity is not dependent on any specified
routing.
(2) Subject to Section 2(a) of this Agreement.
SCHEDULE II
CAPACITY PURCHASE AGREEMENT
Part A
------
Notwithstanding anything to the contrary contained in the Capacity Purchase
Agreement to which this Schedule II is attached (as amended, supplemented or
otherwise modified from time to time, the "Capacity Purchase Agreement"):
In exchange for the IRU interest granted pursuant to this Agreement and the
Right of Use Agreement in any Purchased Capacity, the Purchaser shall, on or
before (the "Initial Payment Due Date"), pay the Grantor (for the benefit of the
Grantor and the benefit of the Subsidiary Grantors), in immediately available
funds equal to an amount set out in the Payment Schedule attached hereto (the
"Initial Payment"). Thereafter, the Purchaser shall pay the remaining balance of
the Purchase Price for such Purchased Capacity quarterly, with the first such
payment being due on the date which is three months after such Initial Payment
Due Date and each remaining payment being due quarterly thereafter. Such
payments shall be in the amounts set forth in Part B of Schedule II to this
Agreement, it being understood that the aggregate amount paid will exceed the
Purchase Price set forth in Schedule I because the amounts set forth in said
Part B include an interest calculation. The amounts set forth in Part B of
Schedule II to this Agreement may be prepaid, in whole or in part, by Purchaser
at any time. In the event of prepayment, the installments shall be reduced to
their present value calculated at 12% per annum, to the date of payment. Title
in the IRU to the Purchased Capacity shall pass to Purchaser upon payment to the
Grantor's Account of the amount specified in the first sentence of this
paragraph.
The parties agree to co-operate in good faith to structure payments
hereunder so that the interest component thereof should not be subject to
withholding taxes under current law (at the time the first payment is made
hereunder) in the reasonable opinion of the Grantor and the Purchaser; provided
that if in the Grantor's reasonable opinion such interest component will be, or
if at any time prior to the first installment payment hereunder, the Internal
Revenue Service asserts that such interest component is, subject to withholding
taxes under current law, the Grantor will reduce the 12% per annum interest rate
payable hereunder such that the total interest cost (including withholding taxes
payable on such reduced interest rate) to the Purchaser will not exceed 12% per
annum.
The definition of the term "Purchase Price" contained in the Capacity
Purchase Agreement shall be modified to add the following phrase immediately at
the end of said definition:
, as such amount may be adjusted and paid in accordance with Part B of
Schedule II to this Agreement.
Clause (ii) of Section 20 (c) of the Capacity Purchase Agreement shall be
modified to include the following phrase immediately after the phrase
"maintenance expenses":
and in respect of payments for the Purchase Price for Purchased Capacity.
Part B
------
The attached amortization schedule sets forth the dates and amounts
for installment payments for Purchased Capacity based on the Purchase Price
as set forth in Schedule I.
Notwithstanding anything to the contrary in Section 21, the right to
receipt of payments hereunder shall be transferable only upon surrender for
cancellation of this Schedule II, and the issuance of a new Schedule II
registered in the name of the transferee. In addition, the Purchaser shall
maintain a register in which it shall record the name of the Grantor and
the Subsidiary Grantors or any transferee, and no transfer shall be valid
unless so registered.
Capitalized terms used in this Schedule II and not otherwise defined
in this Schedule II shall have the meanings assigned to them in the
Capacity Purchase Agreement.
This Schedule II shall be deemed a part of the Capacity Purchase
Agreement with respect to each Purchaser signing this Schedule II below and
the terms set forth in this Schedule II shall be incorporated into the
Capacity Purchase Agreement with respect to each such Purchaser as if fully
set forth therein.
Purchaser hereby represents and warrants that its chief executive
office is located at 12100 Sunset Hills Road, Suite 110, Reston, VA 20190.
Purchaser agrees to promptly notify Grantor of any change in such location.
*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.*****
VIA Net Works
INSTALLMENT PAYMENTS
SUBSEA
Price per MCU [*****]
Payment Due Date September 30, 1999
Payment Terms
- -------------
Date Payment
- ----
Payment received May 28, 1999 [*****]
Deposit upon signing [*****]
September 30, 1999 [*****]
December 31, 1999 [*****]
March 31, 2000 [*****]
June 30, 2000 [*****]
September 30, 2000 [*****]
December 31, 2000 [*****]
March 31, 2001 [*****]
June 30, 2001 [*****]
September 30, 2001 [*****]
December 31, 2001 [*****]
March 31, 2002 [*****]
June 30, 2002 [*****]
Total [*****]
VIA Net Works
By:
--------------
Name:
Date:
Schedule III
*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.*****
AC-1 Additional Charges
=========================================================== ========================================================
Function Fees
- ----------------------------------------------------------- --------------------------------------------------------
Access Connection Initial Service None
- ----------------------------------------------------------- --------------------------------------------------------
Access Connection Rearrangement per STM-1 [*****] / Occurrence
=========================================================== ========================================================
SCHEDULE IV
CAPACITY PURCHASE AGREEMENT
MAINTENANCE PERFORMANCE STANDARDS
1. GENERAL
This Schedule IV supplements the Capacity Purchase Agreement and describes (i)
additional maintenance and performance responsibilities of Grantor to Purchaser
and (ii) certain remedies available to Purchaser with respect to the provision
of Purchased Capacity thereunder. Capitalized terms used in this Schedule
without separate definition shall have the meanings specified in the Capacity
Purchase Agreement, as the context requires.
2. OVERVIEW
Grantor is initially providing to Purchaser an STM-1 "SDH self-healing ring
protected" service between New York City, New York, USA, and London, UK. This
Schedule applies to such capacity and to any further capacity provided by
Grantor to Purchaser.
While Purchaser understands that Grantor may sub-contract some services, such as
terrestrial backhaul and/or maintenance services with respect to the System and
the Purchased Capacity, such sub-contracting is transparent to Purchaser, and
therefore, Grantor shall appear as the single vendor providing these services to
Purchaser.
3. NETWORK OPERATIONS CENTER (NOC)
Grantor shall maintain a round-the-clock NOC (i.e., it operates 24 hours a day,
seven days a week), which shall be staffed by trained and qualified personnel
who are familiar with the operation and maintenance of the System and the
Purchased Capacity. Grantor shall provide Purchaser with a NOC telephone number,
which Purchaser shall use to report troubles with respect to the use of the
Purchased Capacity, to input service requests, and to request service
information.
4. TROUBLE REPORTING AND RESOLUTION
When Purchaser reports a major service affecting trouble (i.e., the Purchased
----
Capacity fails to meet the standards set forth in the Capacity Purchase
Agreement or this Schedule or connectivity is lost between two or more of the
cities in which service is purchased) Grantor will, without interruption, work
the trouble to completion. When a service affecting trouble (as described
herein) occurs, the Grantor NOC will provide updates to Purchaser in accordance
with Grantor's standard practices.
Prior to activation of any part of the Purchased Capacity, Grantor shall provide
Purchaser with an operations management organization chart showing the
escalation path for reporting service affecting troubles. Purchaser shall be
provided the telephone
SCHEDULE IV
Page 2 of 3
numbers, through the Vice Presidential level, for the escalation of service
affecting troubles. Grantor shall promptly update such chart to reflect any
changes.
5. SYSTEM PERFORMANCE STM-1
This section applies to the STM-1 capacity, including without limitation the S
Capacity, the T Capacity and any connecting backhaul or inland capacity.
5.1 STM-1 to STM-1 Transmission
Grantor shall provide STM-1 to STM-1 transmission of 155 Mbps clear channel
capacity service. Grantor shall provide both service and protection pairs to
Purchaser at each offered termination point of the service.
STM-1 Transmission Performance shall equal or exceed the standards shown in
column AC-1, below:
--------------------------------------- ----------------------------------------------------------------
Performance Standards Cable Station
to Cable Station
--------------------------------------- ----------------------------------------------------------------
Segment AC-1 I.T.U Std G826
--------------------------------------- ----------------------------------------------------------------
SESR1 BBER2 SESR BBER
--------------------------------------- ---------------- ---------------- --------------- --------------
US-Germany 0.00017 0.000017 0.00034 0.000034
--------------------------------------- ---------------- ---------------- --------------- --------------
UK-Netherlands 0.00004 0.000004 0.00008 0.000008
--------------------------------------- ---------------- ---------------- --------------- --------------
Netherlands-Germany 0.00003 0.000003 0.00060 0.000060
--------------------------------------- ---------------- ---------------- --------------- --------------
Germany-UK 0.00005 0.000005 0.00010 0.000001
--------------------------------------- ---------------- ---------------- --------------- --------------
US-UK 0.00014 0.000014 0.00028 0.000028
--------------------------------------- ---------------- ---------------- --------------- --------------
Grantor commits this SESR and this BBER to the performance standard throughout
the life of the system.
5.2 Protection Switching
Grantor shall provide protection switching in respect of the AC-1 System in the
following forms:
Span Switching - protects against a failure affecting the service line traffic
between service termination points. Span switching reroutes service traffic onto
the protection fiber pair in the common cable segment.
- ----------------------------
1 Severely Errored Second Ratio
2 Background Bit Error Ratio
SCHEDULE IV
Page 3 of 3
Ring Switching - protects against a failure affecting both the service and
protection fibers in one cable segment between service termination points. Ring
switching reroutes service traffic over the other cable segments in the ring.
Grantor shall protect the STM-1 service against a single cable failure in less
than 300 ms (milli-seconds).
5.3 Service Traffic
Grantor shall provide a common protection facility shared by all switching nodes
or landing sites, which provides for full service traffic capacity in the event
of a failure.
5.4 Service Traffic Availability
Grantor's STM-1 155 Mbps "SDH self-healing ring protected" service between
Purchaser's interfaces shall have a service availability of at least 99.995 %.
This availability figure equates to no more than twenty-six (26) minutes of
service outage in any given twelve (12) month period.
Excluded from this calculation shall be planned service outages for the purpose
of Purchaser initiated upgrades or modifications to the service.
Service availability will be maintained and calculated monthly based on the
following formula:
Time Service Available
Availability (%) = -----------------------------------------------
Time Service Scheduled to be Available
In the event that the service falls below 99.995%, Grantor will, for a maximum
period of thirty (30) months, credit forty (40%) percent of any month's OA&M
where service levels fall below the 99.995% threshold listed above. The credit
will be applied to the following quarter's OA&M charges.
