Exhibit No. 10.6.1 Telecommunications Services Agreement between Registrant and
Xxxxx Place Apartments Limited Partnership (Xxxxx Place).
Certain information in this exhibit has been omitted pursuant to Rule 406
of the Securities Act. Omitted information is designated by "*".
FIRSTLINK COMMUNICATIONS, INC.
AND
XXXXX PLACE APARTMENTS LIMITED PARTNERSHIP
XXXXX PLACE APARTMENTS
TELECOMMUNICATIONS SERVICES AGREEMENT
This agreement ("Agreement") is entered into as of June 28th, 1996, by and
between FirstLink Communications, Inc., an Oregon corporation ("FirstLink"), and
Xxxxx Place Apartments Limited Partnership, an Oregon limited partnership
("Owner").
1. PROPERTY. The 202-unit multi-family residential rental and commercial
complex currently under construction and known as Xxxxx Place Apartments,
located at 0000 XX 00xx Xxxxxx, Xxxxxxxx, Xxxxxx ("the Property").
2. GRANT OF RIGHTS.
(a) Owner grants FirstLink the sole and exclusive right, except as
provided in the last sentence of clause (b) below, to install, own, operate,
replace and maintain the System on, off and through the Property and the sole
and exclusive right to provide Telecommunication Services to residents of the
Property. "System" shall mean all electronic devices, cable, wire, hardware,
software and other material used to transmit and receive two-way voice and data
communications, telephone service ("Telephone Service"), multi-channel TV, video
on demand, audio on demand, voice mail, data services and other means of two-way
communication distribution, whether now existing or hereafter developed
(collectively "Telecommunication Services") as between the Property and the
local and/or long distance telephone networks or other outside distributor of
these and other services. The term "System" does not, however, include any
equipment or facility on the tenant's side of the telephone xxxx within any
apartment unit at the property.
Telephone Services will include local and long distance calling, voice
mail and calling features including conference calling, call waiting, call
forwarding, extended area service, distinctive ringing, speed dialing,
wake-up service, restricted dialing, account code calling, non-listed
numbers, non-published numbers, custom phone numbers and no solicitation
listings. Additional services will be added from time to time, as available
and as warranted by tenant demand. Such
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additional Telecommunication Services may include: video conferencing,
on-line computer services, electronic mail, wireless services (such as
cellular telephone) and other types of services.
FirstLink will provide each Subscriber upon request the most recent telephone
book from the Local Exchange Carrier (including the Local Exchange Carrier's
Yellow Pages directory) and a telephone number which telephone number shall
be listed, at no additional charge, in such telephone book if desired by the
Subscriber. All telephone numbers will be assigned within 24 hours after a
Subscriber subscribes for the Telephone Service and pays any required
deposit. At all times during the Term, FirstLink shall, within a reasonable
period of time, make available to Subscribers substantially all
telephone-related features that are available through the local telephone
company serving the Property (the "Local Exchange Carrier").
Subscribers will, to the extent permitted by the Local Exchange Carrier and
applicable law, be allowed to retain their phone numbers upon termination of
service by FirstLink.
Multi-channel television services will include Paragon Cable's Xxxxx Place
Apartments channel lineup shown in Exhibit A. Premium services such as HBO,
Showtime and The Disney Channel as well as Blazer Cable are also available
from Paragon.
There can be no assurance that any or all of the above additional services
will be made available. Their availability is dependent upon many variables
and factors beyond FirstLink's control. Such factors include, but are not
limited to, technical feasibility, economic, regulatory and market
considerations. If FirstLink elects not to provide a service it can be
offered and provided by others so long as FirstLink is offered the
opportunity to first provide the service.
(b) In consideration of the substantial investment made by FirstLink in
the System, Owner agrees that it will not grant access to the Property to any
person or entity, other than FirstLink, for the purpose of operating or
maintaining the System, or permit the installation, maintenance or operation
at the Property of any other equipment, wire, cable, or material by any
person or entity that provides Telecommunication Services; provided that (i)
the foregoing shall not restrict the use by Owner or any resident of any
wireless or remote telephone, radio or other communications system on the
Property, if such system does not require the installation of any equipment
or other material (other than the telephone itself) on the Property; and (ii)
the foregoing is not intended to restrict use by Owner or any resident of
personal computers. This
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exclusivity provision shall not deny the local telephone company the right to
serve residents of the Property with telephone services.
3. SYSTEM EXPENSES. Other than as set forth herein, FirstLink shall
bear all expenses to install, operate, maintain and repair the System. Owner
shall, at Owner's expense and cost, provide wiring limited to two (2) 30 amp
110V circuits for electrical power to the System. Owner will invoice or hove
the power company invoice FirstLink for the monthly cost of electric power
for the System. Owner shall not be responsible for any interruption of
electrical supply. For the purposes of this Agreement, "System Site" shall
mean an adequate and secure space mutually agreed upon by FirstLink and Owner
to house FirstLink's System equipment, which shall consist of a rent-free,
locked room meeting FirstLink's specifications. Owner hereby grants FirstLink
and its authorized personnel access to the Property for any reasonable
purposes related to this Agreement including the installation of cabling or
microwave equipment to interconnect buildings and to connect the Property to
other telecommunication systems, subject to Owner's approval, such approval
to be not unreasonably withheld.
