TPC-5 CABLE NETWORK
CONSTRUCTION AND MAINTENANCE AGREEMENT
TABLE OF CONTENTS
PARAGRAPH PAGE
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1. Definitions 3
2. Cable Network Configuration and Segments 8
3. Provision and Construction of Segments 12
4. Procurement Group 13
5. Supply of Segments G, H, I, J, T1 and T2 14
6. Obligation to Provide Transiting. 15
Facilities to Extend TPC-5 Cable Network Capacity
7. Obligation to Connect TPC-5 Cable Network with 16
Inland Systems
8. Ownership of Segments 17
9. Establishment of the TPC-5 Management Committee 18
10. Definition of Capital Costs of Segments G, H, I, J, 21
T1 and T2
11. Capital Costs of Segments G, H, I, J, T1 and T2 - 23
Allocation and Billing
12. Path Assignment and Use of Capacity 27
13. Reassignment of Capacity and Expansion of Assigned 31
Capacity
14. Increase or Decrease of Design Capacity 31
15. Duties and Rights as to Operation and Maintenance 32
of Segments
16. Operation and Maintenance Costs of Segments G, H, I, J, 35
T1 and T2 - Allocation and Billing
17. Keeping and Inspection of Books for Segments G, H, I, J, 38
T1 and T2
18. Use of Cable Stations 40
19. Currency and Place of Payment 47
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PARAGRAPH PAGE
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20. Duration of Agreement and Realization of Assets 47
21. Obtaining of Licenses 50
22. Privileges for Documents or Communications 51
23. Relationship of Parties 52
24. Assignment and Default 52
25. Admission of Additional Parties 54
26. Waiver 55
27. Paragraph Headings 55
28. Intrepretation of Agreement 55
29. Ratification of Prior Decisions and Actions 56
30. Resolution of Disputes 56
31. Execution of Agreement 57
32. Successors Bound 57
Testimonium 58
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SCHEDULES
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Schedule A - Parties to the Agreement
Schedule B - Investment Shares and Voting Interests in the TPC-5
Cable Network
Schedule C - Ownership Interests in Segments G, H, I and J
Schedule D - IRU Interests in Segments T1 and T2
Schedule E - Allocation of Capital, Operation, and Maintenance
Costs of Segments A, B, C, D, E, F, G, H, I, J,
T1 and T2
Schedule F - Half MIU Capacity Assigned by Path
Schedule G1 - Path Assignment of MIUs in the U.S. Mainland - Hawaii
Path
Schedule G2 - Path Assignment of MIUs in the Hawaii - Guam Path
Schedule G3 - Path Assignment of MIUs in the Guam - Japan Path
Schedule G4 - Path Assignment of MIUs in the Japan - U.S. Mainland
Path
Schedule G5 - Path Assignment of MIUs in the U.S. Mainland - Guam Path
Schedule G6 - Path Assignment of MIUs in the Hawaii - Japan Path
ANNEXES
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Annex 1 - Terms of Reference for the Procurement Group
Annex 2 - Terms of Reference for the Operational Assignments, Routing
and Restoration Subcommittee; Operations and Maintenance
Subcommittee; and Budget and Billing Subcommittee;
Annex 3 - Terms of Reference for the Network Administrator
Attachment 1 - Configuration of the TPC-5 Cable Network
Attachment 2 - TPC-5 Cable Network - Explanation of Investment Shares and
Computation of MIU Cost
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TPC-5 Cable Network
CONSTRUCTION AND MAINTENANCE AGREEMENT
THIS AGREEMENT, made and entered into this 29th day of October,
1992, between and among the Parties signatory hereto (hereinafter
collectively called "Parties" and individually called "Party"), which Parties
are identified in Schedule A,
WITNESSETH:
WHEREAS, digital telecommunications services are being provided
among the North American Continent, the State of Hawaii, the Island of Guam,
Japan and the Pacific Ocean Region by means of submarine cable and satellite
facilities; and
WHEREAS, other digital lightwave submarine cable systems, presently
in service in the Pacific Ocean Region, have facilitated a rapid growth of
new telecommunications requirements designed to take advantage of abundant,
reliable, secure and economically priced services based on available digital
technology; and
WHEREAS, it is now apparent that this rapid growth in traffic demand
and the interconnection of the TPC-4 Cable System
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with other digital lightwave submarine cable systems in the Pacific Ocean
Region, such as the G-P-T Cable System and the H-J-K Cable System, and the
future requirement for interconnection with the PacRim Cable Systems and the
APC System, will lead to a greater demand for facilities among the U.S.
Mainland, Hawaii, Guam, Japan and points beyond than was previously
forecasted and necessitates the construction of additional transpacific fiber
optic submarine cable facilities linking such points (hereinafter referred to
as the "TPC-5 Cable Network"); and
WHEREAS, the reliability of telecommunications services and its
usefulness to customers depends on the availability of the appropriate
facilities, including the TPC-5 Cable Network, for diverse routing and
service restoration; and
WHEREAS, a Memorandum of Understanding to plan the TPC-5 Cable
Network was signed by AT&T and KDD (the "Initial Parties") on August 1, 1991
(hereinafter referred to as the "Initial MOU") to permit certain
pre-construction activities, as defined in the Initial MOU; and
WHEREAS, by the TPC-5 Cable Network Supplemental Memorandum of
Understanding No. 1 signed on September 13, 1991, the TPC-5 Cable Network
Supplemental Memorandum of Understanding No. 2 signed on February 5, 1992,
and the TPC-5 Cable Network Supplemental Memorandum of Understanding No. 3
signed on
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October 29, 1992, 45 additional telecommunications entities became Parties to
the Initial MOU; and
WHEREAS, the Initial MOU and the Supplemental MOU are hereinafter
collectively called the "MOU"; and
WHEREAS, the Initial MOU states that it shall continue in force
until the signing, by the Parties, of the TPC-5 Cable Network Construction
and Maintenance Agreement; and
WHEREAS, the Parties now desire to construct the TPC-5 Cable Network
as a fully integrated transpacific network comprised of six mutually
restorable fiber optic submarine cable segments; and
WHEREAS, the Parties now desire to define the terms and conditions
upon which the TPC-5 Cable Network will be provided, constructed, operated
and maintained;
NOW, THEREFORE, the Parties hereto, in consideration of the mutual
covenants herein expressed, covenant and agree with each other as follows:
DEFINITIONS
1. The following definitions shall apply to certain terms used in
this Agreement:
(i) Basic System Module:
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A Basic System Module of the TPC-5 Cable Network shall
consist of a 155,520,000 bits per second digital line
section in each direction with interface in accordance
with the appropriate CCITT Recommendations.
(ii) Cable Landing Point:
Cable Landing Point shall be the beach joint or the mean
high water mark of ordinary spring tides if there is no
beach joint.
(iii) Carrier Parties:
The Carrier Parties shall mean all of the Parties to this
Agreement, except Transpacific.
(iv) Country:
The word "country" as used in this Agreement shall mean a
country, territory or place, as appropriate.
(v) Design Capacity:
The Design Capacity of each cable segment of the TPC-5 Cable
Network shall be two fiber pairs, one Service Fiber Pair and
one Restoration Fiber Pair, each providing 32 Basic System
Modules having a total of 2016 MIUs, or any increase or
decrease agreed pursuant to Subparagraph 14(a).
(vi) Initial Parties:
The Initial Parties are AT&T and KDD.
(vii) Japanense Carrier Parties:
The Japanese Carrier Parties are IDC, ITJ and KDD.
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(viii) Minimum Investment Unit:
A unit designated as the minimum unit of investment in the
TPC-5 Cable Network, allowing the use of 2.048 Mbit/s and the
additional 420,571.43 bits per second required for
multiplexing in each direction. The Minimum Investment Unit
is hereinafter called "MIU".
(ix) Network Interface:
The Network Interface shall be the nominal 155 Megabits per
second (Mbit/s) digital input/output ports on the TPC-5
Cable Network service/restoration equipment or its equivalent
(including such equipment) where the 155 Mbit/s digital line
section connects with other transmission facilities or
equipment.
(x) Network RFS Date:
The Network RFS Date shall be the date the Parties agree that
the entire TPC-5 Cable Network has been placed into operation.
For purposes of this Agreement, the Network RFS Date shall be
on December 31, 1996 or such other date as may be agreed by
the TPC-5 Management Committee to be formed pursuant to
subparagraph 9(a) of this Agreement.
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(xi) Node:
A Node shall be an entrance point or an exit point to the
TPC-5 Cable Network at either the U.S. Mainland, Hawaii,
Guam or Japan.
(xii) Path:
The Paths between the Nodes of the TPC-5 Cable Network shall
be as follows:
U.S. Mainland - Hawaii
Hawaii - Guam
Guam - Japan
Japan - U.S. Mainland
U.S. Mainland - Guam
Hawaii - Japan
(xiii) Path Assignment:
A Path Assignment is the capacity assigned to a Party on a
Path in the TPC-5 Cable Network. Path Assignments will be
expressed in MIUs.
(xiv) Provisional Acceptance:
The issuance of a Certificate of Provisional Acceptance
pursuant to the terms and conditions set forth in the
applicable Supply Contracts.
(xv) Restoration Fiber Pair:
The Restoration Fiber Pair is that optical fiber pair in the
TPC-5 Cable Network which is used for traffic in the event of
a failure of the Service Fiber Pair.
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(xvi) Schedules:
Schedules shall be the initial schedules attached hereto and made a
part hereof and any written amendments thereto or any schedules
substituted therefor in accordance with the provisions of this
Agreement.
(xvii) Segment RFS Date(s):
The Segment RFS Date(s) of a given submarine cable segment of the
TPC-5 Cable Network, as described in Paragraph 2 herein, shall be
the date(s) the Parties agree to place such segment of the TPC-5
Cable Network into operation. For purposes of this Agreement, the
Segment RFS Dates shall be as follows, or such other dates as may
be agreed upon by the TPC-5 Management Committee:
Segment G - June 30, 1995,
Segment H - December 31, 1995,
Segment I - June 30, 1995,
Segment J - December 31, 1996,
Segment T1 - December 31, 1996,
Segment T2 - June 30, 1995.
