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EXHIBIT 10.1
NETWORK SERVICES AGREEMENT
This is a NETWORK SERVICES AGREEMENT ("Agreement"), dated and effective
this 12th day of May, 2000, by and between:
HIGH SPEED ACCESS CORP.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("HSA")
and
CHARTER COMMUNICATIONS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CHARTER")
RECITALS
A. Charter owns and operates the radio frequency ("RF") cable
television franchises and related hybrid fiber-coaxial landline distribution
systems ("Cable Systems" or "Systems"), and provides Internet access and related
services to certain cable subscribers (the "Charter Pipeline" service).
B. HSA provides high-speed "data over cable" connectivity and related
services to its customers through various sources, including, without
limitation, cable television plants and systems.
C. Charter wishes to retain HSA to provide to Charter certain
residential Tier 2 and above technical support and NOC support in Charter's
Systems in connection with Charter's deployment of Charter Pipeline upon the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein and for other good and valuable consideration,
the mutuality, receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree:
1. DEFINITIONS.
1.1 "Additional Committed Network Systems" means Committed Network
Systems that Charter adds to EXHIBIT 3 pursuant to Section 2.4 hereof after the
date of this Agreement and during the Term of this Agreement.
1.2 "Applicable Law" means, with respect to any individual,
partnership, limited liability company, corporation, trust, joint venture or
other entity ("Person"), any statute, law, rule, regulation, directive, treaty,
judgment, order, decree or injunction of any federal, state or local authority
that is applicable to or binding upon such Person or to which such Person is
subject.
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1.3 "Cable Subscriber" means a cable TV subscriber or potential cable
TV subscriber residing in a "home passed" (i.e., residence or commercial
establishment) with access to a Committed Network System.
1.4 "Charter" means Charter Communications, Inc., a Delaware
corporation, and its affiliates and direct and indirect subsidiaries, and any
successor company as may result from any merger or other business combination or
reorganization of Charter Communications, Inc..
1.5 "Charter Pipeline" means the Charter- branded Charter Pipeline
on-line Internet access service offered by Charter to Data Subscribers for
display on personal computers. Charter Pipeline shall not include IP telephony
service, or any other services.
1.6 "Charter Single Point of Contact" or "CSPOC" means ▇▇▇▇▇▇ ▇▇▇▇▇,
Senior Vice President of Corporate Development and Technology for Charter, or
▇▇▇▇ ▇▇▇, Director of New Product Development for Charter, or their respective
nominees whose identities have been provided to HSA.
1.7 "Committed Network Systems" means those Systems in which Charter is
deploying and/or operating Charter Pipeline and has engaged HSA or will engage
HSA to perform the HSA Network Services on behalf of Charter under this
Agreement, and are listed on EXHIBIT 3 attached hereto or are added to EXHIBIT 3
as Additional Committed Network Systems.
1.8 "Confidential Information" means any and all information emanating
from either HSA's business or Charter's business in any form, including the
terms and conditions of this Agreement, as well as all data, summaries, reports
or information of all kinds, whether oral or written, acquired, devised or
developed in any manner by either party, including without limitation, the
Customer Lists and Charter's billing system data. The term "Confidential
Information" shall not include information that is in the public domain;
information known to the recipient party as of the date of this Agreement as
indicated by the recipient's written records, unless the recipient party agreed
to keep such information in confidence at the time of its receipt; and
information properly obtained hereafter from a source who is not under an
obligation of confidentiality with respect to such information; information
independently developed by the receiving party through persons who have not had,
either directly or indirectly, access or knowledge of such Confidential
Information that can be verified by independent evidence; or information
obligated to be disclosed under law or produced under a court order of competent
jurisdiction or valid administrative or congressional subpoena.
1.9 "Customer Lists" means the lists of Cable Subscribers and related
subscriber and billing system information (i.e., name, address, phone number,
other demographics, cable TV service level selection, etc.).
1.10 "Data Subscriber" or "Active Data Subscriber" or "Charter PC Data
Subscriber" means a residential, personal computer-based data Cable Subscriber
who has subscribed and is provisioned to use Charter Pipeline as of the last day
of any calendar month during the Term, regardless of whether they subscribe to
cable TV service.
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1.11 "First Network Services Agreement" means the Network Services
Agreement, dated November 25, 1998, by and between HSA and Charter
Communications Holding Company, LLC, an affiliate of Charter.
1.12 "HSA Network Services" means the residential Tier 2 and above
technical support and NOC support services attributed to HSA in EXHIBIT 1
attached hereto and, if applicable, the deployment services attributed to HSA in
EXHIBIT 2 attached hereto.
1.13 "HSA Single Point of Contact" or "HSPOC" means ▇▇▇▇▇ ▇▇▇▇▇, Vice
President of Affiliate Relations - Charter.
1.14 "Launch Date" means the date on which Charter commences billing
for Charter Pipeline in a Committed Network System.
1.15 "Registration Rights Agreement" means the Registration Rights
Agreement, dated the date hereof, by and between HSA, Charter and Charter
Communications Holding Company, LLC, an affiliate of Charter.
1.16 "Specifications and Standards" means, collectively, the technical
specifications and standards to which Charter's cable plant/head-ends must
adhere in order for Charter Pipeline to be distributed and the facilities to
function.
1.17 "Warrant" means, as the context requires, the Amended Warrant
and/or any Renewal Warrant, or the number of Warrant Shares issued or issuable
under the Amended Warrant and/or any Renewal Warrant.
1.18 Other Definitions. The following terms are defined in context in
the paragraphs or Sections indicated:
Capitalized Term Where defined
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"Additional Committed Network System Notice" Section 2.4
"Amended Warrant" Section 6.1
"Attainment Measures" Section 2.2.1 of EXHIBIT 2
"ATP" or "Authorization to Proceed" Section 2.5
"Capacity Thresholds" Section M.1 of EXHIBIT 1
"Change" Section 7.2
"Charter Operational Elements" Section 3.1
"Charter Parties" Section 11.1
"Charter Termination Event" Section 13.2
"Claims" Section 11.1
"Conversion Requirements" Section 13.4
"CPI-adjusted" Section 8.4
"CSR" ATTACHMENT 1-A to EXHIBIT 1
"Deployment Estimate" Section 8.3.1
"Deployment Services" Section 2.1 of EXHIBIT 2
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"Deployment TTM Charges" Section 2.1 of EXHIBIT 2
"Expedite Fees" Section N of EXHIBIT 1
"Force Majeure" Section 16
"Head-End Record" Section 2.2 of EXHIBIT 2
"HSA Network Services Charge" Section 6
"HSA Operational Elements" Section 4.1
"HSA Parties" Section 11.3
"HSA Termination Event" Section 13.3
"Initial Term" Section 7.1
"Intellectual Property Laws" Section 14.1.5
"Launch Fee" Section 9.1
"Minimum Thresholds" Section H of EXHIBIT 1
"Miscellaneous TTM Charge" Section M.1. of EXHIBIT 1
"Non-Qualified Call" or "NQC" Section H of EXHIBIT 1
"NQC Charges" Section H of EXHIBIT 1
"NQC Notice Period" Section H of EXHIBIT 1
"Person" Section 1.2
"Proceeding" Section 11.7
"QOS Requirements" Section I.1. of EXHIBIT 1
"Qualified Call" Section H of EXHIBIT 1
"Replacement System" Section 9.2.
"RF" Preamble paragraph A
"Second Anniversary" Section 2.3
"Site Survey" Section 2.2 of EXHIBIT 2
"SPOC" or "SPOCs" Section I of EXHIBIT 1
"Statement" Section 8.5
"Systems" or "Cable Systems" Preamble paragraph A
"Termination Fee" Section 13.5
"Term" Section 7.1
"Ticket" Section H of EXHIBIT 1
"TTM" Section A.1. of EXHIBIT 1
"VAR Support Call" Section L of EXHIBIT 1
"Warrant Shares" Section 13.1.2 2.
2. EXCLUSIVE RIGHT TO PROVIDE HSA NETWORK SERVICES/AUTHORIZATIONS TO PROCEED.
2.1 Subject to the terms and conditions of this Agreement, Charter
hereby grants and licenses to HSA for the Term, and HSA accepts from Charter for
the Term, the sole and exclusive right and privilege to provide the HSA Network
Services described in EXHIBIT 1 hereto in the Committed Network Systems;
provided, that such right shall not be an exclusive right in any System (i)
previously launched, for which there are existing services as of the date of
this Agreement, (ii) acquired by Charter in the future, for which there are
existing services as of the date of the acquisition of such System, and (iii)
where it is reasonably necessary to comply with any statutes, regulations or
court orders; provided further, that, in the case of clauses (i) and (ii), such
right shall not be an exclusive right only until such time as the
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provider of such existing services no longer provides the services or is
otherwise transitioned out as a provider of such services.
2.2 HSA agrees that, in the geographic areas where HSA and Charter do
business together under this Agreement, it will devote all of its business
activities exclusively as a provider to Charter of the HSA Network Services.
2.3 Charter shall not be required to commit any particular System so
long as Charter commits and releases to HSA (as described in Section 2.5 below)
Systems containing at least (i) an aggregate of 2,000,000 homes passed
(including all homes passed in systems previously committed by Charter to HSA,
other than full turnkey systems) on or prior to May 12, 2001, (ii) an aggregate
of 3,500,000 homes passed (including all homes passed in systems previously
committed by Charter to HSA, other than full turnkey systems) on or prior to May
12, 2002 (the "Second Anniversary"), and (iii) an aggregate of 5,000,000 homes
passed (including all homes passed in systems previously committed by Charter to
HSA, other than full turnkey systems) on or prior to May 12, 2003. Homes passed
in Systems previously committed by Charter to HSA pursuant to prior agreements
or arrangements between Charter and HSA, other than full turnkey systems, may be
included, at Charter's option, for purposes of satisfying the goals set forth in
the preceding sentence.
2.4 During the Term, Charter shall have the right to designate
Additional Committed Network Systems. Such right shall extend to any and all
Cable Systems now owned or hereafter owned, acquired or managed by Charter, and
shall be exercised by written notice from the Charter Single Point of Contact to
the HSA Single Point of Contact (an "Additional Committed Network System
Notice"); provided, that in any Committed Network System or Additional Committed
Network System where services similar to the HSA Network Services are already
being performed by Charter or some other third party, Charter and HSA shall
agree on a case-by-case basis, to the terms and conditions for converting such
System for HSA Network Services, but only to the extent Charter and HSA
determine that there is a conversion process necessary.
2.5 Notwithstanding the foregoing, HSA shall not deploy or perform HSA
Network Services for any Committed Network System unless and until such
Committed Network System has been released to HSA under an "Authorization to
Proceed" or "ATP" signed by the Charter Single Point of Contact as Systems are
certified by Charter as ready to provide personal computer-based data services
to residential customers. Charter will use its best efforts to provide HSA with
a projected list of scheduled Launch Dates for the following year.