4. TERM. The term of this Agreement shall be * years from the date
hereof. The original term will automatically be renewed for up to two (2)
additional periods of * years each unless either party otherwise notifies the
other in writing at least 180 days prior to the end of the original term or
any renewal term. FirstLink shall conduct a performance appraisal meeting
with Owner prior to expiration of the 180 day notice period and shall remind
the Owner not more than 90 days and not less than 30 days before the last day
for Owner to exercise its option not to renew; the time for Owner's notice of
election not to renew will be extended day-for-day for each day that such
reminder from FirstLink is late.
5. INSTALLATION. FirstLink shall install the System as soon as
practicable but in no event shall FirstLink be required to complete
installation sooner than eight (8) weeks from signing of this Agreement. In
installing the System, FirstLink shall maintain a schedule consistent with
Owner's schedule for construction of the Property. FirstLink will cause its
subcontractors and suppliers to cooperate with reasonable requirements of
Owner's construction superintendent for coordination of their work with work
of Owner's subcontractors and suppliers. FirstLink will assure that its
subcontractors and suppliers perform their work on a schedule that does not
delay Owner's construction of the Property. Paragon Cable, under a separate
agreement with FirstLink, will be installing all telephone and cable
television wiring and security systems.
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Owner agrees to provide FirstLink with reasonable notice of anticipated
building construction completion dates. FirstLink will make Telecommunication
Service available to the units within five (5) business days after receipt of
notice that the units are ready For first occupancy. Owner also will provide
FirstLink with reasonable notice of anticipated tenant occupancy dates.
FirstLink will make Telecommunications Service available to each tenant within
two (2) business days after occupancy of the unit.
Telephone wiring will be four (4) pair category 3 and one (1) category 5
wire home run to each xxxx. Cable television wiring will be home run to each
outlet. Each one bedroom apartment will have three telephone, data and
television outlets; each two bedroom will have four each. The cost associated
with the telephone and cable outlets in each kitchen will be borne by Owner
(see section 10(f)).
Security system will include eight (8) Sanyo high resolution low light
cameras, with appropriate lenses, enclosures and mounts; two (2) Sanyo monitors;
and two (2) Door King hands-free entry systems. Specifications for the security
system are to be approved by Xxxx Xxxxx or his designee prior to installation,
such approval to be not unreasonably withheld (see details in Exhibit B).
FirstLink may subcontract activities related to the installation of the
System, but shall be responsible for any and all acts and/or omissions by any
subcontractor.
FirstLink shall not make any modifications to the Property unless Owner has
first approved in writing the plans and specifications for such equipment.
6. OWNERSHIP AND CHARACTER OF THE SYSTEM. Except as otherwise stated
herein, the System, including any alterations and attachments, shall at all
times remain the sole property of FirstLink. It is the intention of the parties
that the System, and every component of the System, shall retain its character
as personal property following the installation of the System on the Property,
and shall not be deemed to be a fixture constituting a part of the Property. No
part of the System shall be or become subject to any mortgage, deed of trust or
lien upon the Property. Notwithstanding the foregoing, all wiring, cabling,
jacks, conduit, equipment, and other components of the System except any
telephone switch and other communications equipment installed by FirstLink at
the System Site that is not part of the residential telephone distribution
network ("Excluded Equipment") shall remain on the Property throughout the term
of this Agreement and, upon expiration or earlier termination of this Agreement
shall become the property of Owner without any further action of FirstLink,
Owner or any other person. The residential telephone distribution network is
deemed to begin at the tenant termination block within the System Site.
FirstLink may remove any telephone switch or other communications
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equipment it has installed within the System Site which is not part of the
residential distribution network.
7. SERVICE TO TENANTS. FirstLink shall provide, at rates no higher than
other local providers of comparable services, Telephone Service and other
Telecommunication Services offered through the System to each resident
requesting them. FirstLink's obligation to provide or continue Telecommunication
Services shall be contingent on the resident paying service charges and meeting
other reasonable requirements as are established by FirstLink from time to time.
Residents electing to receive Telecommunication Services offered by FirstLink
shall do so through the execution and delivery to Owner or FirstLink of a Tenant
Services Agreement in the form provided, from time to time, from FirstLink to
Owner. Such Agreement shall clearly state that Owner is not responsible for the
System or its operation or any activities of FirstLink. FirstLink will submit
the Agreement to Owner prior to distribution to tenants and will obtain approval
of the form before using it with residents. Such approval will not be
unreasonably withheld and will be deemed to have been given after 10 days have
passed since FirstLink's submittal of form to Owner if no written objections or
modifications are submitted by Owner to FirstLink. Owner shall promptly provide
such executed documents to FirstLink. Residents requesting Telecommunication
Services shall be charged and billed individually for connection to the System
and for service at standard rates established solely by FirstLink from time to
time unless prohibited by applicable law or regulation. FirstLink shall be
solely responsible for invoicing, collections and bad debts related to provision
of Telecommunication Service to residents. FirstLink's rates for
Telecommunications Service shall, nevertheless, be competitive. FirstLink will
provide, add and update its Telecommunications Service consistent with standards
and services customarily provided by other telecommunication providers to
comparable apartment building complexes in Portland, Oregon. FirstLink
guarantees unconditionally to return a resident to the local exchange telephone
company upon request of the resident for any reason at any time at the sole cost
of FirstLink.
Both parties agree that neither the Owner nor the Owner's agent shall have any
liability regarding the number of residents electing to use Telecommunications
Services.