(xviii) Service Fiber Pair:
The Service Fiber Pair is that optical fiber pair in the TPC-5
Cable Network upon which all transmission capacity of the Parties
is assigned.
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(xix) Supply Contracts:
Supply Contract refers to the contracts to be placed with the
Suppliers pursuant to Subparagraph 5(a).
(xx) United States Carrier Parties:
The United States Carrier Parties are AT&T, HTC, IDB, IT&E, MCII,
TRT/FTC and US Sprint.
CABLE NETWORK CONFIGURATION AND SEGMENTS
2. The configuration of the TPC-5 Cable Network shall be as shown
in Attachment 1, which shall be regarded as consisting of the following
segments:
Segment A: A cable station at Coos Bay, Oregon, U.S.A.
Segment B: A cable station at San Luis Obispo, California, U.S.A.
Segment C: A cable station at Keawaula, Hawaii, U.S.A.
Segment D: A cable station at Tumon Bay, Guam.
Segment E: A cable station at Miyazaki, Japan.
Segment F: A cable station at Ninomiya, Japan.
Segments A, B, C, D, E and F shall each consist of:
(i) an appropriate share of land and buildings at the specified
locations for the cable landing and for the cable route
including cable rights-of-way and ducts or conduits between
the cable station and its respective Cable Landing Point, and
an
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appropriate share of common services and equipment at each of
the locations; and
(ii) cable station equipment including multiplex equipment down to
the primary level, as required, in each of the cable stations
associated solely and directly with the TPC-5 Cable Network.
Segment G: The whole of the submarine cable provided between and
including the Network Interface at the cable station at San Luis
Obispo, California on the U.S. Mainland, and the Network Interface
at the cable station at Keawaula, Hawaii, and containing two
optical fiber pairs, each such fiber pair capable of operating at
4.8 Gigabits per second (Gbit/s), one of which is the Service Fiber
Pair and the other of which is the Restoration Fiber Pair.
Segment H: The whole of the submarine cable provided between and
including the Network Interface at the cable station at Keawaula,
Hawaii, and the Network Interface at the cable station at Tumon
Bay, Guam, and containing two optical fiber pairs, each such fiber
pair capable of operating at 4.8 Gbit/s, one of which is the
Service Fiber Pair and the other of which is the Restoration Fiber
Pair.
Segment I: The whole of the submarine cable provided
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between and including the Network Interface at the cable station at
Tumon Bay, Guam, and the Network Interface at the cable station at
Miyazaki, Japan, and containing two optical fiber pairs, each such
fiber pair capable of operating at 4.8 Gbit/s, one of which is the
Service Fiber Pair and the other of which is the Restoration Fiber
Pair.
Segment J: The whole of the submarine cable provided between and
including the Network Interface at the cable station at Ninomiya,
Japan, and the Network Interface at the cable station at Coos Bay,
Oregon on the U.S. Mainland, and containing two optical fiber
pairs, each such fiber pair capable of operating at 4.8 Gbit/s, one
of which is the Service Fiber Pair and the other of which is the
Restoration Fiber Pair.
Segment T1: The whole of the submarine cable provided between and
including the Network Interface at the cable station at Coos Bay,
Oregon on the U.S. Mainland, and the Network Interface at the cable
station at San Luis Obispo, California, also on the U.S. Mainland,
and containing two optical fiber pairs, each such fiber pair
capable of operating at 4.8 Gbit/s, one of which is the Service
Fiber Pair, and the other of which is the Restoration Fiber Pair.
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Segment T2: The whole of the submarine cable provided between and
including the Network Interface at the cable station at Miyazaki,
Japan, and the Network Interface at the cable station at Ninomiya
also in Japan, and containing two optical fiber pairs, each such
fiber pair capable of operating at 4.8 Gbit/s, one of which is the
Service Fiber Pair, and the other of which is the Restoration Fiber
Pair.
Segments G, H, I, J, T1 and T2 shall include:
(i) all transmission, power feeding and special test equipment
specifically associated with, and required to operate and
maintain the submersible plant;
(ii) the power equipment provided wholly for use with the
equipment listed in (i) above;
(iii) the transmission cable equipped with appropriate repeaters
and joint housings between the cable stations; and
(iv) 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.
In this Agreement, references to any Segment, however expressed, shall be
deemed to include, unless the context otherwise requires, additional property
incorporated therein by agreement of the Parties. Each Segment shall be
regarded as including its related spare and standby units and components,
including, but
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not limited to, submersible repeaters, cable lengths, and terminal equipment.
PROVISION AND CONSTRUCTION OF SEGMENTS
3. (a) Segment A of the TPC-5 Cable Network shall consist of a
new cable station at Coos Bay, Oregon on the U.S. Mainland, to be designed,
provided, constructed and installed, or caused to be designed, provided,
constructed and installed by AT&T.
(b) Segments B, C and D of the TPC-5 Cable Network shall
consist of an appropriate share of the existing cable stations at San Luis
Obispo, California on the U.S. Mainland, Keawaula, Hawaii, and Tumon Bay,
Guam, respectively, and shall be provided by AT&T.
(c) Segments E and F of the TPC-5 Cable Network shall consist
of an appropriate share of the existing cable stations at Miyazaki and
Ninomiya, Japan, respectively, and shall be provided by KDD.
(d) Segments G, H, I, J, T1 and T2 of the TPC-5 Cable Network
shall be engineered, provided, and installed, or caused to be engineered,
provided, and installed, in accordance with the terms set forth in Paragraphs
4, 5, 10, 11 and 17 of this Agreement.
(e) AT&T in respect of Segments A, B, C and D, and KDD in
respect of Segments E and F shall each make available to the other Parties
hereto reasonable information requested by
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the Parties relating to the provision, construction, or installation of those
Segments.
PROCUREMENT GROUP
4. (a) A Procurement Group shall be formed, consisting of
representatives from AT&T and KDD. This group shall act as trustees for the
Parties to this Agreement and be solely responsible for all actions as may be
required to contract with the Suppliers to provide Segments G, H, I, J, T1
and T2 of the TPC-5 Cable Network.
(b) The Procurement Group's responsibilities are contained in
Annex 1.
(c) In the event that Segments G, H, I, J, T1 or T2 of the
TPC-5 Cable Network fails to meet the specifications in the Supply Contracts
for its provision or is not engineered, provided, installed and ready in
sufficient time for Provisional Acceptance on or before the date(s) specified
in the Supply Contracts or, if a Supplier is otherwise in material breach of
its Supply Contract, the Procurement Group shall take such action as may be
necessary to exercise the rights and remedies available under the terms and
conditions of the Supply Contracts. Such actions by the Procurement Group
shall be subject to any direction deemed necessary by the TPC-5 Management
Committee.
(d) The Procurement Group shall not be liable to any other
Party for any loss or damage sustained by reason of the Suppliers' failure to
perform in accordance with the terms and conditions of the Supply Contracts,
or as a result of Segments G,
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H, I, J, T1 or T2 of the TPC-5 Cable Network not being ready for Provisional
Acceptance on or before their scheduled Segment RFS Dates, or if the TPC-5
Cable Network does not perform in accordance with the technical
specifications and other requirements of the Supply Contracts, or if the
TPC-5 Cable Network is not placed into operation. The Parties to this
Agreement recognize that the Procurement Group does not guarantee or warrant
(i) the performance of the Supply Contracts by the Suppliers, (ii) the
performance or reliability of Segments G, H, I, J, T1 or T2 of the TPC-5
Cable Network, or (iii) that the TPC-5 Cable Network will be placed into
operation; and the Parties hereby agree that nothing in this Agreement shall
be construed as such a warranty or guarantee.
(e) No decisions of the Procurement Group shall override any
provisions of this Agreement or in any way diminish the rights or prejudice
the interests granted to any Party under this Agreement.
SUPPLY OF SEGMENTS G, H, I, J, T1 AND T2
5. (a) The supply of Segments G, H, I, J, T1 and T2 shall be
through the Supply Contracts to be placed by the Procurement Group with
Suppliers to be designated by the Procurement Group. The placing of the
Supply Contracts by the Procurement Group shall be subject to authorization
by the TPC-5 Management Committee.
(b) Each of the Parties shall be entitled on request, to
receive a copy of the Supply Contracts subject to the
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acceptance by each such Party of any reasonable conditions of confidentiality
imposed by the Supply Contracts.
OBLIGATION TO PROVIDE TRANSITING
FACILITIES TO EXTEND TPC-5 CABLE NETWORK CAPACITY
6. (a) Except as otherwise provided hereinafter in this
Paragraph 6, each of the Carrier Parties shall use all reasonable efforts to
furnish and maintain, or cause to be furnished and maintained, in efficient
working order, for the Carrier Parties not from that Party's country, and for
telecommunications entities not from that Party's country that are not
Parties hereto but which may acquire an Indefeasible Right of Use
(hereinafter referred to as "IRU") interest in capacity in the TPC-5 Cable
Network or are otherwise permitted use of such capacity, for the duration of
this Agreement, such transmission facilities in its respective country as may
be suitable and reasonably required by such other Parties and
telecommunications entities for the purpose of handling communications
transiting its respective country. No Party shall be required under this
Agreement to furnish such facilities in its country to other Carrier Parties
or telecommunications entities from its respective country. The provision of
facilities pursuant to this Subparagraph 6(a) shall be the subject of
separate agreements acceptable to the affected parties.
(b) The facilities provided pursuant to Subparagraph 6(a)
shall be suitable for extending capacity in the
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TPC-5 Cable Network and shall be furnished and maintained on terms and
conditions which shall be no less favorable than those granted to other
international telecommunications entities for transmission facilities of
similar type and quantity transiting the location involved. Such terms and
conditions shall not be inconsistent with applicable governmental regulations
in the locations in which the facilities are located.
(c) Where facilities are provided under this Paragraph 6,
such facilities need not necessarily be intrinsically digital. Furthermore,
Parties providing digital facilities are obligated to provide them only in a
bit sequence independent manner at rates of 64,000 and 2,048,0000 bits per
second.