2.6 Charter and HSA agree that, upon the execution and delivery of this
Agreement, the Montivallo and Gardendale, Alabama systems shall be placed on
EXHIBIT 3 hereto and deemed for all purposes to be Committed Network Systems
under this Agreement, and that the Additional System Notice and Partial HSAC
Services Supplement, dated April 28, 1999, between HSA and Charter is hereby
revoked and cancelled in all respects without penalty to either party.
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3. GENERAL OBLIGATIONS OF CHARTER. Charter covenants and agrees to:
3.1 perform the services and operational elements described in EXHIBIT
1 and, if applicable, EXHIBIT 2 (the "Charter Operational Elements") in
accordance with industry standards and the terms of this Agreement;
3.2 maintain all connection interfaces of the Charter facilities to the
Committed Network Systems, operate, and maintain and repair its RF-plant/system
(including, without limitation, all coaxial cable, head-end equipment,
connectors, amplifiers, passive devices/splitters, etc.) at its own cost and
expense in accordance with cable plant specifications as prescribed by FCC Part
76 regulations, and repair all line cuts and eliminate signal ingress, egress,
leakage or interruptions in the Committed Network System affecting more than 100
customers that cause variances from such specifications, i.e., to the extent a
service failure is traceable to an RF plant defect or malfunction, Charter will
provide technical personnel within 4 hours or less (or as soon as commercially
practicable) to repair and/or respond to such service failure;
3.3 operate one or more customer support/call centers on a 24 x 7 basis
accessible by toll-free telephone number staffed with an adequate number of
trained representatives to respond to calls and resolve inquiries from Data
Subscribers in the Committed Network Systems regarding Tier 1 troubleshooting
and support as set forth in EXHIBIT 1 (including ATTACHMENT 1-A thereto),
billing and video/RF plant service failures, and escalate Qualified Calls to
HSA;
3.4 operate its billing systems to invoice Data Subscribers and remit
to HSA the HSA Network Service Charges, NQC Charges (if any), Deployment TTM
Charges (if any), and Miscellaneous TTM Charges (if any) as provided in Section
8 and EXHIBIT 1 and, if applicable, EXHIBIT 2; and
3.5 comply with all Applicable Laws.
4. GENERAL OBLIGATIONS OF HSA. HSA covenants and agrees:
4.1 to perform the service and operational elements described in
EXHIBIT 1 and, if applicable, EXHIBIT 2 (the "HSA Operational Elements") on
behalf of Charter in respect of the Committed Network Systems in accordance with
the terms of this Agreement;
4.2 that the HSA Network Services to be performed, the level of
performance thereof and the prices to be charged therefor shall at all times
conform to industry standards and shall be at least comparable to, and remain
competitive with, the type of, performance level of and price of services
provided by other providers of services similar to the HSA Network Services;
4.3 that if HSA offers services comparable to the HSA Network Services
to other parties, it shall extend the same price and terms for such services to
Charter;
4.4 to operate one or more 365 x 24 x 7 customer support/call center(s)
and data centers (NOCs) accessible by toll-free telephone number staffed with an
adequate number of trained
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representatives to accept and resolve Qualified Calls/Tier 2 inquiries from Data
Subscribers, all as more specifically set forth in EXHIBIT 1 (including
ATTACHMENT 1-A thereto); and
4.5 comply with all Applicable Laws.
5. INTELLECTUAL PROPERTY.
5.1 Charter acknowledges that the names and marks "HSA", "HSA Network",
"High Speed Access Network", the "HSA Data Network" and other HSA logos, program
names, trademarks, service marks, domain names, meta tags, programs, manuals,
documentation, codes and other support materials covered by this Agreement or
otherwise used by HSA, are the exclusive property of HSA. Charter has not and
will not acquire any proprietary rights thereto by reason of this Agreement, and
Charter shall have no rights to use such names, marks, logos, variations or
titles except at the times and in a manner expressly approved by HSA.
5.2 HSA acknowledges that the names and marks "Charter," "Charter
Communications," "Wired World," "Charter Pipeline," "Charter Digital,"
"▇▇▇▇▇▇▇▇▇▇.▇▇▇" and "▇▇▇▇▇▇▇.▇▇▇," and other Charter-related logos, programs,
names, trademarks, service marks, domain names, meta tags, programs, manuals,
documentation, codes and other support materials covered by this Agreement or
otherwise used by Charter or its affiliates, are the exclusive property of
Charter or such affiliate. HSA has not and will not acquire any proprietary
rights thereto by reason of this Agreement, and HSA shall have no rights to use
such names, marks, logos, variations or titles except at the times and in a
manner expressly approved by Charter.
6. AMENDMENT TO CLASS A WARRANT AND CLASS B WARRANT.
6.1 Simultaneously with the execution of this Agreement, Charter and
HSA shall enter into an Amended and Restated Securities Purchase Warrant
substantially in the form of EXHIBIT 5 hereto (the "Amended Warrant" that will
amend and restate the Class A Securities Purchase Warrant No. R001, dated
November 25, 1998 and Class B Securities Purchase Warrant No. R001, dated
November 25, 1998.
6.2 The Amended Warrant shall:
6.2.1 subject to approval by HSA's board of directors, provide
for the issuance upon exercise by Charter (to the extent earned) of up to
12,000,000 shares (subject to adjustment) of Common Stock; par value $0.01, of
HSA (the "Warrant Shares"), and entitle Charter to earn and purchase Warrant
Shares in an amount equal to the number of Homes Passed in Committed Network
Systems and Additional Committed Network Systems (i) on a .775 Warrant Share per
every home passed basis at a strike price of Three Dollars and Twenty Three
Cents ($3.23) per share (subject to adjustment) for an aggregate commitment of
up to Five Million (5,000,000) homes passed under this Agreement (without
reference to full turnkey systems committed by Charter to HSA under the First
Network Services Agreement), (ii) on a 1.55 Warrant Share per every home passed
basis at a strike price of Three Dollars and Twenty Three Cents ($3.23) per
share (subject to adjustment) for additional homes passed under this
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Agreement (without reference to full turnkey systems committed by Charter to HSA
under the First Network Services Agreement), and (iii) on a 1.55 Warrant Share
per every home passed basis for homes passed in systems committed by Charter to
HSA under the First Network Services Agreement (without reference to homes
passed under this Agreement);and
6.2.2 provide that Warrants earned under this Agreement shall
vest (i.e., be eligible for exercise) at such time as the applicable home passed
is or becomes part of a Committed Network System under Section 2 of this
Agreement, provided that the Warrants earned under this Agreement may only be
exercised to the extent of homes passed released for deployment under Section
2.5 hereof for HSA Network Services under an ATP (this condition applies only to
Committed Network Systems and not to full turnkey systems under the First
Network Services Agreement).
6.3 Upon any renewal of this Agreement with respect to any or all of
the Committed Network Systems for additional terms of five (5) years (each a
"Renewal Term"), HSA will provide to Charter on the respective renewal date,
additional securities purchase warrants (each a "Renewal Warrant") that will
entitle Charter to earn and purchase Warrant Shares in an amount equal to the
number of homes passed in Committed Network Systems on a one-half (.5) Warrant
Share per every home passed basis at a strike price of Ten Dollars ($10.00) per
share (subject to adjustment). The number of Warrant Shares subject to the
Renewal Warrant shall be determined based upon the number of homes passed
committed to HSA during the initial 5-year term and each 5-year renewal term.
6.4 The Amended Warrant and Renewal Warrants earned under this
Agreement shall be exercisable with respect to the Committed Network Systems
covered under this Agreement for a period of seven and one-half (7 1/2) years
after the date such rights are earned in each instance, and shall not expire
until the right to purchase all Warrant Shares earned have been exercised or are
no longer exercisable.
6.5 As of June 30, 2000, and continuing on a quarterly basis
thereafter, Charter shall deliver, and HSA shall agree to and accept, the
Warrant Receipt (as defined in the Amended Warrant), in accordance with the
terms of the Amended Warrant.
7. TERM OF AGREEMENT; EXPIRATION.
7.1 The term of this Agreement shall commence effective as of the date
set forth in the preamble hereto, and continue for a term of five (5) years (the
"Initial Term" and, together with any Renewal Terms, the "Term"), as long as HSA
provides the HSA Network Services as set forth in this Agreement continuously
throughout the Term, Charter's obligation to pay HSA Network Services Charges
with respect to any particular Committed Network System committed to HSA during
the term shall survive for a period of five (5) years from the date such
Committed Network System is launched. Charter shall have the option to renew
this Agreement for additional successive Renewal Terms on the same terms and
conditions (except for the Launch Fee); provided, that Charter's obligation to
pay HSA Network Services Charges with respect to that Committed Network System
shall also be extended by an additional 5-year period; provided further, that
the HSA Network Services Charges applicable to Committed Network Systems where
Charter received a Launch Fee described in Section 8.1 hereof shall
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be reduced during the Renewal Term such as to become equivalent with the HSA
Network Services Charges applicable to Committed Network Systems described in
Section 8.2 hereof.
7.2 For purposes of Section 7.1 above, (a) if a Committed Network
System is expanded or a System that was not previously committed to HSA is added
to such Committed Network System, or (b) if two or more Committed Network
Systems are combined into one Committed Network System (any of the foregoing, a
"Change"), HSA's obligation to provide the HSA Network Services and Charter's
obligation to pay HSA Network Services Charges shall be extended in accordance
with the following:
(a) in the case of the expansion of a Committed Network System or
the addition of a System that previously was not committed to
HSA, the number of months added to the initial 5-year term
shall be determined based on the following formula:
(AxB)/(B+C), where
A = the number of months expired from the date
of launch under the initial 5-year term
until the date of the Change,
B = the number of Homes Passed added to the
Committed Network System as a result of the
Change, and
C = the number of Homes Passed in the
Committed Network System prior to the
Change; and
(b) in the case of the combination of two or more launched
Committed Network Systems, the number of months added to the
term of the first of such Committed Network Systems to be
launched shall be determined based on the following formula:
(AxB)/(B+C), where
A = the difference in the number of months
expired from the date of launch under the
initial 5-year term until the date of the
Change,
B = the number of Homes Passed in the
Committed Network System launched last, and
C = the number of Homes Passed in the
Committed Network System launched first.
8. FEES FOR SERVICES. During the Term, Charter will compensate HSA for
the HSA Network Services (the "HSA Network Services Charges") as follows:
8.1 With respect to each Committed Network System for which HSA
pays Charter a Launch Fee, Charter shall pay to HSA $7.50 per month per Charter
PC Data Subscriber for the first year
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from the date such Committed Network System is launched, and $8.31 per month
(CPI-adjusted once annually) per Charter PC Data Subscriber for the following
four (4) years thereafter.
8.2 With respect to all other Committed Network Systems, Charter shall
pay to HSA $7.50 per month (CPI-adjusted once annually after the first year) per
Charter PC Data Subscriber for five (5) years from the date such Committed
Network System is launched.
