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EXHIBIT 10.22
CONFIDENTIAL TREATMENT REQUESTED
HIGH SPEED DATA SERVICES
RIGHT-OF-ENTRY AGREEMENT
THIS HIGH SPEED DATA SERVICES RIGHT-OF-ENTRY AGREEMENT (this
"Agreement") is entered into as of the 14th day of October, 1999 ("Effective
Date"), by and between I(3)S, Inc., a Texas corporation, with a place of
business at 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000 ("I(3)S"); and Forest City
Residential Management, Inc., an Ohio corporation with a place of business at
0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000-0000 ("Forest City") as Agent for
Wisconsin Park Associates Limited Partnership, a Maryland Limited Partnership
("Wisconsin Park"). I(3)S and Forest City are hereinafter sometimes individually
referred to as a "party", and collectively as the "parties".
RECITALS
WHEREAS, Forest City currently owns and manages that certain
multiple dwelling unit community (the "Property") commonly known as The Grand
and located at 0000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000.
WHEREAS, Wisconsin Park is the record owner of the Property;
WHEREAS, I(3)S provides broadband Internet protocol network
services, including, without limitation, high speed data services, as more
specifically described in Exhibits D and E attached hereto and incorporated
herein by reference (the "Service"), to multiple system franchise cable
operators ("MSO's"), private cable operators ("PCO's"), and real estate owners
and developers, nationwide; and
WHEREAS, Forest City and I(3)S desire I(3)S to provide the Service
to the Property and its residents pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, the parties hereto hereby covenant and agree as
follows:
ARTICLE 1
REPRESENTATIONS AND WARRANTIES
1.1 REPRESENTATIONS AND WARRANTIES OF FOREST CITY.
AUTHORITY. This Agreement has been duly authorized, executed and
delivered by Forest City and constitutes a valid and legally binding agreement
of Forest City, and neither the execution and delivery of nor the performance of
the provisions of this Agreement shall conflict with or result in a breach,
violation or default under the Certificate of Incorporation and Code of
Regulations of Forest City, if applicable; or any material agreement binding on
Forest City that would affect its obligations hereunder.
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SOLVENCY. Forest City is in a solvent condition and no bankruptcy or
insolvency proceedings are pending or contemplated by or against it.
1.2 REPRESENTATIONS AND WARRANTIES OF I(3)S.
AUTHORITY. This Agreement has been duly authorized, executed and
delivered by I(3)S and constitutes a valid and legally binding agreement of
I(3)S, and neither the execution and delivery of nor the performance of the
provisions of this Agreement shall conflict with or result in (a) a breach,
violation or default under the Certificate of Incorporation and Bylaws of I(3)S,
if applicable; or any material agreement binding on I(3)S that would affect its
obligations hereunder; or (b) the breach or violation of any law, order, rule,
ordinance, regulation, judgment or decree of an governmental authority having
jurisdiction.
PERMITS, LICENSES, ETC. I(3)S possesses and will continue to possess
for the term of this Agreement and any extensions all material permits,
licenses, franchise rights, trademarks, trademark rights, trade names, trade
name rights, copyrights and other governmental approvals or authorizations and
all requisite licenses or other approvals or authorizations from third parties,
which are necessary and required to conduct the business of the Service, to
perform its obligations under this Agreement and to install, maintain and
operate any equipment or facilities at the Property, and all such property,
right, title and interest, shall remain free and clear of any adverse claims,
interests and liens. Notwithstanding the foregoing, liens created by financing
shall not be considered a violation of this section.
COMPLIANCE. I(3)S is in compliance and will remain in compliance
for the term of this Agreement and any extensions with all applicable federal,
state and local laws, rules, orders, ordinances, codes and regulations.
SOLVENCY. I(3)S is in a solvent condition and no bankruptcy or
insolvency proceedings are pending or contemplated by or against it.
1.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made by or on behalf of I(3)S or Forest City shall survive the
execution and delivery of this Agreement, and any investigation at any time made
by or on behalf of Forest City or I(3)S respectively, shall not diminish its
rights to rely thereon.
ARTICLE 2
TERM
2.1 TERM. This Agreement shall have an initial term of three (3) years
from the Effective Date; provided, however, that the initial term may be
automatically extended after the third anniversary of the Effective Date for
additional one (1) year terms unless one party provides the other party with
ninety (90) days prior written notice of the notifying party's intent to
terminate this Agreement upon the expiration of the term then in effect.
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ARTICLE 3
MARKETING EXCLUSIVITY; LICENSE
3.1 EXCLUSIVITY. Subject to any other entity's right under law to
provide internet access services, the right granted to I(3)S hereunder to
provide the Service at the Property during the term of this Agreement shall be
exclusive. Subject to all applicable laws, rules, regulations, codes,
ordinances, orders and the like of any federal, state, or local authority or
agency, and provided I(3)S is not in default under this Agreement, Forest City
shall exclusively market the Service at the Property and shall not perform any
marketing activities for any entities providing similar high speed Internet
access services at the Property. Further, Forest City shall not receive any
compensation related to high speed Internet access services from a provider of
similar high speed Internet access services at the Property.
3.2 LICENSE. Forest City grants to I(3)S and I(3)S accepts from Forest
City a license for the term of this Agreement and any extensions to use that
portion of the property set forth in Exhibit A ("Licensed Premises") for the
installation, operation, maintenance and removal of the I(3)S Equipment (as
hereinafter defined), to access the remainder of the Property in accordance with
Forest City's Property rules and regulations to market and sell the Service and
to install, operate, maintain and remove subscriber-related facilities; and to
use, operate and maintain the Forest City Equipment (as hereinafter defined).
The license granted herein and the Licensed Premises shall not be expanded nor
utilized for any other purposes or for the provision of any other services
without Forest City's prior written consent which shall be at Forest City's sole
discretion. I(3)S's access and its use of the Licensed Premises shall not
interfere unreasonably with the quiet use and enjoyment of the Property by its
residents. This Agreement and the license granted hereby are subject to all
liens, claims, encumbrances and other matters now or hereafter affecting title
to the Property. I(3)S's access to the Property and the Forest City Equipment
shall be arranged and controlled by on-site management.
ARTICLE 4
FOREST CITY'S OBLIGATIONS
4.1 Forest City shall use all commercially reasonable efforts to assist
I(3)S in securing access to all occupied and unoccupied units as necessary to
provide the Service so long as I(3)S shall not enter an occupied unit without
the resident's express approval and I(3)S shall not enter any occupied unit
unless a resident or an adult representative of the resident is present;
4.2 Forest City shall use best efforts to report known maintenance or
other problems with respect to the Service directly to I(3)S to the point of
contact designated in writing by I(3)S (the "Contact") including the name and
address of the subscriber, if any, who made the complaint;
4.3 Forest City will direct the residents to call the Contact regarding
any complaints or technical problems concerning the Service;
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4.4 Forest City will provide a secure air-conditioned space not to
exceed four (4) feet by four (4) feet, at no charge, to I(3)S for the storage of
I(3)S Equipment (as hereinafter defined) reasonably necessary to provide the
Service at the Property.
4.5 Forest City will allow I(3)S to interconnect with the existing
dedicated telecommunications distribution system ("Forest City Equipment") for
the delivery of the Service at the Property and to residents subject to Section
6 of this Agreement.
4.6 Forest City will provide electricity necessary to power the I(3)S
Equipment (as hereinafter defined) and the Forest City Equipment.
4.7 MARKETING. Forest City agrees to supply I(3)S with a move-in,
move-out list which includes tenant phone numbers as they appear on record on a
monthly basis; to include I(3)S marketing material as approved by Forest City in
tenant leasing packages; to assist in the taking and forwarding of order forms
as supplied by I(3)S: and to allow I(3)S to display Forest City approved
marketing materials on-site at locations approved by Forest City. I(3)S agrees
it will use the tenant information list strictly for I(3)S's own marketing
purposes of the Service at the Property and will perform phone solicitation
between the hours of 9 a.m. and 7 p.m. Further, I(3)S covenants and agrees it
will not provide this list or any information appearing thereon to any third
party.
4.8 Forest City agrees that I(3)S will have access to the Property and
the I(3)S Equipment and Forest City Equipment for routine installation,
maintenance and marketing on weekdays from 9 a.m. to 9 p.m., and on Saturdays
from 9 a.m. to 5 p.m. Emergency service and repair calls can be made at any
time, 24 hours a day, consistent with Property rules and regulations.