OBLIGATION TO CONNECT TPC-5
CABLE NETWORK WITH INLAND SYSTEMS
7. (a) Each of the Carrier Parties to this Agreement, at its own
expense, on or before a Segment RFS Date, shall do, or cause to be done, all
such acts and things as may be necessary within its operating country to
provide suitable connection of the TPC-5 Cable Network with its appropriate
inland communication systems in its operating country.
(b) Upon request, AT&T shall provide to the other United
States Carrier Parties hereto suitable space and connection with the TPC-5
Cable Network at the cable stations at Coos Bay, San Luis Obispo, Keawaula,
and Tumon Bay for operating and technical control purposes relating to
capacity assigned, or
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to be assigned, to them in the TPC-5 Cable Network. AT&T may provide such
space in a building separate from its cable stations but adjacent to its
cable stations and located on the land which forms part of Segments A, B, C
and D. Such United States Carrier Parties shall have the right to provide
their own personnel and equipment in such space. Such United States Carrier
Parties shall reimburse AT&T for the reasonable costs incurred by AT&T in
providing such space and connection pursuant to this Subparagraph 6(d),
including, but not limited to, the costs of any additional building that may
be reasonably required.
OWNERSHIP OF SEGMENTS
8. (a) Segments A, B, C, and D of the TPC-5 Cable Network shall
be owned by AT&T. Other Parties shall have IRU interests in these Segments
pursuant to Paragraph 18 of this Agreement.
(b) Segments E and F of the TPC-5 Cable Network shall be
owned by KDD. Other Parties shall have IRU interests in these Segments
pursuant to Paragraph 18 of this Agreement.
(c) Segments G, H, I and J of the TPC-5 Cable Network shall
be owned by the Parties in common and undivided shares, in the proportions
set forth in Schedule C.
(d) Segment T1 of the TPC-5 Cable Network shall be owned by
AT&T. Other Parties shall have IRU interests in Segment T1 in the proportions
set forth in Schedule D.
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(e) Segment T2 of the TPC-5 Cable Network shall be owned by
KDD. Other Parties shall have IRU interests in Segment T2 in the proportions
set forth in Schedule D.
(f) Notwithstanding Subparagraphs 8(d) and 8(e) of this
Agreement, a Party thereby granted an IRU interest in Segments T1 and T2 may,
prior to the commencement of that IRU interest, elect to renounce its IRU
interest entitlement and to instead have use of Segments T1 and T2 for the
duration of this Agreement on such terms and conditions as are agreed upon
between that Party and the owners of Segments T1 and T2, respectively, and in
such event the provisions of Subparagraphs 8(d) and 8(e) shall apply in
relation to such use except insofar as they may be modified by such
agreements. This Subparagraph 8(f) shall not operate to confer on a Party any
financial or other benefit of substance to which the Party would not
otherwise be entitled under this Agreement.
ESTABLISHMENT OF THE TPC-5 MANAGEMENT COMMITTEE
9. (a) The Parties shall form a TPC-5 Cable Network Management
Committee (herein called the "TPC-5 Management Committee"), consisting of one
representative of each of the Carrier Parties to this Agreement. Except as
otherwise stated in this Agreement, which exception shall include decisions
as to procurement which shall be made by the Procurement Group, the TPC-5
Management Committee shall make all major decisions necessary on behalf of
the Parties to effectuate the purposes of this Agreement.
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(b) Two or more Parties may designate the same person to serve
as their representative at specific meetings of the TPC-5 Management
Committee and its subcommittees established pursuant to Subparagraph 9(e) of
this Agreement. AT&T and KDD shall jointly provide the Co-Chairmen of the
TPC-5 Management Committee which will meet on the call of a Co-Chairman or
whenever requested by one or more Parties representing at least 5% of the
total voting interests specified in Schedule B. A Co-Chairman shall give at
least 30 days' advance notice of each meeting, together with a copy of the
draft agenda. In cases of emergency, such notice period may be reduced where
at least 75% of the total voting interests are in agreement. Documents for
the meeting should be made available to members at least 14 days before the
meeting, but the TPC-5 Management Committee may agree to discuss papers
distributed on less than 14 days' notice.
(c) All decisions made by the TPC-5 Management Committee shall
be subject, in the first place, to consultation among the Parties which shall
make every reasonable effort to reach agreement with respect to matters to be
decided. However, in the event agreement cannot be reached, the decision will
be carried on the basis of a vote of at least four Parties, including at
least two western parties and two eastern Parties (for purposes of this
subparagraph, a western Party shall be of Asia or the South Pacific, and all
other Parties shall be eastern Parties), representing a simple majority of
the total voting interests as specified in Schedule B. Voting interests of
the members of the TPC-5 Management Committee shall be as specified
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in Schedule B. A member of the TPC-5 Management Committee representing more
than one Party shall separately cast the votes to which each Party he
represents is entitled.
(d) No decisions of the TPC-5 Management Committee, its
subcommittees or any other groups established by the TPC-5 Management
Committee shall override any provisions of this Agreement or in any way
diminish the rights or prejudice the interests granted to any Party under
this Agreement.
(e) To aid the TPC-5 Management Committee in the performance
of its duties, the following subcommittees shall be formed, and said
subcommittees, under the direction of the TPC-5 Management Committee, shall
be responsible for their respective areas of interset listed in Annex 2 and
any other areas of interest designated by the TPC-5 Management Committee:
(i) Operational Assignments, Routing, and Restoration
Subcommittee (hereinafter called "A&R Subcommittee")
(ii) Operations and Maintenance Subcommittee (hereinafter
called "O&M Subcommittee")
(iii) Budget and Billing Subcommittee (hereinafter called "B&B
Subcommittee")
The TPC-5 Management Committee may establish such other subcommittees or
groups as it shall determinie within its discretion to provide assistance in
the performance of its responsibilities. Subcommittees shall meet at least
once annually after the date of this Agreement and more frequently if
necessary, until three years following the Network RFS Date and thereafter as
may be appropriate. Meetings of a subcommittee may
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be called to consider specific questions at the discretion of its Chairman or
whenever requested by one or more Parties representing at least 5% of the
total voting interests specified in Schedule B. The respective Chairman of
each subcommittee, or a designated representative of each subcommittee, shall
attend the TPC-5 Management Committee meetings and meetings of each other
subcommittee in an advisory capacity as necessary. On or about three (3)
years after the Network RFS date, the TPC-5 Management Committee shall
determine whether any of its subcommittees should remain in existence. Except
as provided for in Subparagraph 9(f) of this Agreement, if the TPC-5
Management Committee determines that one or more of its subcommittees shall
not remain in existence, the responsibilities assigned to a subcommittee
whose existence has been terminated under this Subparagraph 9(e) shall revert
to the TPC-5 Management Committee.
(f) The TPC-5 Management Committee shall appoint AT&T the
Network Administrator, whose responsibilities shall be as specified in Annex
3 of this Agreement. The Network Administrator shall also assume the
responsibilities of the A&R Subcommittee upon termination of that
Subcommittee.
DEFINITION OF CAPITAL COSTS OF SEGMENTS G, H, I, J, T1 AND T2
10. Costs, or capital costs, as used herein, with reference to
engineering, providing, and constructing facilities for Segments G, H, I, J,
T1 and T2 of the TPC-5 Cable Network, or causing them to be engineered,
provided, and contructed, or to laying or causing to be laid cables,
repeaters and joint
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housings, or to installing or causing to be installed cable system equipment,
shall be of a cost incurred type or a fixed cost type. The costs, or capital
costs, or Segments G, H, I, J, T1 and T2 shall be as specified in the Supply
Contracts. The costs, or capital costs, of Segments G, H, I, J, T1 and T2
shall also include any costs directly incurred pursuant to the MOU such as
desk top surveys, marine surveys and other activities required to be
undertaken prior to entry into force of this Agreement and those costs, or
capital costs, directly incurred by AT&T and KDD which shall be fair and
reasonable in amount and not included in the Supply Contracts, and which have
been directly and reasonably incurred for the purpose of, or to be properly
chargeable in respect of, such engineering, provision, construction,
installation and laying of Segments G, H, I, J, T1 and T2 including, but not
limited to, the costs of engineering, design, materials, manufacturing,
procurement and inspection, installation, removing (with appropriate
reduction for salvage), cable ship and other ship costs, route survey,
burying, testing associated with laying or installation, customs duties,
taxes (except income tax imposed upon the net income of a party), financial
charges attributable to other Parties' shares of costs incurred, supervision,
billing activities, overheads and insurance or a reasonable allowance in lieu
of insurance if such Party elects to carry a risk itself, being a risk which
is similar to one against which such Party has insured or against which
insurance is usual or recognized or would have been reasonable. The capital
costs shall also include the cost of the
- 23 -
Network Administrator that are incurred up to the time of the Network RFS
Date. Such costs shall exclude costs incurred by the Parties hereto in the
holding of TPC-5 Management Committee meetings, Procurement Group meetings
and meetings of the subcommittees established pursuant to Subparagraph 9(e)
hereof or the attendance by the Parties' representatives at such meetings.
CAPITAL COSTS OF SEGMENTS G, H, I, J, T1 AND T2
ALLOCATION AND BILLING
11. (a) The costs, or capital costs, of engineering, providing,
constructing and installing Segments G, H, I, J, T1 and T2 of the TPC-5 Cable
Network, including any additional work or property incorporated in Segments
G, H, I, J, T1 and T2 subsequent to a Segment RFS Date by agreement of the
Parties, shall be borne by the Parties in the proportions set forth in
Schedule E.
(b) Unless the TPC-5 Management Committee shall authorize
changes to the procedure for the rendering of bills for costs or capital
costs of Segments G, H, I, J, T1 and T2 of the TPC-5 Cable Network, AT&T and
KDD shall promptly render bills in accordance with this Paragraph 11 to each
of the Parties for such Parties' pro rata shares of costs for items directly
incurred by AT&T and KDD and for the costs due and included in the Supply
Contracts (including costs incurred and financial charges attributable to
other Parties' shares of such costs). Such bills shall be rendered by AT&T
and KDD not more frequently than once a month and in accordance with Schedule
E and shall contain a
- 24 -
reasonable amount of detail to substantiate them. On the basis of such bills,
each Party shall pay to AT&T and KDD or to such entity as AT&T and KDD may
designate, such amounts as may be owed by the end of the calendar month
following the calendar month in which the bill was rendered. In the case of
bills containing costs billed on a preliminary billing basis, appropriate
adjustments will be made in subsequent bills promptly after the actual costs
involved are determined.
