1
EXHIBIT 10.19
TELECOMMUNICATIONS SERVICES AGREEMENT
This Telecommunications Services Agreement (this "Agreement") is made as
of _____________, 199__ between _________________ a _______________, with an
office address at __________________, Fax No. (____) ___-____ ("Owner"), and
U.S. OnLine Communications, Inc., a Delaware corporation, d/b/a U.S. OnLine,
with an office address at 10300 Metric Blvd., Austin, Texas 78758, Fax No. (512)
451-8732 ("Operator"). Owner's United States federal taxpayer identification
number is _______________.
A. Owner desires Operator to provide telecommunications services to the
multi-family residential complex known as the ____________, located at
__________, the legal description of which is set forth as Exhibit A (the
"Property").
B. Owner is (CHECK ONE): ____ (i) the owner of the Property; (ii) ____
the manager of or the operator of the Property; (iii) ____ the cooperative or
condominium association for the Property; or (iv) ____ otherwise owns, manages,
controls or operates the Property. Owner has the authority to enter into this
Agreement to allow Operator to make use of the Property as described herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth below, Owner and Operator agree as follows:
1. OPERATOR'S RIGHTS AND OBLIGATIONS.
(a) Owner hereby grants to Operator: (i) the right to install,
own, operate, maintain, repair, replace and remove (the "Work") telephone
equipment, electronic devices, conduit, duct, innerduct, computers, switches,
nodes, wire, cable and other related devices and equipment (the "System") on,
in, under and over the roof and grounds of the Property as may be necessary or
desirable to provide the Services (as defined below); and (ii) the right to
provide telephone and communication services, including two-way voice service,
conference calling, call waiting, call forwarding, speed dialing, internet
access, paging, information services, audio on demand and other similar services
(collectively, the "Services"). Operator may provide the Services through any
medium including, without limitation, coaxial cable, copper wire, fiber optics,
wireless, satellite transmission and other forms of broad band communication and
other means of communication distribution, whether now existing or developed
after the date of this Agreement.
(b) In consideration of Operator's substantial investment in the
System, Owner agrees that it will not (i) grant a license or right to any other
person or entity to provide services which are similar to or competitive with
the Services, or (ii) permit the installation, maintenance or operation at the
Property of any other equipment, wire, telephone cable or material by any person
or entity to provide services to the residents of the Property which are similar
to or competitive with the Services. The following exceptions apply to the
exclusive rights granted to Operator in the preceding sentence: (1) any rights
of access which Owner is required to grant under applicable law; (2) rights of
access granted to the incumbent local exchange carrier, or its successor.
(c) Operator will pay Owner the fees described in Exhibit B for
the use of and access to its Property and for Owner's provision of marketing
support to Operator.
(d) Owner will provide at no cost to Operator a locked room on
the Property for Operator's equipment (the "System Site"). The System Site will
meet the specifications set forth on Exhibit C. Operator, at its cost, will
construct and maintain the interior of the System Site.
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(e) Owner will make available existing building riser conduit,
cable, wire and innerduct to Operator so that Operator may install, access and
maintain the System and provide the Services.
(f) Owner will permit Operator to connect the System from the
streets or sidewalks to the Property via underground, ground and rooftop
equipment of Operator's choice, provided that such equipment does not interfere
with Owner's use of the Property or materially disturb the aesthetics of the
Property. Operator has the right to provide Services to other properties from
the Property.
(g) If Operator uses facilities, equipment, wire, cable, conduit,
satellite equipment, antennas, duct, innerduct, computers, switches, nodes,
converters and systems which are owned or controlled by Owner, Operator may, at
its own expense, upgrade, modify, repair and maintain them.
(h) Nothing in this Agreement grants Operator any ownership
rights in the Property or creates a partnership or joint venture between Owner
and Operator.
(i) Owner hereby grants Operator the right to market its Services
to residents and prospective residents at the Property in a manner reasonably
approved by Owner. Operator may, in its sole discretion, provide incentive
payments (the "Commissions") to Owner's employees, leasing agents and staff for
promoting and marketing the Services at the Property under the Commission
schedule attached as Exhibit B.