5.5 Routing Capability
Grantor confirms that any STM-1 tributary and any landing site can be routed in
either direction of transmission to any other landing site, providing maximum
flexibility in traffic provisioning between the landing sites.
5.6 STM-1 Backhaul
Grantor will, where terrestrial backhaul providers are used to complete the
STM-1 transmission facilities, ensure that such backhaul is ring and span
protected with geographically diverse routes and entry points into the service
termination points.
5.7 Mean-Time-Between-Failure (MTBF) / Mean-Time-To-Restore (MTTR)
Grantor shall protect the STM-1 service against a single cable failure in less
than 300 ms (milli-seconds).
SCHEDULE V
CUSTOMER REFERENCE MANUAL
[LOGO OF GLOBAL CROSSING]
CUSTOMER CARE CENTER
HAMILTON, BERMUDA
CUSTOMER REFERENCE MANUAL
Prepared expressly for
ABC COMPANY, INC.
1
TABLE OF CONTENTS
Operational Roles & Responsibilities.................................. 3
Customer Care Contact Numbers......................................... 3
Escalation Procedures................................................. 4
Interconnect Service Ordering Procedures.............................. 5
Service Intervals..................................................... 7
Request for Service Form Instructions................................. 8
Request for Service Form.............................................. 11
Access Disconnect/Change Request Form................................. 15
Form Descriptions..................................................... 18
Order Confirmation Form............................................... 19
Assignment Order Form................................................. 20
Order Completion Form................................................. 22
Activation Authorization Form......................................... 24
Backhaul & Collocation Contacts....................................... 25
Customer Care Feedback Form........................................... 30
Transfer of Service & Transfer of IRU Forms........................... 32
2
OPERATIONAL ROLES & RESPONSIBILITIES
The Global Crossing Customer Care Center (CCC) will provide a single point of
contact for purchasers of undersea capacity in the areas of contract
management, service provisioning, interconnect support, billing inquiry, project
management and report requests.
All correspondence should be addressed to:
GLOBAL CROSSING CUSTOMER CARE CENTER
45 Reid Street
Hamilton, Bermuda HM12
The Customer Care Center is open from 4am to 8pm Monday through Friday
(Bermuda time). Calls requiring immediate attention during non-business
-------------------------------------------------------
hours should be directed (using appropriate prompts provided by our
-------------------------------------------------------------------
Automated Attendant System) to our Out of Hours Emergency Mailbox. All of
-------------------------------------------------------------------------
these immediate attention messages will be automatically referred to a duty
---------------------------------------------------------------------------
Specialist who will get back to you as quickly as possible. For messages
------------------------------------------------------------
not requiring immediate call back, you will be prompted to leave a message
in your Specialist's Mailbox. These calls will be returned at the start of
the next business day. The telephone numbers for our Center are as
follows:
888.371.0702*
441.296.9464**
441.296.9461 (Fax)
*Your local international 800# access prefix is required when
dialing from outside of the United States.
**If you cannot dial 800 service from your location, use this
number.
The following listing shows the Customer Care Specialist assigned to your
account along with an alternate and the name of our Customer Care Center
Manager.
Primary Specialist
------------------
Name 1 (ext xxxx)
E-Mail: name1@globalcrossing.com
Alternate Specialist
--------------------
Name 2 (ext xxxx)
E-Mail: name2@globalcrossing.com
Customer Care Center Manager
----------------------------
Kara Janzen (ext 2213)
E-Mail: kjanzen@globalcrossing.com
3
ESCALATION PROCEDURES
If you are ever not satisfied with the assistance provided by either of your
---
assigned Specialists, please do not hesitate to contact the following Global
Crossing Personnel:
Customer Care Center Manager
Kara Janzen 888.371.0702 (ext 2213) or
441.296.9464 (ext 2213
Customer Care Center Director
Jean S. Wentzel 888.371.0702 (ext 2204) or
441.296.9464 (ext 2204)
Senior Vice President-Operations
S W Dawson 441.296.8600
4
INTERCONNECT SERVICES ORDERING PROCEDURES
(ISOP)
After contract signing, requests for cable capacity assignments are to be placed
with the Customer Care Center located in Hamilton, Bermuda. Capacity
assignments and service order initiation will be completed by Customer Care
Center personnel while service activation procedures will be performed by the
Network Operations Center. The Customer Care Center will also fulfill Project
--------------------------------------------------
Management responsibilities until an RFS is received from the customer. At that
- ----------------------------------------------------------------------
point in time, a conference call with the customer, Customer Care, the Network
Operations Center (NOC) and any other required group will be held to discuss all
aspects of the RFS. Project Management responsibilities will be turned over to
----------------------------------------------------------
the NOC on that conference call.
- --------------------------------
CUSTOMER CARE CENTER TEAM RESPONSIBILITIES
The Customer Care Center Team responsibilities include:
1. Providing the Purchasers of Capacity on Global Crossing undersea cables
with a single point of contact for answering questions, resolving problems
and collecting the appropriate information regarding service
implementation, pre-service testing and billing.
2. Interfacing with Purchasers of Capacity to coordinate any of the
services (listed below) that have been contracted with Global Crossing Ltd.
Or any of it's divisions:
a. Assisting the customer in Designating Circuits using ITU Standards
b. Providing undersea cable capacity assignments
c. Capacity installations, disconnects or changes
d. Overall testing and circuit turn up
3. Proactively monitoring the quality of service delivered and providing
customer reports of exceptions to the contracted performance.
4. Assigning an individual at the Customer Care Center as your personal
point of contact (the Customer Care Specialist) who will confirm
receipt of a properly completed Request for Service form, initiate the
order within 24 hours and provide ongoing status of the installation
5. Entering the required data regarding service implementation into the
ordering system so that Network Operations personnel can initiate the
required work order(s). This would include the following activities:
. To accept Requests for Service via electronic mail to your
Specialist's E- Mail ID or the Customer Care Center fax machine
(441.296.9461). Verbal requests for service will not be accepted.
Customers may obtain Request for Service forms from either the
Global Crossing web site once the internet address is available
or their Specialists. A copy of the form is provided in this
manual.
5
. Provide confirmation via electronic mail or fax within 24 hours of
receipt of a Request for Service. Customer Care Center personnel will
also acknowledge that the appropriate action has been performed to
support the request, as well as provide a projected completion date by
using the Order Confirmation form. The Customer Care Specialist will
assist Customers, Inland Providers and Account Team members with
identification of the required data needed to properly complete the
Request for Service.
. Once circuit design has been completed, provide the customer with
assignment information necessary for Inland Providers and/or Local
Loop Providers
. Proactively provide service order status relating to the requested
service order activity. Upon notification of service completion, the
Customer Care Specialist will confirm completion with the customer, by
using the Order Completion form.
. After all appropriate deposits and payments for requested services
have been made, forward the Activation Authorization to the customer.
The AA provides the capacity purchaser with authorization (for Inland
Provider) to connect as well as the Bay, Panel and Jack interconnect
tie down information used by the Inland Provider(s).
6
GLOBAL CROSSING CUSTOMER CARE CENTER
SERVICE DELIVERY INTERVALS
ACTIVITY RESPONSIBILITY INTERVAL
-------- -------------- --------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
Path Provisioning
- ---------------------------------------------------------------------------------------------------
Cable Station to Cable Station Customer Care Center 4 Business Days
- ---------------------------------------------------------------------------------------------------
or
- ---------------------------------------------------------------------------------------------------
Inland Provider ODF to Inland Provider ODF Customer Care Center 4 Business Days
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
Inland Provider ODF to Customers network interface. Customer Varies
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
City to City To Be Provided
- ---------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------
London
- ---------------------------------------------------------------------------------------------------
New York
- ---------------------------------------------------------------------------------------------------
It is important to remember that the intervals listed above are for the Global
Crossing provided portion of your circuits. As the line graph below indicates,
you should decide on your requested date of service enough in advance to insure
that your local loop provider and your backhaul provider (in the case of Basic
or single extended service) will also be able to meet your requested service
date.
RFS Issued Svc Date
Global Crossing Circuit 4 Days
Backhaul Ordered Unknown Interval (If Basic or Single Extended)
Local Loop Ordered
Unknown Interval
7
CUSTOMER CARE CENTER
REQUEST FOR SERVICE
(Blank form on Page 11)
FIELD DESCRIPTIONS & INSTRUCTIONS
ORIGINATOR INFORMATION
- ----------------------
All fields in this section must be completed by the originator. The originator
of the request is "Customer Number One". "Customer Number Two" information is
required only if capacity was purchased in a "half STM arrangement" by each of
two customers.
1. Business Name - Corporate name of the capacity purchaser
2. Contact Name - Name of the person authorized to order service and
----- ---
coordinate installation on behalf of the capacity purchaser and its
-----------------------
customers
3. Telephone Number - Telephone number of the capacity purchaser's ordering
contact
4. Fax Number - Fax number of the capacity purchaser's ordering contact
5. Electronic Mail ID - Electronic mail address of the capacity purchaser
contact
6. Customer Requested Due Date - The date that the customer requests service
to be activated.
SERVICE ORDER ACTIVITY REQUESTED
- --------------------------------
This section indicates the type of request to be processed.
7. Activate New Service - Request to initiate service. Customer must indicate
Basic, Single Ended Extended, or Double Ended Extended service.
8. Discontinue Existing Service - Request to disconnect existing service
9. Matching Order Number - Related order that may accompany the request (i.e.
Customer Number Two has a pending order for the west end that needs to be
coordinated with a request for the east end).
8
SERVICE DETAILS
- ---------------
International Telecommunications Union Facility Designation
As previously stated, the Customer Care Center will assist you in assigning
overall circuit designations per ITU Standards for each circuit identified in
your CPA. This assignment will be made as soon as possible after your CPA has
been received. From that point on, whenever communicating with Customer Care or
the Network Operations Center regarding your circuits, you must use this ITU
circuit designation!
10. ITU Standard Circuit Designation - Alpha-numeric designator (as outlined
above) that identifies the end to end circuit that the capacity purchaser
is activating, changing or disconnecting.
11. Terminal City A and Terminal City Z - Cities that compose the two ends of
the circuit that is being initiated, rearranged, or disconnected.
UNDERSEA NETWORK TRANSPORT DETAILS
- ----------------------------------
12. Network Name - Name of the cable system (eg--AC-1).
13. Level (STM-n) and Quantity - Indicates STM 1 or 16 and whether the service
is Protected, Service only or Protection only.