8.3 In addition to the HSA Network Services Charges described in
Sections 8.1 and 8.2 above, which charges HSA warrants will be, throughout the
Term hereof, generally competitive with industry standards for the volume and
scope of services provided, Charter will also compensate HSA for HSA Network
Services that exceed the Minimum Thresholds (i.e., NQC Charges, VAR Support
Calls) as set forth in EXHIBIT 1 hereto:
8.3.1 Any invoiced Deployment Services and Deployment TTM
Charges (which may be billed on a completed or progress basis by HSA) shall be
based upon estimates provided by HSA (i.e., a "Deployment Estimate") and
approved/accepted by Charter (through the respective HSPOC and CSPOC) prior to
performance. HSA's Deployment Estimates will be based upon and are qualified by
the system questionnaire/Head-End Record information furnished by Charter. In
the case where Charter selects HSA to perform Deployment Services prior to
completion and receipt of the Head-End Record, HSA's Deployment Estimate will be
based upon HSA's Site Survey results; and
8.3.2 Any invoiced Miscellaneous TTM Charge (which may be
billed on a completed project or progress basis by HSA) shall be based upon an
estimate provided by HSA and a standard rate card to be developed by HSA and
approved/accepted by Charter (through the respective HSPOC and CSPOC) prior to
performance.
8.4 As used herein, "CPI-adjusted" means that effective as of May 1 of
each calendar year during the Term for which a CPI adjustment is to be made to
HSA Network Services Charges in Sections 8.1 and 8.2 hereof, the HSA Network
Services Charge shall automatically be adjusted in accordance with changes in
the Consumer Price Index, All Urban Consumers, All Items (1982-84 = 100) as
published by the Bureau of Labor Statistics, U.S. Department of Labor (the
"CPI"). The CPI figure for December 31, 1999 is established to be the base index
figure. On or before March 1 of each calendar year during the Term for which a
CPI adjustment is to be made, HSA shall provide Charter with a notice setting
forth the CPI figure for the preceding calendar year (December 31) and the
adjustment to the HSA Network Services Charges, effective as of May 1 of that
year and continuing throughout the next twelve (12) months, which shall be an
increase based on the percentage such CPI for the preceding calendar year has
increased as compared with the base CPI figure. There shall be no adjustment if
such CPI figure is lower than the base CPI figure;
8.5 Within forty-five (45) days following the end of each and every
calendar month during the Term thereof, Charter will deliver to HSA a statement
(a "Statement") showing the computation of (identified by Committed Network
System), and remit a check for, the HSA Network Services Charges, based on the
number of Active Data Subscribers as of the month-end billing cycle and the
books and records maintained by Charter in accordance with generally accepted
accounting principles, consistently applied; provided, that if Charter's beta
extends beyond 60 days in a particular Committed
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Network System, Charter shall commence payment of the HSA Network Service
Charges based on an assumed .3333% per month penetration.
8.6 HSA will remit to Charter an invoice, which shall be reasonably
detailed (and identified by Committed Network System), covering any
discrepancies in HSA Network Services Charges previously paid by Charter,
Miscellaneous TTM Charges, NQC Charges or VAR Support Call charges, or any
agreed to Deployment Services or Deployment TTM Charges. Charter will remit to
HSA a check for the amount of such invoice within forty-five (45) days following
receipt of HSA's invoice. If Charter objects to any invoice delivered by HSA,
Charter must notify HSA in writing within thirty (30) days following receipt
thereof, setting forth in specific detail the basis for Charter's objection and
Charter's proposal for any adjustments to the invoice. HSA and Charter shall
seek in good faith to reach agreement within thirty (30) days following HSA's
receipt of Charter's written notice of objection. If HSA and Charter are unable
to reach agreement within such time period, then a "Big-5" accounting firm, as
agreed upon by HSA and Charter (the "Third Party Accounting Firm"), shall be
engaged to review the invoice and shall make a determination that represents
either agreement with HSA or with Charter, or a compromise between such
positions. The determination of the Third Party Accounting Firm shall be
delivered as soon as practicable following the engagement of the Third Party
Accounting Firm, and shall be final, conclusive and binding upon HSA and
Charter. The non-prevailing party shall pay the fees and expenses of the Third
Party Accounting Firm.
8.7 Subject to twenty (20) business days advance notice, during the
Term hereof and for one year thereafter, each party or its authorized
representatives may, at its own expense, visit the other party's offices during
regular business hours, subject to suitable protections relating to
confidentiality and non-disclosure, to inspect books and records to the extent
necessary to verify fees due hereunder. If any audit of Statements, or invoices
undertaken in accordance with this paragraph discloses a discrepancy, the
audited party shall pay such amount to the auditing party as shall be due them,
and if the audit discloses a ten percent (10%) or greater discrepancy, the
audited party shall also reimburse the auditing party for all costs incurred by
the auditing party in connection with such audit. Such examination shall be
limited to fees payable during the then current calendar year and prior calendar
year. Each party shall have the right to audit the final calendar year of the
Agreement up to one year after the expiration or termination of the Agreement.
9. LAUNCH FEES.
9.1 With respect to each Committed Network System launched or intended
to be launched on or before the Second Anniversary, within forty-five (45) days
of HSA's receipt of an ATP for such Committed Network System, HSA will pay
Charter, at Charter's option (as specified on the ATP), a launch fee (the
"Launch Fee") of $3.00 per home passed by such Committed Network System;
provided, that with respect to the Committed Network Systems in Long Beach and
St. Louis, the aggregate amount of such Launch Fee shall be $1,000,000.00 for
each such Committed Network System.
9.2 Charter shall refund such Launch Fee to HSA with respect to a
particular Committed Network System if (i) such Committed Network System is not
launched by November 30, 2002, or (ii) Charter withdraws such Committed Network
System prior to the expiration of this
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Agreement for any reason other than an HSA Termination Event; provided, however,
that Charter shall not be required to refund any Launch Fee to HSA with respect
to any Committed Network System so withdrawn by Charter if (x) within three (3)
months after the date of such withdrawal, Charter commits to HSA a replacement
System or Systems with a comparable number of homes passed and active Charter PC
Data Subscribers (such System or Systems, a "Replacement System"), (y) in the
case where a Committed Network System is withdrawn by Charter because it has
been acquired by a third party, such third party retains HSA as a provider of
HSA Network Services for that System on terms that are not materially less
favorable to HSA than the terms of Agreement, or (z) Charter pays the
Termination Fee to HSA with respect to such System. HSA shall not be required to
pay a Launch Fee on Replacement Systems.
10. CONFIDENTIAL INFORMATION.
10.1 Each party agrees that it shall not, during or after the Term of
this Agreement, permit the duplication, use, or disclosure of any Confidential
Information to any person (other than an employee, agent, or representative of
the other party who must have such information for the performance of its
obligation hereunder), unless such duplication, use or disclosure is
specifically authorized by the other party in writing. Without limiting the
generality of the foregoing, each party shall (a) not disclose any Confidential
Information to any third person without the express written consent of the other
party; (b) not use, directly, indirectly, or in concert with any other person,
any Confidential Information for any purpose other than the performance of their
obligations under this Agreement; (c) use reasonable diligence, and in no event
less than that degree of care that such party uses in respect to its own
confidential information of like nature, to prevent the unauthorized disclosure
or reproduction of such information. Without limiting the generality of the
foregoing, to the extent that this Agreement permits the copying of Confidential
Information, all such copies shall bear the same confidentiality notices,
legends, and intellectual property rights designations that appear in the
original versions.
10.2 Any party obligated to disclose information under law or to
produce information under a court order of competent jurisdiction or valid
administrative or congressional subpoena shall give notice thereof to the other
party and shall reasonably cooperate with any attempt by the party so notified
to enjoin such disclosure or production of information.
10.3 HSA may for tax, audit and statutory compliance purposes retain a
computer filecopy of Charter's Customer Lists or other accumulated customer care
information until such time as HSA's regular procedures for elimination of such
data would normally delete or destroy such information, provided that HSA shall
maintain the confidentiality of such information and not utilize such
information for its own commercial purposes.
11. INDEMNITIES.
11.1 HSA agrees to indemnify and save harmless Charter and its
officers, directors, employees, agents, representatives, affiliates, successors
and assigns (collectively, the "Charter Parties") from any liabilities,
lawsuits, penalties, claims or demands finally awarded or settled (including the
costs, expenses and reasonable attorneys' fees on account thereof)
(collectively, "Claims") that may be made for injuries, including death to
persons, resulting from (i) HSA's negligent or willful acts or omissions or
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those of persons employed by HSA, or (ii) any equipment owned and employed by
HSA to provide the HSA Network Services so long as the injury was not caused by
the injured person.
11.2 HSA agrees to indemnify and save harmless the Charter Parties from
any Claims arising out of or in connection with HSA's breach (or alleged breach)
of any covenants, warranties or representations made herein.
11.3 Charter agrees to indemnify and save harmless HSA and its
officers, directors, employees, agents, representatives, affiliates, successors
and assigns (collectively, the "HSA Parties"), from any Claims that may be made
for injuries, including death to persons, resulting from (i) Charter's negligent
or willful acts or omissions or those of persons employed by Charter, or (ii)
any equipment owned and employed by Charter to provide Charter Pipeline so long
as the injury was not caused by the injured person.
11.4 Charter agrees to indemnify and save harmless HSA from any Claims
arising from Charter's management, operation and control of Charter Pipeline.
11.4 Charter agrees to indemnify and save harmless the HSA Parties from
any Claims arising out of or in connection with Charter's breach (or alleged
breach) of any covenants, warranties or representations made herein.
11.5 HSA agrees to indemnify and save harmless the Charter Parties from
any Claims arising from HSA's management, operation, control or provision of the
HSA Network Services.
11.6 Any person or entity entitled to indemnification hereunder shall
promptly notify the indemnifying party of any action, suit, proceeding or
investigation ("Proceeding") for which the indemnification is sought, provided
that any failure to so notify the indemnifying party will not relieve the
indemnifying party from any liability or obligation which it may have to any
indemnified party except to the extent of any material prejudice to the
indemnifying party resulting from such failure. If any Proceeding is brought
against an indemnified party, the indemnifying party will be entitled to
participate therein and to assume the defense thereof, with counsel reasonably
satisfactory to the indemnified party, within fifteen (15) days after notice
shall have been given to it by the indemnified party pursuant to the preceding
sentence. Each indemnified party will be obligated to cooperate reasonably with
the indemnifying party, at the expense of the indemnifying party in connection
with such defense and the compromise or settlement of any such Proceeding.
Notwithstanding the foregoing, the indemnified party shall have the right to
employ its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action, (ii) the
indemnifying party shall not have employed counsel to have charge of the defense
of such action within a reasonable time after notice of commencement of the
action, or (iii) such indemnified party shall have reasonably concluded that
there may be defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party), in any of which events such fees and expenses shall be borne
by the indemnifying party. Anything in this Section 11 to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement or
any claim or
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action effected without its written consent; provided, however, that such
consent shall not be unreasonably withheld.