(j) Operator may enter the residential units at the Property to
perform installation work for the Services, but Operator's staff will not enter
a resident's unit without a written work order request signed by the resident.
Upon request, Owner will help Operator collect Operator's equipment from
residential units.
(k) Operator may record a memorandum, substantially in the form
of Exhibit D, in the real property records of the county or state in which the
Property is located.
(l) Operator may offer residents additional telecommunications
products and services as they become available to Operator, including wireless
personal communications systems, cellular telephones and other telecommunication
technologies which are yet to be developed (the "Future Products and Services").
Before Operator offers residents any Future Products and Services, Operator and
Owner will agree on a revenue participation compensation arrangement for the
Future Products and Services, similar to the Fee arrangement described in
Exhibit B.
(m) Operator will furnish Owner without charge the items and
services specified in Exhibit E. All other services provided to Owner will be
billed to Owner at the rates then charged to residents of the Property for the
same services.
(n) Operator's fees for Services will be less than or equal to
the fees charged for the same services by the incumbent local exchange carrier
that serves the area in which the Property is located.
2. ELECTRIC UTILITIES. Owner will pay the electric utility bills
attributable to the System.
3. CONSTRUCTION. Before beginning any Work, Operator will, at its
cost and expense, provide Owner working drawings, plans and specifications (the
"Plans") showing the location and size of the System and describing the proposed
construction and Work. Operator will not commence any Work until Owner has
approved the Plans, which approval will not be unreasonably withheld.
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4. SYSTEM. The System and any other personal property of Operator in
or upon the Property will belong to Operator. Operator will bear the sole cost
and expense for the installation, maintenance and repair of the System, except
to the extent repairs are required for damages caused by the negligence or
willful misconduct of Owner or Owner's employees or agents. Operator will own
all infrastructure which is installed and paid for by Operator, and Operator may
remove any such infrastructure and personal property within thirty (30) days of
the termination of this Agreement; provided, however, Operator may not remove
any conduit or wiring from the Property after the termination of this Agreement.
Operator will repair all damage caused by such removal.
5. ACCESS. Owner will provide Operator access to the Property,
including the System Site, 24 hours a day, seven days a week, 365 days a year so
that Operator may perform installation, maintenance, upgrade and repair
functions. Except in emergencies, Operator will use reasonable efforts to
perform all Work during regular business hours. Operator will notify on-site
personnel before entering the Property during business hours, or on the next
business day if after-hours entry is necessary.
6. TERM AND TERMINATION.
(a) This Agreement will have a term of 15 years commencing on the
date Operator first provides Services to the Property. Thereafter, this
Agreement will be automatically renewed for one additional five year period
unless either party gives notice to the other in writing of its election to
terminate the Agreement; the termination notice must be delivered at least 60
days prior to, and will be effective as of, the end of the initial term.
(b) Following a termination of this Agreement, Operator will
continue to provide the Services to the then existing subscribers until the
earlier of: (i) the date on which such subscribers are able to receive such
services from another source; (ii) thirty (30) days after the date of the
termination; or (iii) as otherwise required by the terms of the subscriber
agreements or applicable law. Provisions of this Agreement which by their terms
are necessary to continue the Services will remain effective during such period.
Operator will continue to pay Fees to Owner during this period, unless this
Agreement is terminated by Operator because of a breach of this Agreement by
Owner, in which case Operator will not be required to pay the Fees.
(c) Upon termination of this Agreement for any reason, Operator
will have the right (but not the obligation), upon reasonable notice to Owner,
to enter upon the Property to dismantle and remove or render inoperative any and
all equipment or other property comprising the System (other than wiring, cable,
or other hardware or software which is the property of Owner or any resident).