(c) As soon as practicable, AT&T and KDD shall make such
adjustments and render such bills or arrange for such credits as appropriate
due to changes in the cost of cost incurred items.
(d) As soon as practicable after a Segment RFS Date, the
amount of each Party's share of the costs of Segments G, H, I, J, T1 and T2
shall be computed by AT&T and KDD and they shall each make appropriate
adjustments and render any necessary bills or arrange for any necessary
refunds by way of final settlement in order that each Party may bear its
proper share of the costs as provided in this Paragraph 11.
(e) For purposes of this Agreement, financial charges shall be
computed at a rate equal to the lowest publicly announced prime rate or
commercial lending rate, however described, for 90-day loans in the
currencies of the United States and Japan by the following banks on the
fifteenth day of the month in which the costs were incurred by the billing
Party. If such a day is not a business day, the rate prevailing on the next
business day shall be used.
- 25 -
(i) Bills rendered by AT&T:
-----------------------
Citibank, N.A., New York City;
Chase Manhattan Bank N.A., New York City; and
Chemical Banking Corporation, New York City.
(ii) Bills rendered by KDD:
----------------------
The Industrial Bank of Japan, Limited, Tokyo;
The Dai-Tchi Kangyo Bank Limited, Tokyo; and
The Bank of Tokyo, Limited, Tokyo.
In the event that applicable law does not allow the imposition of financial
charges at the rate established in accordance with this Subparagraph 11(e),
financial charges shall be at the highest rate permitted by applicable law,
which in no event shall be higher than the rate computed in accordance with
this Subparagraph 11(e).
(f) Bills not paid when due shall accrue extended payment
charges from the day following the day on which payment was due until paid.
For purposes of this Agreement, extended payment charges shall be computed as
follows:
(i) Bills rendered by AT&T:
-----------------------
125% of the lowest publicly announced prime rate or commercial
lending rate, however described, for 90-day loans in the
currency of the United States, by the banks referenced in
Subparagraph 11(e)(i) on the day following the date payment of
the bill was due.
(ii) Bills rendered by KDD:
----------------------
A rate equal to the lowest standard penalty interest rate,
applicable on the day following the date payment
- 26 -
of the bill was due, by the banks referenced in Subparagraph
11(e)(ii) when customers fail to perform obligations arising
from short-term prime rate loans.
In the event that applicable law does not allow the imposition of extended
payment charges at the rate established in accordance with this Subparagraph
11(f), extended payment charges shall be at the highest rate permitted by
applicable law, which in no event shall be higher than the rate computed in
accordance with this Subparagraph 11(f). For purposes of this Agreement,
"paid" shall mean that the funds are immediately available for use by the
recipient.
(g) Credits for refunds of financial charges and bills for
extended payment charges shall not be rendered if the amount of charges
involved is less than one hundred dollars U.S. for credits or bills rendered
by AT&T, or ten thousand Japanese yen for credits or bills rendered by KDD.
(h) A bill shall be deemed to have been accepted by the Party
to whom it is rendered if that Party does not present a written objection on
or before the date when payment is due. If such objection is made, the
Parties concerned shall make every reasonable effort to settle promptly the
dispute concerning the bill in question. If the objection is sustained and
the billed Party has paid the disputed bill, the agreed upon overpayment
shall be promptly refunded to the objecting Party by the billing Party
together with any financial charges calculated thereon at a rate determined
in accordance with Subparagraph 11(e) of this Agreement from the date of
payment of
- 27 -
the bill to the date on which the refund is transmitted to the objecting
Party. If the objection is not sustained and the billed Party has not paid
the disputed bill, said Party will pay such bill promptly together with any
extended payment charges calculated thereon at a rate determined in
accordance with Subparagraph 11(f) of this Agreement from the day following
the day on which payment was due until paid. Nothing in this Subparagraph
11(h) shall relieve a Party from paying those parts of a bill that are not in
dispute.
PATH ASSIGNMENT AND USE OF CAPACITY
12. (a) Capacity in the TPC-5 Cable Network shall be assigned to
the Parties on the Paths of the TPC-5 Cable Network in accordance with
Schedules G1 to G6. Such assignments represent the intended capacity
requirements of the Parties through the year 2010.
(b) Capacity on the Paths of the TPC-5 Cable Network shall be
jointly assigned to two Parties or wholly assigned to one Party, on a MIU
basis as set forth in this Paragraph 12.
(c) Jointly assigned MIUs of a Path Assignment shall be
considered as consisting of two half-interests in a MIU with each
half-interest assigned-to one of the two Parties involved.
(d) Wholly assigned MIUs of a Path Assignment shall be
considered as consisting of two half-interests in a MIU assigned to one Party.
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(e) Half-interests in wholly assigned MIUs may be made
available to other Parties on an ownership basis with the approval of the
TPC-5 Management Committee with respect to the timing of such transfer of
half-interests.
(f) Half-interests in wholly assigned MIUs may be made
available to other Parties or telecommunications entities not Parties hereto
at any time, on such bais, other than by transfer of ownership interests, as
the Parties concerned may agree.
(g) Half-interests in jointly assigned MIUs may be made
available to other Parties or telecommunications entities not Parties hereto
on such basis, other than by transfer of ownership interests, as the parties
concerned may agree, subject to the consent of the other Party to whom the
MIUs are jointly assigned.
(h) A Party may make any of its half-interests in the MIUs
assigned to it available to other Parties that are located within the same
country by way of transfer of an ownership interest prior to the Network RFS
Date in such quantity at least equal to its interest in one MIU. Both before
and after the Network RFS Date, a Party may make available any of its
interests in the MIUs assigned to it to other Parties or to
telecommunications entities not Parties hereto that are located within the
same country as such Party, in such quantity at least equal to its
half-interest in one MIU, on such basis, other than by transfer of an
ownership interest in the TPC-5 Cable Network,
- 29 -
as such Party and the other Party or telecommunications entity not Party
hereto concerned may agree.
(i) Schedules B, C, D, E, F and G shall be modified, as
appropriate, to reflect any revised assignments of capacity on an ownership
basis pursuant to this Paragraph 12.
(j) No Party may transfer its interest in fractions of MIUs to
other Parties or telecommunications entities not Parties hereto.
(k) For the interim period effective from a Segment(s) RFS
Date(s) until the date to be determined in accordance with Subparagraph 12(1)
of this Agreement, the Parties may use capacity in such Segment(s) for their
telecommunications services as required.
(l) At a date after the Network RFS Date, and to be determined
by the TPC-5 Management Committee, capacity routing of all Parties shall be
established in such a way as to ensure balanced loading of all cable segments
and to achieve the most efficient utilization of the entire TPC-5 Cable
Network, taking into account the principle of 50/50 diverse routing, where
appropriate. Such capacity routing shall be determined by the Network
Administrator pursuant to the Terms of Reference as set forth in Annex 3 of
this Agreement.
(m) No Party may use Segments T1 or T2 unless such use is in
conjunction with the use of one or more of cable segment(s) G, I or J of the
TPC-5 Cable Network.
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(n) A Party may use either one or both of the cable stations
in the U.S. Mainland and/or Japan to enter the TPC-5 Cable Network.
(o) The TPC-5 Management Committee may authorize utilization
of the reserved restoration capacity and any capacity not in active service,
for restoration of telecommunications services on a preemptible basis. The
terms and conditions of such utilization shall be determined by the TPC-5
Management Committee based on terms to be agreed to by the relevant cable
station owners of the TPC-5 Cable Network, in recognition of the technical
and operational impact on the cable station operations.
(p) Capacity in the Restoration Fiber Pair and the unassigned
capacity in the Service Fiber Pair shall be held by the Parties in common and
undivided shares in the same proportion as their investment shares in the
TPC-5 Cable Network.
(q) The communications capability of any capacity assigned in
Schedules G1 to G6 may be optimized by the Parties to whom such capacity is
assigned by the use of equipment which will more efficiently use such
capacity provided that the use of such equipment does not cause an
interruption of, or interference, impairment, or degradation to, the use of
any other capacity in the TPC-5 Cable Network or prevent the use of similar
equipment by other Parties. A Party to whom capacity is assigned shall permit
the use of such equipment by a telecommunications entity to which such Party
has made available the use of any such capacity, provided that such entity
agrees that its use of the equipment will satisfy the conditions set forth in
this
- 31 -
Subparagraph 12(q). Such equipment, if used, shall not constitute a part of
the TPC-5 Cable Network.
REASSIGNMENT OF CAPACITY AND
EXPANSION OF ASSIGNED CAPACITY
13. (a) At times to be determined by the TPC-5 Management
Committee, the Path Assignments of the Parties shall be reviewed by the TPC-5
Management Committee with a view to making necessary reassignment of capacity
as agreed by the Parties affected, and expansion of assigned capacity until
the TPC-5 Cable Network is utilized to the fullest possible extent.
(b) In the event of a reassignment and expansion of capacity
pursuant to Subparagraph 13(a), the investment shares of the Parties shall be
re-calculated based on the revised Path Assignments of MIUs, and the
necessary financial adjustments shall be made between and among the Parties
based on the terms and conditions to be determined by the TPC-5 Management
Committee.
(c) Schedules B, C, D, E, F and G shall be appropriately
modified to reflect the revised Path Assignments of capacity of the Parties.
INCREASE OR DECREASE OF DESIGN CAPACITY
14. (a) If, subsequent to the Network RFS Date, the Design
Capacity of the TPC-5 Cable Network is increased or decreased pursuant to
agreement of the Parties or otherwise, capacity reassignment and financial
adjustment shall be made
- 32 -
among the Parties, as necessary, based on the terms and conditions to be
determined by the TPC-5 Management Committee.
(b) Schedules B, C, D, E, F and G shall be appropriately
modified to reflect the revised Path Assignments of capacity associated with
such increase or decrease of the Design Capacity.