ARTICLE 5
INSURANCE; MECHANIC'S LIENS
5.1 INSURANCE. I(3)S agrees to maintain, at all times during the term
of this Agreement, at a minimum, commercial general liability insurance with
minimum limits of $1,000,000 per occurrence for bodily injury (or death) and
property damage liability with limits of at least $1,000,000 per occurrence
[Personal Injury and $1,000,000 General Policy Aggregate (applicable to
Commercial General Liability Policies)] and any additional insurance and/or
bonds required by law. I(3)S agrees to furnish certificates or other acceptable
proof of the foregoing insurance and to name Forest City as an additional
insured. I(3)S warrants that it meets or exceeds all insurance requirements
stated herein and those that are required by the laws of the state where the
Property is located. I(3)S shall provide Worker's Compensation Insurance for its
employees and require Worker's Compensation Insurance for the employees of all
contractors and subcontractors.
5.2 MECHANIC'S LIENS. I(3)S shall not permit any mechanic's liens or
other liens to he placed upon the Property, the Licensed Premises, or the Forest
City Equipment. In the event any lien is so attached, it shall be immediately
paid, released or bonded over by I(3)S in a manner acceptable to Forest City.
Notwithstanding the foregoing, Forest City shall have the right, but
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not the obligation, to discharge the same and in such event I(3)S shall
immediately reimburse Forest City for the same upon demand.
ARTICLE 6
I(3)S EQUIPMENT; INSPECTION AND ACCEPTANCE
6.1 INSTALLATION. I(3)S shall install, at its sole cost and expense
(including all costs associated with establishing and maintaining Internet
backbone and local telecommunications connectivity via fully managed data
circuits), all equipment and facilities necessary to provide the Service in
accordance with the service level standards and speed and performance criteria
set forth in attached Exhibits D and E to residents of the Property ("I(3)S
Equipment") with the exception of the Forest City Equipment. A complete list of
the I(3)S Equipment is set forth in Exhibit B attached hereto and incorporated
herein by reference. I(3)S shall use its best efforts to complete Installation
and fully activate the Service such that same is available to all units at the
Property for subscription within sixty (60) days of the Effective Date, but in
no event shall the completion and activation exceed ninety (90) days.
6.2 MAINTENANCE AND OPERATION. I(3)S shall maintain, upgrade as
necessary, repair, replace and operate, the 1(3)S Equipment at its sole cost and
expense, throughout the term of this Agreement and any extensions such that
I(3)S can deliver the Service in accordance with the service level standards and
speed and performance criteria set forth in attached Exhibits D and E. I(3)S
shall also maintain and repair the Forest City Equipment at Forest City's sole
cost and expense, provided however, should such cost and expense exceed $500.00
I(3)S shall first obtain written approval of Forest City. Should the I(3)S
Equipment or should I(3)S's provision of the Service create any unreasonable
interference with the equipment or the provision of service by any other
telecommunications providers already serving the Property, Forest City shall
have the right but not the obligation to terminate this Agreement without
penalty or liability; provided that I(3)S will be afforded a fifteen (15) day
period following written notice of the interference to eliminate or correct such
interference.
6.3 INSPECTION AND ACCEPTANCE. I(3)S acknowledges and agrees that on or
before the Effective Date it had a complete opportunity to inspect the Forest
City Equipment to confirm to the complete satisfaction of I(3)S that the Forest
City Equipment has the characteristics and meets all specifications and
requirements necessary for I(3)S upon the interconnection of the I(3)S Equipment
with the Forest City Equipment to deliver the Service in accordance with the
service level standards and speed and performance criteria set forth in attached
Exhibits D and E. I(3)S's installation of its Equipment and its interconnection
of same with the Forest City Equipment will constitute I(3)S's agreement that
the Forest City Equipment is acceptable for such purposes. Without limiting the
foregoing, I(3)S acknowledges and agrees that Forest City has made no
representations or warranties as to the condition of the Licensed Premises, the
Property or the Forest City Equipment and that I(3)S is relying on its own
inspection in entering into this Agreement. Forest City HEREBY DISCLAIMS, AND
I(3)S HEREBY WAIVES ANY AND All EXPRESS OR IMPLIED WARRANTIES OF ANY KIND
WHATSOEVER, WHETHER STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED
PREMISES,
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THE PROPERTY AND THE FOREST CITY EQUIPMENT (INCLUDING WITHOUT LIMITATION THE
WARRANTY OF FITNESS FOR A PARTICULAR USE) AND WARRANTIES ARISING FROM COURSE OF
DEALING OR USAGE OR TRADE.
6.4 OWNERSHIP. Forest City owns and will continue to own the Forest
City Equipment throughout the term of this Agreement and any extensions. I(3)S
owns and will continue to own the I(3)S Equipment throughout the term of this
Agreement and any extensions; provided however that, upon the expiration of
twenty-four (24) months after the Effective Date, Forest City shall have the
option, to be exercised by written notice to I(3)S within one hundred and twenty
(120) days thereafter, to acquire ownership of the I(3)S Equipment for a jump
sum equal to the undepreciated capital cost of such Equipment as reflected on
the books and records of I(3)S. In connection therewith, I(3)S shall deliver to
Forest City a xxxx of sale assigning and conveying the I(3)S Equipment to Forest
City "as is," "where is," and "with all faults" with the exception that at the
time of such assignment and conveyance I(3)S will warrant that the I(3)S
Equipment is still sufficient to meet the service level standards and speed and
performance criteria set forth in attached Exhibits D and E. Notwithstanding
anything herein to the contrary, I(3)S shall continue to maintain and operate
the I(3)S Equipment and the Forest City Equipment for the term of this Agreement
and any extensions. Should Forest City not exercise its option to acquire the
I(3)S Equipment, I(3)S shall remove it and restore the Property to its original
condition upon the expiration or earlier termination of this Agreement, subject
to ordinary wear and tear. Any I(3)S Equipment not so removed within thirty (30)
days shall be deemed abandoned in favor of Forest City.
ARTICLE 7
DESCRIPTION OF THE SERVICE; COMPETITIVE STANDARDS
7.1 DESCRIPTION OF THE SERVICE. During the term of this Agreement and
any extension, I(3)S shall provide the Service to the residents of the Property
as more particularly described and set forth in Exhibits D and E attached hereto
and incorporated herein by reference. Notwithstanding anything in this Agreement
or its Exhibits, including Exhibits D and E, to the contrary, the right granted
to I(3)S to provide the Service does not include any right to provide
multichannel video programming services or telephony services separate from or
as part of the Service. The Service, both recurring and nonrecurring elements,
shall be provided at the sole cost and expense of I(3)S. Forest City shall not
be responsible in any manner for any costs associated with the provision of the
Service or for any fees or charges unpaid by subscribers to the Service. Any
subscription or other agreements entered into between I(3)S and any resident
shall automatically terminate or expire upon the termination or expiration of
this Agreement.
7.2 COMPETITIVE STANDARDS. During the term of this Agreement and any
extensions, I(3)S represents that the quality and quantity of the services,
functions and features comprising the Service and the subscription rates,
charges and fees for both recurring and nonrecurring elements of the Service are
and will remain comparable to and competitive with the services, functions and
features and the subscription rates, charges and fees for both recurring and
nonrecurring elements generally offered by other providers of high speed
Internet access services in the geographic area
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of the Property which is generally known as the Washington Metropolitan
Statistical Area, provided however, that I(3)S shall not have to be competitive
with any provider operating without a meaningful net margin in order to gain
subscribers.
7.3 VIRTUAL PRIVATE NETWORK. I(3)S agrees to provide Forest City at no
charge unlimited unrestricted broadband connectivity access from the Property to
the I(3)S net national network backbone for the term of this Agreement and any
extensions for one (1) office site and two (2) employee resident units at the
Property.
ARTICLE 8
REVENUE ALLOCATION; BRANDING
8.1 REVENUE ALLOCATION. I(3)S shall directly xxxx and collect from any
resident of the Property who subscribes to the Service. Forest City shall have
no responsibility or liability for the failure of any subscriber to pay such
fees. For purposes of this Agreement, "Revenue" shall mean gross amounts
received from resident subscribers for all recurring and nonrecurring elements
of the Service, excluding only installation charges, taxes or any other amounts
paid to any city, county, state or federal authority, customer equipment sales
or leases, or other charges "passed through" to resident-subscribers on a
no-markup basis. By the twenty-fifth day of each month, I(3)S shall pay Forest
City a revenue sharing fee calculated as a percentage of the Revenue actually
collected by or on behalf of I(3)S for the immediately preceding month in
accordance with the following tables:
PENETRATION REVENUE SHARE
0% to 10% *
Greater than 10% to 15% *
Greater than 15% to 20% *
Greater than 20% to 30% *
Greater than 30% to 40% *
Greater than 40% to 50% *
Greater than 50% *
"Penetration" means the total number of I(3)S subscribers at the
Property divided by the total number of units available for lease at the
Property.