8. COMMISSIONS. Owner shall be entitled to Commissions equal to *
percent * of all gross revenues (from local and long distance telephone
services and expanded basic television services) actually collected for
services provided to each living unit served by FirstLink hereunder. All
commission payments hereunder will be paid quarterly in arrears. FirstLink
will xxxx customers monthly and will use reasonable diligence to collect for
services. Owner has the right to audit the
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books of FirstLink relative to the Property and its customers' account
activity. Owner shall have the right to inspect FirstLink's records and, if
it so elects, to conduct an audit thereof to verify that the amounts paid to
it pursuant to this Section 8 are correct. If any such audit discloses that
Owner has been underpaid, FirstLink shall, within ten (10) days after demand,
pay the Owner the balance with interest at ten percent (10%) per annum
calculated from the date that payment should have been made. In addition, if
any such audit discloses that Owner has been underpaid by more than five
percent (5%) for any year, FirstLink shall reimburse Owner for the reasonable
out-of-pocket cost of the audit. In the event an overpayment is disclosed,
Owner will remit within ten (10) days after demand, by FirstLink the balance
with interest at ten percent (10%) per annum calculated from the date that
payment was made.
9. ADDITIONAL OBLIGATIONS OF FIRSTLINK. FirstLink shall:
(a) Make a customer service representative available to receive service
requests or inquiries from Owner or residents and insure that it responds to
service requests within four (4) hours of receipt. Routine maintenance services
shall be performed by FirstLink during its normal working hours. A technician
shall arrive at the Property to commence maintenance services promptly after
request by a customer of such services, provided however, where such request are
made on, or on a day preceding a Saturday, Sunday or holiday, FirstLink's system
technician shall arrive at the Property to commence maintenance services on the
next normal working day.
(b) Provide Owner with marketing materials, sales support and sales
training to enable Owner and Owner's employees to market Telecommunication
Services in accordance with Section 1 0(b); FirstLink will not distribute or
make use of such materials without prior written approval of Owner, which
approval shall not be unreasonably withheld. Such approval will be deemed given
if Owner does not submit written objection to the materials to FirstLink within
ten (10) days of their submission by FirstLink to Owner.
(c) Provide training to Owner's staff to enable staff to perform the
duties specified in Section 10(b);
(d) FirstLink shall comply with Owner's policies relating to entry into
residents' units and Owner's security regulations.
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(e) Repair or replace any damage to the Property resulting from
installation, operation, or removal of the System or any other acts by FirstLink
to the satisfaction of the Owner and restore Property to its original condition;
(f) Comply with all applicable regulatory requirements relating to the
provision of the Telecommunication Services provided by FirstLink as may be in
effect from time to time;
(g) Maintain the System in good order, condition and repair; and
(h) Pay all taxes resulting From the ownership or operation of System and
provision of Telecommunications Services; and
(i) Provide a telephone number to access FirstLink customer service on a
24 hour basis in the event of a System emergency.
10. OBLIGATIONS OF OWNER. Owner shall:
(a) Make the System Site available on a rent-Free basis to FirstLink
during the term of this Agreement. The construction and location of the
System Site shall be as Owner and FirstLink reasonably agree, subject to
technical and regulatory requirements as determined by FirstLink. FirstLink
shall have twenty-four hour, seven day a week access to the System Site, and
Owners employees and agents shall not disturb the System;
(b) Use reasonable efforts to encourage its staff, agents and
representatives to encourage and promote the use of the Telecommunication
Services to residents and prospective residents as part of the amenities
provided by Owner at the Property. Owner consents to FirstLink's use from time
to time of incentives and incentive programs with Property management personnel,
leasing staff and other Property personnel for the purpose of promoting the
System and Telecommunication Services provided through the System. Owner's staff
will present the Tenant Service Agreement and related information to prospective
tenants with the objective of securing sales. It is envisioned that this selling
process will require a minimal amount of time on behalf of Owner's staff. If
tenants have additional questions or require additional information, their sales
lead will be referred to FirstLink staff who will be responsible for responding
to customer inquiries and securing any resulting sales.
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(c) Promptly provide to FirstLink requested specifications on the
Property, such as wiring schematics and/or building diagrams, a current list
of residents, addresses and their telephone numbers and other specific
information regarding resident transactions, such as rentals, move-ins,
move-outs, transfers, intents to vacate, and the entering into or termination
of leases and other information necessary to market and operate the
System and provide the Telecommunication Services according to this
Agreement or to comply with governmental or Utility Commission rules as may
be determined by FirstLink;
(d) Cooperate with FirstLink in obtaining permits, consents, licenses
and any other requirements which may be necessary for FirstLink to install
and operate the System and furnish the Telecommunication Services, provided
that FirstLink shall pay all reasonable costs of the Owner associated
therewith.
(e) Provide reasonable access to the Property to FirstLink and its
employees and agents to enable FirstLink to perform the activities contemplated
by or necessary under this Agreement including access for the purpose of
soliciting customers.
(f) Upon receipt of the certificate of occupancy for the first unit,
Owner will remit $10,750 Paragon Cable representing the cost of installing
one telephone outlet and one cable outlet in each kitchen.
11. INSURANCE. FirstLink shall carry and maintain liability insurance
of $3,000,000 naming Owner and Owner's agent as additional insured covering
personal injury and Property damage that may be caused to person(s), the
Property or its contents, by the System or FirstLink's employees or agents.