DUTIES AND RIGHTS AS TO OPERATION
AND MAINTENANCE OF SEGMENTS
15. (a) AT&T shall be responsible for the operation and
maintenance of Segments A, B, C, D, and T1 and those portions of Segments G,
H, I, and J between the Network Interfaces at the cable stations at Coos Bay,
San Luis Obispo, Keawaula, and Tumon Bay, and their respective Cable Landing
Points. AT&T shall use all reasonable efforts to maintain or cause to be
maintained economically Segments A, B, C, D and T1 and such portions of
Segments G, H, I, and J in efficient working order.
(b) KDD shall be responsible for the operation and
maintenance of Segments E, F and T2 and that portion of Segments I and J
between the Network Interfaces at the cable stations at Miyazaki, and
Ninomiya, and their respective Cable Landing Points. KDD shall use all
reasonable efforts to maintain or cause to be maintained economically
Segments E, F and T2 and such portions of Segments I and J in efficient
working order.
(c) AT&T and KDD shall be jointly responsible for the
operation and maintenance of Segments G, H, I and J except those portions of
Segments G, H, I and J referred to in
- 34 -
advice. Upon such notification, the O&M Subcommittee shall initiate action to
convene an ad hoc meeting for such review.
(e) Each Maintenance Authority shall be authorized to pursue
claims in its own name, on behalf of the Parties, in the event of any damage
or loss to the TPC-5 Cable Network and may file appropriate lawsuits or other
proceedings on behalf of the Parties. Subject to obtaining the prior
concurrence of the TPC-5 Management Committee, a Maintenance Authority may
settle or compromise any such claims and execute releases and settlement
agreements on behalf of the Parties as necessary to effect a settlement or
compromise.
(f) Each Party that has designed or procured equipment used
in the TPC-5 Cable Network shall give necessary information relating to the
operation and maintenance of such equipment to the Maintenance Authority
responsible for operating and maintaining such equipment, as reflected in
this Paragraph 15. Each Maintenance Authority shall have prompt access
necessary for the performance of its duties to all system maintenance
information appropriate to those parts of the TPC-5 Cable Network not covered
by its authority.
(g) No Party hereto shall be liable to any other Party for
any loss or damage sustained by reason of any failure in, or breakdown of,
the facilities constituting the TPC-5 Cable Network or any interruption of
service, whatsoever shall be the cause of such failure, breakdown, or
interruption, and however long it shall last, but, in the event of a failure
or breakdown of any such facilities, if the Maintenance Authority responsible,
- 35 -
as specified in Subparagraphs 15(a), (b) and (c) of this Agreement, fails to
restore those facilities to efficient working order and operation within a
reasonable time after having been called upon to do so by any other Party to
whom capacity is assigned by this Agreement, the TPC-5 Management Committee
may, to the extent that it is practical to do so, place, or cause to be
placed, such facilities in efficient working order and operation and charge
the Parties their proportionate shares of the costs reasonably incurred in
doing so.
(h) Each Party to this Agreement, at its own expense, shall
have the right to inspect from time to time the operation and maintenance of
any portion of the TPC-5 Cable Network and to obtain copies of the
maintenance records. For this purpose, the Maintenance Authority shall retain
significant records, including recorder charts, for a period of not less than
five (5) years from the date of the record. If these records are destroyed at
the end of this period, a summary of important items should be retained for
the life of the TPC-5 Cable Network.
OPERATION AND MAINTENANCE COSTS OF
SEGMENTS G, H, I, J, T1 AND T2 - ALLOCATION AND BILLING
16. (a) The costs of operation and maintenance of Segments G, H, I,
J, T1 and T2 of the TPC-5 Cable Network shall be shared by the Parties in the
proportions specified in Schedule E.
(b) The costs associated with the operation and maintenance
duties to which Subparagraphs 15(a), (b) and (c) of
- 36 -
this Agreement refer are the costs reasonably incurred in operation and
maintenance of the facilities involved, including, but not limited to, the
cost of attendance, testing, adjustments, repairs and replacements, cable
ships (including standby costs), cable depots, maintenance and repair devices
that are or may hereafter become available, customs duties, taxes (except
income tax imposed upon the net income of a Party) paid in respect of such
facilities, billing activities, financial charges attributable to other
Parties' shares of costs incurred by a Maintenance Authority, supervision,
overheads and costs and expenses reasonably incurred on account of claims
made by or against other persons in respect of such facilities or any part
thereof and damages or compensation payable by the Parties concerned on
account of such claims, and any costs of the Network Administrator that are
incurred subsequent to the Network RFS Date. Costs, expenses, damages, or
compensation payable to the Parties on account of claims made against other
persons shall be shared by the Parties in the same proportions as they share
the costs of operations and maintenance of Segments G, H, I, J, T1 and T2 of
the TPC-5 Cable Network under Subparagraph 16(a) of this Agreement.
(c) The Maintenance Authorities shall each render bills to the
other Parties for the expenditures herein referred not more frequently than
once a month in accordance with procedures to be established by the TPC-5
Management Committee. The Party rendering a bill shall furnish such further
details of such bill as the other Parties may reasonably require. On the
- 37 -
basis of such bills, each Party shall pay such amounts as may be owed by the
end of the calendar month following the calendar month in which the bill was
rendered.
(d) Bills not paid when due shall accrue extended payment
charges from the day following the day on which payment was due until paid.
Such extended payment charges shall be computed in accordance with, and
subject to the terms of, Subparagraph 11(f) of this Agreement. Credits for
refunds of financial charges and bills for extended payment charges will not
be rendered if the amount involved is less than one hundred dollars U.S. for
credits or bills rendered by AT&T, and ten thousand Japanese yen for credits
or bills rendered by KDD.
(e) A bill shall be deemed to have been accepted by the Party
to whom it is rendered if that Party does not present a written objective on
or before the date when payment is due. If such objection is made, the
Parties concerned shall make every reasonable effort to settle promptly the
dispute concerning the bill in question. If the objection is sustained and
the billed Party has paid the disputed bill, the agreed upon overpayment
shall be refunded promptly to the objecting Party by the billing Party
together with any financial charges calculated thereon at a rate determined
in accordance with Subparagraph 11(e) of this Agreement from the date of
payment of the bill to the date on which the refund is transmitted to the
objecting Party. If the objection is not sustained and the billed Party has
not paid the disputed bill, said Party will pay such bill promptly together
with any extended payment charges
- 38 -
calculated thereon at a rate determined in accordance with Subparagraph 11(f)
of this Agreement from the date payment of the bill was due until paid.
Nothing in this Subparagraph 16(e) shall relieve a Party from paying those
parts of a bill that are not in dispute.
KEEPING AND INSPECTION OF BOOKS
FOR SEGMENTS G, H, I, J, T1 AND T2
17. (a) For those portions of Segments G, H, I, J, T1 and T2
specified in the Supply Contracts as cost incurred items, the Procurement
Group shall ensure that the Supply Contracts require the Suppliers to keep
and maintain such books, records, vouchers and accounts of all such costs
with respect to the engineering, provision and installation of those items
for a period of five (5) years from the dates of Provisional Acceptance as
specified in the Supply Contracts.
(b) For those portions of Segments G, H, I, J, T1 and T2
specified in the Supply Contracts as fixed cost items, the Procurement Group
shall ensure that the Supply Contracts require the Suppliers to keep and
maintain records with respect to their billing of those items for a period of
five (5) years from the dates of Provisional Acceptance as specified in the
Supply Contracts.
(c) The Procurement Group shall ensure that the Supply
Contracts require the Suppliers to obtain from their contractors,
subcontractors, and suppliers, such supporting records, for other than the
cost of fixed cost items, as may be
- 39 -
reasonably required by this Paragraph 17 and to maintain such records for a
period of five (5) years from the dates of Provisional Acceptance as
specified in the Supply Contracts.
(d) The Procurement Group shall ensure that the Supply
Contracts shall afford the Parties to this Agreement the right to review the
books, records, vouchers, and accounts required to be kept, maintained, and
obtained pursuant to Subparagraphs 17(a), (b) and (c) of this Agreement. Such
right shall only be exercisable by the B&B Subcommittee in accordance with
the B&B Subcommittee's audit procedures.
(e) With respect to additions to Segments G, H, I, J, T1 and
T2 comparable records to those specified in Subparagraphs 17(a), (b) and (c)
of this Agreement shall be maintained by the Party providing such addition
for a period of five (5) years from the installation date of such addition.
(f) AT&T and KDD shall each keep and maintain such books,
records, vouchers, and accounts of all costs, as defined in Paragraph 10,
that they incur directly in the engineering, provision, and installation of
Segments G, H, I, J, T1 and T2, which are not included in the Supply
Contracts, for a period of five (5) years from the date the work is completed.
(g) With respect to the operation and maintenance costs of
Segments G, H, I, J, T1 and T2, AT&T and KDD shall each keep and maintain
such books, records, vouchers, and accounts of costs, as are relevant, for a
period of five (5) years from the date on which the corresponding bills are
rendered to the Parties to this Agreement.
- 40 -
(h) AT&T and KDD shall afford the Parties to this Agreement
the reasonable right to review books, records, vouchers, and accounts of
costs maintained pursuant to Subparagraphs 17(f) and (g) of this Agreement.
Such right shall only be exercisable by the B&B Subcommittee in accordance
with the B&B Subcommittee's audit procedures.
USE OF CABLE STATIONS
18. (a) The owners of the TPC-5 cable stations hereby grant an
IRU interest to each Party in Segments A, B, C, D, E and F, respectively,
including any additions thereto, for the purpose of landing and terminating
the TPC-5 Cable Network in the U.S. Mainland, Hawaii, Guam and Japan
respectively, and carrying on the related activities at those locations in
accordance with this Agreement. However, Transpacific shall have the IRU
interest in Segments E and F granted to AT&T. Such IRU interest shall
commence on the relevant Segment RFS Date or on the date a Party first
places any of its capacity into operation, whichever occurs first, and such
IRU interest shall continue for the duration of this Agreement. In the event
that an agreement for another cable system utilizing any cable station of the
TPC-5 Cable Network is terminated prior to the termination of this Agreement,
the owner of Segments A, B, C, D, E or F, with the agreement of the Parties
hereto, shall take all necessary measures to ensure that the cable station in
question will be available for the TPC-5 Cable Network for the duration of
this Agreement on fair and equitable terms. If the cable station in
- 41 -
question is not available for the landing and terminating of the TPC-5 Cable
Network for any reason, the owner of the cable station shall provide
reasonable advance notice to all Parties and such owner, in agreement with
the Parties hereto, shall take all necessary measures to ensure that another
appropriate cable station will be available for the TPC-5 Cable Network for
the duration of this Agreement on terms and conditions similar to those
contained in this Agreement.
