CABLE SYSTEM INSTALLATION AGREEMENT
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This Agreement is made as of February __, 1999 between Internet Cable
Corporation ("ICBL") located at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, XX 00000
and Intermark Associates V, LLC, a South Carolina limited liability company
("Intermark Associates V") with its principal address at Intermark Building,
0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000.
WITNESSETH
WHEREAS, ICBL is engaged in the television and Internet cable business,
and develops and installs cable television systems;
WHEREAS, Intermark Associates V owns the property upon which the
apartment complex to be known as Keswick Apartments located at _______________
is to be constructed ("Facility");
WHEREAS, Intermark Associates V desires to retain ICBL to install and
operate a cable system and Internet system at the Facility and ICBL desires to
perform such services.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the parties agree as follows:
1. Installation of Cable System/Maintenance
a. ICBL shall install, at its sole cost and expense, a fully
operational cable television system ("System") at the Facility. The System shall
be, when installed and during the entire term hereof, in accordance with
recognized industry standards and standards reasonably acceptable to Intermark
Associates V For purposes hereof, "recognized industry standards" means cable
television systems available to the public at large in the Georgia, South
Carolina, North Carolina region.
b. The System, when installed and operational, shall provide customers
with the ability to receive at least 40 television channels, including premium,
pay for view and basic cable stations. Customers shall be allowed to choose at
least two levels of service, including a "basic" level and "premium" level. The
System shall also provide for Internet access.
c. ICBL shall complete the installation of the cable system in a timely
manner, which shall be no later than two (2) weeks after the "certificate of
occupancy" (CO) for each building at the Facility has been issued. Installation
to begin after finish grade and sprinkle system are in place. ICBL shall not be
held responsible for weather, acts of god, or delay caused by the general
contractor.
d. ICBL shall install the System during the hours of 8 am to 5 p.m.
Monday through Saturday. The parties hereby agree to review the hours of
installation periodically to determine whether such hours shall be expanded.
e. ICBL shall maintain the System in good working order during the term
of this Agreement. In order to provide such maintenance, ICBL shall maintain a
service department and provide customers with a local telephone number to obtain
such service. The service department shall be open 24 hours every day to receive
complaints and requests from customers. ICBL shall use its best efforts to
provide repairs and service to customers within 24 hours of the request,
excluding Sundays. ICBL shall maintain a system of record keeping for the
recording of all customer calls to the service department and all installation,
repair and service visits to each residence in the Facility. Intermark
Associates V shall have the right to review such records at least once per
quarter during the term of this Agreement.
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f. Intermark Associates V shall provide and ICBL shall maintain a
suitable facility for the head-end equipment.
2. Compensation
a. ICBL shall xxxx all customers directly for the cable service
provided to each such customer, and shall be allowed to charge any fee for cable
television service and other services (including service repair and installation
fees) as is in accordance with applicable laws, and competitive with Time Warner
Cable or its successors. ICBL shall also be entitled to charge security deposits
and other fees (competitive with Time Warner Cable or its successors) as allowed
by applicable law.
b. ICBL shall pay Intermark Associates V a fee of 10% of all net
revenue generated by the cable television service at the Facility. Net revenue
shall mean the amount of the gross xxxxxxxx per month to customers, less (i)
amounts not collected from customers due to a failure to pay by the customer and
(ii) the direct cost to ICBL from its cable television suppliers for cable
service. ICBL shall pay any amounts due herein one month in arrears.
c. ICBL shall provide Internet access to customers at the Facility
through the System and Intermark Associates V shall receive 10% of the gross
revenues of such service. Gross revenues means the amount of the gross xxxxxxxx
to customers, less any amounts not collected due to failure to pay by the
customer. ICBL shall pay any amounts due hereunder one month in arrears.
3. Term.
(a) This Agreement shall have a term of 15 years commencing on the
date hereof and terminating on ________. ICBL, or Intermark
Associates V shall have the option to extend this Agreement
month to month exercisable by delivery of written notice by
either party at least 120 days prior to the end of the term.
Should there be a need to upgrade the system, ICBL and
Intermark V shall review this agreement in good faith and
negotiate the terms of any such upgrades.
(b) This Agreement may be terminated as follows:
(i) by ICBL upon 60 days notice in the event that Intermark Associates
V fails to provide reasonable access to ICBL to the Facility at any time;
(ii) by ICBL upon 60 days notice in the event that Intermark Associates
V allows a competitor of ICBL to provide cable television service to the
Facility, other than as may be required by applicable laws;
(iii) by Intermark Associates V upon 90 days notice in the event that
ICBL fails to provide the services required hereunder following written notice
delivered by Intermark Associates V to ICBL of such failure and ICBL fails to
cure such failure within 30 days.
In the event that this Agreement is terminated pursuant to clause (iii)
above, then Intermark Associates V shall pay to ICBL a fee equal to the fair
market value of the System. "Fair market value" shall be determined in good
faith by the parties at the time of termination, or in the event that the
parties fail to agree within 60 days of the termination date, then by an
independent third party with knowledge of the cable television business retained
by the parties.
4. Proprietary Rights In System. The parties hereby agree that the System, all
hardware, software and "know how" and other intellectual property related to the
System and any Internet access systems are the sole property of ICBL. Nothing
contained in this Agreement shall be construed as a transfer of any such
property rights by ICBL to Intermark Associates V.
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5. Compliance with Laws. ICBL shall ensure that the System shall comply in all
material respects with all federal, state and local laws and regulations at all
times during the term of this Agreement.
6. Miscellaneous
a. Notices. Any notice under this Agreement shall be in writing and
shall be effective when actually delivered in person or three days after being
deposited in the U.S. mail, registered or certified, postage prepaid and
addressed to the party at the address stated in this Agreement or such other
address as either party may designate by written notice to the other.
b. Waiver. Failure of either party at any time to require performance
of any provision of this Agreement shall not limit the party's right to enforce
the provision, nor shall any waiver of any breach of any provision be a waiver
of any succeeding breach of any provision or a waiver of the provision itself
for any other provision.
c. Assignment. Except as otherwise provided within this Agreement,
neither party hereto may transfer or assign this Agreement without prior written
consent of the other party; provided, however, ICBL shall have the right to
transfer and assigns its rights and obligations hereunder to a subsidiary.
d. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina.
e. Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
f. Pronouns and Plurals. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the Person or Persons may require.
g. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
h. Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the
same counterpart.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed this ____day of February, 1999.
INTERNET CABLE INTERMARK ASSOCIATES V, LLC
CORPORATION
By:_____________________________ By:_________________________________
Its: ____________________________ Its: _________________________________
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