12. Limitation of Liability and Disclaimer of Warranty.
12.1 NOTWITHSTANDING THE INDEMNITIES SET FORTH IN SECTION 11 ABOVE, AND
EXCEPT FOR CHARTER'S PAYMENT OF THE TERMINATION FEE (IF APPLICABLE) AND EXCEPT
AS OTHERWISE SET FORTH IN SECTION 13 HEREOF, IN NO EVENT SHALL HSA AND CHARTER
BE LIABLE TO ONE ANOTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS ARISING FROM OR RELATED TO THE
BREACH OF THIS AGREEMENT, EVEN IF HSA OR CHARTER HAD BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. CHARTER AND HSA WILL EACH MAINTAIN APPROPRIATE
POLICIES OF INSURANCE STANDARD IN THE INDUSTRY RELATING TO GENERAL LIABILITY,
CASUALTY AND WORKERS COMPENSATION INSURANCE TO COVER THEIR RESPECTIVE EMPLOYEES
AGAINST INJURY TO THEMSELVES OR OTHERS AND CASUALTY ACCIDENTS WHILE WORKING ON
OR IN THE OTHER'S PREMISES/SYSTEMS.
12.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, HSA'S AND
CHARTER'S LIABILITIES TO ONE ANOTHER (EXCEPT FOR THE PAYMENT OF ANY APPLICABLE
TERMINATION FEE AND EXCEPT AS OTHERWISE SET FORTH IN SECTION 13 HEREOF) UNDER
THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, OR OTHERWISE, SHALL BE
LIMITED TO THE ACTUAL AMOUNT OF DAMAGES (AS LIMITED BY SECTION 11 ABOVE)
INCURRED BY CHARTER OR HSA.
13. TERMINATION EVENTS; EFFECT OF TERMINATION; OTHER.
13.1 Termination Events. The following shall be deemed "Termination
Events":
13.1.1 HSA fails to perform the HSA Network Services with
respect to a particular Committed Network System, or with respect to a material
number of Data Subscribers within a Committed Network System, or fail to comply
with the performance specifications for the HSA Network Services or commits a
material breach of this Agreement, the Amended Warrant or the Registration
Rights Agreement, and has not cured such failure or breach to Charter's
reasonable satisfaction within sixty (60) after Charter has provided HSA with
written notice of such failure or breach;
13.1.2 HSA becomes insolvent, or a petition under any
bankruptcy act shall be filed by or against HSA (which petition shall not have
been dismissed within thirty (30) days thereafter), or HSA executes an
assignment for the benefit of creditors, or a receiver is appointed for HSA or
its assets, or HSA takes advantage of any insolvency or any like statute;
13.1.3 HSA merges with another party or experiences a change
in control. For the purpose of this Section 13.1.3, a "change in control" shall
occur if (i) any Person or any Persons acting together that would constitute a
"group" (a "Group)") for purposes of Section 13(d) of the Securities Exchange
Act of 1934, or any successor provision thereto, together with any Affiliates or
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Related Persons thereof, shall beneficially own (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, or any successor provision
thereto) at least 50% of the aggregate voting power of all classes of voting
stock of HSA, (ii) any Person or Group, together with any Affiliates or Related
Persons thereof, shall succeed in having a sufficient number of its nominees
elected to the board of directors of HSA such that such nominees, when added to
any existing director remaining on the board of directors of HSA after such
election who was a nominee of or is an Affiliate or Related Person of such
Person or Group, will constitute a majority of the board of directors of HSA,
and (iii) the Chief Executive Officer of HSA on the date hereof shall no longer
be employed by HSA in such capacity; provided, that any event described in
clause (i) or (ii) above will not constitute a "change of control" where the
relevant Person or Group, together with any relevant Affiliates or Related
Persons, consists exclusively of HSA, any Affiliate or any Person who is an
officer, director or 10% shareholder of HSA or any Affiliate (or an entity
controlled by any of the foregoing) as of the date of this Agreement. For the
purposes of this definition, (a) the term "Person" shall include an individual,
corporation, partnership, limited liability company, association, trust or other
entity or organization, including a government or political subdivision or an
agency or instrumentality thereof, (b) the term "Affiliate" shall mean a Person
that directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified, and (c) a
"Related Person" of any Person means any other Person directly or indirectly
owning (1) 5% or more of the outstanding common stock of such Person (or, in the
case of a Person that is not a corporation, 5% or more of the equity interest in
such Person), or (2) 5% or more of the combined voting power of the voting stock
of such Person;
13.1.4 Charter defaults in any material respect in the
performance of any of its obligations hereunder, and has not cured such default
to HSA's reasonable satisfaction within sixty (60) after HSA has provided
Charter with written notice of such default; or
13.1.5 Charter becomes insolvent, or a petition under any
bankruptcy act shall be filed by or against Charter (which petition shall not
have been dismissed within thirty (30) days thereafter), or Charter executes an
assignment for the benefit of creditors, or a receiver is appointed for Charter
or its assets, or Charter takes advantage of any insolvency or any like statute.
13.2 HSA Remedies. In addition to all of HSA's other rights and
remedies at law or equity as limited by Section 12 hereof, HSA has the right to
(i) terminate this Agreement, (ii) renegotiate this Agreement, (iii) refuse to
provide HSA Network Services to, or withdraw HSA Network Services from, a
particular Committed Network System, if there has been a Termination Event as
set forth in Sections 13.1.4 or 13.1.5 hereof (each, a "Charter Termination
Event"). HSA's selection of any one of these remedies shall not preclude HSA
from selecting any other of such remedies for the same or other Charter
Termination Event. In the event that a Charter Termination Event occurs which is
limited to a particular Committed Network System, HSA may exercise the forgoing
rights only with respect to the Committed Network System in question and not
this entire Agreement.
13.3 Charter Remedies. In addition to all of Charter's other rights and
remedies at law or equity as limited by Section 12 hereof, if there has been a
Termination Event as set forth in Sections 13.1.1, 13.1.2 or 13.1.3 hereof
(each, an "HSA Termination Event"), Charter has the right, at its option, to (i)
terminate this Agreement, (ii) renegotiate this Agreement, or (iii) withdraw
such Committed Network
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System or such Data Subscribers, and elect to provide the service directly or
through another provider; provided, that Charter shall not be required to pay
the HSA Network Services Charges with respect to any such Committed Network
System from the date Charter terminates the HSA Network Services with respect to
that Committed Network System, and Charter shall retain the Launch Fee, if any,
and all Warrants under the Amended Warrant and any Renewal Warrants earned prior
to the termination date with respect to such Committed Network System. Charter's
selection of any one of these remedies shall not preclude Charter from selecting
any other of such remedies for the same or other HSA Termination Event. In the
event that an HSA Termination Event occurs which is limited to a particular
Committed Network System, Charter may exercise the forgoing rights only with
respect to the Committed Network System in question and not this entire
Agreement.
13.4 Actions upon Termination. Except as set forth in Section 13.5 to
the contrary, upon any termination or cancellation of this Agreement as to a
particular Committed Network System for any reason whatsoever: (i) such
Committed Network System shall be removed from EXHIBIT 3 and from this
Agreement, (ii) HSA shall comply with the Conversion Requirements (defined
below) with respect to such Committed Network System; and (iv) HSA shall
transfer to Charter all Confidential Information, Customer Lists, and any data
related to or about the Data Subscribers relating to the applicable Committed
Network Systems. As used herein, "Conversion Requirements" means that HSA will
continue to provide the HSA Network Services to Charter (at Charter's cost on a
direct or pass-through basis from HSA) for a period of not less than 160 days
from the termination date, and will work with Charter to transition Data
Subscribers to any services Charter may offer directly or through another
service provider.
13.5 Termination other than for an HSA Termination Event. In the event
Charter, prior to the expiration of this Agreement, terminates this Agreement in
whole or in part with respect to a particular Committed Network System or
withdraws a particular Committed Network System that has been committed to HSA
under an ATP for any reason other than an HSA Termination Event, Charter shall
pay to HSA a termination fee (the "Termination Fee") equal to the number of
Homes Passed in the affected Committed Network Systems times:
(i) $5.00 if termination occurs in months 1-12 from the Launch
Date;
(ii) $4.00 if termination occurs in months 13-24 from the Launch
Date;
(iii) $3.00 if termination occurs in months 25-36 from the Launch
Date;
(iv) $2.00 if termination occurs in months 37-48 from the Launch
Date; or
(v) $1.00 if termination occurs in months 49-60 from the Launch
Date;
provided that Charter shall not be required to pay the Termination Fee with
respect to such Committed Network System if (a) Charter continues to pay to HSA
the HSA Network Services Charges and, within three (3) months after the date of
such withdrawal, commits a Replacement System to HSA, with respect to which HSA
shall provide the HSA Network Services for the balance of the 5-year term of the
withdrawn Committed Network System plus the number of months that elapsed
between the withdrawal of the original Committed Network System and the
commitment of a Replacement System, or (b) a third-party retains HSA as a
provider of services for that Committed Network System on terms that are not
materially less favorable to HSA than the terms of this Agreement; provided
further, that, whether
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Charter pays such Termination Fee or is not required to pay such Termination Fee
under either clause (a) or (b) above, Charter shall retain the Launch Fee, if
any, and any and all Warrants earned under the Amended Warrant and any Renewal
Warrant, with respect to such Committed Network System.
14. REPRESENTATIONS AND WARRANTIES.
14.1 HSA Representations and Warranties. HSA hereby represents and
warrants to Charter as follows:
14.1.1 HSA is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware, and is duly
qualified to do business as a foreign corporation in all jurisdictions in which
it conducts its business, except where the failure to be so qualified would not
have a material adverse effect on its business.
14.1.2 HSA's execution, delivery, and performance of this
Agreement has been duly authorized by all requisite corporate action, and this
Agreement constitutes a legally valid and binding obligation of HSA enforceable
in accordance with its terms, except as may be affected by laws relating to
bankruptcy or insolvency or the application by a court of equitable principles.
14.1.3 HSA's execution, delivery, and performance of this
Agreement shall not violate, conflict with and/or result in a breach or default
under HSA's certificate of incorporation, bylaws or other charter documents, or
any judgment, award, decree, agreement or other instrument to which HSA is a
party.
14.1.4 No approval, authorization, consent, or order or filing
with any court, or governmental or administrative agency or any third party is
required in order for HSA to enter into, deliver, and perform this Agreement and
the transactions contemplated herein.
14.1.5 HSA either owns or has properly licensed all rights
under patent, copyright, trademark, trade secret, and other domestic and foreign
intellectual property laws (collectively, "Intellectual Property Laws") that are
necessary or required to perform the HSA Network Services, including, without
limitation, equipment, software and software licenses that HSA shall use or
shall provide in connection with the HSA Network Services to be performed by HSA
hereunder. HSA's provision and/or operation of the HSA Network Services shall
not violate or infringe any Intellectual Property Laws or violate or infringe
any rights of third parties.
14.2 Charter Representations and Warranties. Charter hereby represents
and warrants to HSA as follows:
14.2.1 Charter is a corporation duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to do business as a foreign corporation in
all jurisdictions in which it conducts its business, except where the failure to
be so qualified would not have a material adverse effect on its business.