Transport Designation and Terminals
For Basic Service only
- ----------------------
If basic service was ordered (ie-undersea capacity only), customer must also
have a signed collocation agreement (or an agreement with an Inland Provider
that has an existing collocation agreement) and furnish the appropriate tie down
information at the collocated space (cage) at each cable station.
14. Optical Distribution Frame Assignments - Inland Capacity Provider Name and
Service and protection bay, panel and jack assignments for each cable
station from which the customer requests basic service (A and Z ends).
***Jack assignments must be issued in pairs for both service and protection
(i.e. Svc J 10/11; Prt J 20/21) in order to accommodate both send and
receive traffic.
INLAND NETWORKS
- ---------------
For Single or Double Extended Service
- -------------------------------------
Inland Networks- If extended service was ordered, then customer must provide the
Alternate Access and/or the Local Loop Provider's name and tie down information
at the POP or meeting point with the Inland Provider. (In the case of extended
service, customer chooses only the location where their Alternate Access/Local
Loop Provider meets the Inland Provider--they do not choose the Inland
Provider.)
Location Number One
- -------------------
15. Inland Provider
9
Name of Alternate Access/Local Loop Provider customer has selected if
Extended Service at this end was ordered.
16. Level (STM-n) and Quantity
Indicates STM-1 or 16 bandwidth of service.
17. Alternate Access/Local Loop Provider
Name of the vendor(s) that will carry traffic from the Inland
Provider's central office (i.e. 60 Hudson Street, Docklands, etc.) to
the end user's premise.
Location Number Two
-------------------
18. Inland Provider
Name of Inland Provider customer has selected if Basic Service only
was ordered.
19. Level (STM-n) and Quantity
Indicates STM-1 or 16 bandwidth of service.
20. Alternate Access/Local Loop Provider - See #17
21. Additional Information - Section provided to allow customer room for
remarks pertaining to the request. This area should be used to explain
whatever details are necessary in order to insure that adequate
information is provided the Customer Care Center.
10
GLOBAL CROSSING CUSTOMER CARE CENTER
REQUEST FOR SERVICE
ORIGINATOR INFORMATION DATE:____________
- ----------------------
Customer Number One Customer Number Two
(If applicable)
1. Business Name Business Name
- -------------------------------------------------------------------------------------------
2. Contact Name Contact Name
- -------------------------------------------------------------------------------------------
3. Telephone Number Telephone Number
- -------------------------------------------------------------------------------------------
4. Fax Number Fax Number
- -------------------------------------------------------------------------------------------
5. Electronic Mail ID Electronic Mail ID
- -------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
6. Customer Requested Due Date:
- --------------------------------------------------------------------------------
SERVICE ORDER ACTIVITY REQUESTED
- --------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
7. Activate New Service Basic: Single Extended: Double Extended:
- ---------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
8. Discontinue Existing Service:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
9. Matching Order Number: (If applicable)
- ----------------------------------------------------
SERVICE DETAILS
--------------
International Telecommunications Union Facility (Circuit) Designation
- --------------------------------------------------------------------------------
10. ITU Standard Circuit Designation: (Customer provided
Circuit ID )
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
11. Terminal City A: Terminal City Z:
- --------------------------------------------------------------------------------
UNDERSEA NETWORK TRANSPORT DETAILS
-----------------------------------
- --------------------------------------------------------------------------------
12. Network Name: (Cable System)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
13. Level (STM-n) Svc #: Prot#:
- --------------------------------------------------------------------------------
11
GLOBAL CROSSING CUSTOMER CARE CENTER
REQUEST FOR SERVICE
For Basic Service only
- ----------------------
14. Inland Capacity Provider's Optical Distribution Frame (ODF) Assignments in
Cable Station Co-location area
- --------------------------------------------------------------------------------
Terminal A Inland Capacity
Provider:
- --------------------------------------------------------------------------------------------
Bay Panel/Module/Shelf Transmit Jack Receive Jack
- --------------------------------------------------------------------------------------------
SERVICE
- --------------------------------------------------------------------------------------------
PROTECTION
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
Terminal Z Inland Capacity
Provider:
- --------------------------------------------------------------------------------------------
Bay Panel/Module/Shelf Transmit Jack Receive Jack
- --------------------------------------------------------------------------------------------
SERVICE
- --------------------------------------------------------------------------------------------
PROTECTION
- --------------------------------------------------------------------------------------------
For Single or Double Extended Service only:
- -------------------------------------------
INLAND NETWORKS
- ---------------
Location Number One
- -------------------
- --------------------------------------------------------------------------------
15. Location 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
16. Level (STM-n)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
17. Alternate Accesss Vendor: Local Loop Provider:
- --------------------------------------------------------------------------------
Contact: Telephone:
- --------------------------------------------------------------------------------
Local Loop Provider:
- --------------------------------------------------------------------------------
Contact: Telephone:
- --------------------------------------------------------------------------------
Location Number Two
- -------------------
- --------------------------------------------------------------------------------
18. Location 2
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
19. Level (STM-n)
- --------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------
20. Alternate Accesss Vendor: Local Loop Provider:
- -----------------------------------------------------------------------------------
Contact: Telephone:
- -----------------------------------------------------------------------------------
Local Loop Provider:
- -----------------------------------------------------------------------------------
Contact: Telephone:
- -----------------------------------------------------------------------------------
12
GLOBAL CROSSING CUSTOMER CARE CENTER
REQUEST FOR SERVICE
21. Additional Information (Detailed description of circuit, work involved,
- ----------------------------
related orders or any additional information that helps describe what has been
requested)__
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
13
ACCESS DISCONNECT/CHANGE REQUESTS
Use the form on the following page to request a change in access to the network.
Provide current (From) information and new (To) information. This form contains
fields named ITU Circuit Designation and Overseas Channel Assignment (OCA) that
are Global Crossing's identifiers of the customer's circuit(s). Please include
this information on any change requests. The remaining fields on this form are
defined on the previous pages outlining how to fill out an RFS.
14
GLOBAL CROSSING CUSTOMER CARE CENTER
ACCESS DISCONNECT/CHANGE REQUEST FORM
ORIGINATOR INFORMATION
- ----------------------
Customer Number One Customer Number Two
(If applicable)
- --------------------------------------------------------------------------------
1. Business Name Business Name
- --------------------------------------------------------------------------------
2. Contact Name Contact Name
- --------------------------------------------------------------------------------
3. Telephone Number Telephone Number
- --------------------------------------------------------------------------------
4. Fax Number Fax Number
- --------------------------------------------------------------------------------
5. Electronic Mail ID Electronic Mail ID
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
6. Customer Requested Due Date:
- --------------------------------------------------------------------------------
SERVICE DETAILS
- ---------------
International Telecommunications Union Facility Designations
- --------------------------------------------------------------------------------
7. Overseas Channel Assignment (OCA)
- --------------------------------------------------------------------------------
8. Numeric Designation: (Customer ITU Ckt ID)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
9. Terminal City A Terminal City A
- --------------------------------------------------------------------------------
UNDERSEA NETWORK TRANSPORT ASSIGNMENT
- --------------------------------------
- --------------------------------------------------------------------------------
10. Network Name: (Cable System) Segment
- --------------------------------------------------------------------------------
11. Level (STM-n) Quantity
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
12. FROM: Cable Station Optical Distribution Frame (ODF) Assignments
(Basic service only)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------
Terminal A (Location 1) Capacity Provider:
- ---------------------------------------------------------------------------------------------------
Bay Panel/Module/Shelf Transmit Jack Receive Jack
- ---------------------------------------------------------------------------------------------------
SERVICE
- ---------------------------------------------------------------------------------------------------
PROTECTION
- ---------------------------------------------------------------------------------------------------
- -----------------------
Terminal Z (Location 2)
- ---------------------------------------------------------------------------------------------------
Bay Panel/Module/Shelf Transmit Jack Receive Jack
- ---------------------------------------------------------------------------------------------------
SERVICE
- ---------------------------------------------------------------------------------------------------
PROTECTION
- ---------------------------------------------------------------------------------------------------
15
GLOBAL CROSSING CUSTOMER CARE CENTER
ACCESS DISCONNECT/CHANGE REQUEST FORM
- --------------------------------------------------------------------------------
13. TO: Cable Station Optical Distribution Frame (ODF) Assignments
(Basic service only)
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------
Terminal A (Location 1) Capacity Provider:
- ----------------------------------------------------------------------------------------------------
Bay Panel/Module/Shelf Transmit Jack Receive Jack
- ----------------------------------------------------------------------------------------------------
SERVICE
- ----------------------------------------------------------------------------------------------------
PROTECTION
- ----------------------------------------------------------------------------------------------------
- -----------------------
Terminal Z (Location 2)
- ----------------------------------------------------------------------------------------------------
Bay Panel/Module/Shelf Transmit Jack Receive Jack
- ----------------------------------------------------------------------------------------------------
SERVICE
- ----------------------------------------------------------------------------------------------------
PROTECTION
- ----------------------------------------------------------------------------------------------------
INLAND NETWORKS (Extended service only)
- ---------------
Location Number One
- -------------------
FROM: TO:
- --------------------------------------------------------------------------------
14. AAV/LL Provider AAV/LL Provider
- --------------------------------------------------------------------------------
15. Numeric Designation Numeric Designation
- --------------------------------------------------------------------------------
Location Number Two
- -------------------
FROM: TO:
- --------------------------------------------------------------------------------
16. AAV/LL Provider AAV/LL Provider
- --------------------------------------------------------------------------------
17. Numeric Designation Numeric Designation
- --------------------------------------------------------------------------------
16
GLOBAL CROSSING CUSTOMER CARE CENTER
ACCESS DISCONNECT/CHANGE REQUEST FORM
18. Additional Information:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
17
Order Confirmation
Order Completion
Assignment Order (AO)
Activation Authorization (AA)
Order Confirmation
The information that is provided on this form is straight forward and serves
only to indicate to you that Customer Care has received your RFS and is
beginning to process the Request. The ITU Circuit Designation is the name you
have called the circuit. The Order Number is the installation order number that
Global Crossing has assigned to the installation order. The scheduled due date
is the requested date you placed on the RFS. The Overseas Channel Assignment is
the identification number of the undersea portion of the circuit.
Assignment Order
The information for the Assignment Order will come to you after Global Crossing
has designed the circuit. This form can be sent to the Inland Provider, the
Alternate Access Vendor or the Local Loop Provider that you have contracted for
your portion of the circuit. It tells them what assignments have been made on
the Global Crossing portion of the circuit.