Owner and FirstLink each waive any right of recovery against each other for
any claims that may be brought for any loss that is covered by insurance upon
or relating to the Property or the System to the extent of the actual
proceeds received by waiving party, and for themselves, their successors and
assigns waive rights of recovery and any rights of subrogation with respect
to any loss that would have been covered by insurance if the party had
maintained a so-called "all risk" form of casualty insurance on the property
owned by it. Owner shall carry and maintain general liability insurance
related to the Property.
12. TERMINATION OF THE AGREEMENT.
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(a) This Agreement may be terminated by either party if there has been a
material breach of the terms of this Agreement by the other party and if within
thirty (30) days after receiving notice of such breach from the party seeking to
terminate, such breach has not been cured.
(b} FirstLink may terminate this Agreement, or discontinue the provision
of any Telecommunication Services provided hereunder, if in the sole discretion
of FirstLink, it ceases to be feasible for legal, economic or regulatory reasons
to provide Telecommunication Services to the Property, provided that FirstLink
provides sixty (60) days written notice to Owner.
(c) This Agreement may also be terminated by FirstLink if there is a
material failure by Owner to provide the services to FirstLink contemplated in
Section 10 which Owner fails to cure within a commercially reasonable time
(using best efforts to cure)after written notice to Owner containing reasonable
particularity as to the service(s) which FirstLink believes are not being
provided in accordance with this Agreement
(d) Owner may terminate the term of this Agreement if the quality (but
not the revenue generated to Owner) of the Telecommunications Services
provided by FirstLink when compared to the quality of the Telecommunications
Services provided by other suppliers in the Portland area market, places
Owner at a competitive disadvantage, or if FirstLink fails to provide
maintenance and repair service within 15 days after notice of such deficiency
in maintenance or repair service is delivered to FirstLink by Owner, together
with a detailed written explanation of such deficiency. Owner also may
terminate the term of this Agreement if FirstLink allows any lien to attach
against the Property and fails to have the lien removed within ten (10) days
after receiving written notice by Owner to FirstLink that a lien has
attached, or if FirstLink fails to pay any of its contractors, subcontractors
or suppliers (including suppliers of bulk telephone service) when and as due
and FirstLink does not allege any good faith defense to such payment within
ten (10) days of receiving written notice by Owner to FirstLink that it
believes such a condition exists, or if FirstLink seeks protection under any
bankruptcy, insolvency or similar law, or generally fails to pay, its debts
when due, or has a receiver, trustee, liquidater or similar official
appointed for it or a substantial part of its property.
(e) If either party defaults in its obligations under this Agreement, the
other party will have all remedies available at law or in equity for breach of
contract, including (without limitation) collection of damages, specific
enforcement and collection of attorney's fees and costs in connection with such
default, subject only to the limitations in Section 19 below.
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(f) Any termination of this Agreement shall be effective as of the date of
termination, but FirstLink shall continue to provide Telecommunication Services
until the earlier of (i) all FirstLink customers at the Property are provided
Telephone Service from another source or (ii) thirty (30) days from the date of
such termination. Upon termination or expiration of this Agreement for any
reason, FirstLink shall promptly take all actions necessary on its part to
return all Telephone Service to the Local Exchange Carrier so that there is no
interruption of telephone services to the tenants and, if requested by Owner,
shall use its reasonable efforts to make arrangements for assumption of cable
television service by a local franchise operator. The provisions of this
agreement necessary for such continued services shall remain effective.
(g) Upon termination of this Agreement for any reason, FirstLink, or any
designee of FirstLink, including without limitation, any party providing
financing to FirstLink, shall have the right, after providing Owner with written
notice of at least thirty (30) days, without further demand, to enter upon the
Property and to dismantle and remove or render inoperative any and all Excluded
Equipment.
13. ASSIGNMENT OF THE AGREEMENT. This Agreement and the rights hereunder
may be assigned by FirstLink to any majority-owned subsidiary of FirstLink or to
an affiliate or party acquiring all or substantially all of the assets of
FirstLink. Alternatively, the Agreement may be assigned by FirstLink to any
FirstLink subsidiary so long as FirstLink agrees in writing that it shall remain
liable for ail obligations arising under this Agreement. FirstLink may also
assign this Agreement to any party providing financing to FirstLink; provided
that such assignment shall not relieve FirstLink from its obligations hereunder
In connection with a sale or disposition of the Property, Owner shall require
any subsequent owner of the Property to assume this Agreement and the rights and
obligations of Owner accruing from and after the date of such assignment. Except
as otherwise provided above, FirstLink will not assign or otherwise transfer its
interest in this Agreement or in the System without Owner's prior written
consent, which will not be unreasonably withheld or delayed. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the successors and assigns of the respective parties to this Agreement.
14. OWNER WARRANTIES; INFORMATION. Owner warrants that (i) it has full
power and authority to grant to FirstLink the exclusive rights set forth in this
Agreement, (ii) that no party holds any rights or interests with respect to the
Property that conflict with any rights or interests
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that Owner grants to FirstLink under this Agreement; (iii) that the Property
is not presently part of bankruptcy proceeding, foreclosure action, or deed
in lieu of foreclosure transaction; (iv) Owner is not in default of any
mortgages or other encumbrances on the Property; and (v) no purchase
contracts presently exist as to the Property.
15. FIRSTLINK WARRANTY. FirstLink warrants that it will comply with all
laws and licensing requirements regarding the design and installation and
operation of the System as well as all building codes and regulations enforced
by the City of Portland building department, fire marshal or other appropriate
agencies of the City. Except as expressly stated in this Agreement, FirstLink
makes no representations or warranties regarding the System or the
provision of Telecommunication Services, express or implied, including, but not
limited to, any implied warranty of merchantability or fitness for a particular
purpose.