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14.2.2 Charter's execution, delivery, and performance of this
Agreement has been duly authorized by all requisite corporate action, and this
Agreement constitutes a legally valid and binding obligation of Charter
enforceable in accordance with its terms, except as may be affected by laws
relating to bankruptcy or insolvency or the application by a court of equitable
principles.
14.2.3 Charter's execution, delivery, and performance of this
Agreement shall not violate, conflict with and/or result in a breach or default
under its certificate of incorporation, bylaws or other charter documents, or
any judgment, award, decree, agreement or other instrument to which it is a
party.
14.2.4 No approval, authorization, consent, or order or filing
with any court, or governmental or administrative agency or any third party is
required in order for it to enter into, deliver, and perform this Agreement and
the transactions contemplated herein.
14.2.5 Charter either owns or has properly licensed all rights
under Intellectual Property Laws that are necessary or required to offer and
operate Charter Pipeline, including, without limitation, equipment, software,
software licenses or content that Charter shall use or shall provide in
connection with the Charter Pipeline. Charter's provision and/or operation of
Charter Pipeline shall not violate or infringe any Intellectual Property Laws or
violate or infringe any rights of third parties.
15. INDEPENDENT CONTRACTORS. All work performed by any party in
connection with the HSA Network Services described in this Agreement shall be
performed by such party as an independent contractor and not as the agent,
employee, joint venturer or partner of the other party. All persons furnished by
any party hereto shall be for all purposes be solely such party's employees or
agents and shall not be deemed to be employees of the other party for any
purpose whatsoever. Each party hereto shall furnish, employ and have exclusive
control of all persons to be engaged in performing their respective services
under this Agreement and shall prescribe and control the means and methods of
performing such services by providing adequate and proper supervision. Nothing
contained herein shall be deemed to create a relationship of joint venture,
associates, principal and agent or partnership between the parties hereto and
neither party shall hold itself out of the contrary. Each party is acting as
principal hereunder.
16. FORCE MAJEURE. Neither party shall be responsible for any delay or
failure in performance of any part of this Agreement to the extent that such
delay or failure is caused by fire, flood, explosion, war, lightning, embargo,
government requirement, riots or civil commotion, acts of civil or military
authority, strikes or other labor unrest, shortages of materials or supplies,
power failures/surges, acts or omissions of global internet Access providers or
telecom carriers/utilities, acts of God or other similar causes or contingencies
beyond its reasonable control (i.e., a "Force Majeure"). Such party's
performance of its obligations hereunder shall be suspended during such period;
provided, that such party shall be obligated to use commercially reasonable
efforts to cure any such delay or failure to perform as promptly as possible to
the extent it relates to its portion of the general obligations under this
Agreement; provided, further, that the party invoking the protections herein
stated shall as soon as reasonably
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practicable, give the other party notice of the event and a projection of the
period in which such party expects to effect a cure.
17. ASSIGNMENT. HSA shall not have the right to assign this Agreement
to any Person without the prior written consent of Charter, except that HSA may,
without Charter's consent, assign its rights, but not its obligations, to a
subsidiary of HSA; provided, that no such assignment shall relieve HSA of
liability for its obligations under this Agreement. Charter may assign this
Agreement to any Person, and this Agreement shall be binding and inure to the
benefit of its successors and assigns. Each party shall be permitted to
collaterally assign and grant a security interest in its contract rights arising
under this Agreement to secure financing from its commercial lenders. All
assignments in contravention of this Section 17 shall be null and void and of no
force and effect. Either party shall provide the other party with thirty (30)
days prior written notice of any permitted assignment hereunder.
18. AMENDMENTS, MODIFICATIONS, OR SUPPLEMENTS. The parties may amend,
modify or supplement this Agreement provided that it is done in writing signed
by the authorized representatives of each party and all such changes reference
this Agreement and identify the specific articles or sections to be amended,
modified, or supplemented.
19. NOTICES. All notices, demands, or other communications herein
provided to be given or that may be given by any party to the other shall be
deemed to have been duly given when made in writing and delivered in person, or
upon receipt, if: (a) deposited in the U.S. mail, postage prepaid, certified
mail, return receipt requested; or (b) sent by nationally recognized overnight
courier, and addressed as follows:
Notices to HSA: HIGH SPEED ACCESS CORP.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇'▇▇▇▇▇, CEO
Phone: ▇▇▇-▇▇▇-▇▇▇▇, fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: HIGH SPEED ACCESS CORP.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
Phone: ▇▇▇-▇▇▇-▇▇▇▇, fax: ▇▇▇-▇▇▇-▇▇▇▇
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Notices to Charter: CHARTER COMMUNICATIONS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
SVP of Technology
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: CHARTER COMMUNICATIONS, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, Senior Vice President
and General Counsel
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such address as the parties may provide to each other in writing from time
to time.
20. OBLIGATIONS TO SURVIVE. The parties recognize and agree that the
obligations of the other party under Sections 1, 5, 6, 10, 11, 12, 13, 15 and 17
through 30 of this Agreement shall survive the termination or expiration of this
Agreement.
21. GOVERNING LAW. The validity, construction, interpretation, and
performance of this Agreement shall be governed by and construed in accordance
with the laws (without reference to the conflicts of laws rules) of the State of
Delaware.
22. EQUITABLE RELIEF. HSA acknowledges that the HSA Network Services
set forth herein are of a special, unique and extraordinary character which
gives it a peculiar value, the loss of which may not be adequately or reasonably
compensated by damages in an action at law, and that HSA's failure to perform
its obligations under this Agreement shall cause Charter irreparable injury or
damage. In addition to any other right or remedy given to Charter under this
Agreement or at law or in equity, including injunctive relief, Charter shall, in
the event HSA fails to perform its obligations under this Agreement, be entitled
to specific performance relief.
23. HEADINGS. The headings contained in this Agreement are for
convenience of reference only and are not intended to have any substantive
significance in interpreting this Agreement.
24. WAIVERS. Any waiver by either party of any breach of any term or
condition hereof shall be effective only if in writing and such writing shall
not be deemed to be a waiver of any subsequent or other breach, term or
condition of this Agreement. No failure or delay on the part of any party in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder.
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25. AUTHORITY; NO CONFLICTING AGREEMENT. The officers signing on behalf
of the parties to this Agreement acknowledge that they have read and understand
this Agreement and hereby warrant that each has full power and authority to
execute this Agreement and bind the respective parties hereto. Each party
further represents that it is not bound by any other agreement that would
prevent full performance of this Agreement.
26. ENTIRE AGREEMENT. This Agreement and the Exhibits and Attachments
hereto (which are incorporated herein by and where reference is made thereto),
together with the Amended Warrant (and any Renewal Warrant) and the Registration
Rights Agreement constitute the entire agreement among the parties hereto with
respect to the HSA Network Services to be provided hereunder, and replaces and
supersedes all prior agreements, written and oral, relating to the subject
matter hereof, between and among the parties to this Agreement.
27. SEVERABILITY. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable, this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement, and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Agreement.
28. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive the right to use any or all other remedies.
Such rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise.
29. EQUAL CONSTRUCTION. This Agreement is negotiated and drafted by
parties equally represented by counsel, and no clause or provision herein should
be construed as having been drafted other than equally by both parties.
30. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which is an original and all of which, taken together, shall constitute a
single instrument.
[THIS SPACE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first written above.
HIGH SPEED ACCESS CORP.
By: /s/ High Speed Access Corp.
----------------------------------------
▇▇▇▇▇▇ ▇'▇▇▇▇▇, Chief Executive Officer
CHARTER COMMUNICATIONS, INC.
By: /s/ Charter Communications, Inc.
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President
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EXHIBIT 1
CHARTER/HSA NETWORK SERVICES MODEL
(CHARTER IN-HOUSE SYSTEMS SOLUTION)
A. INTRODUCTION AND MISCELLANEOUS MATTERS.
A.1 Unless otherwise expressly stated herein, this Exhibit 1 covers
only those HSA Network Services that HSA provides in support of
residential-grade, two-way cable modem customers and one-way cable modem
customers existing in Committed Network Systems in St. Louis and Riverside,
prior to their upgrade to two-way cable modems, in exchange for the HSA Network
Services Charges. Charter will not market additional residential, one-way cable
modem service in Committed Network Systems; provided, that if Charter markets
such residential, one-way cable modem service in Committed Network Systems,
Charter will pay to HSA the incremental cost to HSA resulting therefrom plus
20%.
A.2 "Commercial-grade" cable modem services, "off-plant" alternative
access technologies and any 56Kbps dial-up services are not covered by this
Agreement. For the purposes of this Agreement, commercial-grade cable modem
services shall mean cable modem services provided to an account (i) located at
an address that is known to be a business address and utilizing cable modem
services not typically used by residential accounts, (ii) priced by Charter as
commercial-grade cable modem services under Charter's rate card, or (iii) that
could reasonably be determined by the parties to have commercial activity based
on upstream bandwidth utilization.
A.3 Any other services, including any Deployment Services that the
parties may agree to, and other miscellaneous services, shall be charged
separately on a time, travel and materials ("TTM") basis. Except for NQC Charges
and VAR Support Calls, all TTM charges and any other activities and tasks not
specifically covered by this Agreement will be separately negotiated and quoted
and performed pursuant to a SOW/statement of work-purchase orders or Deployment
Estimates signed by respective authorized system managers, and approved at the
corporate level by the HSPOC and CSPOC.
A.4 HSA shall not be obligated to initiate or perform any HSA Network
Services unless Charter has first submitted to HSA a completed Head-End Record
for each Committed Network Systems. Charter is responsible for completing the
Head-End record document prior to installation of the CMTS and any alpha
testing, and for updating such record as required due to changes at the System
level.
B. CHARTER GENERAL OPERATIONAL AGREEMENTS. Charter agrees that it will,
among other things:
B.1. perform the services and operational elements described in the
paragraph D chart below (the "Charter Pipeline Operational Elements") in
accordance with industry standards and the terms of this Agreement;
B.2 commencing on or before August 1, 2000, operate one or more
customer support/call centers on a 24 x 7 basis to respond to calls and resolve
inquiries from Charter PC Data Subscribers in the Committed Network Systems
regarding Tier 1 troubleshooting and support as provided
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below and in this Agreement, billing and video/RF Plant service failures, and
escalate Qualified Calls to HSA;
B.3 operate its billing system to properly track and invoice Charter PC
Data Subscribers, and remit to HSA the Statement, and all HSA Network Services
Charges due, within 45 days following the end of each calendar month during the
Term, and remit to HSA all other ancillary HSA Network Service charges (i.e.,
NQC Charges, VAR Support Calls, etc.) invoiced by HSA within 45 days following
the date of HSA's undisputed invoice.
C. HSA GENERAL OPERATIONS AGREEMENTS. HSA agrees that it will, among other
things:
C.1 perform the services and operational elements described in the
paragraph D chart below (the "HSA Operational Elements") on behalf of Charter in
respect of the Committed Network Systems in accordance with industry standards
and the terms of this Agreement;
C.2 operate one or more 24 x 7 customer support/call center(s) and data
centers (NOCs) accessible by toll-free telephone number staffed with an adequate
number of trained representatives to accept and resolve Qualified Calls/Tier 2
inquiries from Charter PC Data Subscribers; and
C.3 operate a management accounting and billing system that will track
and invoice Charter on a monthly basis for all NQC Charges, VAR Support Calls,
TTM Charges, etc.