Order Completion
Once notification is received from the NOC that the order has been completed, we
will notify you using the Order Completion Form. The information on this form
tells you that the Order has been completed, the date it was completed, the ITU
Circuit Designation, the Overseas Channel Assignment, the Order type (add,
disconnect or change) and the Bay, Panel and Jack information for extended
service.
Activation Authorization
The Activation Authorization will be sent to you once the circuit has been
completed and we have verified that all financial obligations have been met. It
authorizes the Capacity Providers that you have contracted with to turn up the
service associated with the listed circuit(s).
18
CUSTOMER CARE CENTER
--------------------
ORDER CONFIRMATION
Customer Name:
-----------------------------------------
Customer ID:
-------------------------------------------
Attention:
---------------------------------------------
- -------------------------------------------------------------------------------------------------
ITU Circuit Designation Order Number Scheduled Due Date Overseas Channel Assignment
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
Dear :
------------------------------
The above orders associated with your request for service have been issued. If
you have any questions, please feel free to contact me in the Customer Care
Center.
Customer Care Specialist:
1.888.371.0702
1.441.296.9464
19
Assignment Order
Date:
Global Crossing Customer Care Center does hereby recognize
-------------------
Customer Name
as a legitimate Capacity Purchaser. This customer is therefore authorized to
initiate service requests for interconnection to Global Crossing high
capacity bandwidth. The Bay / Panel / Jack information listed below will be
required to engineer the interconnection to the customer's circuit. The
following will provide specific information necessary to fulfill the
customer's immediate connection request. This is not an authorization
activate the service.
1st Capacity Provider
--------------------------------------------------------------------------
Company Name
------------
----------------------------------------------------------------------------
Name of Customer Contact
----------------------------------------------------------------------------
Company Street Address
----------------------------------------------------------------------------
City, State, Postal Code / Zip
----------------------------------------------------------------------------
Telephone
----------------------------------------------------------------------------
Provider Name (ICP/CLP/LLP):
- -----------------------------------------------------------------------------
ITU Circuit Designation:
- -----------------------------------------------------------------------------
Circuit Type:
- -----------------------------------------------------------------------------
Refer To Order:
- -----------------------------------------------------------------------------
Provider Circuit Designation:
- -----------------------------------------------------------------------------
Order Type (Check One): New [_] ReArrangement [_] Disconnect [_]
----------
- --------------------------------------------------------------------------------
Assignments: Bay Panel Jack
- --------------------------------------------------------------------------------
Service:
- --------------------------------------------------------------------------------
Protection:
-----------------------------------------------------------------------------
Overseas Channel Assignment(s):
------------------------------------------------------------------
Customer Termination: Optical [_] Electrical [_]
------------------------------------------------------------------
Specialist Name (Printed):
--------------------------------------------------------------------------
Specialist Signature:
--------------------------------------------------------------------------
Date:
--------------------------------------------------------------------------
Customer Signature:
--------------------------------------------------------------------------
Date signed:
--------------------------------------------------------------------------
2nd Capacity Provider:
--------------------------------------------------------------------------
Company Name
------------
--------------------------------------------------------------------------
Name of Customer Contact
--------------------------------------------------------------------------
Company Street Address
--------------------------------------------------------------------------
City, State, Postal Code / Zip
--------------------------------------------------------------------------
Telephone
--------------------------------------------------------------------------
Provider Name (ICP/CLP/LLP):
--------------------------------------------------------------------------
20
Assignment Order (Cont'd)
----------------------------------------------------------------------
ITU Circuit Designation:
----------------------------------------------------------------------
Circuit Type:
----------------------------------------------------------------------
Refer To Order:
----------------------------------------------------------------------
Provider Circuit Designation:
- --------------------------------------------------------------------------------
Order Type (Check One): New [_] ReArrangement [_] Disconnect [_]
----------
- --------------------------------------------------------------------------------
Assignments: Bay Panel Jack
- --------------------------------------------------------------------------------
Service:
- --------------------------------------------------------------------------------
Protection:
- --------------------------------------------------------------------------------
Overseas Channel Assignment:
--------------------------------------------------------------------------
Customer Termination: Optical [_] Electrical [_]
------------------------------------------------------------------
Specialist Name (Printed):
------------------------------------------------------------------
Specialist Signature:
----------------------------------------------------------------------
Date:
----------------------------------------------------------------------
Customer Signature:
----------------------------------------------------------------------
Date signed:
----------------------------------------------------------------------
3rd Capacity Provider:
----------------------------------------------------------------------
Company Name
------------
----------------------------------------------------------------------
Name of Customer Contact
----------------------------------------------------------------------
Title
----------------------------------------------------------------------
Company Street Address
----------------------------------------------------------------------
City, State, Postal Code / Zip
----------------------------------------------------------------------
Telephone
----------------------------------------------------------------------
Provider Name (ICP/CLP/LLP):
----------------------------------------------------------------------
ITU Circuit Designation:
----------------------------------------------------------------------
Circuit Type:
----------------------------------------------------------------------
Refer To Order:
----------------------------------------------------------------------
Provider Circuit Designation:
- --------------------------------------------------------------------------------
Order Type (Check One): New [_] ReArrangement [_] Disconnect [_]
----------
- --------------------------------------------------------------------------------
Assignments: Bay Panel Jack
- --------------------------------------------------------------------------------
Service:
- --------------------------------------------------------------------------------
Protection:
- --------------------------------------------------------------------------------
Overseas Channel Assignment:
-----------------------------------------------------------------
Customer Termination: Optical [_] Electrical [_]
-----------------------------------------------------------------
Specialist Name (Printed):
----------------------------------------------------------------------
Specialist Signature:
----------------------------------------------------------------------
Date:
----------------------------------------------------------------------
Customer Signature:
----------------------------------------------------------------------
Date signed:
----------------------------------------------------------------------
21
GLOBAL CROSSING CUSTOMER CARE CENTER
ORDER COMPLETION FORM
Customer
--------
Name:
---------------------------------------
Attention:
-----------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Order Completion ITU Standard Overseas Channel Order Bay, panel and Jack
Number Date Circuit ID Assignment (OCA) Type (Extended Service Only)
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
Reason for delay in completion date (if order not completed when scheduled):
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
The above order(s) have been completed based on your (day\month\year) service
order request. If you have any questions, please feel free to contact me in the
Customer Care Center.
Customer Care Specialist
1.888.371.0702 Ext
-----
1.441.296.9464 Ext
-----
22
23
[LOGO OF GLOBAL CROSSING]
Activation Authorization
Date:
Global Crossing Customer Care Center does hereby recognize
----------------------
Customer Name
as a legitimate Capacity Purchaser on the ___________ to __________ cable
system. Local Loop Providers and Inland Capacity Providers are hereby
authorized to turn up for service their respective circuits included as part of
the following Global Crossing high capacity bandwidth circuit.
- --------------------------------------------------------------------------------
Company Name
- --------------------------------------------------------------------------------
Name of Customer Contact
- --------------------------------------------------------------------------------
Title
- --------------------------------------------------------------------------------
Company Street Address
- --------------------------------------------------------------------------------
City, State, Postal Code / Zip
- --------------------------------------------------------------------------------
Telephone
- --------------------------------------------------------------------------------
Customer Signature
- --------------------------------------------------------------------------------
Date signed
- --------------------------------------------------------------------------------
ITU Circuit Designation:
Inland Provider (IP) Name:
Inland Provider (IP) CKT ID:
Overseas Channel Assignment
(OCA/TCA):
ITU Circuit Designation:
Local Loop Provider (LLP) Name:
Inland Provider (IP) CKT ID:
Overseas Channel Assignment
(OCA/TCA):
Authorized by:
Printed Global Crossing Representative Name
Authorizing Title: Customer Service Specialist
---------------------------
Authorized Signature:
---------------------------------------------
24
ATLANTIC CROSSING BACKHAUL PROVIDERS
UNITED STATES
60 Hudson Street 75 Broad Street
New York, NY, USA New York, NY, USA
Cablevision Lightpath Inc. Teleport Communications Group
- -------------------------- -----------------------------
Mr. Dan Matthews Steve Huston
Strategic Account Manager National Account Manager
111 New South Road 672 Mohawk Street
Hicksville, NY 11801 Columbus, OH 43206
516 393-3468 phone 732-805-5758 phone
516 393-0455 fax
dmatthew@cablevision.com
- ------------------------
International Optical Network (ION)
- --------------------------------------
Customer Care/Sales
Cathy Hanzich
110 E. 42nd Street, suite 1405
New York, NY 10017
212 687-9177
chanzich@mmfn.com
- -----------------
COLLOCATION CONTACTS
- --------------------
60 Hudson Street 75 Broad Street
New York, NY, USA New York, NY, USA
Williams Real Estate Co. LaSalle Real Estate Co.