7. INDEMNIFICATION. Operator will indemnify and hold Owner, its
principals, officers, directors, owners, agents, employees and servants (the
"Owner Representatives") harmless from and against any loss, cost, damage and
expense of whatever kind arising directly from the construction, operation,
maintenance and repair of the System or from Operator's breach of this
Agreement, including, but not limited to, reasonable attorneys' fees and court
costs, except to the extent such loss, damage, cost or expense is due to the
negligence or willful misconduct of Owner or the Owner Representatives. Owner
will indemnify and hold Operator, its principals, officers, directors, owners,
agents, employees and servants (the "Operator Representatives") harmless from
and against any loss, cost, damage and expense of whatever kind arising directly
from the negligent or willful misconduct of Owner with respect to the System or
from Owner's breach of this Agreement, including, but not limited to, reasonable
attorneys' fees and court costs, except to the extent such loss, damage, cost or
expense is due to the negligence or willful misconduct of Operator or the
Operator Representatives. The provisions of this Section 7 will survive
termination of this Agreement. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY
CONSEQUENTIAL, SPECIAL
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OR PUNITIVE DAMAGES SUFFERED OR CLAIMED BY THE OTHER PARTY FOR CIRCUMSTANCES
ARISING UNDER OR RELATED TO THIS AGREEMENT, BUT THIS LIMITATION WILL NOT APPLY
TO A PARTY'S OBLIGATION TO INDEMNIFY AND HOLD THE OTHER PARTY HARMLESS FOR
CLAIMS FOR SUCH DAMAGES WHICH ARE ASSERTED BY A THIRD PARTY.
8. INSURANCE. Operator will, for so long as it provides the Services
to the Property under this Agreement, obtain and maintain commercial general
liability and casualty insurance coverage with combined single limits of not
less than $5,000,000, with respect to Operator's operation, maintenance and
installation of the System and personal injury and property damage. Operator
will name Owner as an additional insured on its general liability coverage and
will provide Owner with a certificate of insurance for such policy upon request.
Operator will also maintain worker's compensation insurance as required by law
during the term of this Agreement.
9. DEFAULT AND REMEDIES. If a party breaches any of its material
obligations under this Agreement, the other party may provide it written notice
of the breach. The notice will describe the breach, and will give the breaching
party 30 days to cure it, measured from the date the notice is given. If
Operator fails to cure a breach within the cure period, Owner may elect to
terminate this Agreement, and (i) Operator will remove its System from the
Property in a neat and orderly manner, (ii) as of the date of such removal
neither party will have any claim against the other, except for claims that may
have arisen prior to such termination, and (iii) this Agreement will be deemed
terminated and of no force and effect. However, if Operator is diligently
attempting to cure the breach in good faith, but the breach is not susceptible
to cure (through no fault of Operator) within the 30 day cure period, then Owner
will not have the right to exercise its termination remedy unless and until
Operator fails to continue to diligently and in good faith attempt to cure the
breach. If Owner fails to cure a breach within the cure period, Operator may
commence an action for specific performance or any remedy available to it at law
or in equity. However, if Owner is diligently attempting to cure the breach in
good faith, but the breach is not susceptible to cure (through no fault of
Owner) within the 30 day cure period, then Operator will not have the right to
exercise such remedies unless and until Owner fails to continue to diligently
and in good faith to cure the breach. In no event will either party have more
than 90 days to cure a breach under this Section, even if the party is acting
diligently and in good faith to cure it.
10. FORCE MAJEURE. A party will not be in breach of this Agreement if
it fails to perform its obligations under this Agreement for any reason or
circumstances beyond the reasonable control of the party, including, but not
limited to, fire, explosion, power failure or power surge, act of God, war,
revolution, civil commotion, requirement of any government or legal body, labor
unrest including, but not limited to, strikes, slowdowns, picketing or boycotts,
vandalism, theft, the cutting of cable lines to the System by persons other than
Operator's employees or agents, or the failure of third party programmers to
provide programming (each of the foregoing is a "Force Majeure"). If a party
fails to perform its obligations because of a Force Majeure, it must act
diligently and in good faith to commence performing them as soon as practicable
following the occurrence of the Force Majeure.