D. RESPONSIBILITY CHART. The following chart summarizes the respective
responsibilities of Charter and HSA in provisioning, delivery and support of
residential, two-way and pre-existing one-way Charter Pipeline in Committed
Network Systems. Certain operational elements for Charter Pipeline are discussed
in greater detail following the chart and additional detail regarding Tier 1 v.
Tier 2 support/responsibility guidelines are set forth in ATTACHMENT 1-A. Where
there is a discrepancy between what is summarized in the chart versus what is
summarized in detail following the chart, the detail following the chart shall
govern.
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---------------------------------------------------------------------------------------------------------------------
CHARTER PIPELINE
OPERATIONAL ELEMENTS CHARTER HSA NOTES
------------------------------------- ------- ------- ---------------------------------------------------------
Backbone - National and Regional X X Charter orders, installs, maintains and operates its own
dedicated network, or accesses Internet cloud through
Regional National Access Providers
---------------------------------------------------------------------------------------------------------------------
Head-End to Backbone Circuits /LAN X Charter orders and manages/monitors installation and
& WAN operates and maintains.
---------------------------------------------------------------------------------------------------------------------
Deployment Services: Site Survey, X Charter performs and is responsible for all Deployment
RF and IP design, configuration, Services, unless HSA is engaged to perform these
installation, site coordination, services under separate agreement.
and milestone management
---------------------------------------------------------------------------------------------------------------------
DOCSIS CMTS X Charter purchases, installs, operates and maintains,
unless HSA is engaged to perform under separate agreement.
---------------------------------------------------------------------------------------------------------------------
At least two 6Mhz Channels, 1 X Charter makes available and maintains RF plant up to FCC
downstream, 1 upstream and Charter performance standards
---------------------------------------------------------------------------------------------------------------------
DOCSIS Modems X Charter purchases all modems and is responsible for all
retail sales and installs.
---------------------------------------------------------------------------------------------------------------------
Local Sales X Charter rents and equips all local sales offices, and
performs all local sales and coordinates all special
promotions and events.
---------------------------------------------------------------------------------------------------------------------
Install CD-ROM X HSA provides Charter with customized install CD ROM
(see below), including User Agreement with Acceptable Use
and Privacy Policies.
---------------------------------------------------------------------------------------------------------------------
CD-ROM duplication X Charter makes all needed copies of install CD.
---------------------------------------------------------------------------------------------------------------------
CD-ROM updates X HSA provides any required customization or upgrades
to CD-ROM due to periodic changes to Microsoft's
operating system and Internet Explorer.
---------------------------------------------------------------------------------------------------------------------
Customer installs X Charter installs an additional cable outlet (if
required), software for Charter Pipeline, an Ethernet
card or USB adapter and the cable modem, and provides
basic customer training. Charter is also responsible
for any in-home servicing of Charter PC Data
Subscribers.
---------------------------------------------------------------------------------------------------------------------
Marketing and Customer Acquisition X Charter provides national marketing materials and is
responsible for the reproduction, distribution and
customization of those materials. Charter expects to
achieve 4% annual penetration growth.
---------------------------------------------------------------------------------------------------------------------
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---------------------------------------------------------------------------------------------------------------------
CHARTER PIPELINE
OPERATIONAL ELEMENTS CHARTER HSA NOTES
------------------------------------- ------- ------- ---------------------------------------------------------
Cross-Channel Promotion X Charter provides avails.
---------------------------------------------------------------------------------------------------------------------
CSR Training for Tier 1 Support X Charter provides training for Tier 1 support. Charter
provides training facilities and equipment.
---------------------------------------------------------------------------------------------------------------------
"Train the Trainer" X HSA provides - see below.
---------------------------------------------------------------------------------------------------------------------
Pricing X Charter is responsible for all retail pricing decisions.
---------------------------------------------------------------------------------------------------------------------
Customer acquisition and set-up X Charter inputs necessary customer data through an
HSA-provided interface for all cable modem, e-mail
and Web Hosting accounts, and the News service
provisioning, and logs end-user assents to End User
Agreement.
---------------------------------------------------------------------------------------------------------------------
Tier 1 Customer Care X Charter performs all Tier 1 customer care services,
using local staff and/or a national call center,
including channeling all initial customer calls through
Charter's customer support center, handling all RF
troubleshooting, Charter Pipeline sales and
installation, disconnect, billing, and change in service
calls. Charter routes/escalates Tier 2 calls to HSA
(including IP or PC support) on a 24 X 7 basis.
Charter's CSRs will have the ability to enter REMEDY
trouble tickets and PING cable modems by March 31, 2001.
---------------------------------------------------------------------------------------------------------------------
ICON for Pinging Modem and X HSA to provide.
Escalation of Qualified Calls
---------------------------------------------------------------------------------------------------------------------
REMEDY license for Tier 1 X Charter acquires, and may choose to acquire from HSA,
and maintains.
---------------------------------------------------------------------------------------------------------------------
Tier 2 Customer Care X HSA performs all Tier 2 customer care. HSA accesses
required information from Charter's subscriber database
such as account status through Charter's billing system.
---------------------------------------------------------------------------------------------------------------------
Tier 3 Customer Care X X HSA and Charter will consult and agree upon a plan to
resolve Tier 2 matters that cannot be resolved by Tier 2
services. This may require local Charter staff
involvement.
---------------------------------------------------------------------------------------------------------------------
Billing, Provisioning and Data X Charter provisions and bills all modem customers.
Subscriber Account Management
---------------------------------------------------------------------------------------------------------------------
DST/Cable Data and CSG tunneling X HSA to build an interface to Charter's DST and CSG
interface billing systems
---------------------------------------------------------------------------------------------------------------------
Post-Launch CPE/network Charter is responsible for Internet access, end-user
configuration installation process, and installation materials,
including the CD ROM
---------------------------------------------------------------------------------------------------------------------
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---------------------------------------------------------------------------------------------------------------------
CHARTER PIPELINE
OPERATIONAL ELEMENTS CHARTER HSA NOTES
------------------------------------- ------- ------- ---------------------------------------------------------
National/Regional NOCs, Data X X Charter manages all network capacity through tools
Traffic management provided by HSA. Charter is responsible for procurement
and maintenance of additional circuit capacity. HSA
provides backup capacity monitoring and surveillance,
and Tier 2 troubleshooting as discussed below.
---------------------------------------------------------------------------------------------------------------------
IP Address Sourcing and Capacity X Charter to provide IP Addresses and is responsible
for insuring adequate capacity.
---------------------------------------------------------------------------------------------------------------------
IP Address Routing added to X HSA will remotely input/configure new IPs into
Router(s) routers within 48 hours of notification.
---------------------------------------------------------------------------------------------------------------------
National and Local Content and X
Content Management
---------------------------------------------------------------------------------------------------------------------
Local Content Ad Sales X
---------------------------------------------------------------------------------------------------------------------
E-mail X HSA provides through separate e-mail agreement, which
shall include a 99% system uptime guarantee.
---------------------------------------------------------------------------------------------------------------------
News X HSA provides common news feed to Charter servers and
is subject to 99% system uptime guarantee.
---------------------------------------------------------------------------------------------------------------------
Local Content Server X Charter purchases, operates and maintains.
---------------------------------------------------------------------------------------------------------------------
Collocation/Equipment Floor Space X
---------------------------------------------------------------------------------------------------------------------
Passwords Charter and HSA will mutually agree upon a password
management system.
---------------------------------------------------------------------------------------------------------------------
E. CUSTOMER INSTALLATION CD ROM DISK
HSA will design a CPE System Configuration CD-ROM for RPO Data
Subscribers to facilitate installations in an efficient and repeatable manner.
The software contained on the CD ROM shall address:
o Confirmation of the customer's minimum hardware/software
requirements*
[X] Configuration of the required parameters
[X] Delivery/installation of Internet Explorer
[X] Delivery/installation of Outlook Express mail client
[X] Marketing and sales product materials X| Online tutorial
[X] User agreement
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* MINIMUM REQUIREMENTS ARE DEFINED AS:
Minimum of 110M of free space on a hard drive
Windows 95/98/2000/NT, LINUX, or Macintosh 7.x or
greater operating system
16 Mb of RAM
CD-ROM drive
Ethernet card
The CDs shall be branded for Charter/Charter Pipeline. Charter is
responsible for the reproduction and reproduction cost of the CDs.
HSA will expand the CD-ROM to at least remain current with industry
standard install disks. Any re-mastered CD-ROM shall be made available by HSA
within ninety (90) days of general availability (non-beta) of new releases of
Internet Explorer, Outlook Express, Real Player, MS Player and any other major
plug-in which is used by at least 20% of Internet users.
F. CHANGE MANAGEMENT
Assuming software upgrades can be installed and managed remotely, HSA
shall comply with the following:
o Vendor's General Release of Cable Modem Image/Software release
tested within 60 days, deployed to alpha head-ends within 90
days, and released to all head-ends within 180 days.
o Vendor's General Release of Image for Router, CMTS or Server
tested within 60 days, deployed to alpha head-ends within 90
days, and released to all head-ends within 180 days.
o HSA to maintain database of configuration of each head-end,
including release of software running. Charter is responsible for
submitting the Head-End Record and for updating information to
the database, except for changes effected by HSA (which changes
HSA shall provide notice to Charter regarding).
o HSA will use its best efforts to fix any software that directly
and materially impacts the quality of Charter's service to its
customers in a negative way.
G. CHARTER TIER 1 SUPPORT
Charter is responsible for all marketing, customer acquisition, account
set-up and in-home CPE installation activities. All Charter PC Data Subscribers
requiring technical support must first contact the Charter Help Desk which will
be operated 24 x 7. Charter staff will handle all billing, sales, installation
coordination, change of service, e-mail account maintenance and RF
troubleshooting issues. HSA's Customer Service Center 800/888 transfer number
will be made available only to internal Charter CSR personnel, who will keep it
private/confidential and not give it out to Charter PC Data Subscribers.
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H. CHARTER TIER 1 SERVICE TICKETING
Charter Tier 1 personnel will provide initial troubleshooting on all
customer calls using the support guidelines set forth in ATTACHMENT 1-A. Before
Charter's CSR's may transfer a call to HSA's Tier 2 Customer Care Center (HSA
will provide Charter with a GUI icon for this purpose), Charter's CSRs must
first:
(i) verify that the customer's RF video service is
working;
(ii) verify that the customer's cable modem lights are
flashing (based on the make/model);
(iii) by March 31, 2001 attempt to PING the customer's
modem; and
(iv) by March 31, 2001 open a REMEDY Service Ticket (a
"Ticket") to capture the customer history and
SPECIFIC problem or complaint (e.g., "service isn't
working right" is NOT acceptable) in order to
expedite resolution (Charter will provide its CSRs
with desktop access to the Internet in order to
access and operate REMEDY prior to beta in each
Committed Network System in order to allow for
sufficient CSR training).