- ------------------------ -----------------------
New York, NY New York, NY
Audrey Novia Tom Garden
212 716-3500 212 341-0218
25
ATLANTIC CROSSING BACKHAUL PROVIDERS
UNITED KINGDOM
Docklands Telehouse
- --------- ---------
London London
Cable & Wireless International Optical Network (ION)
- ---------------- ---------------------------------------
Mrs. Carol Mills Customer Care/Sales
26 Red Lion Square Mrs. Cathy Hanzich
London WC1R 4HQ 110 East 42nd St. Suite 1405
1+800+11+66+77+22 phone New York, NY 10017
44+171+528+1826 phone 212-687-9177 phone
44+171+528+3007 fax 212-687-9188 fax
carol.mills@cwcom.co.uk chanzich@mmfn.com email
COLLOCATION CONTACTS
- ---------------------
Cable & Wireless
Mrs. Carol Mills
26 Red Lion Square
London WC1R 4HQ
44+800+11+66+77+22 phone
44+171+528+1826 phone
44+171+528+3007 fax
carol.mills@cwcom.co.uk
26
ATLANTIC CROSSING BACKHAUL PROVIDERS
GERMANY
Deutsche Telekom
- ----------------
North America North America
- ------------- -------------
Area Carrier Relation Manager Area Carrier Relation Manager
Mr. Kevin Mulholland Joseph Miranda
1-732-933-4900 phone 1-732-933-4900 phone
1-732-933-4354 fax 1-732-933-4354 fax
1 732-763-0565 mobile 1-908-890-8102 mobile
kevin.mulholland@usa.telekom.de joseph.miranda@usa.telekom.de
Latin America Northern Europe, Scandinavia, UK, Netherlands,
- ------------- ----------------------------------------------
Belgium
-------
Area Carrier Relation Manager Area Carrier Relations Manager
Mr. John Phillips Mr. Alain Cockburn
1-732-933-4900 phone +44-171-432-6267 phone
1-732-933-4354 fax +44-171-432-6276 fax
1-908-890-8103 mobile 44-385-316-107 mobile
john.phillips@usa.telekom.de alain.cockburn@deutschetelekom.co.uk
Southern Europe, France, Italy, Portugal, Spain,
- ------------------------------------------------
Monaco, Andorra, Luxemburg
- --------------------------
Area Carrier Relation Manager Area Carrier Relation Manager
Philippe Nieto Claudia Sunkel
+33 1 44 43 00 30 phone +44 171 432 6253 phone
+33 1 44 43 00 10 fax +44 171 432 6276 fax
+33 607 012 461 mobile +44 385 316 107 mobile
pnieto@ti.telekom.de Claudia.Sunkel@deutschetelekom.co.uk
27
ATLANTIC CROSSING BACKHAUL PROVIDERS
GERMANY
Deutsche Telekom
- ----------------
Singapore, East Asia, Israel Russia, CIS
- ----------------------------- -----------
Area Carrier Relations Manager Area Carrier Relations Manager
Francis Wong Natalia Gavrilova
+65 438 9140 phone +7 095 956 5434 phone
+65 438 9144 fax +49 40 650 1993 phone
+65 966 886 95 mobile +7 095 956 5433 fax
francis.wong@sgp.telekom.de +49 40 650 2050 fax
+7 095 767 4730 mobile
Natalia.Gavrilova@rus.telekom.de
Middle East
- -----------
Area Carrier Relations Senior Manager North Asia, Japan
Calvin Wee Sing Lee -----------------
+65 438 9142 phone Area Carrier Relations Senior Manager
+65 438 9144 fax Masayoshi Akimoto
+65 9633 4478 mobile +813 5213 8702 phone
calvin.lee@sgp.telekom.de +813 5213 8777 fax
+812 0743 2515 mobile
masayoshi.akimoto@jpn.telekom.de
West Asia East Europe
- --------- -----------
Assistant Relation Manager Area Carrier Relations Manager
Eugene Lim Thomas Dreischhoff
+65 438 9141 phone +7 095 956 5434 phone
+65 438 9144 fax +49 40 650 1993 phone
+65 9787 1920 mobile +7 095 956 5433 fax
eugene.lim@sgp.telekom.de +49 40 650 2050 fax
+7 095 767 4729 mobile
Australia, Pacific Region Thomas.Dreischhoff@rus.telekom.de
- -------------------------
Area Carrier Relation Manager
Shigeo Araki
+813 5213 8741 phone
+813 5213 8777 fax
+818 0806 6539 mobile
shigeo.araki@jpn.telekom.de
28
ATLANTIC CROSSING BACKHAUL PROVIDERS
THE NETHERLANDS
PTT Telecom BV
- --------------
Senior Facility Manager
Marieke ten Wolde
PO Box 30150
2500 GD
The Hague
The Netherlands
31-70-343-9320 phone
31-70-343-8319 fax
PTT Telecom BV
- --------------
Manager, Stream & Market Management
Mr. Peter Smink
PO Box 30150
2500 GD
The Hague
The Netherlands
31-70-343-2739 phone
31-70-343-8319 fax
29
CUSTOMER CARE FEEDBACK FORM
1. Date of Request:
________________________________________________________________________________
2. Who handled your request?
________________________________________________________________________________
3. What was the nature of your request?
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
4. Was your request handled in a timely manner?
________________________________________________________________________________
________________________________________________________________________________
5. How would you rate your overall satisfaction with the Customer Care Center?
Excellent [_]
Good [_]
Fair [_]
Poor [_]
If your response is Fair or Poor, please explain.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
6. Any additional feedback or suggestions:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Please send to: Global Crossing Customer Care Center
45 Reid Street
Hamilton, Bermuda HM12
Attention: Customer Care Manager
Fax to: 1.441.296.9461
30
31
Transfer of Indefeasible Right of Use and Transfer of Service
The Transfer of Indefeasible Right of Use form is used when a Capacity Purchaser
exercises its right to assign its use of capacity only, as described in its
---------------------
individual Capacity Purchase Agreement. The Transfer of Service form is used
when a Capacity Purchaser exercises its right to transfer all of its obligations
----------------------
as described in its individual Capacity Purchase Agreement.
Please prepare the following form(s) and forward via mail or fax to Global
Crossing Ltd. for approval:
Wessex House
First Floor
45, Reid Street
Hamilton HM 12
Bermuda
Fax: 1.441.296.9461
32
Global Crossing Customer Care Center
TRANSFER OF SERVICE AGREEMENT
Current Customer: _________________________________________________________
New Customer: _____________________________________________________________
Atlantic Crossing Ltd. Service(s) to be transferred (referred to in this
Agreement as the "Identified Service"): are outlined in Attachment A.
___________________________________________________________________________
1. Current Customer is Atlantic Crossing Ltd.'s existing customer of record for
the identified Service. Current Customer hereby requests that Atlantic Crossing
Ltd. transfer the Identified Service to New Customer. Current Customer
understands that it will no longer be Atlantic Crossing Ltd.'s customer for the
identified Service after the Effective Date of the transfer.
2. New Customer agrees to assume all obligations of Current Customer as of the
Effective Date of the Transfer. These obligations include, for example: all
outstanding indebtedness for the Identified Service and the ongoing maintenance
and interconnection charges (where applicable). This transfer of service does
not relieve or discharge Current Customer from remaining jointly and severally
liable with New Customer for any obligations existing as of the Effective Date
of the transfer.
3. Whereas the Service being transferred is half of a Minimum Capacity Unit,
the customer of record (concurring customer) for the matching Capacity must
agree to the transfer of service to the new customer.
4. The Effective Date of the transfer will be the earlier of: (a) date on
which Atlantic Crossing Ltd. accepts the transfer in writing; or (b) the
fifteenth day after Atlantic Crossing Ltd. receives a fully executed original
of this Transfer of Service form, unless, within such fifteen-day period,
Atlantic Crossing Ltd. rejects the transfer or assignment.
5. The service is not to be interrupted at the time the transfer is made.
Current Customer New Customer Concurring Customer
By: By: By:
-------------------------- ---------------------------- -----------------------------
(Signature of Authorized (Signature of Authorized (Signature of Authorized
Representative) Representative) Representative)
- ------------------------------ ---------------------------------- -------------------------------------
(Typed or Printed Name) (Typed or Printed Name) (Typed or Printed Name)
- ------------------------------ ---------------------------------- -------------------------------------
(Title) (Title) (Title)
- ------------------------------ ---------------------------------- -------------------------------------
(Date) (Date) (Date)
Authorized by Atlantic Crossing Ltd.:
______________________________ ___________
(Signature) (Date)
33
Attachment A
TRANSFER OF SERVICE AGREEMENT
IDENTIFIED SERVICES
Date Required by Customer:
-------------------------------------------
Description of Capacity Services being transferred:
Segment Circuit Number Capacity Unit
- ------- -------------- -------------
34
GLOBAL CROSSING CUSTOMER CARE CENTER
TRANSFER OF INDEFEASIBLE RIGHT OF USE
The following signed parties authorize the transfer and acceptance of the
Indefeasible Right of Use for ______ STM-1(s) on segment(s) ____________ of the
AC-1 Cable System from _______ until _______. The purchaser understands that
its obligations under the Capacity Purchase Agreement are not transferable and
remain the responsibility of said purchaser. Furthermore, both purchaser and
assignee acknowledge that said assignee is not a third party beneficiary of the
Capacity Purchase Agreement or the Right of Use Agreement.
Segment Landing Points
--------- --------------
S-1 T-1 and T-2
S-2 T-2 and T-3
S-3a T-1 and T-4
S-3b T-3 and T-4
S-3c T-1 and T-3
S-4 T-2 and T-4
T-1 -- A cable station in Brookhaven, New York, United States, together with
that portion of the System that is located between such cable station
and the point that is one half mile beyond the United States territorial
limit.
T-2 -- A cable station in Whitesands, United Kingdom together with that portion
of the System that is located between such cable station and the point
that is one half mile beyond the United Kingdom territorial limit.
T-3 -- A cable station in Sylt, Germany together with that portion of the
System that is located between such cable station and the point that is
one half mile beyond the German territorial limit.
T-4 -- A cable station in Beverwijk, Netherlands, together with that portion of
the System which is located between such cable station and the point
that is one half mile beyond the Netherlands territorial limit.
Purchaser: ________________________ Assignee:______________________________
(Corporate Name) (Corporate Name)
Signature: ________________________ Signature: ____________________________
(Signature of Authorized Representative)(Signature of Authorized Representative)
Printed Name: ______________________ Printed Name:__________________________
Title: _____________________________ Title:_________________________________
Telephone Number: _________________ Telephone Number:______________________
Fax Number: ________________________ Fax Number:____________________________
Date: __________________ Date: ____________________
35
Accepted by Atlantic Crossing Ltd. Date:
-------------------------------- --------
Signature
GLOBAL CROSSING CUSTOMER CARE CENTER
TRANSFER OF SERVICE CONFIRMATION FORM
Date of Request: ___________
Originator's Name: _________________
The following parties authorize the transfer and acceptance of service for
______ STM-1(s) on segment(s) ____________ of the AC-1 Cable System.
Capacity Purchaser: ________________________ Assignee: ___________________________
(Corporate Name) (Corporate Name)
Approved ______ Denied _______ Date _________
Customer Care Manager: ____________________
Telephone Number: ________________________
Fax Number: ________________________
36
GLOBAL CROSSING CUSTOMER CARE CENTER
TRANSFER OF INDEFEASIBLE RIGHT OF USE CONFIRMATION FORM
Date of Request: ___________
Originator's Name: _________________
The following parties authorize the transfer and acceptance of the Indefeasible
Right of Use for ______ STM-1(s) on segment(s) ____________ of the AC-1 Cable
System from _________ until ________.
Capacity Purchaser: ________________________ Assignee: __________________________
(Corporate Name) (Corporate Name)
Approved __________ Denied __________ Date __________
Customer Care Manager: ____________________
Telephone Number: ________________________
Fax Number: ________________________
37
ANNEX A
INDEFEASIBLE RIGHT OF USE AGREEMENT
THIS AGREEMENT (as amended, supplemented or otherwise modified from time to
time, this "Agreement") is made and entered into as of this 21st day of June,
1999, between and among VIA Net Works Europe Holding B.V. (the "Purchaser") and
GT Landing Corp., GT U.K. Ltd., Global Telesystems GmbH and GT Netherlands B.V.