11. ASSIGNMENT. Operator will not assign or transfer this Agreement
without the written consent of the Owner, which consent will not be unreasonably
withheld; except that, upon written notice to the Owner, Operator may, without
obtaining Owner's prior consent, assign this Agreement to: (a) any entity or
company which controls, is controlled by, or is under common control with
Operator; or (b) any entity that succeeds to all or substantially all of its
assets whether by merger, sale, or otherwise. Operator may also assign this
Agreement, for security purposes, to any entity which provides financing to
Operator ("Lender"). The Lender will not be liable for any of the obligations of
Operator hereunder, unless Lender notifies Owner in writing that it has elected
to succeed Operator as assignee; Owner further acknowledges that the Lender may
have a security interest in the System (other than wiring and conduit). Owner
will not assign this Agreement, except in connection with a sale or other
transfer of the Property. In connection
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with a sale or transfer of the Property, Owner will require any subsequent
owner of the Property to assume this Agreement and the rights, liabilities and
obligations of Owner hereunder. Subject to the foregoing, this Agreement runs
with the land and will be binding upon and will inure to the benefit of the
successors and assigns of the respective parties to this Agreement.
12. NOTICE. All notices under this Agreement must be in writing and
will be deemed to have been duly given when delivered by hand, upon delivery by
telephone facsimile or by overnight express courier with receipt, or three (3)
business days after mailed by certified or registered mail, return receipt
requested, postage prepaid, to the party's address set forth in the introductory
paragraph of this Agreement. Each party may change its address for notices by
providing notice in accordance with the foregoing provisions.
13. MISCELLANEOUS; CONFIDENTIALITY. This Agreement constitutes the
entire agreement between the parties and will supersede all previous
negotiations, commitments, representations and agreements, whether, written or
oral. Any alteration or amendment to this Agreement will be effective only if in
writing and signed by the party against whom enforcement is sought. Terms and
conditions of this Agreement are confidential and may not be disclosed to any
third parties without the prior written consent of the non-disclosing party,
except (i) as contemplated in this Agreement, (ii) as required by law, or (iii)
to the party's employees, owners, investors, lenders, attorneys, accountants,
potential investors, and potential purchasers of the Property. Operator will
have ninety (90) days from the date of execution of this Agreement to review and
approve or disapprove any and all matters relating to the Property, including,
but not limited to, laws and regulations, plans, contracts, documents, and a
physical inspection of the Property. Within ninety (90) days of the date of
execution of this Agreement, Operator may decide, in its sole discretion, to
terminate this Agreement based on the results of its review of the Property. In
addition, Operator, in its sole discretion, may terminate this Agreement at any
time if, due to a changed legal or regulatory environment, it becomes not
feasible for Operator to provide the Services to Owner. Operator will provide
Owner with sixty (60) days' prior written notice of said termination. Upon
termination of this Agreement by Operator, neither party will have any further
liability or obligations with respect to this Agreement and this Agreement will
become null and void.
14. GOVERNING LAW. This Agreement will be governed by the laws of the
State of _____________.
15. CONDEMNATION, DAMAGE OR DESTRUCTION.
(a) CONDEMNATION OR OTHER APPROPRIATION. If the System, or any
material part of the System (including, without limitation, the System Site) is
taken, appropriated, or condemned pursuant to law or the police powers of the
government or quasi-government agencies, each of Owner and Operator may
prosecute, on its own behalf, any claim which that party has against the
governmental agency and third parties. If the taking, appropriation or
condemnation, as set forth above, renders the System uneconomical in Operator's
sole judgment, Operator may terminate this Agreement. If any part of the System
that is not condemned may continue to operate, then Operator may (but need not)
continue to operate the remaining part of the System.
(b) DAMAGE OR DESTRUCTION. If the System, or any material part of
the System (including, without limitation, the System Site) is damaged by fire
or other casualty, and such damage or casualty renders the System uneconomical
in Operator's sole judgment, Operator may terminate this Agreement. If any part
of the System that is not the subject of such damage or casualty may continue to
operate, then Operator may (but need not) continue to operate the remaining part
of the System.
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16. WARRANTIES. THE OPERATOR WARRANTS THAT THE SERVICES WILL BE
PROVIDED IN ACCORDANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. EXCEPT AS
EXPRESSLY STATED IN THIS AGREEMENT, THE OPERATOR MAKES NO REPRESENTATIONS OR
WARRANTIES REGARDING THE SYSTEM OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
17. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable, such provisions will 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 receive the
economic benefits contemplated by this Agreement. If practicable, the parties
agree to substitute for any invalid provision, a valid provision that most
closely approximates the economic effect and intent of the invalid provision.