(b) For the IRU interest in each of the cable stations
involved, the Parties hereto shall pay that portion of the capital costs and
of the operation and maintenance costs of the cable station, including
additions thereto, allocable to the TPC-5 Network on the basis of use. Where
the use of a cable station or of certain equipment situated therein, such as
power supply or testing and maintenance equipment, is shared, by agreement of
the Parties, by the TPC-5 Cable Network and other communications systems
terminating at that cable station, the capital, operation and maintenance
costs of such shared cable station or equipment (not solely attributable to a
particular communication system or systems) will be allocated among the
systems involved in the proportions in which they use the shared equipment or
facility. For such purposes, use of a shared cable station or of shared cable
station equipment therein attributable to a particular system shall be
determined on the basis of the ratio of: (i) the installed cost of the cable
station equipment (excluding shared equipment) associated with the particular
cable system to (ii) the installed cost of the cable station
- 42 -
equipment (excluding shared equipment) associated with all systems, including
the TPC-5 Cable Network, which make use of the shared facility.
(c) Capital costs, as used in this Paragraph 18 with reference
to the provision of each cable station (including land, access roads, cable
rights-of-way, ducts, conduits and buildings at such station), or causing
them to be provided and constructed, or to installing or causing to be
installed cable station equipment, shall include all expenditures incurred
which shall be fair and reasonable in amount and either to have been directly
and reasonably incurred for the purpose of, or to be properly chargeable in
respect of, such provision, construction, and installation, including, but
not limited to, the purchase costs of land, building costs, amounts incurred
for development, engineering, design, materials, manufacturing, procurement
and inspection, installation, removing (with appropriate reduction for
salvage), testing associated with installation, customs duties, taxes (except
income tax imposed upon the net income of a Party), financial charges
attributable to other Parties' shares of costs, supervision, billing
activities, overheads and insurance or a reasonable allowance in lieu
thereof. Losses against which insurance was not provided, or for which an
allowance in lieu thereof was not taken, shall constitute capital costs.
Operation and maintenance costs as used in this Paragraph 18 with reference
to each of the cable stations shall include costs reasonably incurred in
operation and maintenance of the facilities involved, including, but not
limited to, the cost
- 43 -
of attendance, testing, adjustments, repairs and replacements, customs
duties, taxes (except income tax imposed upon the net income of a Party) paid
in respect of such facilities, billing activities, administrative costs,
financial charges attributable to other Parties' shares of costs, and costs
and expenses reasonably incurred on account of claims made by or against
other persons in respect of such facilities or any part thereof and damages
or compensation payable by the cable station owner on account of such claims.
Costs, expenses, damages, or compensation payable to the cable station owner
on account of claims made against other persons shall be shared by the
Parties acquiring an IRU interest in the respective cable station in the same
proportions as they share the costs of operation and maintenance of the
aforementioned cable station.
(d) The capital costs and operations and maintenance costs of
the respective cable stations shall be borne by the Parties to this Agreement
in the proportions specified in Schedule E.
(e) Billing and payment for the capital costs of Segments A,
B, C, D, E and F shall be made in accordance with the following procedures:
(i) The cable station owner shall determine the amount of the
initial payment of the net capital cost of the applicable
cable station (i.e., capital cost less accrued
depreciation determined in accordance with the accounting
practices of the owner) which will be due
- 44 -
from the Parties hereto to the parties to other
communications systems terminating at that cable station
entitled to a share of such payments at the time the IRU
interests in that cable station commence pursuant to
Subparagraph 18(a) of this Agreement.
(ii) At least sixty (60) days before the relevant Segment RFS
Date, the cable station owner shall render bills to the
Parties hereto, on an actual or preliminary billing basis, as
appropriate, for their proportionate shares of the amount
referred to in Subparagraph 18(e)(i) of this Agreement. In
the case of preliminary bills, appropriate adjustments will
be made as soon as practicable after the actual costs are
determined.
(iii) At least sixty (60) days before the relevant Segment RFS
Date, the cable station owner shall render bills to the
Parties hereto, on an actual or preliminary billing basis, as
appropriate, for their proportionate shares of the capital
cost of cable station equipment (excluding equipment shared
with other cable systems). In the case of preliminary bills,
appropriate adjustments
- 45 -
will be made as soon as practicable after the actual costs
are determined.
(iv) The billed Parties shall pay such bills to the cable station
owner on or before the date on which the IRU interest in the
applicable cable station granted to the Parties hereto
pursuant to Subparagraph 18(a) becomes effective.
(v) As soon as practicable after receiving payment for bills
rendered pursuant to Subparagraph 18(e)(ii), the cable
station owner shall distribute said payment among the parties
to the other communications systems terminating at the
respective cable station in the proportions to which they
are entitled.
(f) The cable station owner shall bill each of the Parties for,
and each Party shall pay, its proportionate share of, (1) the portion of any
capital costs of the cable station allocable to this Agreement incurred after
the effective date of the grant to the Parties hereto of an IRU interest in
such cable station, and (2) the portion of the operation and maintenance
costs of the cable station allocable to this Agreement, commencing at the
time such IRU grant becomes effective, in accordance with applicable billing
methods specified in Paragraphs 11 and 16 of this Agreement.
- 46 -
(g) With respect to capital costs and operation and
maintenance costs of Segments A, B, C, D, E and F, such books, records,
vouchers and accounts of costs, as are relevant, shall be kept and maintained
by AT&T and KDD for a period of five (5) years from the date on which the
corresponding bills to the Parties to this Agreement are rendered. AT&T and
KDD shall afford the Parties to this Agreement the right to review said
books, records, vouchers, and accounts of costs. Such right shall only be
exercisable by the B&B Subcommittee in accordance with the B&B Subcommittee's
audit procedures.
(h) In the event of a sale or other disposition of Segments A,
B, C, D, E or F, or part thereof prior to the termination of this Agreement,
the owner shall share with the other Parties hereto any net proceeds, or
costs, of such sale or disposition received, or expended, by the owner, to
the extent allocable to the TPC-5 Cable Network, in the proportions in which
the Parties' interests in the subject of the sale or disposition are
determined at the time of the sale or disposition.
(i) Notwithstanding Subparagraphs 8(a), 8(b) and 18(a), a
Party thereby granted an IRU interest in Segments A, B, C, D, E and F may,
prior to the commencement of that IRU interest, elect to renounce its IRU
interest entitlement and to instead have use of Segments A, B, C, D, E and F
for the duration of this Agreement on such terms and conditions as are agreed
upon between that Party and the owners of Segments A, B, C, D, E and F,
respectively, and in such event the provisions of Subparagraphs 18(a)-(h)
shall apply in relation to such use
- 48 -
continuous operation of the said Initial Party's cable station after the
initial period.
(c) Upon the effective date of termination of participation of
a Party, Schedules A, B, C, D, E, F, and G of this Agreement shall be
appropriately modified. The remaining Parties to this Agreement shall assume
the capital, operation, and maintenance interests of the Party terminating
its participation in proportion to their interests assigned immediately
preceding such effective date of termination, except for the continuing
rights and obligations of the terminating Party as specified in Subparagraphs
20(e) and (f) of this Agreement. No credit for capital costs will be made to
a Party that terminates its participation in accordance with Subparagraph
20(a).
(d) The interests of a Party or Parties in Segments G, H, I, J,
T1 and T2 of the TPC-5 Cable Network which come to an end by reason of the
termination of its or their participation in this Agreement or the termination
of this Agreement shall be deemed to continue for as long as is necessary for
effectuating the purposes of Subparagraphs 20(e) and (f) of this Agreement,
and Segments G, H, I, J, T1 and T2 shall accordingly thereafter be held as
respects such interests upon the appropriate trusts by the Parties hereto.
Should the doctrine of trusts not be recognized under the laws of the country
where the property to which such interests relate is located, then the Party
or Parties who are the owners thereof
- 49 -
shall nevertheless be expressly bound to comply with the provisions of
Subparagraphs 20(e) and (f) of this Agreement.
(e) Upon termination of this Agreement, the Parties shall use
all reasonable efforts to liquidate Segments G, H, I, J, T1 and T2 of the
TPC-5 Cable Network, within a reasonable time, by sale or other disposition
between the Parties or any of them or by sale to other entities or persons;
but no sale or disposition shall be effected except by agreement between or
among the Parties to this Agreement at the time this Agreement is terminated.
In the event agreement cannot be reached, the decision will be carried on the
basis of a vote of at least four Parties, including at least two western
Parties and two eastern Parties (for purposes of this subparagraph, a western
Party shall be of Asia or the South Pacific, and all other Parties shall be
eastern Parties), representing a simple majority of the total voting
interests as specified in Schedule B. The net proceeds, or costs, of every
sale or other disposition shall be divided between or among the Parties to
this Agreement who have or were deemed to have interests in the subject
thereof, in the proportions in which such Parties' interests are specified in
Schedules C and D immediately preceding the first time any Party terminates
its participation in this Agreement or this Agreement is terminated pursuant
to Subparagraph 20(a), whichever occurs first. The Parties shall execute such
documents and take such action as may be necessary to effectuate any sale or
other disposition made pursuant to this Paragraph 20.
- 50 -
(f) Unless the TPC-5 Management Committee shall otherwise
determine, a Party's termination of its participation in this Agreement or
the termination of this Agreement, pursuant to Subparagraph 20(a), shall not
relieve that Party or the Parties hereto from any liabilities arising on
account of claims made by third parties in respect of such facilities or any
part thereof and damages or compensation payable on account of such claims,
or obligations which may arise in relation to the TPC-5 Cable Network due to
any law, order or regulation made by any government or supranational legal
authority pursuant to any international convention, treaty or agreement. Any
such liabilities or costs incurred or benefits accruing in satisfying such
obligations shall be divided among the Parties hereto in the proportions in
which such Parties' interests are specified in Schedules C and D immediately
preceding the first time any Party terminates its participation in this
Agreement or this Agreement is terminated pursuant to Subparagraph 20(a),
whichever occurs first.