(collectively, the "Subsidiary Grantors").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, each Subsidiary Grantor is a wholly-owned subsidiary of Atlantic
Crossing Ltd. (the "Parent") who is the grantor under the Capacity Purchase
Agreement (as amended, supplemented or otherwise modified from time to time, the
"Capacity Purchase Agreement") to which a copy of this Agreement is attached;
WHEREAS, capitalized terms used in this Agreement and not otherwise defined
in this Agreement shall have the meanings assigned to them in the Capacity
Purchase Agreement;
WHEREAS, upon completion of the construction and installation of the
System, GT Landing Corp. will have an IRU in the whole of Segment T-1, GT U.K.
Ltd. will own Segment T-2, Global Telesystems GmbH will own Segment T-3 (except
with respect to that portion of Segment T-3 which comprises Subsegment T-3B in
which Global Telesystems GmbH shall have rights) and GT Netherlands B.V. will
own Segment T-4 (except with respect to that portion of Segment T-4 which
comprises Subsegment T-4B in which GT Netherlands B.V. shall have rights);
WHEREAS, subject to and in accordance with the terms of the Capacity
Purchase Agreement, the Parent is conveying certain S Capacity to the Purchaser
on an indefeasible right of use basis;
WHEREAS, each Subsidiary Grantor desires to grant to the Purchaser, at no
additional charge and for so long as the Purchaser maintains an IRU in any S
Capacity, an indefeasible right of use with respect to its respective T Segment
to the extent required by the Purchaser to use its IRU in such S Capacity; and
WHEREAS, the Subsidiary Grantors acknowledge and agree that the Purchaser
has relied upon this Agreement in entering into the Capacity Purchase Agreement;
NOW, THEREFORE, the Subsidiary Grantors covenant and agree as follows:
1. Upon the effectiveness of the grant to the Purchaser of an indefeasible
right of use with respect to any S Capacity (including in any Residual
Capacity) in accordance
with the Capacity Purchase Agreement, each Subsidiary Grantor grants to the
Purchaser, at no additional charge and for so long as the Purchaser
maintains an IRU in such S Capacity, an indefeasible right of use with
respect to its respective T Segment to the extent required by the Purchaser
to use its IRU in the S Capacity.
2. Subject to Sections 10 and 11 of the Capacity Purchase Agreement, each
Subsidiary Grantor shall use commercially reasonable efforts to maintain,
or cause the Operator to maintain, its respective T Segment in accordance
with the provisions set forth in the Capacity Purchase Agreement.
3. The performance of this Agreement by each of the Subsidiary Grantors is
contingent upon the continuance of the Capacity Purchase Agreement and upon
the obtaining and continuance of such approvals, consents, governmental
authorizations, licenses and permits as may be required or deemed necessary
by such parties and as may be satisfactory to them. The Subsidiary Grantors
shall use all reasonable efforts to obtain and continue such approvals,
consents, governmental authorizations, licenses and permits. No license
under patents is granted by the Subsidiary Grantor or shall be implied or
arise by estoppel in the Purchaser's favor with respect to any apparatus,
system or method used by the Purchaser in connection with the use of the T
Segment(s) granted hereunder.
4. The Subsidiary Grantors and the Parent have entered into the Supply
Contract to obtain plant, equipment and services necessary to allow the T
Segments to be placed into operation on the applicable scheduled RFS Date.
UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT, ANY OTHER WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY
DISCLAIMED.
5. In no event shall any Subsidiary Grantor or the Purchaser be liable to the
other for consequential, incidental, indirect or special damages,
including, but not limited to, loss of revenue, loss of business
opportunity, or the costs associated with the use of restoration
facilities.
6. This Agreement shall not form a joint venture or partnership or similar
business arrangement between the parties hereto or between the parties
hereto, the Parent and the Purchaser, and nothing contained herein shall be
deemed to constitute a partnership or joint venture or similar business
arrangement.
7. This Agreement does not provide and is not intended to provide third
parties (including, but not limited to, customers of the Purchaser, any
permitted transferee of the Purchased Capacity or any other permitted user
of Purchased Capacity) with any remedy, claim, liability, reimbursement,
cause of action, or any other right.
8. This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the Purchaser and the Subsidiary Grantors and their
respective successors and permitted assigns under the Capacity Purchase
Agreement.
9. This Agreement shall not be modified or amended except by a writing signed
by authorized representatives of the parties hereto.
10. This Agreement shall become effective on the date set forth above and shall
continue in effect for the duration of the Capacity Purchase Agreement, and
shall immediately terminate without any further action upon the termination
of the Capacity Purchase Agreement.
11. The provisions of Sections 10, 11, 12, 14, 23 and 25 of the Capacity
Purchase Agreement are hereby incorporated herein by reference, mutatis
mutandis, and shall be deemed a part of this Agreement as if fully set
forth herein.
IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date first written above.
ATLANTIC CROSSING LTD.
By: /s/ Doug Molyneux
--------------------------------
Name: Doug Molyneux
---------------------------
Title: Vice President
--------------------------
GT LANDING CORP.
By: /s/ Doug Molyneux
--------------------------------
Name: Doug Molyneux
---------------------------
Title: Under a Power of Attorney
--------------------------
GT U.K. LTD.
By: /s/ Doug Molyneux
--------------------------------
Name: Doug Molyneux
---------------------------
Title: Under a Power of Attorney
--------------------------
GLOBAL TELESYSTEMS GmbH
By: /s/ Ian McLean
--------------------------------
Name: Ian McLean
---------------------------
Title: Director
--------------------------
GT NETHERLANDS B.V.
By: /s/ Ian McLean
--------------------------------
Name: Ian McLean
---------------------------
Title: Director
--------------------------
VIA NET WORKS EUROPE HOLDING B.V.
By: VIA NET.WORKS, INC., its
Managing Director
By: /s/ Matt Nydell
---------------------------
Name: Matt Nydell
---------------------------
Title: VP & General Counsel
--------------------------
ANNEX B
ATLANTIC CROSSING
SUBMARINE CABLE SYSTEM
DETAILS RELATING TO CAPACITY PURCHASE AGREEMENT
ATLANTIC CROSSING
SUBMARINE CABLE SYSTEM
ANNEX B
TABLE OF CONTENTS
-----------------
PARAGRAPH PAGE
- --------- ----
1. Definitions........................................................2
-----------
2. Cable System Configuration and Segments............................4
---------------------------------------
3. Ownership and Provision of Segments and Additional Property........6
-----------------------------------------------------------
4. Access / Inland Connection Services................................7
-----------------------------------
5. The System Advisory Committee......................................8
-----------------------------
6. Transfer of Rights to Use Purchased Capacity.......................9
--------------------------------------------
7. Intentionally Omitted..............................................9
---------------------
8. Operations, Administration and Maintenance of Segments and Access
-----------------------------------------------------------------
Connections......................................................9
-----------
9. Keeping and Inspection of Books...................................11
-------------------------------
10. Termination; Realization of Assets...............................11
----------------------------------
ATTACHMENTS
-----------
Attachment 1 - ...Configuration of the Atlantic Crossing Submarine Cable System
Attachment 2 - .....Terms of Reference for Assignments, Routing and Restoration
Attachment 3 - ................Terms of Reference for Operation and Maintenance
Attachment 4 - ........................................................RFS Date
ATLANTIC CROSSING SUBMARINE CABLE SYSTEM
ANNEX B TO CAPACITY PURCHASE AGREEMENT
--------------------------------------
1. Definitions.
-----------
Definitions are as described in the specific Paragraphs or in the Capacity
Purchase Agreement to which this Annex B is attached. Except as otherwise
provided, the following definitions shall apply throughout this Annex B:
Adjusted Pro Rata Share (for apportionment of Residual Capacity): with
---------------------------------------------------------------
respect to each of the Segment S-1 Residual Capacity, Segment S-2 Residual
Capacity, Segment S-3a Residual Capacity, Segment S-3b Residual Capacity,
Segment S-3c Residual Capacity and Segment S-4 Residual Capacity, a
fraction:
(i) the numerator of which equals the sum of (A) the number of STM-1s on
the applicable S Segment in which the Purchaser acquired an IRU from the
Grantor pursuant to this Agreement and which were deemed contracted for
prior to October 10, 1997, multiplied by 3, (B) the number of STM-1s on
the applicable S Segment in which the Purchaser acquired an IRU from the
Grantor pursuant to this Agreement and which were contracted for on and
after October 10, 1997 but prior to June 1, 1998, multiplied by 2 and (C)
the number of STM-1s on the applicable S Segment in which the Purchaser
acquired an IRU from the Grantor pursuant to this Agreement and which
were contracted for on and after June 1, 1998 but prior to the earlier of
(x) the RFS Date for the entire System and (y) November 30, 1998; and
(ii) the denominator of which equals the sum of (A) the number of STM-1s
on the applicable S Segment that all purchasers acquired an IRU in from
the Grantor and which were deemed contracted for prior to October 10,
1997, multiplied by 3, (B) the number of STM-1s on the applicable S
Segment that all purchasers acquired an IRU in from the Grantor and which
were contracted for on and after October 10, 1997 but prior to June 1,
1998 multiplied by 2 and (C) the number of STM-1s on the applicable S
Segment that all purchasers acquired an IRU in from the Grantor and which
were contracted for on and after June 1, 1998 but prior to the earlier of
(x) the RFS Date for the entire System and (y) November 30, 1998.
The Adjusted Pro Rata Share shall be calculated by the Grantor and shall be
conclusive absent manifest error.
Basic System Module: A Basic System Module of the System shall consist of a
-------------------
digital line section in each direction with interface in accordance with ITU
Recommendations G.703 and G.707 to G.709 and containing sixteen (16) STM-
1's.
Cable Landing Point: Cable Landing Point shall be the beach joint at each cable
- -------------------
landing location or the mean high water mark of ordinary spring tides if there
is no beach joint.
Carrier Party: Any entity authorized or permitted under the laws of its
- -------------
respective country, to acquire and use facilities for the provision of
international telecommunication services.
Initial Design Capacity: The Initial Design Capacity of each Segment of the
- -----------------------
System shall consist of four (4) fiber pairs providing a minimum of sixteen (16)
Basic System Modules (eight will be used for service and the remaining eight
will be used for restoration) initially supplying STM-1's or any increase as
determined from time to time by the Grantor in its sole discretion.