18. FURTHER ASSURANCES. Each party agrees, upon reasonable request
and at the expense of the requesting party, to execute and deliver any
additional documents and take such actions, as may be reasonably necessary to
carry out the terms of this Agreement.
19. NONDISTURBANCE. Owner will use its best efforts to obtain from
the owner and holder of any mortgage or other security instrument affecting the
Property, an agreement in form and substance reasonably satisfactory to Operator
providing that the rights of Operator under this Agreement will not be affected
by any foreclosure of, or enforcement proceedings under, such mortgage or other
security instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
OWNER: OPERATOR:
U.S. OnLine Communications, Inc.,
a Delaware corporation
__________________________________ By:______________________________
Print Name:_______________________ Print Name:______________________
Print Title: _____________________ Print Title:_____________________
TELECOM SERVICES AGREEMENT PAGE 6
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Exhibit A
LEGAL DESCRIPTION OF THE PROPERTY
TELECOM SERVICES AGREEMENT
REV. 04/22/98
8
Exhibit B
FEE AGREEMENT/ MARKETING SUPPORT
FEES:
As consideration for the rights granted by Owner to Operator under this
Agreement, for each calendar quarter during the term of this Agreement, Operator
will pay to Owner an amount (the "Fees") equal to the product of (i) the Gross
Monthly Receipts, if any, and (ii) the Owner's Incentive Percentage.
Within 15 days after the end of each calendar quarter, Operator will
furnish to Owner a Fee Tracking Report. Operator will pay the Fees quarterly to
Owner in conjunction with and as calculated under the Fee Tracking Report
Operator will keep the Fee Tracking Reports, and all supporting records,
at Operator's business office at which such records are customarily kept for 12
months after the end of each calendar year in which the Gross Monthly Receipts
were generated. Owner may review Operator's books and records which relate
specifically to the Gross Monthly Receipts upon reasonable prior request during
regular business hours at the business office where such books and records are
kept, provided that a representative of Operator may be present during the
inspection, and provided, further, that Owner will not be entitled to review
such books and records more frequently than twice in any calendar year. Such
review rights will expire as to Gross Monthly Receipts for any calendar quarter
12 months after the expiration of such calendar quarter.
DEFINITIONS: As used in this Exhibit, the following terms have the following
meanings:
"PROPERTY PENETRATION PERCENTAGE" means the average, for the three
months in each calendar quarter, of the total number of resident subscribers as
of the end of each billing cycle in the calendar quarter that are not in default
under their respective Services Agreements, divided by the total number of
dwelling units at the Property then available for occupancy. However, if the
Property is a newly constructed property such that the certificate of occupancy
(or its equivalent) for the residential units on the Property has been issued
within two months prior to the time the Services were first activated on the
Property, then during the first six months that the Services are provided to the
Property the denominator used to calculate the Property Penetration Percentage
will be the actual number of occupied residential units on the last day of each
calendar month.
"FEE TRACKING REPORT" means the quarterly report which shows Operator's
calculation of the Fees due to Owner.
"GROSS MONTHLY RECEIPTS" means the total amount collected by Operator
for the Services for any month during the term of this Agreement, net of any
sales, direct excise or other similar taxes, trade or other discounts and
charges, and interest or other charges on credit sales and overdue amounts.
Gross Monthly Receipts will not include installation, repair or maintenance
fees.
"OWNER'S INCENTIVE PERCENTAGE" means the percentage of Gross Monthly
Receipts that Owner is entitled to receive from Operator during the term of this
Agreement with respect to the provision of the Services. This percentage is
based upon the Property Penetration Percentages set forth below:
PROPERTY PENETRATION OWNER'S INCENTIVE
PERCENTAGE PERCENTAGE
---------- ----------
___% to ___% ___%
___% to ___% ___%
___% to ___% ___%
9
___% to ___% ___%
___% to ___% ___%
___% to 100% ___%
COMMISSIONS: Operator will remit directly to Owner's leasing agents a
commission for each new subscriber from whom the Property leasing agents obtain
an order for the Services (the "Commission"), the amount of such Commission to
be determined by Operator in its sole discretion.