OBTAINING OF LICENSES
21. (a) The performance of this Agreement by the Parties is
contingent upon the obtaining and continuance of such governmental approvals,
consents, authorizations, licenses, and permits as may be required or be
deemed necessary by the Parties and as may be satisfactory to them, and the
Parties shall use all reasonable efforts to obtain and to have continued in
effect such approvals, consents, authorizations, licenses, and permits.
- 51 -
(b) The Japanese Carrier Parties shall handle matters
relating to the obtaining and continuance of governmental approvals,
consents, authorizations, licenses, and permits for the landing, construction
and operation of the TPC-5 Cable Network in Japan. The United States Carrier
Parties shall handle matters relating to the obtaining and continuance of
governmental approvals, consents, authorizations, licenses, and permits for
the landing, construction and operation of the TPC-5 Cable Network in the
United States.
PRIVILEGES FOR DOCUMENTS OR COMMUNICATIONS
22. Each Party hereto specifically reserves, and is granted by
each of the other Parties, in any action arbitration or other proceeding
between or among the Parties or any of them in a country other than that
Party's own country, the right of privilege, in accordance with the laws of
that Party's own country, with respect to any documents or communications
which are material and pertinent to the subject matter of the action,
arbitration or proceeding as respects which privilege could be claimed or
asserted by that Party in accordance with those laws, and such privilege,
whatever may be its nature and whenever it be claimed or asserted, shall be
allowed to that Party as it would be allowed if the action, arbitration or
other proceeding had been brought in a court of, or before an arbitrator in,
the Party's own country.
- 52 -
RELATIONSHIP OF PARTIES
23. The relationship among the Parties shall not be that of
partners, and nothing herein contained shall be deemed to constitute a
partnership among them. The common enterprise between and among the Parties
shall be limited to the express provisions of this Agreement.
ASSIGNMENT AND DEFAULT
24. (a) Subject to the provisions of Subparagraphs 24(b) and (c)
and Paragraphs 12 and 25 of this Agreement, during the continuance of this
Agreement no Party shall, without the consent of the other Parties, sell,
assign, transfer, or dispose of its rights or obligations under this
Agreement or of any interest in the TPC-5 Cable Network except to a successor
or subsidiary of such Party or a corporation controlling, or under the same
effective control as, such Party, in which case written notice shall be given
in a timely manner by the Party making said sale, assignment, transfer, or
disposition.
(b) If any Party fails to make any payment required by this
Agreement on the date when it is due and such default continues for a period
of at least two (2) months after the time for the submission of a written
objection, the billing Party may notify the billed Party in writing of its
intent to notify the TPC-5 Management Committee of the status of the matter
and to request the reclamation of capacity, as provided for in this Paragraph
24, if full payment is not received within six (6) months of such
notification to the billed Party. If full
- 53 -
payment is not received within such specified period, the billing Party may
notify the TPC-5 Management Committee of the status of the matter and request
that the TPC-5 Management Committee reclaim the capacity in the TPC-5 Cable
Network assigned to the billed Party.
(c) The TPC-5 Management Committee shall consider any
extenuating circumstances not within the specific control of the billed Party
in determining whether or not to reclaim the capacity assigned to such billed
Party. If the TPC-5 Management Committee nevertheless reclaims any capacity
in the TPC-5 Cable Network assigned to such defaulting Party, the defaulting
Party shall not be entitled to any payment or credit for capital costs for
the reclaimed capacity. The TPC-5 Management Committee shall determine
arrangements for disposition of any reclaimed capacity taking into account
the interests of the Party or Parties holding jointly assigned capacity with
the defaulting Party. Such of the remaining Parties hereto as shall agree to
take the reclaimed capacity of a defaulting Party which is to be reassigned
shall make appropriate payments to the TPC-5 Management Committee which shall
then distribute the payments to those Parties to this Agreement entitled to
the proceeds. All rights of a defaulting Party under this Agreement shall
terminate as of the time all its capacity in the TPC-5 Cable Network is
reclaimed by the TPC-5 Management Committee; and concurrent with such
reclamation of capacity, the defaulting Party will no longer be deemed to be
a Party to this Agreement. This Agreement shall be appropriately
- 54 -
amended to reflect the default of a Party and the reassignment of the
interest herein of such defaulting Party.
ADMISSION OF ADDITIONAL PARTIES
25. (a) The TPC-5 Management Committee shall be empowered, prior
to the Network RFS Date, to admit entities not signatory hereto as additional
Parties provided, however, that the following conditions are met:
(i) the additional Party agrees to acquire an investment share
corresponding to the quantity of MIUs required to meet its
needs for the TPC-5 Cable Network through at least the
year 2010;
(ii) agreement is reached between all of the Parties whose Path
Assignments in the relevant Schedules G1-G6 will be
changed by admitting the additional Party;
(iii) payment is made by the additional Party of its
proportionate share of costs or capital costs, including
interest during construction, already incurred under this
Agreement in accordance with Schedule E, as amended to
reflect the admission of the additional Party;
(iv) such additional Party accepts the terms and conditions of
this Agreement and the
- 55 -
decisions already taken by the Parties in relation to the
TPC-5 Cable Network.
(b) Additional Parties shall be admitted by amendatory
agreements to this Agreement. The Initial Parties are hereby authorized to
act as representatives and agents of all Parties to execute such amendatory
agreements for the admission of additional Parties. Such amendatory
agreements shall be approved by the TPC-5 Management Committee prior to
execution. Schedules A, B, C, D, E, F, and GI-G5 shall be appropriately
modified.
WAIVER
26. The failure of any Party, on one or more occasions, to enforce
any of the provisions of this Agreement or to exercise any right or privilege
hereunder shall not thereafter be construed as a waiver of any breach or
default, or as a waiver of any such provision, right, or privilege hereunder.
PARAGRAPH HEADINGS
27. The headings of the paragraphs do not form part of this
Agreement and shall not have any effect on the interpretation thereof.
INTERPRETATION OF AGREEMENT
28. If any difference shall arise between or among the Parties or
any of them respecting the interpretation or effect of this Agreement or any
part of provision thereof or their rights
- 56 -
and obligations thereunder, and by reason thereof there shall arise the need
to decide the question by what municipal or national law this Agreement or
such part or provision thereof is governed, the following facts shall be
excluded from consideration, namely, that this Agreement was made in a
particular country and that it may appear by reason of its form, style,
language or otherwise to have been drawn preponderantly with reference to a
particular system of municipal or national law; the intention of the Parties
being that such facts shall be regarded by the Parties and in all courts and
tribunals wherever situated as irrelevant to the question aforesaid and to
the decision thereof.
RATIFICATION OF PRIOR DECISIONS AND ACTIONS
29. Each Party to this Agreement does hereby, and each additional
Party admitted pursuant to Paragraph 25 shall thereby unconditionally ratify
and accept as binding on it, its successors, permitted assigns or trustees
all decisions and actions theretofore taken directly or indrectly by any
other Party or Parties or any committee or subcommittee or group pursuant to
and in accordance with this Agreement or the MOU.
RESOLUTION OF DISPUTES
30. If a dispute should arise under this Agreement between or among
the Parties they shall make every reasonable effort to resolve such dispute.
However, in the event that they are unable to resolve such dispute. However,
in the event that they are unable to resolve such dispute, the matter shall
be referred
- 57 -
to the TPC-5 Management Committee which shall either resolve the matter or
determine the method by which the matter should be resolved.
EXECUTION OF AGREEMENT
31. (a) This Agreement shall be executed in 48 identical
counterparts in the English language. Each such counterpart when so executed
shall be an original, and such counterparts shall together, as well as
separately, constitute one and the same instrument. Except as provided in
subparagraphs 25(b) and 31(b), this Agreement and any of its provisions may
be altered or added to only by another agreement in writing signed by a duly
authorized person on behalf of each Party to this Agreement. Only one
original of such amendatory agreement shall be executed. AT&T shall retain
the signed original amendatory agreement and will provide the other Parties
with certified copies.
(b) Subparagraph 31(a) shall not apply to any Schedule modified
in accordance with any other provision of this Agreement and any Schedules so
modified shall be deemed to be a part of this Agreement in substitution for
the immediately preceding version of that Schedule.
SUCCESSORS BOUND
32. This Agreement shall be binding on the Parties, their
successors, and permitted assigns.
- 58 -
IN WITNESS WHEREOF, the Parties hereto have severally subscribed
these presents or caused them to be subscribed in their names and on their
behalf of their respective officers thereunto duly authorized.
AMERICAN TELEPHONE AND TELEGRAM COMPANY
By: [Illegible]
------------------------------------
AUSSAT PTY LTD. (ACN 008 570 330)
By: [Illegible]
------------------------------------
AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS
CORPORATION LIMITED ACN 051 775 556
By: [Illegible]
------------------------------------
BELGACOM
By: [Illegible]
------------------------------------
- 59 -
BRITISH TELECOMMUNICATIONS PLC
By: [Illegible]
------------------------------------
BUNDESMINISTERIUM FUER OEFFENTLICHE WIRTSCHAFT
UND VERKEHR, GENERALDIRECKTION FUER DIE POST-UND
TELEGRAPHENVERWALTUNG
By: [Illegible]
------------------------------------
CICI, INC. D/B/A IDB INTERNATIONAL
By: [Illegible]
------------------------------------
COMPANHIA PORTUGUESE RADIO MARCONI
By: /s/ Charles D. Hogan
------------------------------------
DACOM CORPORATION
By: [Illegible]
------------------------------------
DEUTSCHE BUNDESPOST TELEKOM
By: [Illegible]
------------------------------------
- 60 -
DIRECTORATE GENERAL OF TELECOMMUNICATIONS
By: [Illegible]
------------------------------------
EASTERN TELECOMMUNICATIONS PHILIPPINES, INCORPORATED
By: [Illegible]
------------------------------------
EMPRESA NACIONAL DE TELECOMMUNICATIONES (ENTEL-BOLIVIA)
By: [Illegible]
------------------------------------
EMPRESA NACIONAL DE TELECOMMUNICACIONES (ENTEL-PERU)
By: [Illegible]
------------------------------------
FRANCE TELECOM
By: [Illegible]
------------------------------------
GENERAL DIRECTORATE OF TURKISH PTT
By: [Illegible]
------------------------------------
GTE HAWAIIAN TELEPHONE COMPANY
By: [Illegible]
------------------------------------
- 61 -
HONG KONG TELECOM INTERNATIONAL LIMITED
By: [Illegible]
------------------------------------
INTERNATIONAL DIGITAL COMMUNICATIONS INC.