Inland Carrier: An entity authorized or permitted under the laws of its
- --------------
respective country to provide for inland communications services.
Maintenance Authority: An entity designated by the Grantor which shall be
- ---------------------
primarily responsible for the operations and maintenance of the wet plant as set
forth in Paragraph 8(b).
Segment S-1 Residual Capacity, Segment S-2 Residual Capacity, Segment S-3a
- ------------------------------ ------------------------------ ------------
Residual Capacity, Segment S-3b Residual Capacity, Segment S-3c Residual
- ------------------ ------------------------------- ---------------------
Capacity and Segment S-4 Residual Capacity: With regard to each of the S
- -------- -----------------------------
Segments, as of the date which is 12-1/2 years after the RFS Date for the entire
System, 80% of that portion of the service capacity on the applicable S Segment
which is available as of such date to be sold by the Grantor to prospective
purchasers, together with, to the extent necessary to use such S Capacity, the
applicable T Capacity. The amount of Residual Capacity for each such S Segment
shall be determined solely by the Grantor and shall not, in any event, include
any capacity on the applicable S Segment which the Grantor has determined should
be reserved for restoration purposes.
System Interface: The nominal 155 Mb/s (STM-1) digital/optical input/output
- ----------------
ports on the digital/optical distribution frame (including the digital/optical
distribution frame itself) where the Basic System Module connects with other
transmission facilities or equipment.
Terminal Parties: The Terminal Parties are GT U.K. Ltd., Global Telesystems
- ----------------
GmbH, GT Landing Corp. and GT Netherlands B.V., each of which are wholly-owned
subsidiaries of the Grantor.
2. Cable System Configuration and Segments
---------------------------------------
(a) The configuration of the System shall be as shown in Attachment 1.
(b) In accordance with the arrangements contained in this Annex B, the
System shall be regarded as consisting of the following Segments:
Segment S-1: A submarine cable linking Segments T-2 and
T-1.
Segment S-2: A submarine cable linking Segments T-1 and
T-3.
Segment S-3a: A submarine cable linking Segments T-4 and T-2.
Segment S-3b: A submarine cable linking Segments T-3 and T-4.
Segment S-3c: A submarine cable linking Segments T-2 and T-3
(which goes through Segment T-4).
Segment S-4: The portion of the System linking Segments T-1
and T-4
Segment T-1: A cable station in Brookhaven, New York, United
States, together with that portion of the System which
is located between such cable station and the point
which is one-half mile beyond the United States
territorial limit.
Segment T-2: A cable station in Whitesands, United Kingdom,
together with that portion of the System which is
located between such cable station and the point which
is one-half mile beyond the United Kingdom territorial
limit.
Segment T-3: A cable station in Sylt, Germany, together with that
portion of the System which is located between such
cable station and the point which is one-half mile
beyond the Germany territorial limit.
Segment T-4: A cable station in Beverwijk, Netherlands, together
with that portion of the System which is located
between such cable station and the
point which is one-half mile beyond the Netherlands
territorial limit.
It is assumed that under the current law of the United Kingdom, the United
States, the Netherlands and Germany, the territorial waters of such country
extend twelve nautical miles seaward from the coast of such country. If such
assumption shall prove to be incorrect, or if a law shall change such assumption
and in fact the territorial waters of any such country extend beyond twelve
nautical miles, the parties hereto shall adjust the T Segment of the applicable
Terminal Party.
(c) Except as provided herein, Segments T-1 and T-2 shall include, as
appropriate:
(i) the transmission cable and equipment associated with the submersible
plant between the point which is one-half mile beyond the territorial
waters of the United Kingdom or the United States, as appropriate, up to
the nominal 155 Mb/s (STM-1) digital/optical or input/output ports on the
digital/optical distribution frame (including the digital/optical
distribution frame itself) where the Basic System Module connects with
other transmission facilities or equipment;
(ii) the land, civil works and buildings at the specified locations for the
cable landing and for the cable route including cable rights-of- way and
ducts between the applicable cable station and its respective Cable Landing
Point, and common services and equipment at each of the locations, together
with equipment in each of those cable stations which is solely associated
with the System; and
(iii) the sea earth cable and electrode system and/or the land earth
system, or an appropriate share thereof, associated with the terminal power
feeding equipment.
(d) Except as provided herein, Segment T-3 consists of Subsegment T-3A and
Subsegment T-3B.
Subsegment T-3A shall consist of:
(i) the transmission cable and equipment associated with the submersible
plant between the point which is one-half mile beyond the territorial
waters of Germany up to the nominal 155 Mb/s (STM-1) digital/optical or
input/output ports on the digital/optical distribution frame (including the
digital/optical distribution frame itself) where the Basic System Module
connects with other transmission facilities or equipment, together with
equipment in the cable station which is solely associated with the System;
(ii) the sea earth cable an electrode system and/or the land earth
system associated with the terminal power feeding equipment;
and
(iii) all of Global Telesystems GmbH's leasehold interest or other
rights in Subsegment T-3B.
Subsegment T-3B shall consist of all the land, civil works and building in
Sylt, Germany for the cable landing and the cable rights of way and ducts
between the cable station and the Cable Landing Point.
(e) Except as provided herein, Segment T-4 consists of Subsegment T-4A
and Subsegment T-4B.
Subsegment T-4A shall consist of:
(i) the transmission cable and equipment associated with the
submersible plant between the point which is one-half mile
beyond the territorial waters of the Netherlands up to the
nominal 155 Mb/s (STM-1) digital/optical or input/output ports
on the digital/optical distribution frame (including the
digital/optical distribution frame itself) where the Basic
System Module connects with other transmission facilities or
equipment, together with equipment in the cable station which is
solely associated with the System;
(ii) the sea earth cable an electrode system and/or the land earth
system associated with the terminal power feeding equipment;
and
(iii) all of GT Netherlands B.V.'s leasehold interest or other
rights in Subsegment T-4B.
Subsegment T-4B shall consist of all the land, civil works and building in
Beverwijk, Netherlands for the cable landing and the cable rights of way and
ducts between the cable station and the Cable Landing Point.
(f) Each S Segment shall also include the transmission cable equipped
with appropriate repeaters and joint housings between the respective
T Segments.
3. Ownership and Provision of Segments and Additional Property
-----------------------------------------------------------
(a) Segments S-1, S-2, S-3a, S-3b, S-3c and S-4 shall be owned and
provided by the Grantor.
(b) GT Landing Corp., a wholly-owned United States subsidiary of the
Grantor, shall own (or shall have a right of use for) and provide
Segment T-1. Segment T-2 shall be owned and provided by GT UK Ltd.,
a wholly-owned United Kingdom subsidiary of the Grantor. Subsegment
T-3A shall
be owned and provided by Global Telesystems GmbH, a wholly- owned
German subsidiary of the Grantor. Subsegment T-4A shall be owned and
provided by GT Netherlands B.V. a wholly-owned Netherlands subsidiary
of the Grantor.
(c) Global Telesystems GmbH has procured rights in Subsegment T-3B of the
System from Deutsche Telekom and or its subsidiary Deutsche Telekom
Immobilen und Service GmbH.
(d) GT Netherlands B.V. has procured rights in Subsegment T-4B of the
System from KPN Telecom.
4. Access /Inland Connection Services
----------------------------------
(a) Access connection services refers to the transmission facilities and
the equipment required for interconnection between the demarcation
equipment point associated with the System and the demarcation point
associated with inland communications services ("Access Connections").
Within the Cable Stations, the Operator of the System shall provide
STM-1 Access Connections. Each Access Connection provides full-time
digital private line transmission on a two point basis. Access
Connections may be changed or modified upon written request of the
Purchaser,; provided that such changes or modifications shall be
provided subject to the availability of equipment, facilities and
personnel necessary to establish the Access Connection in accordance
with the schedule of fees set forth at Schedule II to the Capacity
Purchase Agreement.
(b) This Annex and the Capacity Purchase Agreement is a master agreement
under which service orders for Access Connections ("Service Orders")
may be placed by the Purchaser. All Service Orders will be governed by
the terms and conditions of the Capacity Purchase Agreement and this
Annex B. Access Connections shall be ordered by the Purchaser in
accordance with the Interconnection Services Ordering Procedures manual
("ISOP Manual") which the Grantor shall publish from time to time.
Grantor shall not change the ISOP Manual in a manner which has a
material adverse effect upon the Purchaser without, in the first
instance, discussing such change with the Purchaser. The Purchaser
shall submit all Service Orders under this Agreement to the Grantor (or
its designated agent). When the Service Order is received, the
Purchaser shall be notified of such receipt and the Grantor shall make
a reasonable effort to make (or cause to have made) the Access
Connection available on the date requested by the Purchaser if
requested in accordance with this Annex B and in accordance with the
ISOP Manual. Upon request, the Grantor shall use reasonable efforts to
improve upon circuit activation and provisioning intervals. Each
Service Order must provide such information as may be
reasonably required in order to design, install and maintain the
Access Connection ordered.
(c) Once placed, the Service Order will be processed in accordance with
the ISOP Manual and a due date will be established.
(d) The provisions of Section 7 of the Capacity Purchase Agreement shall
apply to all Access Connections hereunder.
(e) The Purchaser may obtain inland connection services ("Inland
Connections") for the purpose of extending the Purchaser's Capacity
inland through an agreement with entities related to the Grantor which
have acquired rights in additional inland capacity so that the
Purchased Capacity can be extended to certain points of interface in
certain cities.
(f) Deutsche Telekom is the provider of Inland Connections from the cable
station located in Sylt, Germany.
5. The System Advisory Committee
-----------------------------
(a) For the purpose of directing the progress of the System, an advisory
committee (the "Advisory Committee") shall be formed consisting of the
Grantor, each Terminal Party, certain Carrier Parties having purchased
a minimum of 5 STM-1s and certain other purchasers having purchased
multiple STM-1s. The Grantor shall appoint a Chairman or several Co-
Chairmen and each such appointee(s) shall serve as a Chairman until
such time as the Grantor shall appoint a replacement Chairman. The
Co-Chairmen may appoint one secretary as an assistant to the Chairman.
The Advisory Committee shall make recommendations to the Grantor (for
the benefit of the Grantor and the Terminal Parties) in respect of the
construction and installation of the System and the operation and
maintenance thereof, which the Grantor may accept or reject in its
sole discretion.