16. INDEPENDENT CONTRACTOR. FirstLink shall be and is an independent
contractor and Owner shall not control or direct the details and means by which
FirstLink performs its duties under this Agreement. This Agreement shall not
create the relationship of employer and employee, a partnership or a joint
venture.
17. EMERGENCY CALLS. FirstLink will pass all "911" emergency calls through
the System to authorities using equipment and software for such "911" calls that
are in accordance with leading industry standards for telecommunication
providers to comparable apartment building complexes in Portland, Oregon, but
FirstLink, makes no warranty or guaranty of any nature as to the promptness or
adequacy of any response to any such emergency call. FirstLink assumes no
responsibility whatsoever for any actions with respect to emergency calls other
than as set forth above. In the event that the System has been adversely
affected by any situation described in Section 20, FirstLink shall have no
liability whatsoever for failure to pass on emergency telephone traffic.
FirstLink's E-9 11 service shall, in all events, provide the emergency services
operator with the apartment number of the caller, unless the necessary
technology cannot be supported by the Local Exchange Carrier.
18. INDEMNIFICATION. Subject to the provisions set forth in Section 1 9
below, (i) FirstLink and Owner hereby agree to indemnify, defend and hold each
other (and each other's officers, directors, owners, employees, and agents)
harmless from and against all claims, losses and liabilities in any way relating
to, growing out of, or resulting from a material breach of each of
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their respective obligations under this Agreement; and (ii) Owner will
indemnify FirstLink for damages to the System as provided in Section 3 herein.
In addition, FirstLink agrees to indemnify, defend and hold harmless Owner
and Owner 5 partners, employees and agents from and against all damages,
losses, liabilities, costs, and expenses (including reasonable attorneys'
fees) resulting from claims made or causes of action asserted by third
parties (including, without limitation, residents of the Property) arising
out of or relating to (i) the performance by FirstLink (or its employees or
agents) of its obligations under this Agreement, (ii) the provision of
Telecommunication Services or (iii) compliance of FirstLink and/or the System
with applicable laws and regulations, except to the extent such matters are
attributable to the gross negligence or willful misconduct of Owner.
19. LIMITATION OF REMEDIES. Notwithstanding any other provision of this
agreement but without limiting the mutual indemnification in Section 18, neither
FirstLink nor Owner shall be liable to any third party for any incidental or
consequential damages, including but not limited to lost profits, of any nature
whatsoever or for the condition or repair of any telephone instrument or any
Property to which the System is attached.
20. FORCE MAJEURE. If the performance of any of the obligations under this
Agreement is interfered with by any reason or any circumstances beyond the
reasonable control of the parties, including, but not limited to, fire,
earthquake, storm, volcanic eruption, explosion, power failure or power surge,
acts of God, war, revolution, civil commotion, or requirement of any government
or legal body or any representative of any such government or legal body, labor
unrest, including but not limited to, strikes, slowdowns, picketing or boycotts,
then the parties shall be excused from performance on a day-by-day basis to the
extent of such interference.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement contains the entire Agreement
between the parties and may not be modified, amended or changed except by
written instrument signed by duly authorized executives of both parties.
(b) WAIVER. The failure by either party at any time to require performance
by the other party or to claim a breach of any provision of this Agreement shall
not be construed as
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affecting any subsequent breach or the right to require performance or to
claim a breach with respect thereto.
(c) GOVERNING LAW. The rights and obligations of the parties and all
interpretations and performances of this Agreement shall be governed in all
respects by the laws of the State of Oregon.
(d) NOTICES. Any notice to be given by either party to the other shall be
in writing and either personally delivered or sent by certified mail, return
receipt requested, to the addresses of the Owner and FirstLink provided below.
Notices shall be deemed given when received or refused. Each party may change
its address for notice to it by notice in accordance with the foregoing
provisions.
FIRSTLINK: OWNER:
FirstLink Communications, Inc. Xxxxx Place Apartments Limited Partnership
000 XX Xxxxxxxx, Xxxxx 0X c/o Enterprise Development
Xxxxxxxx, Xxxxxx 00000 0000 XX Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxx: 000-000-0000 Facsimile: 000-000-0000
Telephone: 000-000-0000 Telephone: 000-000-0000
Attn: A. Xxxxx Xxxxx, CEO Attn: W. Xxxx Xxxxx, President
(e) VALIDITY. If any provision of this Agreement shall be held to be
invalid or unenforceable, such provisions shall not affect in any respect the
validity or enforceability of the remainder of this Agreement unless the
invalidity materially affects the ability of either party to perform as
contemplated hereunder.
(f) ATTORNEYS' FEES AND COSTS. If arbitration or other proceedings are
brought to enforce or interpret this Agreement, the substantially prevailing
party shall be entitled to recover reasonable attorneys' fees and other costs
incurred in such action, arbitration or proceeding from the other party, in
addition to any other relief to which such party may be entitled, including
(without limitation) such attorneys' fees and costs on any appeal and on
petition for review or in connection with any action for recission
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(g) AUTHORITY. Each individual signing this Agreement on behalf of a
corporation or partnership represents that he or she has the necessary authority
to execute this Agreement on behalf of such entity and that, in the case of a
corporation, all necessary corporate action has been taken approving the
execution of this Agreement.