Should Forest City exercise its option in Section 6.4 to acquire
ownership of all I(3)S on-property equipment including without limitation all
Ethernet switches and on-property router, the Revenue Share shall be in
accordance to the following table for the remainder of the term of this
Agreement and any extensions:
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PENETRATION REVENUE SHARE
0% to 10% *
Greater than 10% to 15% *
Greater than 15% to 20% *
Greater than 20% to 30% *
Greater than 30% to 40% *
Greater than 40% to 50% *
Greater than 50% *
I(3)S and Forest City agree to enter into good faith negotiations to
include Net Advertising and E-commerce revenue sharing in the definition of
Revenue within eighteen (18) months from the Effective Date.
8.2 BRANDING. With respect to the Service, and the promotion thereof,
I(3)S shall establish the brand names, logos, labels, trademarks, service marks
and other such identifying promotional characteristics pertaining to the same
throughout the term of this Agreement and any extensions; provided however, that
I(3)S will not use any brand names, logos, labels, trademarks, service marks and
the like belonging to or associated with Forest City or its affiliates without
Forest City's prior written approval which may be withheld in Forest City's sole
discretion. All rights not expressly granted hereunder by a party are expressly
reserved to such party and its licensors.
8.3 AUDIT. I(3)S shall keep, maintain and preserve for at least one (1)
year following the termination or expiration of this Agreement accurate records
relating to I(3)S's payment obligations hereunder. Forest City shall have the
right to inspect such records at least once during any calendar year at I(3)S's
place of business or such other place agreed upon during normal business hours.
I(3)S shall promptly pay Forest City any shortfall disclosed by such audit but
such payment date shall not exceed fifteen (15) days. Should any audit disclose
a shortfall greater than five percent (5%), I(3)S shall pay the reasonable costs
of the audit.
ARTICLE 9
SPECIFIC SOFTWARE WARRANTIES; SUBSCRIBER END USER AGREEMENT
9.1. OWNERSHIP; AUTHORITY. I(3)S represents and warrants that the
software utilized hereunder (collectively, the "Products") are free and clear of
all liens and encumbrances, and that it has full power, license and authority to
utilize the rights granted to it with respect to such Products without the
consent of any other person or that such consent has been obtained, and that to
the knowledge of I(3)S the Products utilized hereunder will not infringe or
violate any copyright, trade secret, trademark, patent or other intellectual
property rights of any third party. I(3)S hereby agrees to indemnify, defend and
hold Forest City harmless in accordance with Section 10.l in connection with
such representation and warranty.
9.2 SUBSCRIBER END USER AGREEMENT. Forest City shall not be
responsible or liable in any manner under any circumstances for any subscriber
noncompliance with any applicable
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end user license agreement. I(3)S agrees that, notwithstanding Forest City's
marketing or other promotional support, ownership of the Forest City Equipment
or potential ownership of the I(3)S Equipment, or any other provision of this
Agreement, I(3)S is the sole party responsible for or liable in connection with
the provision of the Service to resident-subscribers. Forest City shall not be
responsible for any claims whatsoever arising out of or in any way connected
with the Service, the I(3)S Equipment, the Forest City Equipment, data or
information transmitted to subscribers via the Internet, or the failure of any
subscriber to receive or transmit data or information via the Internet and I(3)S
hereby agrees to indemnify, defend and hold Forest City harmless in accordance
with Section 10.1 in connection with such claims.
ARTICLE 10
INDEMNIFICATION
10.1 INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. I(3)S shall defend,
indemnify and hold harmless Forest City, its parent, subsidiaries, affiliates,
directors, officers, shareholders, employees and agents and its successors and
assigns, from and against any and all claims, demands, actions, liabilities,
losses, damages and expenses, including, without limitation, settlement costs
and reasonable attorneys' fees through appeal, arising out of or relating to any
actual or alleged infringement of any third party's trade secrets, trademark,
service xxxx, copyright, patent or other intellectual property rights (the
"Intellectual Property Rights") in connection with the use of said Intellectual
Property Rights hereunder. I(3)S's obligation pursuant to the immediately
preceding sentence is subject to the following conditions: (i) Forest City shall
give I(3)S prompt written notice of all actions, claims or threats against
Forest City of infringement or violation of Intellectual Property Rights, (ii)
Forest City shall permit I(3)S to and I(3)S will assume complete control of such
claims at its sole expense; and (iii) if reasonable out-of-pocket expenses and
attorneys' fees through appeal are paid by I(3)S. Forest City shall cooperate
fully with I(3)S in defending against such claims, including making known or
available to I(3)S, upon reimbursement of all costs associated with provision or
reproduction of, all records and document pertaining to such claims.
10.2. INDEMNIFICATION OF FOREST CITY. In addition to Section 10.1 and
other indemnity provisions set forth in other Sections of this Agreement, I(3)S
shall indemnify, defend and hold Forest City, its parent, subsidiaries,
affiliates, directors, officers, shareholders, employees and agents and its
successors and assigns, from and against any and all claims, demands, actions,
liabilities, losses, damages and expenses, including, without limitation,
settlement costs and reasonable attorneys' fees through appeal, arising out of
or relating to (i) the installation, maintenance, repair, operation, malfunction
or removal of the I(3)S Equipment; (ii) the maintenance, repair, operation or
malfunction of the Forest City Equipment unless Forest City does not pay for
such maintenance, repair or replacement pursuant to section 6.2; (iii) the
provision of the Service, including Service interruptions; (iv) I(3)S's failure
to comply with all applicable federal, state and local laws or to obtain all
licenses, permits or other authorizations necessary to provide the Service and
operate the I(3)S Equipment and the Forest City Equipment; (v) I(3)S's breach of
any material provision of this Agreement or any representation or warranty; and
(vi) any loss of or damage to real or tangible personal property, including the
Property, the
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Licensed Premises and the Forest City Equipment, or injury to or death of any
person (including injury to or death of their employees) caused by I(3)S's
negligence, willful misconduct or violation of law, or by its agents, employees,
subcontractors or assignees. I(3)S's obligation hereunder is subject to the
following conditions: (i) Forest City shall give I(3)S prompt written notice of
all actions, claims or threats against Forest City; (ii) Forest City shall
permit I(3)S to and I(3)S will assume complete control of such claims at its
sole expense; and (iii) if reasonable out-of-pocket expenses and attorneys' fees
through appeal are paid by I(3)S, Forest City shall cooperate fully with I(3)S
in defending against such claims, including making known or available to I(3)S,
upon reimbursement of all costs associated with provision or reproduction of,
all records and document pertaining to such claims.
10.3 INDEMNIFICATION OF I(3)S. Forest City shall indemnify, defend and
hold I(3)S harmless against all liability, loss, damage, and expense resulting
from a breach of Forest City's representations, warranties or a material
provision of the Agreement, or injury to or death of any person (including
injury to or death of their employees) or loss of or damage to real or tangible
personal property, including the I(3)S Equipment or the Forest City Equipment,
caused by Forest City's gross negligence, willful misconduct or violation of law
or by its agents, employees, subcontractors or assignees. Forest City's
obligation hereunder is subject to the following conditions: (i) I(3)S shall
give Forest City prompt written notice of all actions, claims or threats against
I(3)S (ii) I(3)S shall permit Forest City to assume complete control of such
claims at its sole expense; and (iii) if reasonable out-of-pocket expenses and
attorneys' fees through appeal are paid by Forest City, I(3)S shall cooperate
fully with Forest City in defending against such claims, including making known
or available to Forest City, upon reimbursement of all costs associated with
provision or reproduction of, all records and document pertaining to such
claims.
10.4 LIMITED LIABILITY. NEITHER PARTY SHALL BE LIABLE OR OBLIGATED
UNDER ANY SECTION OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL, OR EQUITABLE THEORY FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS.
ARTICLE 11
PROTECTION OF PROPRIETARY RIGHTS
11.1 CONFIDENTIAL INFORMATION. Information to be held in confidence
shall be clearly marked "Proprietary" or "Confidential." Information which is
conveyed orally shall be deemed confidential only if prior to disclosure it is
indicated as being confidential and written confirmation identifying the
confidential or proprietary information is provided to the receiving party
within ten (10) business days after it was discussed orally.
11.2 RESTRICTIONS. Each party shall use its reasonable best efforts to
maintain the confidentiality of such Confidential Information and not show or
otherwise disclose such Confidential Information to any third parties,
including, but not limited to, independent contractors and consultants, without
the prior written consent of the disclosing party. Each party shall use the
Confidential Information solely for the purpose of performing its obligations
under this Agreement.