By: [Illegible]
------------------------------------
PT (PERSERO) INDOSAT
By: [Illegible]
------------------------------------
IT&E OVERSEAS, INC.
By: [Illegible]
------------------------------------
ITALCABLE S.P.A.
By: [Illegible]
------------------------------------
INTERNATIONAL TELECOMMUNICATION DEVELOPMENT CORP.
By: [Illegible]
------------------------------------
INTERNATIONAL TELECOM JAPAN INC.
By: [Illegible]
------------------------------------
- 62 -
KOKUSAI DENSHIN DENWA CO., LTD
By: [Illegible]
------------------------------------
KOREA TELECOM
By: [Illegible]
------------------------------------
ENTREPRISE DES POSTES ET TELECOMMUNICATIONS DU LUXEMBOURG
By: [Illegible]
------------------------------------
MCI INTERNATIONAL, INC.
By: [Illegible]
------------------------------------
MERCURY COMMUNICATIONS LIMITED
By: [Illegible]
------------------------------------
NORWEGIAN TELECOM
By: [Illegible]
------------------------------------
- 63 -
PTT TELECOM BV
By: [Illegible]
------------------------------------
PHILIPPINE GLOBAL COMMUNICATIONS, INC.
By: [Illegible]
------------------------------------
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY
By: [Illegible]
------------------------------------
POSTS AND TELECOMMUNICATIONS OF FINLAND
By: [Illegible]
------------------------------------
ENERPRISE DES POSTES, TELEPHONES ET TELEGRAPHS SUISSES
By: [Illegible]
------------------------------------
SINGAPORE TELECOMMUNICATIONS PRIVATE LIMITED
By: [Illegible]
------------------------------------
- 64 -
SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP
By: [Illegible]
------------------------------------
SWEDISH TELECOM
By: [Illegible]
------------------------------------
TELEKOM MALAYSIA BERHAD
By: [Illegible]
------------------------------------
TELECOM DENMARK
By: [Illegible]
------------------------------------
TELECOM PURCHASING LIMITED
By: [Illegible]
------------------------------------
TELECOMMUNICACIONES INTERNCIONALES DE ARGENTINA
By: [Illegible]
------------------------------------
TELEFONICA DE ESPANA, S.A.
By: [Illegible]
------------------------------------
- 65 -
TELEFONOS DE MEXICO, S.A. DE C.V.
By: [Illegible]
------------------------------------
TELEGLOBE CANADA INC.
By: [Illegible]
------------------------------------
TRANSPACIFIC COMMUNICATIONS, INCORPORATED
By: [Illegible]
------------------------------------
TRT/FTC COMMUNICATIONS, INC.
By: [Illegible]
------------------------------------
VIDESH SANCHAR NIGAM LIMITED
By: /s/ Charles D. Hogan
------------------------------------
LIST OF OMITTED SCHEDULES, ANNEXES AND ATTACHMENTS
The following Schedules, Annexes and Attachments to the TPC-5 Cable
Network Construction and Maintenance Agreement have been omitted from this
Exhibit and shall be furnished supplementally to the Commission upon request:
Schedule A - Parties to the Agreement
Schedule B - Investment Shares and Voting Interests in the TPC-5 Cable
Network
Schedule C - Ownership Interests in Segments G, H, I and J
Schedule D - IRU Interests in Segments T1 and T2
Schedule E - Allocation of Capital and Operation and Maintenance Costs
of Segments A, B, C, D, E, F, G, H, I, J, T1 and T2
Schedule F - Half MIU Capacity Assigned by Path
Schedule G-1 - Path Assignment of MIUs in the TPC-5 Cable Network (U.S.
Mainland Hawaii)
Schedule G-2 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Guam)
Schedule G-3 - Path Assignment of MIUs in the TPC-5 Cable Network
(Guam-Japan)
Schedule G-4 - Path Assignment of MIUs in the TPC-5 Cable Network
(Japan-U.S. Mainland)
Schedule G-5 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland Guam)
Schedule G-6 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Japan)
Annex 1- Terms of Reference (Procurement Group)
Annex 2 - Terms of Reference (Operational Assignments, Routing and
Restoration Subcommittee)
Annex 3 - Terms of Reference (Network Administrator)
Attachment 1 - TPC-5 Cable Newtork
Attachment 2 - Explanation of Investment Shares and Computation of MIU
Costs
The following Revised Schedules, effective December 31, 1995, to the
TPC-5 Cable Network Construction and Maintenance Agreement have been omitted
from this Exhibit and shall be furnished supplementally to the Commission
upon request:
Schedule B - Investment Shares and Voting Interests in the TPC-5 Cable
Network
Schedule C - Ownership Interests in Segments G, H, I and J
Schedule D - IRU Interests in Segments T1 and T2
Schedule E - Allocation of Capital and Operation and Maintenance Costs
of Segments A, B, C, D, E, F, G, H, I, J, T1 and T2
Schedule F - Half MIU Capacity Assigned by Path
Schedule G-1 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland-Hawaii)
Schedule G-2 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Guam)
Schedule G-3 - Path Assignment of MIUs in the TPC-5 Cable Network
(Guam-Japan)
Schedule G-4 - Path Assignment of MIUs in the TPC-5 Cable Network
(Japan-U.S. Mainland)
Schedule G-5 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland Guam)
Schedule G-6 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Japan)
The following Revised Schedules, effective September 1, 1996, to the
TPC-5 Cable Network Construction and Maintenance Agreement have been omitted
from this Exhibit and shall be furnished supplementally to the Commission
upon request:
Schedule B - Investment Shares and Voting Interests in the TPC-5 Cable
Network
Schedule C - Ownership Interests in Segments G, H, I and J
Schedule D - IRU Interests in Segments T1 and T2
Schedule E - Allocation of Capital and Operation and Maintenance Costs
of Segments A, B, C, D, E, F, G, H, I, J, T1 and T2
Schedule F - Half MIU Capacity Assigned by Path
-2-
Schedule G-1 - Path Assignment of MIUs in the TPC-5 Cable Network (U.S.
Mainland Hawaii)
Schedule G-2 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Guam)
Schedule G-3 - Path Assignment of MIUs in the TPC-5 Cable Network
(Guam-Japan)
Schedule G-4 - Path Assignment of MIUs in the TPC-5 Cable Network
(Japan-U.S. Mainland)
Schedule G-5 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S.Mainland-Guam)
Schedule G-6 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Japan)
The following Revised Schedules, effective April 5, 1996, to the TPC-5
Cable Network Construction and Maintenance Agreement have been omitted from
this Exhibit and shall be furnished supplementally to the Commission upon
request:
Schedule B - Investment Shares and Voting Interests in the TPC-5 Cable
Network
Schedule C - Ownership Interests in Segments G, H, I and J
Schedule D - IRU Interests in Segments T1 and T2
Schedule E - Allocation of Capital and Operation and Maintenance Costs
of Segments A, B, C, D, E, F, G, H, I, J, T1 and T2
Schedule F - Half MIU Capacity Assigned by Path
Schedule G-1 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland-Hawaii)
Schedule G-2 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Guam)
Schedule G-3 - Path Assignment of MIUs in the TPC-5 Cable Network
(Guam-Japan)
Schedule G-4 - Path Assignment of MIUs in the TPC-5 Cable Network
(Japan-U.S. Mainland)
Schedule G-5 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland-Guam)
Schedule G-6 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Japan)
-3-
The following Revised Schedules, effective July 15, 1996, to the TPC-5
Cable Network Construction and Maintenance Agreement have been omitted from
this Exhibit and shall be furnished supplementally to the Commission upon
request:
Schedule B - Investment Shares and Voting Interests in the TPC-5 Cable
Network
Schedule C - Ownership Interests in Segments G, H, I and J
Schedule D - IRU Interests in Segments T1 and T2
Schedule E - Allocation of Capital and Operation and Maintenance Costs
of Segments A, B, C, D, E, F, G, H, I, J, T1 and T2
Schedule F - Half MIU Capacity Assigned by Path
Schedule G-1 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland-Hawaii)
Schedule G-2 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Guam)
Schedule G-3 - Path Assignment of MIUs in the TPC-5 Cable Network
(Guam-Japan)
Schedule G-4 - Path Assignment of MIUs in the TPC-5 Cable Network
(Japan-U.S. Mainland)
Schedule G-5 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland-Guam)
Schedule G-6 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Japan)
The following Revised Schedules, effective December 1, 1998, to the
TPC-5 Cable Network Construction and Maintenance Agreement have been omitted
from this Exhibit and shall be furnished supplementally to the Commission
upon request:
Schedule B - Investment Shares and Voting Interests in the TPC-5 Cable
Network
Schedule C - Ownership Interests in Segments G, H, I and J
Schedule D - IRU Interests in Segments T1 and T2
Schedule E - Allocation of Capital and Operation and Maintenance Costs
of Segments A, B, C, D, E, F, G, H, I, J, T1 and T2
Schedule F - Half MIU Capacity Assigned by Path
-4-
Schedule G-1 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland-Hawaii)
Schedule G-2 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Guam)
Schedule G-3 - Path Assignment of MIUs in the TPC-5 Cable Network
(Guam-Japan)
Schedule G-4 - Path Assignment of MIUs in the TPC-5 Cable Network
(Japan-U.S. Mainland)
Schedule G-5 - Path Assignment of MIUs in the TPC-5 Cable Network
(U.S. Mainland Guam)
Schedule G-6 - Path Assignment of MIUs in the TPC-5 Cable Network
(Hawaii-Japan)
TPC-5 Cable System Cost Summary
-5-