Any person or entity executing this Agreement as "Owner" hereby represents and
warrants to FirstLink that it is fully authorized by Owner to execute this
Agreement and to bind Owner to the terms and obligations set forth in this
Agreement and the Owner is fully aware of the existence and contents of this
Agreement. Owner and any person or entity executing this Agreement on Owner's
behalf acknowledges that Owner shall be e5topped from claiming that this
Agreement was executed by a person or entity lacking actual authority to bind
Owner.
(h) FURTHER ASSURANCES. Upon the reasonable request of either party, the
other party shall promptly and, at its own expense, execute and deliver any
additional documents or take such actions, as may be reasonably necessary
(subject to any other agreement binding on either party) for the purpose of
evidencing or perfecting any rights or interest of either party arising under
this Agreement or arising under documents executed in accordance with this
Agreement.
(i) OVERDUE PAYMENTS. All payments that either party owes to the other
hereunder that are not paid when due shall bear interest from the due date until
fully paid at the rate of 9 percent per annum, but not in any event at a rate
greater than the maximum rate of interest permitted by law.
(j) TIME OF THE ESSENCE. Time is of the essence of the performance of this
Agreement.
(k) SUBORDINATION TO MORTGAGES. This Agreement is subordinate to any
existing trust deed or mortgage lien on the real property at which the Property
is situated. In addition, this Agreement shall be subordinate to the lien of any
trust deed, mortgage or other security instrument (collectively, "Mortgage")
hereafter placed upon the Building or Property, and to any and all advances made
on the security thereof, and to all renewals, modifications, consolidations,
replacements, and extensions thereof. If any such party elects (in its
discretion) to have this agreement prior to the lien of its Mortgage, and shall
give written notice thereof to Tenant, this Agreement shall be deemed prior to
such Mortgage held by such party so electing and will survive any termination of
Landlord's interest in the Property or under the Master Agreement, as
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applicable, whether this Agreement is dated prior or subsequent to the date of
such Master Agreement or Mortgage or the date of recording thereof.
(l) Status Certificate. Within 10 days after receipt of written request,
either party shall deliver to the other a written statement confirming the
status of this Agreement, whether the Agreement is unmodified and in full force
and effect, and any other matters that may reasonably be requested, which
statement may be relied upon by third parties.
22. OPTION OF OWNER TO TERMINATE.
(a) TERMINATION BY OWNER. Owner will have the option to terminate this
Agreement at any time during the term of this Agreement, without the necessity
for "cause" or default or breach by FirstLink, provided that Owner follows the
procedures and satisfies the requirements of this Section 22. If Owner exercises
its right to terminate, then such termination will be effected by written notice
of termination of this Agreement to FirstLink at least sixty (60) days prior to
the effective date of such termination, and this Agreement shall terminate as of
the effective date for such termination stated in Owner's notice. In such
event, the parties will comply with the provisions and requirements of
paragraphs 22(b) through 22(d) below.
(b) CALCULATION OF TERMINATION PAYMENT. On the effective date for
termination of the Agreement, the residential telephone distribution System
and security system will be surrendered to and belong to Owner, and Owner
will pay to FirstLink as consideration therefor and in compensation for the
early termination of this Agreement the following as a termination fee: (a)
the ad1usted book value of the residential telephone distribution network
assuming amortization on a straight line basis over a ten (10) year term from
the date of installation of such network (except that the security system
shall be amortized over a fifteen (15) year term on a straight line basis);
and (b) the present value of the Net Operating Income (as defined below) that
FirstLink would reasonably have received for the remaining term of this
Agreement, calculated as provided in Section 22(c) below.
(c) CALCULATION OF TERMINATION FEE AND NET OPERATING INCOME. For purposes
of Section 22(b), the "Net Operating Income" for the remainder of the term of
this Agreement will be determined on a profit and loss basis, in accordance with
generally accepted accounting principles, using the higher of: (i) the net
operating income realized by FirstLink in connection with the provision of
services pursuant to this Agreement, on a profit and loss basis, in accordance
with
Page 15
generally accepted accounting principles, in the last full calendar year; or
(ii) the average net operating income realized by FirstLink in connection
with the provision of services pursuant to this Agreement, on a profit and
loss basis, in accordance with generally accepted accounting principles, in
the last two full calendar years. The termination fee calculation will be
based on the assumption that FirstLink would have achieved the same amount of
Net Operating Income for the remainder of the term. If such termination
occurs before June 30, 1 998, the annual Net Operating Income will be
estimated based on projections for the Xxxxx Place Apartments. The "present
value" of such Net Operating Income will be determined by discounting, to the
date of payment by Owner to FirstLink, the amount of Net Operating Income for
the remainder of the term, utilizing a discount rate equal to the higher of
the publicly announced prime (or reference} rate of interest of Xxxxx Fargo
Bank (or if such designated bank's prime rate is not publicly available, then
the prime rate of such other regional or national bank as the parties
mutually approve, for purposes of the above calculation).
FirstLink will provide, upon request after the completion of installation of the
telephone distribution System and security system, a written statement,
certified by FirstLink, as to the original cost and book value of the telephone
distribution System and security system. In addition, within 30 days after
notice at any time during the term of this Agreement, Owner may request, and
FirstLink will promptly provide within such 30 day period a statement of the Net
Operating Income of FirstLink for the last two calendar years. Owner will have
reasonable rights of examination or audit of FirstLink' s records and
County/State/Federal tax returns to verify the calculation of Net Operating
Income in connection with any exercise of Owner's right to terminate.