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11.3 AUTHORIZED DISCLOSURES. Notwithstanding the obligations described
in Section 11.2 above, neither party shall have any obligation to maintain the
confidentiality of any Confidential Information which: (i) is or becomes
publicly available by other than unauthorized disclosure by the receiving party;
(ii) is independently developed by the receiving party; or (iii) is received
from a third party who has lawfully obtained such Confidential Information
without a confidentiality restriction. If required by any court of competent
jurisdiction or other governmental authority, the receiving party may disclose
to such authority, data, information or material involving or pertaining to
Confidential Information to the extent required by such order, provided that the
receiving party shall first have used its best efforts to obtain a protective
order reasonably satisfactory to the disclosing party sufficient to maintain the
confidentiality of such data, information or materials.
11.4 LIMITED ACCESS. Each party shall limit the use and access of
Confidential Information to such party's bona-fide employees, attorneys,
financial advisors or agents who have a need to know such information for
purposes of conducting the receiving party's business. Each party shall notify
all employees and agents who have access to Confidential Information or to whom
disclosure is made that the Confidential Information is the confidential,
proprietary property of the disclosing party and shall instruct such employees
and agents to maintain the Confidential Information in confidence.
11.5 CONTINUING OBLIGATIONS. Each party's obligations under this
Article 11 shall survive the termination of this Agreement for two (2) years
thereafter.
11.6 CONFIDENTIALITY OF TERMS. Unless approved in advance by the
non-disclosing party, except for the existence of this Agreement, the terms and
provisions of this Agreement shall remain strictly confidential and shall not be
disclosed to any third party other than a party's attorneys, accountants, other
professional advisers, potential purchasers of the Property, and unless
otherwise required by law.
ARTICLE 12
DEFAULT; TERMINATION
12.1 DEFAULT. Upon the occurrence of any of the following events, a
party shall be deemed to be in default under this Agreement:
(a) Material breach of any warranty or representation by the defaulting
party;
(b) Material failure to perform the defaulting party's obligations
hereunder and a failure to cure substantially such breach if monetary within
fifteen (15) days and if monetary within thirty (30) days of written notice
describing the breach, including with respect to I(3)S its failure to (i)
maintain the service standards set forth in Sections 7.1 and 7.2 and Exhibits D
and E hereof, and (ii) make the payments to Forest City set forth in Section
8.1 hereof.
(c) The defaulting party's ceasing to conduct business in the normal
course, insolvency, the making of a general assignment for the benefit of its
creditors, suffering or permitting the
12
appointment of a receiver or similar officer for its business or assets or
availing itself of, or becoming subject to, any proceeding under the United
States Federal Bankruptcy Laws or any federal or state statute relating
to solvency or the protection of the rights of creditors; or
(d) Making of any warranty, representation, statement or response in
connection with this Agreement which was untrue and known to be untrue in any
material respect on the date it was made by the defaulting party.
12.2 REMEDIES. In the event the defaulting party fails to cure any
default set forth hereunder within the applicable time period, except for
defaults pursuant to Section 12.1(c) which shall have a cure period of ninety
(90) days, after written notice of such default by the non-defaulting party
specifying the acts or omissions constituting the default with reference to the
sections of this Agreement which have allegedly been breached, the
non-defaulting party may terminate this Agreement without further obligation on
the part of the non-defaulting party, and pursue any claims at law or in equity
against the defaulting party.
12.3 FAILURE TO EXERCISE REMEDY. The remedies set forth above are
cumulative, but the non-defaulting party is under no obligation to exercise any
such remedy. The exercise of, or failure to exercise, any such remedies shall
not prevent any future exercise of the same or any other remedies or release the
defaulting party from its obligations under this Agreement.
12.4 EFFECT OF TERMINATION. Termination of this Agreement shall not
impair either party's then accrued rights, obligations, liabilities or remedies
hereunder.
12.5 SMOOTH TRANSITION. Upon the expiration or earlier termination of
this Agreement, I(3)S agrees fully to assist Forest City in accomplishing a
smooth transition to any new provider of Internet access service, including but
not limited to providing a continuation of the Service with Forest City's
consent past the expiration or earlier termination of this Agreement on a
month-to-month terminable at will basis for a time period not to exceed three
(3) months. Any holding over by I(3)S without the consent of Forest City shall
be construed to be a tenancy from month-to-month and 1(3)S agrees it shall pay
two (2) times the Section 8.1 Revenue allocation obligations due thereunder and
continue to comply and remain in accordance with all of the other terms,
provisions, covenants and conditions contained in this Agreement, and Forest
City shall continue to possess all the remedies it may have at law or in equity.
ARTICLE 13
NOTICE; PUBLIC DISCLOSURES
13.1 NOTICE. All notices pursuant to this Agreement shall be in writing
and may be personally delivered or sent by overnight courier or by Certified
or Registered mail. All notices personally delivered shall be deemed delivered
at the time of such delivery. All notices sent by Certified or Registered mail
shall be deemed delivered five (5) days after deposited in the US mail. All
notices sent by overnight courier shall be deemed made one (1) business day
after delivery to such courier service. Any party may designate a change of
address upon ten (10) days written notice.
13
If to I(3)S, to:
I(3)S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Mr. Xxx Xxxxx, CEO
with a copy to:
I(3)S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx Xxxxxxxx, President
If to Forest City, to:
Forest City Residential Management, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn:
13.2 PUBLIC DISCLOSURES. All media releases, public announcements, and
public disclosures by either party or its employees, agents or representatives
relating to this Agreement or the subject matter hereof, excluding any
announcement beyond the control of the disclosing party, will be approved by the
non-disclosing party in writing prior to release.
ARTICLE 14
MISCELLANEOUS
14.1 ENTIRE AGREEMENT. This Agreement, together with the Exhibits
attached hereto or referred to herein, constitutes the entire Agreement and
understanding among the parties hereto with respect to the provision of the
Service at the Property and is the final expression of their Agreement on that
subject and no evidence of oral or other written promises shall be binding. All
other prior agreements or understandings related to the subject hereof among the
parties, whether written or oral, shall be null and void and of no further force
and effect upon the execution of this Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
14.2 INCORPORATION BY REFERENCE. The Exhibits referred to herein or
attached hereto are hereby incorporated in and to this Agreement and made a part
hereof by this reference.
14.3 AMENDMENT; MODIFICATION. This Agreement may not be supplemented,
amended, modified or otherwise altered except by written instrument executed by
all the parties hereto and
14
no course of dealing or trade usage among or between the parties shall be
effective to supplement, amend, modify or alter this Agreement.
14.4 WAIVER. The failure to enforce or to require the performance at
any time of any of the provisions of this Agreement herein shall in no way be
construed to be a waiver of such provisions, and shall not affect either the
validity of this Agreement, any part hereof or the right of any party thereafter
to enforce each and every provision in accordance with the terms of this
Agreement.
14.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED,
WITHOUT REGARD TO ITS CONFLICTS OR CHOICE OF LAWS.
14.6 CONTINUITY OF CONTRACT. If any severable provision of this
Agreement is deemed invalid or unenforceable by any judgment of a court of
competent jurisdiction, the remainder of this Agreement shall not be affected by
such judgment, and this Agreement shall be carried out as nearly as possible
according to its original terms and intent, unless to do so would substantially
impair the underlying purposes of this Agreement. Notwithstanding the foregoing,
should the revenue allocation set forth in Section 8.1 be deemed invalid or
unenforceable for any reason by any applicable governing authority, Forest City
may, at its sole election, terminate this Agreement and exercise its option in
Section 6.4 to acquire the I(3)S Equipment at that time if not already acquired.
14.7 CAPTIONS. The captions appearing in this Agreement are included
solely for convenience of reference and shall not be construed or interpreted to
affect the meaning or interpretation of this Agreement.
14.8 FORCE MAJEURE. Neither party shall be responsible for any failure
to comply with or for any delay in performance of the terms of this Agreement,
including, but not limited to, delays in delivery, where such failure or delay
is directly or indirectly caused by or results from events of force majeure
beyond the control of either party. These events shall include, but not be
limited to, fire, flood, earthquake, accident, civil disturbance, war, acts of
God, or acts or government.
14.9 HIRING PROHIBITED. During the term of this Agreement and for a
period of one (1) year thereafter, neither party shall solicit for hire or hire
any employee of the other party who has performed services under this Agreement.
This prohibition may be enforced by either party in equity and irreparable
injury shall be deemed automatically established in any such proceeding.
14.10 PERFORMANCE REVIEW. In the event of any dispute or controversy
between the parties of any kind or nature, except in circumstances where
equitable relief is deemed necessary by either party in its sole discretion,
upon the written request of either party, each of the parties will appoint a
designated officer whose task it will be to meet for the purpose of resolving
such
15
dispute or controversy or to negotiate for an adjustment to any provision of
this Agreement needed to resolve such dispute or controversy. Such officers will
discuss the dispute or controversy and negotiate in good faith in an effort to
resolve the dispute or controversy or renegotiate the applicable section or
provision of this Agreement without the necessity of any formal proceeding
relating thereto. No formal proceedings for the judicial or arbitrational
resolution of such dispute or controversy may he commenced until either or both
of the designated officers conclude in good faith that an amicable resolution
through continued negotiation of the matter at issue is not likely to occur.