If Owner's leasing agents and/or management personnel are not allowed to
participate in this Commission program, Owner's Incentive Percentage will be
reduced by one percent (1%).
MARKETING SUPPORT:
Owner will provide Operator a list of all residents and prospective
residents of the Property, including addresses and telephone numbers, along with
resident move-in and move-out information as it is received by Owner. Owner will
update such list and information monthly. Owner will distribute Operator's
pre-approved marketing materials when leasing rental units and will not
distribute any marketing materials of any competing service provider. Owner will
engage its employees, agents and staff at the Property to promote and market the
Services. The promotion and marketing efforts will include, but not be limited
to, handing out marketing material to residents, recommending the Services to
residents, and lobby presentations. The foregoing activities will be performed
and carried out in an aesthetically pleasing manner that will not reflect
unfavorably upon the Property. Neither Owner nor any of Owner's employees,
staff, agents or personnel will make any warranties or representations
concerning the Services other than those in the written materials to be provided
by Operator.
TELECOM SERVICES AGREEMENT
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Exhibit C
SYSTEM SITE SPECIFICATIONS
TELECOM SERVICES AGREEMENT
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Exhibit D
Memorandum of Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Brent G. Stahl
Stahl, Martens & Bernal, L.L.P.
7320 N. MoPac, Suite 211
Austin, Texas 78731
MEMORANDUM OF AGREEMENT
Certain rights have been granted by _________________ ("Grantor") to
U.S. OnLine Communications, Inc., a Delaware corporation ("Grantee") under that
certain Telecommunications Services Agreement dated ____________, 199_ by and
between Grantor and Grantee (the "Agreement"). The Agreement gives Grantee,
among other things, the right to enter upon the Property (as defined in the
Agreement) to construct, install, inspect, maintain, alter, substitute, improve,
repair, service, operate and remove any System (as defined in the Agreement)
equipment, to engage in any other act or activity contemplated by the Agreement
and to do all other things in connection with the operation of the System at
such times as Grantee determines in its discretion (all subject to the terms and
conditions of the Agreement). The Agreement runs with the land and terminates
upon the termination of the Agreement. As used in the Agreement, the term
"Property" means the real property consisting of approximately ______
apartments, condominiums, cooperative apartments, or other similar residential
or commercial dwelling unites located in City of ___________, County of
___________, State of ______________ at the address commonly known as 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 will
control.
Executed to be effective ____________________, 199__.
GRANTOR: ___________________________________
A _________________________________
By:________________________________
Print Name:________________________
Print Title:_______________________
Date Signed:_______________________
GRANTEE: U.S. ONLINE COMMUNICATIONS, INC.
A Delaware corporation
By:________________________________
Print Name:________________________
Print Title:_______________________
Date Signed:_______________________
TELECOM SERVICES AGREEMENT
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THE STATE OF _______________________ )
) ss.:
COUNTY OF ___________________________ )
BEFORE ME on this ______ day of ____________, 199__, personally appeared
____________, ____________ of U.S. ONLINE COMMUNICATIONS, INC., a Delaware
corporation d/b/a U.S. OnLine, and acknowledged to me that he/she executed the
foregoing instrument for the purposes therein expressed on behalf of such
corporation.
_______________________________________
NOTARY PUBLIC, State of ______________
THE STATE OF _______________________ )
) ss.:
COUNTY OF ___________________________ )
BEFORE ME on this ______ day of ____________, 199__, personally appeared
____________, ____________ of ____________, a ____________, and acknowledged to
me that he/she executed the foregoing instrument for the purposes therein
expressed on behalf of such ________________.
_______________________________________
NOTARY PUBLIC, State of ______________
TELECOM SERVICES AGREEMENT
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Exhibit A - To Memorandum of Agreement
[ legal description of property ]
TELECOM SERVICES AGREEMENT
REV. 04/22/98
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Exhibit E
No Cost To Owner
VIDEO SERVICES AGREEMENT
REV. 4/28/97