(d) SURRENDER OF PROPERTY. In the event of termination under this Section
22, Owner and FirstLink shall have no further rights, duties or obligations
under this Agreement from and after the effective date of termination, except
that Owner will make the payment described in Section 22(b). No provision of
this Section 22 or of this Agreement will be deemed to require a payment to
FirstLink under this Section 22 in connection with any termination of this
Agreement for FirstLink's default or material breach of the Agreement or on any
voluntary surrender or other termination pursuant to any other Section of the
Agreement (other than this Section 22).
This Agreement has been signed and delivered as of the above date.
FIRSTLINK: OWNER:
Page 16
By: /s/ A. XXXXX XXXXX By: /s/ XXX McCEMTAST JR
----------------------------- ------------------------------
Title: CEO Title: Partner
Page 17
JOINDER BY PARAGON
By execution below, the undersigned ("Paragon") agrees to provide cable
television services to the Property for the benefit of Owner and to join
with FirstLink Communications, Inc. for purposes of agreeing to the
provisions of the Agreement. Owner will permit Paragon to cure any default or
breach by FirstLink hereunder within the time periods provided herein, and
Paragon will be deemed a party to this Agreement as related to cable
television services. In the event FirstLink seeks to withdraw from this
Agreement, at Owner's option Paragon will assume, as of the date of such
withdrawal, the performance of: the obligations of FirstLink hereunder that
accrue from and after the date of such withdrawal as they relate to providing
cable television services.
PARAGON:
------------------------------------------------------
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------------------------------
DATED: JULY 5, 1996
----------------------------
Page 18
EXHIBIT A
[LOGO]
PARAGON
C A B L E
XXXXX PLACE APARTMENTS
CHANNEL LINE UP
2) Prevue Guide 39) Nickelodeon
3) C-Span 40) Arts and Entertainment
4) ABC 41) The Nashville Network
5) WGN 42) Video Hits One
6) CBS 43) SHOWTIME
7) TBS 44) SHOWTIME 2
8) NBC 45) HOME BOX OFFICE
9) Trinity Broadcasting 46) HOME BOX OFFICE 2
10) Oregon Public Broadcasting 47) Cinemax
11) Community Access 48) FIRST CHOICE 1
12) UPN 49) FIRST CHOICE 2
13) Fox 50) FIRST CHOICE 3
14) Lifetime 51) XXXXXX MOVIE CLASSICS
15) Prime Sports 52) THE MOVIE CHANNEL
16) XXXX 00) Mind Extension University
17) Xxxxxx Network Television 54) KBLE/EWTN
18) USA Network 55) Univision
19) FIRST CHOICE PAY-PER VIEW PREVIEWS 56) The Weather Channel
20) Sci-Fi 57) QVC Shopping
21) Multnoman County TV 98) CNBC
22) Home Shopping Network
23) The Learning Channel
24) Discovery Channel * INDICATES PREMIUM SERVICES
25) Music Television
26) American Movie Classics * INDICATES ALA CARTE SERVICES
27) Portland City TV PAY PER VIEW
28) THE DISNEY CHANNEL
29) CARTOON NETWORK ALL PREMIUM, ALA CARTE AND PAY PER
30) Government Access VIEW REQUIRE A CONVERTER BOX.
31) Community Education
32) Warner Bros.
33) Portland Cable Access
34) The Family Channel
35) Cable News Network
36) Headline News
37) Comedy Central
38) Black Entertainment T
SECURITY SYSTEM DESCRIPTION EXHIBIT B
The telephone entry and close circuit television system equipment list is as
follows:
TELEPHONE ENTRY SYSTEM by DoorKing Inc. - Model 1814
Includes 2 hands free LCD display entry controls and 2 flush mount trim kits
DoorKing's model 1814 combines the telephone entry system and electronic
directory into a single compact unit. The 20 character alpha numeric super
twist LCD display can be seen in sunlight, is easily readable from side and
top views, does not require any cooling fans or sunscreens, and
eliminates the need for additional add-on directories. To operate the
system a visitor simply uses the big A and Z push buttons to scan through the
alphabetically sorted directory. Holding either of the scroll buttons down
will cause the directory to scan rapidly, while pressing and releasing the
scroll buttons will scroll one name at a time. Once the tenants name is
displayed, the visitor simply presses the CALL button to establish
communication. Tenants can grant the visitor access by simply pressing 9 on
their telephone. The 1814 utilizes a state of the art microprocessor control
board, and uses full duplex circuitry for crystal clear two way voice
communication.
Features include:
1. One touch calling - The visitor simply presses the CALL button after
locating the name in the directory to establish communication.
2. The single line LCD display features easy to read 1/2 inch characters.
3. The full duplex communication is hands free.
4. The user programmable message scrolls from right to left when the
system is not in use.
5. A metal keypad and push buttons.
6. A 2 year limited warranty
CLOSED CIRCUIT VIDEO SECURITY SYSTEM by SANYO
The closed circuit video security system consists of (8) 1/2 inch black and
white CCD cameras with high-resolution picture and back light compensation, 2
black and white 12" monitors, 8 auto iris lenses, 8 (environmentally
protected) camera enclosures and 8 camera mounts
VIDEO CAMERAS by Sanyo - Model VCB-3524 Features include:
1. A 1/2 inch CCD Image Sensor with approximately 410,000 picture
elements that uses the interline transfer method to deliver low-smear,
anti-bloom images with low-lag delivery, all with virtually no burn-in
and no geometric distortion
2. A high resolution picture, with more than 570 lines of horizontal
resolution, provides sharp, clear images.