If the non-RF problem cannot be resolved after following all escalation
guidelines set forth in ATTACHMENT 1-A, the customer/call (i.e., a "Qualified
Call") may then be transferred to the HSA Customer Support Center. Any
transferred/escalated call that does not meet the foregoing criteria shall be
referred to herein as a "Non-Qualified Call" or "NQC" and is subject to a
charge/fee per NQC in the amount of the incremental cost thereof to HSA plus 20%
(the "NQC Charge"); provided, that HSA will not accrue or levy NQC Charges to
Charter until all transferred calls exceed the Minimum Thresholds and Charter's
SPOC has had at least 5 days advance notice from HSA (the "NQC Notice Period")
that HSA is receiving NQCs from Charter's Tier 1 CSRs, and the level of such
NQCs exceed two percent (2%) of the Minimum Thresholds; provided further, that
the NQC Charge shall only be accrued or levied on NQCs that exceed 2% of the
Minimum Thresholds and were transferred to HSA after the expiration of the NQC
Notice Period. As used herein "Minimum Thresholds" means the following assumed
contact rate per month:
==================================================================================================================
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
LAUNCHES LAUNCHES LAUNCHES LAUNCHES LAUNCHES
==================================================================================================================
MONTH 1 130.0% 125.0% 70.0% 70.0% 70.0%
MONTH 2 125.0% 120.0% 65.0% 65.0% 65.0%
MONTH 3 120.0% 115.0% 60.0% 60.0% 60.0%
MONTH 4 110.0% 105.0% 50.0% 50.0% 50.0%
MONTH 5 100.0% 95.0% 40.0% 40.0% 40.0%
MONTH 6 90.0% 85.0% 30.0% 30.0% 30.0%
MONTH 7 80.0% 75.0% 30.0% 30.0% 30.0%
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MONTH 8 70.0% 65.0% 27.5% 27.5% 27.5%
MONTH 9 60.0% 55.0% 25.0% 25.0% 25.0%
MONTH 10 50.0% 45.0% 25.0% 25.0% 25.0%
MONTH 11 40.0% 40.0% 25.0% 25.0% 25.0%
MONTH 12 37.5% 35.0% 20.0% 20.0% 20.0%
MONTH 13 35.0% 32.5% 25.0% 19.0% 19.0%
MONTH 14 32.5% 30.0% 25.0% 19.0% 19.0%
MONTH 15 30.0% 27.5% 25.0% 19.0% 19.0%
MONTH 16 27.5% 25.0% 25.0% 19.0% 19.0%
MONTH 17 25.0% 22.5% 20.0% 19.0% 19.0%
MONTH 18 22.5% 20.0% 20.0% 19.0% 19.0%
MONTH 19 20.0% 17.5% 19.0% 19.0% 19.0%
MONTH 20 20.0% 20.0% 19.0% 19.0% 19.0%
MONTH 21 20.0% 19.0% 19.0% 19.0% 19.0%
MONTH 22 20.0% 19.0% 19.0% 19.0% 19.0%
MONTH 23 20.0% 19.0% 19.0% 19.0% 19.0%
MONTH 24 19.0% 19.0% 19.0% 19.0% 19.0%
THEREAFTER 19.0% 19.0% 19.0% 19.0% 19.0%
I. HSA TIER 2 SUPPORT
Once the foregoing Qualified Call criteria are met, HSA's Customer Call
Center and NOC will then accept transferred customer calls and manage the Ticket
to resolution regardless of the nature of the inquiry or escalation, hand-off,
or other situation status as described in ATTACHMENT 1-A. This includes
remaining the "special point of contact" (or "SPOC") for the customer unless
otherwise requested by the customer or arranged through specific customer
agreements.
If the call is determined to be a NQC, HSA will resolve the problem for
the customer but will return the Service Ticket and activate the NCQ Charge
after the NCQ Notice Period and Minimum Thresholds are exceeded.
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I.1 QOS/REPORTING:
I.1.1 HSA's Tier 2 Call Center/NOC Data Centers (see
discussion below) will provide Ticket resolution services (NET of RF outages,
system sweeps, Non-Qualified Calls, VAR Support Calls and other Force Majeure,
unplanned or uncontrollable events) as follows (the "QOS Requirements") in
accordance with industry averages of performance, and in any event:
(i) on or before December 31, 2000, achieve a 10% or less
abandon rate on Qualified Calls;
(ii) on or before December 31, 2000, achieve a 90% answer
rate on Qualified Calls within 90 seconds;
(iii) resolve 90% of all Tier 2 trouble calls within 24
hours of receipt of Qualified Calls;
(iv) resolve e-mail-only inquiries/problems within 12
hours; and
(v) all trunks busy not to exceed 3% measured on a weekly
basis.
HSA will not be held to the above QOS Requirements if there is a
greater than 10% variance in Charter PC Data Subscriber growth or projected
growth under ATPs in any calendar quarter UNLESS Charter has given HSA notice of
such material changes in deployments at least 3 months in advance.
HSA will report compliance/non-compliance on the foregoing QOS measures
to Charter on a monthly basis, and will provide Charter with weekly unadjusted
call "stats."
I.1.2. Unless otherwise noted, HSA will compile the following
data elements by Systems, region and combined totals (prior to any adjustments)
on a daily basis and will report them to Charter on a weekly basis, effective as
of October 1, 2000:
o Total number of calls received.
o Total number of calls handled by IVRs.
o Total number of calls queued to agents.
o Total number of calls handled by agents.
o Total calls handled by call type, as distributed by the IVR.
o Average speed of answer (excluding calls handled by IVRs),
measured from time queued to an agent.
o Average talk time, which shall be reported by HSA on a monthly
basis.
o Average wrap up time, which shall be reported by HSA on a monthly
basis, but only to the extent HSA is capable of and is generating
such information for itself.
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o Service level percentage based on 90 seconds.
o Total number of calls redirected to systems, but only to the
extent HSA is capable of and is generating such information for
itself.
o Total number of calls abandoned once queued to an agent.
o Average length of abandoned calls, measured from time queued to
an agent.
o All trunks busy exceeding 3% total time.
o Unique caller information summary and detail, which shall be
reported by HSA on a monthly basis, but only to the extent HSA is
capable of and is generating such information for itself.
o Total number of trouble tickets opened.
o Total number of trouble tickets resolved immediately.
o Total number of trouble tickets resolved within 1 to 24 hours.
o Total number of trouble tickets resolved after 24 hours.
HSA and Charter may agree to additional reporting obligations.
Additionally, within 45 days of the availability of e-mail tracking software,
HSA and Charter will agree on e-mail reporting obligations.
HSA will not be required to comply with these QOS Requirements and
reporting obligations with respect to Tier 2 calls from one-way cable modem
customers.
I.2 Training:
HSA will provide the following "train the trainer" training:
(i) Three (3) days at Charter-provided facility/site to
include Internet 101, Internet head-end
engineering/architecture for technical positions, CSR
Tier 1 roles/responsibilities,
escalation/trouble-shooting procedures, and FAQs.
Training materials will be provided as leave-behind
for Charter trainers.
(ii) Two (2) days of training at an HSA-designated
facility, with heavy focus on software application
training for ▇▇▇▇, REMEDY and CNR using the HSA
learning lab. Attendees will spend time in the HSA
Help Desk and NOC, attend a session on Internet
architecture and engineering issues and review
approved process and procedures. HSA will cover
travel expenses for up to 2 attendees per Committed
Network System, PROVIDED travel is booked at least 2
weeks in advance through HSA-approved travel agent.
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J. COMPLIMENTARY ACCOUNTS
HSA will support complimentary HSA Network Services to a number of
Charter PC Data Subscriber accounts equal to one hundred percent (100%) of the
number of Charter employees employed full-time directly by and for such
Committed Network System, at a rate of 25% each quarter after the launch of such
Committed Network System so that, by the first anniversary of such launch, HSA
will be supporting complimentary HSA Network Services to all such persons. Upon
request by HSA, Charter will send to HSA a list of all Charter employees
employed full-time by each Committed Network System; provided, that the number
of such requests by HSA does not exceed four (4) annually. Charter's monthly
statements will detail all comps per Committed Network System and the value
thereof.
K. [RESERVED.]
L. INSTALLATION AND INSTALLATION SUPPORT HELPLINE
Charter is responsible for all CPE/AO installation activity. This
includes all scheduling, training and management of installation capacity. HSA's
Call Center will offer technical support assistance to Charter's PC
technicians/installers/VARs who require such assistance (the "VAR Support Call")
for $40 per call. Charter shall require that all such Tech Install Calls be
routed first through a Charter representative. Any Tech Install Calls escalated
to HSA will be handled by HSA with the Charter representative present on the
call.
M. INTERNET ACCESS/BACKBONE CAPACITY
M.1 CIRCUIT MANAGEMENT
Charter is solely responsible for insuring that capacity is adequate on
its circuits to provide a satisfactory customer experience (speeds, access,
etc.), and must provide HSA with an MOP at least seven (7) days prior to alpha.
Charter and HSA agree that the "Capacity Thresholds" will be when average data
traffic on existing circuit(s) reaches the lesser of (A) 80% during peak time,
and (B) 50% during any 24-hour day, tested in 5 minute increments, in any
particular Committed Network System. HSA will provide immediate written notice
to Charter when any Capacity Threshold has been reached. Charter will also
manage the ordering and physical installation process. If the MRTG (see below)
has indicated that data traffic on circuits in a particular Committed Network
System exceeds the Capacity Thresholds AND the Ticket customer statement data
field reflects complaint as "service is slow" or "operable but downloads are
real slow," etc., then any such transferred calls above and beyond the Minimum
Thresholds set forth in Section H of this Exhibit 1 will be charged to Charter
at HSA's incremental cost plus 20%.
When Charter turns up a new circuit, it will notify HSA in writing.
Upon notification, an HSA engineer will add the routes to the router and
communicate with Charter's backbone provider within 48 hours. All router/routing
changes effected by HSA shall be completed from a remote location. Any changes
to the router that require HSA to perform on-site assistance will be charged
separately on a TTM basis (i.e., a "Miscellaneous TTM Charge").
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M.2 EQUIPMENT - ROUTERS, ETC.
In addition to adequacy of circuits discussed above, Charter is
responsible for insuring that adequate equipment and equipment capacity is
available to support additional circuit capacity. Any changes or upgrades to
head-end equipment are the responsibility of Charter. HSA shall be entitled to
assess a Miscellaneous TTM Charge to Charter if HSA is requested to assist in
monitoring, ordering or upgrading equipment to support additional bandwidth. Any
transferred calls above and beyond the Minimum Thresholds set forth in Section H
of this Exhibit 1 attributable to inadequate head-end equipment capacity are
subject to a charge of HSA's incremental cost plus 20%.
M.3 CAPACITY MANAGEMENT SOFTWARE
HSA will use MRTG software to monitor circuit capacity, and will
configure MRTG to alert Charter when a circuit reaches the Capacity Thresholds.