14.11 RELATIONSHIP OF THE PARTIES. Notwithstanding anything to the
contrary in this Agreement, under no circumstances will either party be deemed
to be in any relationship with the other party carrying with it fiduciary or
trust responsibilities. The parties do not intend for this Agreement or the
relationship established thereby to be considered the formation of a joint
venture or partnership between the parties for any purpose. I(3)S has the sole
right to supervise, manage, contract, direct, procure, perform or cause to be
performed the day-to-day work to be performed by I(3)S under this Agreement
unless otherwise expressly provided herein or agreed to by the parties in
writing. I(3)S shall be responsible for insuring that any independent
contractors or subcontractors fully comply with all of the applicable terms of
this Agreement to the same extent that I(3)S must fully comply if it were
performing the acts performed by such contractors or subcontractors and I(3)S
shall be liable to Forest City if such contractors or subcontractors fail fully
to comply. I(3)S shall insure that no contractors or subcontractors file a
mechanic's or similar lien against the Property, the Licensed Premises and the
Forest City Equipment and I(3)S shall promptly remove all such liens that may be
filed against same. I(3)S shall insure that such contractors and subcontractors
carry insurance similar to that required of I(3)S under this Agreement prior to
the performance of any work at the Property. I(3)S shall indemnify Forest City
for actions or omissions of such contractors and subcontractors to the same
extent that I(3)S would indemnify Forest City if I(3)S engaged in the same
actions or made the same omissions.
14.12 COUNTERPARTS. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
14.13 MEMORANDUM OF AGREEMENT. I(3)S may record a memorandum of this
Agreement in the form set forth in Exhibit C-1 attached hereto, provided however
that this Agreement is subordinate to any and all leases, mortgages, deeds or
trusts that encumber the Property now or at any time and provided further that
I(3)S shall provide such certificates or other statements as Forest City may
request in writing to acknowledge the subordination of this Agreement.
Simultaneous with the execution of this Agreement, I(3)S agrees to execute and
deliver to Forest City a Memorandum of Termination of Agreement in the form set
forth in Exhibit C-2 attached hereto which Owner shall have the right to record
in the local property records in which the Memorandum of Agreement was recorded
upon the expiration or earlier termination of this Agreement. I(3)S shall be
deemed in default of this Agreement if I(3)S records the Memorandum of Agreement
without first executing and delivering the Memorandum of Termination of
Agreement.
16
14.14 SUBORDINATION. This Agreement is subject and subordinate to all
leases, mortgages, and/or deeds of trust which may now or hereafter affect the
Property, and to all renewals, modifications, consolidations, replacements and
extensions thereof. This clause shall be self operative and no further
instrument or subordination shall be required by any mortgage, trustee, lessor
or lessee. In confirmation of such subordination, I(3)S shall execute promptly
any certificate that Forest City may request. Notwithstanding the foregoing, the
party secured by any deed of trust shall have the right to recognize this
Agreement. In the event of any foreclosure sale under such deed of trust, this
Agreement shall continue in full force and effect at the option of the party
secured by such deed of trust or the purchaser under any such foreclosure sale.
I(3)S covenants that it will, at the written request of the party secured by any
such deed of trust, execute, acknowledge and deliver any instrument that has for
its purpose and effect the subordination to said deed of trust of the lien of
this Agreement.
14.15 ASSIGNMENT. This Agreement shall benefit and be binding on the
respective permitted assigns, transferees and successors of the parties. Upon
thirty (30) days prior written notice to Forest City, I(3)S may assign its
rights and delegate its duties under this Agreement to any affiliate or to any
party controlled by, controlling or under common control with I(3)S or to a
party acquiring all or substantially all of I(3)S's assets; provided however,
that the assignee party must unconditionally assume in writing, and agree to be
bound by, the right, duties and obligations of I(3)S under this Agreement. Any
other assignment of this Agreement by I(3)S requires the prior written approval
of Forest City which consent will not be unreasonably withheld, conditioned or
delayed provided the assignee party must be financially qualified, be an
experienced high speed Internet access provider, and unconditionally assume in
writing, and agree to be bound by, the right, duties and obligations of I(3)S
under this Agreement. Forest City will notify any new owners of the Property
about this Agreement and has the right but not the obligation to assign this
Agreement to such new owners. Should such new owners refuse an assignment of
this Agreement, Forest City shall notify I3S that it will be terminating this
Agreement ("Termination Notice"). This Agreement shall terminate upon payment by
Forest City of a lump sum termination fee ("Termination Fee") determined
according to the following formula:
The Net Present Value (NPV) using a Discount Rate of Eight Percent (8%) of
(1) The monthly average Commissionable Revenues for the three months prior
to the Termination Notice, net of Revenue Share Fees Due to Forest City
X The number of months remaining in the Term
= TERMINATION FEE
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
I(3)S, INC. FOREST CITY RESIDENTIAL MANAGEMENT, INC.
Agent for Wisconsin Park Associates
Limited Partnership
By: /s/ XXXXXXX XXXXXXXX By: XXXXXX X. XXXXXX
------------------------- -------------------------
Xxxxxxx Xxxxxxxx Xxxxxx X. Xxxxxx
President Co-President
Date: November 4, 1999 Date: December 13, 1999
----------------------- -----------------------
18
LIST OF EXHIBITS
EXHIBIT A Licensed Premises
EXHIBIT B: Equipment List
EXHIBIT C-1: Memorandum of Agreement
EXHIBIT C-2: Memorandum of Termination of Agreement
EXHIBIT D: Description of High Speed Data Services Provided by I(3)S
EXHIBIT E: Service Level Standards
19
EXHIBIT A - LICENSED PREMISES
All that land located in the 4th Election District, Xxxxxxxxxx County,
Maryland, described as follows:
Condominium Units LU-2 and LU-3, in THE WISCONSIN LAND
CONDOMINIUM, Xxxxxxxxxx County, Maryland, and the Common Elements apurtenant
thereto, pursuant to the Declaration for the Wisconsin Land Condominium, dated
Nov. 4, 1991, recorded in Liber 10012 at folio 631, as supplemented by
Supplementary Declaration, dated June 23, 1997, recorded June 24, 1997 at 4:12
p.m.; and the condominium plats recorded in Condominium Plat Book 57 at Plat No.
5839, et seq,; as supplemented by condominium plats recorded in Condominium
Plat Book 73 at Plat Nos. 7326 through 7331.
20
EXHIBIT B - EQUIPMENT LIST
-------------------------------------------------------------------------------
3 AL2012H17 Nortel Bay Stack 350 Ether Switches - 24 port
34 AL2012E16 Nortel Bay Stack 410 Ether Switches - 24 port
30 AL2033004 BayStack 400-4TX 4-port 10BASE-T/100BASE-TX MDA
6 XX0000000 BS410-Cascade module
3 XX0000000 2 port 100base-FX MDA
1 Xedia AP Router
21
EXHIBIT C-1 - MEMORANDUM OF AGREEMENT
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxxxx Xxxxxxxx
President
I(3)S, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
MEMORANDUM OF AGREEMENT
A license has been granted by Wisconsin Park Associates Limited
Partnership, ("Grantor") the owner of record of the Premises to I(3)S
("Grantee") under a certain High Speed Data Services Right of Entry Agreement
dated _________________ by and between Grantor and Grantee (the "Agreement").
The license permits Grantee, among other things, to provide high-speed data
Service, as described in the Agreement, and to engage in any other act or
activity contemplated by the Agreement at the Property described herein. The
Agreement terminates on the earlier of three (3) years after the above date
(with renewals of one year terms in the absence of written termination) or (ii)
any termination of the Agreement due to breach by any party. As used in the
Agreement, the term "Property" means that real property consisting of
approximately 546 units located in the city of Xxxxx Xxxxxxxx, Xxxxxx xx
Xxxxxxxxxx, Xxxxx of Maryland, at the address commonly known as 0000 Xxxxxxxxx
Xxxx
and more particularly described on Exhibit A attached hereto and made a part
hereof.
In the event of any conflict between the terms and conditions of this Memorandum
and the terms and conditions of the Agreement, the Agreement shall control. The
parties agree that the sole purpose of this Memorandum is to provide notice of
the Agreement.
The undersigned personally warrants and represents that he/she has the authority
to execute this Memorandum on behalf of the Grantor and the information stated
in this Memorandum is true and accurate to the best of Grantor's knowledge.