(b) The Advisory Committee will meet on the call of the Chairman or Co-
Chairmen or whenever requested by one or more of its members. The
Chairman or Co-Chairmen shall give the Advisory Committee at least
thirty (30) days advance written notice of each meeting, together with
a copy of the draft agenda. In case of emergency, such notice period
may be reduced upon the request of the Grantor. Documents to be
discussed at any meeting of the Advisory Committee shall be made
available to the Advisory Committee members at least fourteen (14)
days before the meeting, but the Advisory Committee may agree to
discuss documents distributed on less than fourteen (14) days notice.
(c) To aid the Advisory Committee in the performance of its duties, the
following Expert Working Groups (hereafter "EWG's") shall be formed
(whose members need not be on the Advisory Committee), and said EWG's,
under the direction of the Advisory Committee, shall be responsible
for making recommendations to the Advisory Committee for their
respective areas of interest listed in Attachment 2 and Attachment 3
and any other areas of interest designated by the Advisory Committee:
(i) Assignments, Routing and Restoration (the "A&R EWG"); and
(ii) Operations and Maintenance (the "O&M EWG").
(d) The Chairman or Co-Chairmen of the Advisory Committee and the Grantor
in consultation with the Advisory Committee may establish such other
groups as they shall determine in their discretion to provide
assistance in the Advisory Committee's performance of its
responsibilities hereunder. The Chairman or Co-Chairmen of the
Advisory Committee and the Grantor in consultation with the Advisory
Committee shall appoint the Chairman or several Co-Chairmen of the A&R
and O&M EWGs. Each of which EWGs shall meet at least once annually
and more frequently, if necessary, until two (2) years following the
RFS Date for the System, and thereafter as may be appropriate.
Meetings of such groups may be called to consider specific questions
at the discretion of its Chairman or Co-Chairmen, or whenever
requested by the Grantor or a majority of the members of the Advisory
Committee. On or about two (2) years after the RFS Date for the
System, the Advisory Committee shall determine whether any of its EWGs
should remain in existence or be disbanded.
(e) The Grantor shall perform or cause to have performed customary duties
and responsibilities pertaining to a Network Administrator/Customer
Care Center for the System.
(f) Participation by the Purchaser on the Advisory Committee or any EWG,
should such participation be offered to the Purchaser, shall in no way
limit or otherwise affect the Grantor's or any Subsidiary Grantor's
obligations to the Purchaser under this Agreement or any of the
Schedules or Attachments thereto.
6. Transfer of Rights to Use Purchased Capacity.
---------------------------------------------
(a) The Purchaser shall be permitted to transfer its right to use the
Purchased Capacity only in accordance with Section 20 of the Capacity
Purchase Agreement. In the event Purchaser transfers (as permitted by
said Section 20) its right to use in the aggregate one (1) of more
MCUs of Purchased Capacity to a single Carrier Party the Purchaser
shall immediately notify the Network Administrator/Customer Care
Center of the identity of the
transferee Carrier Party and shall provide all other information
reasonably requested by the Network Administrator/Customer Care
Center.
(b) Subject to clause (a) of this Paragraph 6, the Purchaser may transfer
its rights to use in the aggregate one (1) or more MCUs of Purchased
Capacity to a single Carrier Party at anytime by giving immediate
notice to the Network Administrator/Customer Care Center.
(c) The Purchaser may not transfer its rights to use in the aggregate one
(1) or more MCUs of Purchased Capacity to a single Carrier Party
without written notification to the Network Administrator/Customer
Care Center.
(d) Confirmation of such transfer of the rights to use in the aggregate
one (1) or more MCUs of Purchased Capacity to a single Carrier Party
shall be provided by the Network Administrator/Customer Care Center
within 7 days after completion.
7. Intentionally Omitted.
----------------------
8. Operations, Administration and Maintenance of Segments and Access
-----------------------------------------------------------------
Connections
-----------
(a) The operation and maintenance of the dry plant for Segments T-1, T-2,
T-3 and T-4 (and to the extent applicable the Access Connections)
shall include the following functions:
(i) monitoring and routine maintenance of terminal equipment; and
(ii) testing, troubleshooting, fault location and replacement of
faulty terminal equipment using existing spare parts inventory.
(b) The Grantor shall cause the designated Maintenance Authority to
operate and maintain the wet plant for Segments S-1, S-2, S-3a, S-3b,
S-3c and S-4 and Segments T-1, T-2, T-3 and T-4; which shall include
the following functions:
(i) determining the need for System repair;
(ii) planning and directing maintenance work;
(iii) providing ship owners and ship operators with the System's
documentation necessary for repairs;
(iv) being responsible for delivery, control and allocation of System
spares between shore storage depots and cable ships; and
(v) providing trained personnel to perform repair functions and
supplemental cable ship personnel.
Failure of the designated Maintenance Authority to operate and
maintain the wet plant shall not in any way relieve Grantor from its
obligations to
maintain the System, including the wet plant, under the Capacity
Purchase Agreement.
(c) Maintenance Costs include but are not limited to the following:
(i) dry maintenance including the land segment to the beach joint;
(ii) wet maintenance;
(iii) cable protection and at sea repairs;
*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.*****
(iv) common equipment costs associated with the Atlantic Crossing
equipment at the cable stations; and
(v) operating costs associated with operating each cable station,
=
including but not limited to ad valorem, property and personal
property taxes with respect to the System.
(d) Intentionally deleted by amendment.
(e) Except as provided in clause (d) above the annual Maintenance Costs
for the first four (4) years will be [*****] per STM-1 and,
thereafter, [*****] per year (and a pro rata portion thereof for the
--------
period from the applicable RFS Date to the first January 1 quarterly
payment date thereafter). The Maintenance Costs for the Stub Period
per STM-1 shall be a pro rata portion of the Maintenance Costs per
--------
STM-1 for the relevant full calendar year or partial calendar year as
applicable.
(f) Intentionally deleted by amendment.
9. Keeping and Inspection of Books
--------------------------------
The Grantor shall keep and maintain, or cause to have kept and maintained,
copies of such books, records, and accounts relating to Maintenance Costs as
shall be reasonably necessary for the Purchaser to verify the calculation of
Maintenance Costs under Paragraph 8 above, for a period of five (5) years from
the date of billing and shall afford the Purchaser and/or the Purchaser's
designated representative the right to review such books, records and accounts
during such period.
10. Termination; Realization of Assets
----------------------------------
(a) The Purchaser understands and agrees to abide by all rules,
regulations and requirements reasonably set forth by each entity
having rights in any S Segment or T Segment, including, but not
limited to, equipment and floor spacing equipment, specifications and
equipment.
(b) Nothing contained in this Annex B or the Capacity Purchase Agreement
to which this Annex B is attached shall be deemed to vest in the
Purchaser any salvage rights in any Segment.
ATTACHMENT 1
CONFIGURATION OF THE SYSTEM
[FLOWCHART]
Segment S-4 is the portion of the system between Segments T-1 and T-4.
Segment S-3c is the portion of the System between Segments T-2 and T-3.
ATTACHMENT 2
TERMS OF REFERENCE OF ASSIGNMENTS,
----------------------------------
ROUTING, AND RESTORATION EWG
----------------------------
The responsibilities of the A&R EWG shall include the following:
. Review the principles governing the development of the System's
Routing Plan, as prepared by the Cable Administrator, and concur or
comment, as appropriate.
. Make recommendations with respect to the digital interworking
arrangements, including a detailed multiplex plan and synchronization
arrangements, according to the optimum routing plan developed by the
Cable Administrator.
. Study and recommend extension arrangements.
. Make recommendations with respect to the deployment and timely
provision of compatible interface arrangements with all connecting
facilities necessary to meet restoration and operational requirements.
. Make recommendations with respect to the availability of inland
extensions, transit facilities necessary to meet service and
restoration requirements.
. Make recommendations with respect to the implementation of the initial
capacity assignments of MCU's including fascicles within the System.
. Study and recommend restoration plans for the System.
. Make recommendations with respect to the normal service and
restoration equipment requirements.
. Make recommendations with respect to the plans for restoration
exercise testing.
. Develop and recommend detailed procedures in compliance with the terms
and conditions of this Agreement with respect to:
- Increase, decrease or assignment of capacity
2
- Report regularly, as appropriate, to the Advisory Committee on
the A&R EWG activities
. The A&R EWG shall carry out such other responsibilities as the
Advisory Committee may direct.
. All decisions made by the A&R EWG shall be subject in the first place
to consultation among the members of the A&R EWG and the Grantor who
shall make every reasonable effort to reach agreement. In the event
agreement cannot be reached, the issue shall be decided by the
Grantor.
ATTACHMENT 3
TERMS OF REFERENCE FOR THE OPERATIONS AND
-----------------------------------------
MAINTENANCE EXPERTS WORKING GROUP
---------------------------------
The responsibilities of the O&M EWG shall include the following:
. Recommend to the Grantor any project changes pertaining to the
technical, operational and maintenance aspects that O&M EWG deems
appropriate for the construction of the System.
. Recommend to the Grantor the required quantity of spare equipment for
submersible and terminal equipment. Make recommendations with respect
to depot storage and location of spare equipment in consultation with
the Maintenance Authorities.
. Provide assistance and support as may be requested by the Grantor.
. Make recommendations with respect to the testing, operation and
maintenance methods to be used for the System as proposed by the
suppliers or Maintenance Authorities, as appropriate.
. Study other matters and make recommendations with respect to problems
affecting maintenance of the System as may be identified by the
Maintenance Authorities.
. Oversee TSSL under the OA&M Agreement.
. Report on a regular basis to, or when requested by, the Advisory
Committee.
. The O&M EWG shall carry out such other responsibilities as the
Advisory Committee may direct.
. All decisions made by this EWG shall be subject in the first place to
consultation among the members thereof and the Grantor who shall make
every reasonable effort to reach agreement. In the event agreement
cannot be reached, the issue shall be decided by the Grantor.
ATTACHMENT 4
RFS STANDARD
RFS Standard means (i) for any Segment that (a) such Segment has the
ability to carry commercial traffic between the two landing points of such
Segment meeting performance criteria of ITU-T G.826 and has line monitoring and
protection switching capability and (b) TSSL has tested and provided for STM-1
interconnectivity capability to the Segment terminal equipment according to ITU-
T G.826, and (ii) for the System, (a) that the System has the ability to carry
commercial traffic throughout the System meeting performance criteria of ITU-T
G.826 with self healing ring protection capability and per Segment protection
capability, has line monitoring and per Segment protection switching capability
and has network management capability and (b) TSSL has tested and provided for
STM-1 interconnectivity capability to the System terminal equipment according to
ITU-T G.826.