3. A minimum light requirement of 0.09 lux with an fO.95 lens and a 0.15
lux with an fl.2 lens delivers excellent low-light images even under
incandescent illumination.
4. The backlight compensation activates automatically with auto-iris lens
to increase the exposure level when the background is brighter than
the subject. Backlight compensation allows more light to reach the
image sensor so that faces and the foreground will appear clearer and
brighter
5. An electronic auto-iris helps assure proper exposure under variable
lighting conditions indoors
6. The CS/C-Mount lens includes a built-in CS-Mounting or Mounting with a
supplied adapter.
7. The camera is magnetic/electrostatically-shielded from interference
due to magnetic or electrostatic fields.
8. The solid-state components resist shock and vibration.
9. 24 Volt AC with Line-locked PLL 2:1 Interlace
The Sanyo VCB-3524 camera has a compact, versatile design that includes a
metal cabinet, quick start, low power consumption and an adjustable
flanged-back adjustment mechanism.
Accessories include:
A protective lens cap, 4-pin iris plug and C-Mount Adaptor.
MONITORS by Sanyo - Model VM-55l2 Features include:
A 12-inch, 90-degree deflection angle CRT with over 900 lines of resolution,
15 MBZ bandwidth, Geornetric distortion Bridged video input/output with a 75
ohm termination switch and a modern metal cabinet design. The front panel
controls power, contrast, brightness, horizontal and vertical hold.
ADDITIONAL DETAIL TO FOLLOW
EXHIBIT C
[LOGO]
PARAGON
C A B L E
EASEMENT FOR CABLE TELEVISION SERVICE
THIS EASEMENT, executed and given this 22nd day of May, 1996, by Xxxxx
Place Apartments, Limited Partnership, hereinafter "Grantor" to KBL
Cablesystems Of The Southwest, d/b/a Paragon Cable, whose address is 0000 XX
Xxxxx Xxxx., Xxxxxxxx, XX 00000, hereinafter "Grantee":
WITNESSETH:
That for and in consideration of the sum of one dollar ($1.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged:
1. Grantor does hereby grant, sell and convey to Grantee an easement and
right of way to install, construct, operate, maintain, repair, replace and
remove such cable television cables, lines and other telecommunications or
ancillary equipment and facilities as Grantee deems necessary or convenient for
the provision of cable communications and other television or telecommunications
services to occupants of the real property located at 0000 XX 00xx Xxxxxx,
Xxxxxxxx, XX 00000 and described in Exhibit "A", below or attached hereto (the
"Premises"), together with rights of ingress and egress on and over the Premises
as necessary for the use and enjoyment of the said easement.
2. This easement shall remain in full force and effect 508 total cable
television outlets for fifteen years.
3. Grantor shall acquire no right, title or interest in any cable
television lines, equipment or facilities placed on, over or under the Premises
pursuant to this easement. All cable communications equipment and facilities
constructed or installed by Grantee upon the Premises shall be and remain the
personal property of Grantee, unannexed and unattorned to the realty, unlienable
and unalienable by Grantor, it's heirs, successors and assigns, and removable or
replaceable by Grantee at any time without notice in Grantee's sole and absolute
discretion.
4. This Grant of Easement shall inure to the benefit of and be binding
upon Grantor and Grantee and their respective heirs, executors, successors and
assigns.
IN WITNESS WHEREOF. Grantor has caused this instrument to be executed the
day and year first above written.
BY:
--------------------------------
STATE OF OREGON )
)ss:
COUNTY OF MULTNOMAH
Before me _________________________, a notary public, personally appeared
_________________ known to me (or proved to me on the oath of ) to be the
person whose name is subscribed to the foregoing instrument, and known to me to
be the___________________ (title) of __________________________ a(corporation)
(partnership) and acknowledged to me that he/she executed said instrument for
the purposes and consideration therein expressed, and as the act of said
(corporation) (partnership).
Given under by hand and seal this ____ day of _____________, 199__.
---------------------------------
Notary Public
[LOGO]
PARAGON
C A B L E
EXHIBIT 'C'
Door Entry and Security System Specifications
CAMERA System
9 Sanyo B & W Hi Res Lo Light Sanyo Cameras
7 Rainbo Manual Lenses, 35 mm
5 Pelco Environmental Housing Units
1 Pelco Low Profile Ceiling Enclosure
5 Pelco Wall Mounts
3 Pelco Light Duty Indoor Scanners
3 Pelco Wall Mounts
1 16 inch, Sanyo B & W Monitor
1 Sanyo TLS Time Lapse Recorder
2 Covert Camera Enclosures
2 Rainbo Manual lenses, 16 mm
Door Entry System
2 Door King Entry Controls Item # 1815
2 Flush Mount Trim Kits
2 Von Duprin Door Strikes
I Altron Multi Camera Power Supply
L GYYR 9 CAMERA Multiplexer
This list of equipment supersedes the list in exhibit "B", but does not
supersede any additional cable television and telephone installation in
exhibit "B."
Approved by;
/s/ Xxxx Xxxxx 9-13-96
--------------------------------------------------------
W. Xxxx Xxxxx, President Date
Enterprise Development Corporation