Executed this 13th day of Dec, 1999
GRANTOR: Wisconsin Park Associates Limited Partnership
A Maryland Limited Partnership
BY: Forest City Residential Management, Inc.
Agent For Grantor
By: /s/ XXXXXX XXXXXX
----------------------------------
Xxxxxx Xxxxxx
Its: Co-President
00
XXXXX XX XXXX
-------------------
XXXXXX XX XXXXXXXX
------------------
Xx Dec 13, 1999, before me, Xxxxx Xxxxxx personally appeared
Xxxxxx Xxxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies) and that by his/her/their signature(s)
on the instrument and the person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: /s/ XXXXX XXXXXX
--------------------------------(seal)
Xxxxx Xxxxxx
Notary Public, State of Ohio, Cuy. Cty.
My Commission Expires June 20, 2004
GRANTEE: I(3)S, Inc.
A Texas corporation
BY:
-------------------------------
NAME:
-------------------------------
TITLE:
-------------------------------
STATE OF
------------------
COUNTY OF
------------------
On , 199, before me, , personally
appeared , personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies) and that by
his/her/their signature(s) on the instrument and the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
---------------------------------- (seal)
23
EXHIBIT A - LICENSED PREMISES
All that land located in the 4th Election District Xxxxxxxxxx County,
Maryland, described as follows:
Condominium Units LU-2 and LU-3, in THE WISCONSIN LAND CONDOMINIUM, Xxxxxxxxxx
County, Maryland, and the Common Elements apurtenant thereto, pursuant to the
Declaration for the Wisconsin Land Condominium, dated Nov 4, 1991, recorded in
Liber 10012 at folio 631, as supplemented by Supplementary Declaration, dated
June 23, 1997, recorded June 24, 1997 at 4:12 p.m.; and the condominium plats
recorded in Condominium Plat Book 57 at Plat No. 5839, et seq,: as supplemented
by condominium plats recorded in Condominium Plat Book 73 at Plat Nos. 7326
through 7331.
24
EXHIBIT C-2 - MEMORANDUM OF TERMINATION OF AGREEMENT
This Memorandum of Termination of Agreement is executed this day of ,
20 , by and between Forest City Residential Management, Inc. ("Forest City") as
Agent for Wisconsin Park Associates Limited Partnership and I(3)S, Inc.
("I(3)S").
Forest City and I(3)S entered into that certain Memorandum of Agreement recorded
on , ,1999 as document number in the Official Records of
Xxxxxxxxxx County, Maryland with respect to that High Speed Data Services
Right-of-Entry Agreement (the "Agreement") entered into between Forest City and
I(3)S for the property commonly known as The Grand and located at 0000 Xxxxxxxxx
Xxxx in the City of North Bethesda, County of Xxxxxxxxxx and State of Maryland
(the "Property").
This Memorandum of Termination of Agreement is being recorded pursuant to
Section 14.13 of the Agreement. This document provides record notice that the
Agreement between Forest City and I(3)S has expired or has otherwise terminated
and is no longer in effect at the Property. The intended effect of recording
this document in the Official Records of Xxxxxxxxxx County, Maryland shall be to
remove the previously recorded Memorandum of Agreement as an encumbrance to
title.
This Memorandum of Termination of Agreement may be executed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and is intended to be binding when all parties have
delivered their signatures to the other parties.
Wherefore the parties have executed this Memorandum of Termination of Agreement
as of the date first above written.
GRANTOR: Wisconsin Park Associates Limited Partnership
A Maryland Limited Partnership
BY: Forest City Residential Management, Inc.
Agent For Grantor
By:
---------------------------------
Xxxxxx Xxxxxx
Its: Vice President
25
STATE OF
-------------------------
COUNTY OF
-------------------------
On , 20 , before me, , personally appeared
, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies) and that by his/her/their signature(s)
on the instrument and the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
----------------------------- (seal)
GRANTEE: I(3)S, Inc.
A Texas corporation
BY:
--------------------------------
NAME:
--------------------------------
TITLE:
--------------------------------
STATE OF
--------------
COUNTY OF
--------------
On , 20 , before me, , personally
appeared , personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies) and that by
his/her/their signature(s) on the instrument and the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature:
-------------------------- (seal)
26
EXHIBIT D
DESCRIPTION OF HIGH SPEED DATA SERVICES PROVIDED BY I(3)S
The I(3)S High Speed Data Services ("HSDS") is a data network service that
provide transport and peering functions of Internet Protocol (IP) data traffic,
including, without limitation:
o Broadband access networks on MDU properties composed of one or more
broadband access technologies including but not limited to coaxial or
hybrid fiber coaxial (HFC) cable television distribution systems,
twisted-pair copper-wire-based telephone distribution systems, twisted-pair
copper-wire-based local area network distribution systems and
Fiber-optic-based local area network distribution systems;
o Local loop networks that connects the broadband access networks on each
MDU property to the I(3)S regional points-of-presence (POPs) in each
metropolitan area served by I(3)S;
o Regional point-of-presence networks that connects the POPs to the I(3)X.xxx
national IP backbone;
o A national IP backbone consisting of broadband communication facilities for
the transport of data among I(3)S POPs and public and private Exchange
Points where data and Internet routing information will be exchanged with
other networks peered with I(3)X.xxx as part of the global Internet;
o A national Network Operations Center (NOC).
o Certain computer services that include:
o Membership system for user authentication and authorities;
o Personalization services for customizing content to user preferences;
o Internet mail (SMTP and POP3);
o Internet newsgroups (NNTP) composed of approximately 25,000 or more
newsgroups;
o Internet World Wide Web (HTTP) services;
o Internet chat (IRC and MIRC);
o Conferencing and collaboration bridges;
o Streaming multimedia services such as Microsoft's NetShow and
Progressive Network's RealMedia;
o A branded suite or client software that include:
o Web browse;
o Mail reader;
o News reader;
27
o Chat client;
o Conferencing and collaboration client;
o Appropriate plug-ins and ActiveX controls.
o Certain customer service functions that include:
o A National Customer Care Center;
o A telephone and network-based customer help desk;
o A Trouble Reporting facility;
o A customer billing system.
o Certain multimedia-rich content that showcases the capabilities of HSDS
that includes:
o Original content created by I(3)S;
o Aggregated content created by others but licensed by I(3)S and
improved for uses in a HSDS systems;
o Aggregated content created by others but licensed by I(3)S and used
unimproved.
28
REQUIREMENTS
RELATED TO BROADBAND ACCESS NETWORKS
UTILIZING MULTIPLE BROADBAND ACCESS TECHNOLOGIES (mBAT)
I(3)S's RESPONSIBILITIES:
Install, maintain and operate data delivery equipment for each property
offering HSDS. Installation and maintenance will meet or exceed
manufacturer's specifications and the requirements set forth in the
Agreement. Through itself or its agents, Forest City will assist I(3)S with
pre-installation engineer planning and site survey questionnaires;
Integrate all data delivery equipment for each property into the I(3)S
Element Management System portion of its Network Management Platform
using SNMP and/or RMON. I(3)S will monitor all data delivery equipment
twenty-four hours per day, seven day per week (24x7);
Assume the cost of the acquisition of all data communication equipment
necessary to provide HSDS and to provide termination and delivery of HSDS
between the Subscriber and the I(3)S POP in each Market;
Without limitation on the foregoing or the attached service level
standards, both parties acknowledge that the end to end performance of HSDS
is probabilistic and subject to anomalous short lived usage patterns by
Subscribers which will affect both the utilization of the local loop
circuits and the I(3)X.xxx national backbone from time to time;
Configure and operate all data delivery equipment to efficiently integrate
with the rest of the I(3)X.xxx network;
Subscribers will not be required by I(3)S to install or operate a custom
web browser; and
Subject to all applicable laws and regulations, Subscribers will have
voluntary access to all public Internet sites and services.
29
LOCAL LOOP CHARACTERISTICS
FOREST CITY'S RESPONSIBILITIES
Provide, or cause to be provided, proper space, security and
power for Local Loop termination and transmission equipment
necessary to provide Internet delivery and other data services on
the property.
I(3)S'S RESPONSIBILITIES:
Install, maintain and operate local loop termination and
transmission equipment necessary for each property offering
HSDS. Installation and maintenance will meet or exceed
manufacturer's specifications and the requirements set forth in
the Agreement. Through itself or its agents, Forest City will
assist I(3)S with pre-installation engineering planning and site
survey questionnaires;
Integrate all local loop termination and transmission equipment
for each property into the I(3)S Element Management System
portion of its Network Management Platform using SNMP and/or
RMON. I(3)S will monitor all local loop termination and
transmission equipment twenty-four hours per day, seven day per
week (24x7);
Assume the cost of the acquisition of all local loop termination
and transmission equipment necessary to provide HSDS and to
provide termination and delivery of HSDS between the Property and
the I(3)S POP in each Market;
Order, provision, install and maintain local loop communications
links between each property and I(3)S POP in each Market with a
bandwidth of not less than 1.544 mb/s (TI). In addition, as the
number of Subscribers on each property increases, scale the local
loop bandwidth so that each simultaneously active user averages
approximately 1 mb/s ninety eight percent (98%) of the time;
Without limitation on the foregoing or the attached service
level standards, both parties acknowledge that the end to end
performance of HSDS is probabilistic and subject to anomalous
short lived usage patterns by Subscribers which will affect both
the utilization of the local loop circuits and the x0x.xxx
national backbone from time to time; and
Configure and operate all local loop termination and transmission
equipment to efficiently integrate with the rest of the x0x.xxx
network.
30
POINT OF PRESENCE
FEATURES AND ESTABLISHMENT REQUIREMENTS
I(3)'S RESPONSIBILITIES:
Acquire, install and maintain data communication equipment at
each POP for the termination and transmission of HSDS from
properties to the x0x.xxx national network backbone:
I(3)S will determine the location of its main presence in each
Market to be consistent with its own operational practices (which
currently include co-locating within its carrier's central
offices in each Market);
Acquire, install, maintain and operate Internet peering
relationships at public and private Internet Exchange Points (EP)
with other Tier 1 Internet backbone networks throughout the
United States;
Acquire, install, maintain and operate computers and software to
provide Network Management and provide Internet services for
Subscribers. To provide these functions, I(3)S will employ a
combination of locally-distributed-to-the-POP servers as well as
globally centralized servers consistent with its overall network
design and operational practices; and
Order, provide, install, maintain and operate data transport/
carriage pathways from each POP, EP and/or NOC with a bandwidth
not less than 45 mb/s (DS-3) interconnection. In addition, as the
number of Subscribers on Market increases, scale the bandwidth so
that each simultaneously active user averages approximately 1
mb/s ninety eight percent (98%) of the time.
31
I(3)S INFORMATION OPERATIONS
CONTENT PRODUCTION; FOREST CITY/BROADBAND NOW!(TM) LAUNCH PAGE
I(3)S operates, and shall operate for the term of this Agreement, an information
content operation for creating original content or aggregating content created
by others and licensed to I(3)S for inclusion in the I(3)S body of content. This
material will consist of but will not be limited to informational, educational,
recreational, entertainment and business content. This body of content will be
offered to Subscribers of the HSDS product.
Without limitation on paragraph 1 above, I(3)S will create content as creative
and/or business opportunities present themselves. The I(3)S content will be
updated as I(3)S, using its editorial judgment, sees fit, but in no event less
frequently than good industry practice.
Certain portions of this content will be offered to all HSDS Subscribers free
of charge (Basic Content). Other portions of the content may be offered to HSDS
Subscribers on an optional fee basis for unlimited access to a fixed package of
content (Premium Content). Another certain portion of the content may be offered
to HSDS Subscribers on an optional fee basis for access to a specific
time-limited event (Pay-Per-View Content).
In addition to the fees charged customers for content, I(3)S may solicit and
sell advertising and other revenue-producing transaction opportunities that will
appear on certain portions of the content.
All fees for premium content, pay-per-view content, advertising and
revenue-producing transactions shall be determined solely by I(3)S.
or its content partners, will design, produce and update, as necessary, all
content and be responsible for all such costs.
I(3)S shall initially design, produce and update, as necessary, a customized
launch page (the "Launch Page") for HSDS Subscribers, which can be used to
market and promote the HSDS, and, on I(3)S's standard time and materials rates
(or as otherwise agreed by the parties), Forest City's other services. In
addition, the Launch Page will include hyperlinks to Forest City's Corporate web
sites as directed by Forest City. The Launch Page shall meet the technical,
functional and appearance requirements specified by I(3)S. I(3)S shall from time
to time update the Launch Page throughout the Term in accordance with the terms
of this Agreement. I(3)S may offer HSDS Subscribers Launch Pages that are
personalized (by property) and that, in addition to the features described
above, may promote the I(3)S content offerings and provide (direct hyperlinks to
the I(3)S content.
In no event, at any time during the term of this Agreement, shall I(3)S
knowingly permit or use any (i) content in the Forest City/Broadband Now! web
site or within its information content operations which contains obscene
material, sexually explicit adult programming, or indecent material as defined
in Section 47 C. F. R. 76.701(g); (ii) material in the Forest City Broadband
Now! web site soliciting or promoting unlawful conduct; or (iii) programming in
the Forest
32
City/Broadband Now! web site that may or could have been subject to the
Telecommunications Act of 1996, Section 641, relating to the scrambling of
sexually-explicit adult video service programming.
33
CUSTOMER CARE CENTER FEATURES
I(3)S'S RESPONSIBILITIES
Provide a toll free number for:
Inquiries about the HSDS supplied by I(3)S
Ordering and scheduling installation of HSDS products
Billing inquiries
Initial technical support inquires
Technical support for all HSDS issues
Technical support for Subscriber CPE issues related to HSDS
Answer toll free line consistent with the Forest City/I(3)S service
co-brand.
Operate 24x7 customer care call center operation.
Maintain sufficient customer service staff and call center capacity to
connect to Subscribers within 1 minutes of call entering processing
operation.
Develop and publish escalation procedure for Customer Service
Representatives related to network issues.
Resolve billing issues within 24 hours 95% of time, on a monthly basis.
Resolve property network issues within 24 hours 95% of time, on a
monthly basis.
Resolve technical issues within 24 hours if a phone call is required 95% of
time, on a monthly basis.
Resolve technical issues within 48 hours if a truck roll is required 95% of
time, on a monthly basis.
Develop and publish escalation procedures for Forest City to contact
regarding technical issues related to the network.
34
SUBSCRIBERS' HARDWARE AND SOFTWARE INSTALLATION
SPECIFICATIONS AND INSTALLATION REQUIREMENTS
I(3)S SHALL:
Verify that potential Subscribers' personal computers meet the
I(3)S-established minimum requirements for the supplied software and
the HSDS service;
Make an appointment with each new Subscriber to meet the installation
personnel for the installation of the HSDS in the Subscriber's unit,
Collect the Subscriber information required to install, provision and
complete the set up of Subscribers' HSDS service. I(3)S will develop
an appropriate paper-form-based system or automated system to
facilitate this process;
Provide, or cause to he provided, coaxial connection to the
Subscriber's specified location;
Verify, or cause to be verified, that the coaxial connection completed
to the Subscriber's specified location exceeds the minimum operational
requirements for the I(3)S-supplied customer premises equipment
("CPE") and the I(3)S HSDS service;
Verify, or cause to be verified, and if necessary, promptly (but not
more than a reasonable time frame set by Forest City) perform repairs
such that all access network services function properly (and to not
less than the standards pre/existing I(3)S HSDS operations) after
I(3)S completes installation and throughout the provision of HSDS;
Maintain a sufficient inventory of CPE for each Market and develop
procedures to restock CPE as used in Subscriber installations;
Issue and install the required CPE for the service requested by the
Subscriber;
Meet the Subscriber at the Subscribers location at the scheduled time
within the tolerances and limits as defined in the I(3)S Service Level
Agreement;
Install the required customer premises equipment and have the Service
operational in the Subscriber's unit within two business days of a
Subscriber's request;
Install any required network interface cards (NICs), TCP/IP protocols
and Internet software suite in the Subscriber's personal computer;
Offer the Subscriber a brief introduction to the HSDS to be performed
at the time of installation. This introduction will include how to
launch the service, how to find the training material on the x0x.xxx
Web site, how to find the Subscriber Support Section on the x0x.xxx
Web site and how to call for technical assistance or support;
35
Obtain signatures required to verify that each Subscriber
installation was executed properly and to the satisfaction of the
Subscriber; and
Provide Forest City with a copy of the installation transaction
documentation verifying that the completed installation is ready for
billing. This documentation will include the CPE delivery receipt, the
ISP contract and the completed work order.
36
HSDS INITIAL SUBSCRIBER RATES, SERVICE LEVELS
AND INSTALLATION AND EQUIPMENT CHARGES
The following table outlines the various levels of service available to Personal
Service subscribers:
UPSTREAM
PRICE PER DOWNSTREAM TRANSMISSION
PERSONAL SERVICE LEVEL MONTH TRANSMISSION SPEED SPEED
--------------------------------------------------------------------------------
BBN (TM) Lite $ 29.95 64 Kbps 64 Kbps
BBN (TM) Standard $ 49.95 1.0 Mbp 1.0 Mbps
BBN (TM) Max $ 79.95 1.5 Mbps 1.5 Mbps
--------------------------------------------------------------------------------
The following table outlines the various levels of service available to Home
Office Service Subscribers:
MINIMUM MINIMUM
DOWNSTREAM UPSTREAM
PRICE PER TRANSMISSION TRANSMISSION
HOME OFFICE SERVICE LEVEL MONTH SPEED SPEED
--------------------------------------------------------------------------------
Home Office-Level 1 $ 125 1.5 Mbps 64 Kbps
Home Office-Level 2 $ 199 1.5 Mbps 128 Kbps
Home Office-Level 3 $ 299 1.5 Mbps 512 Kbps
Home Office-Level 4 $ 499 1.5 Mbps 1.0 Mbps
Home Office-Level 5 $ 699 1.5 Mbps 1.5 Mbps
--------------------------------------------------------------------------------
Vanity DNS hosting $100.00 per month
Installation fee $49.95 non-recurring
Network interface card (NIC) market price (not to exceed $60)
CPE (cable modem, xDSL modem or other
broadband access device) purchase market price
Monthly rental of CPE market price*
* The decision to purchase or rent the CPE necessary for the provision
of HSDS shall be at the sole discretion of each resident subscribing
to HSDS.
37
EXHIBIT E
SERVICE LEVEL STANDARDS
INTRODUCTION
This Exhibit entitled "Service Level Standards" ("SLS") sets out
operation specifications and requirements for HSDS provided by I(3)S
for the residents or customers of applicable Forest City Residential
Management, Inc. The SLS shall encompass data services originating and
terminating within the I(3)S internetwork ("x0x.xxx").
The HSDS provided by I(3)S shall meet the operations specification and
requirements stated herein, which are generally stated in terms of
events or outcomes, rather than terms of specific hardware, software or
procedural requirements. For the purposes of the SLS, x0x.xxx shall
relate to that portion of the global Internet operated by I(3)S,
originating within end users' customer premises and terminating within
I(3)S computers or transported and peered at a public or private
Internet Exchange Point.
For the purposes of the SLS, a "Trouble" or "Trouble Report" shall
relate to x0x.xxx or I(3)S provided services (or resold services) and
the Equipment and I(3)S maintained facilities, but shall exclude
customer error, defects in Customer Premises Equipment ("CPE"), defects
in customers, computers, defects in property cable or wiring plants,
defects in fiber optic distribution systems, defects in cable
television distribution systems and network problems experienced by
destination networks at or beyond Internet Exchange Points.
The terms and conditions of this SLS do not limit I(3)S's obligations
set forth elsewhere in the Agreement, but if there is a conflict with
respect to service obligations between this SLS and the Agreement, this
SLS shall control.
PERFORMANCE REQUIREMENTS
PERCENT CUSTOMER SERVICE ORDER BEGINNING COMMITMENT DATES TIMELY MET
This parameter is generally indicative of the timely beginning
of work on orders from customers for new service or orders to
make changes in their existing service.
The timely beginning parameter is calculated by dividing the
total Customer Service Orders begun on or before the date and
clock hour promised to the customer that the service order
would be stated by the total number of service orders initiated
in each calendar month and multiplying by 100.
I(3)S shall exhibit greater than 90% Customer Service Order
Beginning Commitment Dates Timely Met per month.
PERCENT CUSTOMER SERVICE ORDER COMPLETION COMMITMENT DATES TIMELY MET
38
This parameter is generally indicative of the timely
completion of work on orders from customers for new service or
orders to make changes in their existing service and the timely
completion of those service orders.
The timely completion parameter is calculated by dividing the
total Customer Service Orders completed on or before the date
and clock hour promised to the customer that the service order
would be completed by the total number of service orders
initiated in each calendar month and multiplying by 100.
I(3)S shall exhibit greater than 90% Customer Service Order
Completion Commitment Dates Timely Met per month.
PERCENT OF NETWORK AVAILABILITY
This parameter is generally indicative of the availability of
the network to transport and peer customer data at an Internet
Exchange Point, or, in the event that the customer data is to
be fulfilled by computers within x0x.xxx, generally indicative
of the availability of to transport data to the I(3)S servers
and the availability of the servers.
This parameter is calculated by dividing the number of seconds
that the network is available for each customer by the total
number of customer-seconds in each calendar month and
multiplying by 100.
Specifically excluded from the Network Availability
calculation shall be regularly scheduled maintenance windows or
ad hoc maintenance windows scheduled and announced 24 hours in
advance in the x0x.xxx Customer Support Web Site.
Specifically excluded from the Network Availability
calculation shall be periods of time where the access
distribution plant (operated by Forest City or its designated
third party operator) exceed the operational standards set by
I(3)S for each type of broadband access technology.
I(3)S shall exhibit greater than 98% Network Availability per
month.
39
PERCENT CUSTOMER CALLS ANSWERED WITHIN 45 SECONDS BY I(3)S PERSONNEL
This parameter is based upon the number of customers calls
answered within 15 seconds by a human operator or by an ACD queue
greeting during the hours of operation of the I(3)S National
Customer Care Center and thereafter to be answered by a human
customer representative within 30 seconds. At a minimum, the
I(3)S National Customer Care Center shall operate from 8:00 a.m.
to 5:00 p.m. Central Time, Monday through Friday exclusive of
holidays.
This parameter is calculated by dividing the number of calls
answered with 45 seconds by the total number of Customer Care
Center calls answered in each calendar month and multiplying by
100.
I(3)S shall exhibit greater than 90% of Customer Calls Answered
within 45 Seconds per month.
PERCENT OF TROUBLE REPORTS RESOLVED TIMELY
This parameter is related to the number of Trouble Reports
resolved within the following windows:
o For Trouble Reports received by I(3)S at the I(3)S
National Customer Care Center prior to 2:00 p.m. Central
Time, Monday through Friday, excepting holidays, will be
cleared by the end of the next business day.
o For Trouble Reports received by I(3)S at the I(3)S
National Customer Care Center after 2:00 p.m. Central
Time, Monday through Friday, excepting holidays, will be
cleared by noon of the second business day thereafter.
This parameter is calculated by dividing the total trouble
reports cleared on or before the date and clock hour promised to
the customer the total number of Trouble Tickets cleared in each
calendar month and multiplying by 100. For purposes of this
provision "Trouble Tickets" shall mean ________________________.
I(3)S shall exhibit greater than 90% Trouble Reports Cleared
Timely per month, according to the terms of this section for
trouble that can he resolved by I(3)S alone.
PERCENT CUSTOMER REPAIR VISIT APPOINTMENTS MET
This parameter is related to the customer commitments made by the
I(3)S National Customer Care Center for repairs that require a
repair visit to customers' sites or premises.
This parameter is calculated by dividing the total Customer
Repair Visits Appointments met on or before the date and clock
hour promised to the customer by the total number of
40
Customer Repair Visit Appointments initiated in each calendar
month and multiplying by 100.
I(3)S shall exhibit greater than 90% Customer Repair
Commitment Met per month.
PERCENT OF CUSTOMER BILLS PREPARED TIMELY
This parameter is related to the generation of Customer Bills
for delivery to customers by mail, electronic mail or credit
card billing.
This parameter is calculated by dividing the number of Customer
Bills generated and sent to customers within twenty (20)
business days or the end of the billing cycle by the total
number Customer Bills generated in each calendar month and
multiplying by 100.
I(3)S shall exhibit greater than 95% Customer Bills Prepared
Timely per month.
PERCENT OF CUSTOMER BILLS PREPARED ACCURATELY
This parameter is related to the accuracy of Customer Bills
for delivery to customers by mail, electronic mail or credit
card billing.
This parameter is calculated by dividing the number of Customer
Bills generated that do not require an adjustment due to a
billing error caused I(3)S by the total number Customer Bills
generated in each calendar month and multiplying by 100.
I(3)S shall exhibit greater than 95% Customer Bills Prepared
Accurately per month.
REPORTS
I(3)S shall provide to Forest City reports within twenty (20)
business days of the end of each calendar month, the reports
listed below in this section, each of which may be provided
separately or provided on a consolidated basis:
A report depicting total subscribers, gross new customers and
gross customers terminated separated by product tier and
property.
New service orders, Trouble Reports opened and closed or
cleared as appropriate separated by date and property.
Aggregate I(3)S National Customer Care data depicting the
distribution of call waiting time in general and the percent
calls answered and calls abandoned respectively.
Billing summaries describing the date(s) bills were sent to
customers, and the billed revenue disaggregating major
categories of service.
41
HOLIDAYS
New Years Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Day after Thanksgiving
Christmas
Any other national or state holiday recognized by I(3)S