Charter is responsible for insuring adequate capacity on a timely basis and will
provide required circuit information to HSA. HSA will input data into MRTG
within 48 hours of written notification from Charter for each circuit and
provide Charter web access to view each of its circuits. This information is
available on a real-time basis in 5-minute increments. Special Note: Other than
as provided above with respect to MRTG alerts, it is NOT HSA's responsibility to
manage bandwidth for the Committed Network Systems. While HSA's NOC will provide
manual `backup' bandwidth monitoring, it is not the NOC's responsibility to
notify Charter if bandwidth is inadequate.
N. IP ADDRESS MANAGEMENT
Charter will be responsible for sourcing all IP addresses, and for
monitoring whether sufficient addresses exist. HSA will add new addresses
provided by Charter to the DHCP servers within 48 hours of written notification.
HSA may charge an "Expedite Fee" of $1 per IP address (not per block of IP
addresses) if Charter requests that such IP addresses be entered sooner than 48
hours. HSA will support static IP addresses manually where the customer already
has one, and automatically once the flow-through provisioning is in place. HSA
will also support multiple tiers of speeds once HSA can do so automatically.
O. DATA CENTER SERVICES
HSA's Technical Operations group manages and maintains multiple
"Regional Data Centers." With respect to RPO, RSC personnel are responsible for
fulfilling the following levels of operations:
[X] Proper server operation (provisioning, DNS)
[X] Server sizing and utilization appropriate to services offered
and volumes experienced and anticipated
[X] Operating system administration and maintenance
[X] User partitioning and security management
[X] E-mail account management and administration (to be mutually
agreed to by the parties)
[X] Support of both UNIX and NT systems
[X] Remedy support
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[X] Oracle support
[X] Web hosting
[X] Security
O.1. STANDARD RPO SERVICES
HSA provides Charter with the following services to each Charter PC
Data Subscriber covered under this Agreement from HSA's multiple Regional Data
Centers:
E-mail: HSA will provide E-mail accounts (the terms of which
shall be mutually agreed to by Charter and HSA).
Web Hosting: HSA will provide 10 megabytes of Web hosting space
for personal home pages. HSA may charge more for
additional space (such charger to be mutually agreed
to by Charter and HSA)
News: HSA will provide a common News feed.
Access/Authentication: HSA will provide access and authentication services
for the above-mentioned services and for cable modem
access validation.
O.2 SECURITY
HSA will be responsible for securing data residing in all
HSA-controlled, HSA-monitored, or HSA-configured (or configurations approved by
HSA) devices that support residential Charter Pipeline service in Committed
Network Systems subject to HSA Network Services; provided, that HSA shall not be
required to take non-industry standard actions to secure data residing in or
data flowing through such devices, or data residing in or flowing to and from
Data Subscribers' PCs (by firewall or otherwise) from unlawful intrusion;
provided further, that HSA shall not be responsible for compromises in security
caused directly by the action or inaction of any Charter party. HSA will also
operate and maintain the TACSIS password management system to support such
devices.
Charter is responsible for the physical security of all network devices
and elements not located in HSA facilities. To the extent Charter wishes HSA to
provide additional layers of NOC support and security for commercial-grade
services (such as LAN firewalls, etc.), HSA reserves the right to negotiate and
charge separately for such support.
HSA will be responsible for all costs associated with theft of e-mail
addresses or passwords that are not the fault of Charter; provided, that such
liability shall only apply to direct damages and punitive damages related
thereto, and shall not apply to any other consequential or indirect damages.
Charter and HSA will jointly study and address additional security
concerns such as IP theft/theft of data services, monitoring of excess bandwidth
consumption/service abuse in order to identify and agree upon responsibilities,
methods and procedure to mutually support their respective network elements.
-35-
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O.3 NETWORK MONITORING AND MANAGEMENT
O.3.1 HSA's Network Operations Center(s) (NOC) will be staffed
and operational on a 24 x 7 basis. HSA's NOC engineers will constantly monitor
customer and backbone links to identify and respond to outages. HSA's NOC
personnel will be trained to isolate and correct IP connectivity problems and
refer physical/RF outages to appropriate Charter personnel. For complex
problems, senior NOC personnel are available 24 hours a day, 7 days per week.
O.3.2 HSA will comply with the following NOC performance
standards:
o Network reliability goal of 99.95% with respect to two-way cable modem
plants, monthly defined as customer minutes up/total customer minutes
(customer minutes = customers x minutes), effective as of October 1,
2000.
o Any failure impacting all customers will be fixed within 120 minutes
(mean time to repair).
o Any failure impacting more than one System will be fixed within 180
minutes.
o Any failure impacting only one System will be fixed within 240
minutes.
o Any failure impacting part of a system will be fixed within 240
minutes
0.3.3 Charter Advanced Services, Customer Service and
Engineering Teams at the Corporate, Division, Region, Group and System levels
will be notified about any failures, progress reports on failures and expected
repair times as soon as possible but starting no later than:
o 10 minutes after failure for failures impacting all customers;
o 20 minutes for failures impacting more than one System; and
o 30 minutes for failures impacting one System.
Such notice can be given by HSA to the Charter Teams via e-mail.
Progress reports will continue until failure has been repaired. Charter will
provide the list of Team members and contact information at each level to HSA.
Charter must comply with HSA's System Specifications that can only be modified
in writing and agreed to by the heads of Charter's and HSA's corporate
engineering departments.
O.4. NETWORK/SERVICE TICKETING/TROUBLESHOOTING OPERATIONS
HSA will use a Ticket to record and escalate outages from the NOC to
the proper party (either HSA or Charter personnel identified in the Network
Database) for correction. Tickets may originate from the Tier 1/Tier 2 customer
care interface, HSA's Tier 2 customer care function, the field, or directly from
the NOC.
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ATTACHMENT 1-A
TIER 1 -TIER 2 SUPPORT GUIDELINES
This ATTACHMENT 1-A further delineates the customer support provided by
Charter (Tier 1) and HSA (Tier 2) and identifies the responsible party for that
support. For applications not supported by HSA, Charter's Tier 1 Customer
Support Representatives ("CSRs") should refer the customer to the proper vendor.
----------------------------------------------------------------------------------------------------------------------
CUSTOMER ACCOUNT MANAGEMENT CHARTER - TIER I HSA - TIER 2
----------------------------------------------------------------------------------------------------------------------
PRE-QUALIFY RESIDENCE Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
INSTALLATION APPOINTMENT FOR HSA ONLY Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
INSTALLATION APPOINTMENT FOR HSA AND CATV Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
DISCONNECTION OF HSA SERVICE ONLY Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
DISCONNECTION OF HSA AND CATV SERVICE Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
SCHEDULING FOR A HOME SERVICE VISIT Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
TRANSFER OF SERVICE Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
RELOCATION OF HSA OUTLET WITHIN A RESIDENCE Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
VACATION / SEASONAL DISCONNECT Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
RESCHEDULE APPOINTMENTS Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
CANCEL APPOINTMENTS Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
ANSWERING CUSTOMER LEDGER / BILLING QUESTIONS Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
CABLE MODEM RETURN Tier 1 responsibility Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
E-MAIL SERVICES/TASKS CHARTER - TIER I HSA - TIER 2
----------------------------------------------------------------------------------------------------------------------
ADD, DELETE, OR CHANGE "MASTER ACCOUNT" Tier 1, using tools provided by HSA Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
E-MAIL PASSWORD CHANGES - MASTER ACCOUNT Tier 1, using tools provided by HSA Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
E-MAIL PASSWORD CHANGES - SUB-ACCOUNTS Tier 1, using tools provided by HSA Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
CHANGE E-MAIL SUB-ACCOUNT PASSWORD Tier 1, using tools provided by HSA Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
PROBLEMS SENDING/RECEIVING E-MAIL Escalate call to HSA - Tier 2 Troubleshoot &
resolve customer's
inability to send
and/or receive
e-mail.
----------------------------------------------------------------------------------------------------------------------
ADD, DELETE, OR CHANGE "PRIMARY ACCOUNT" Tier 1, using tools provided by HSA Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
E-MAIL PASSWORD CHANGES - "PRIMARY ACCOUNT" Tier 1, using tools provided by HSA Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
E-MAIL PASSWORD CHANGES - "ADDITIONAL E-MAIL Tier 1, using tools provided by HSA Refer to Tier I
ACCOUNTS"
----------------------------------------------------------------------------------------------------------------------
CHANGE "ADDITIONAL E-MAIL ACCOUNT" PASSWORD Tier 1, using tools provided by HSA Refer to Tier I
----------------------------------------------------------------------------------------------------------------------
PROBLEMS SENDING/RECEIVING E-MAIL FOR ADDITIONAL Escalate call to HSA - Tier 2 Troubleshoot &
ACCOUNT resolve customer's
additional account's
inability to send
and/or receive
e-mail
----------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------
CONNECTIVITY CHARTER - TIER I HSA - TIER 2
----------------------------------------------------------------------------------------------------------------------
LOSS OF MODEM CONNECTIVITY (I.E., MODEM LED 1. Check if CATV outage or network 1. Ensure Tier I support
LIGHTS BLINKING, CYCLING, OR OFF) problem to determine status of local was provided.
HFC network. 2. Troubleshoot & resolve
2. Verify active account status. customer's inability to
3. Check if coaxial cable drop line connect.
attached to cable modem.
4. Use support tool to check if the modem
MAC address is registered in
appropriate database.
5. Have customer power cycle modem; if no
lights or blinking lights, schedule
home appointment.
6. Escalate to HSA - Tier 2 CSC
----------------------------------------------------------------------------------------------------------------------
INTERMITTENT CONNECTIVITY LOSS 1. Troubleshoot local network HFC 1. Ensure Tier I support
connectivity; schedule field tech was provided.
appointment if required. If modem not 2. Troubleshoot & resolve
alive, have customer power cycle customer's intermittent
modem so status lights are both on connectivity trouble.
and steady.
2. If status lights blinking or
off, packet loss occurring,
or modem signal levels
outside of tolerance range,
schedule appointment for
field tech home service
visit.
3. If modem alive, check modem signal on
the support FTP web page (i.e. RX,
TX, dB)
4. Escalate to HSA - Tier 2 CSC
----------------------------------------------------------------------------------------------------------------------
STEADY/SOLID (NON-BLINKING LIGHTS) ON MODEM, Escalate to HSA- Tier 2 CSC Troubleshoot & resolve
BUT LOSS OF IP CONNECTIVITY customer's connectivity
trouble.
----------------------------------------------------------------------------------------------------------------------
HOSTNAME RESOLUTION TO IP ADDRESS Escalate to HSA- Tier II CSC Troubleshoot & resolve
customer's connectivity
trouble.
----------------------------------------------------------------------------------------------------------------------
CUSTOMER HOSTNAME NOT MAPPING TO IP ADDRESS 1. Check customer's account to make sure Troubleshoot & resolve
the hostname is registered. customer's trouble.
2. Escalate to HSA - Tier 2 CSC
----------------------------------------------------------------------------------------------------------------------
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----------------------------------------------------------------------------------------------------------------------
OTHER CHARTER - TIER I HSA - TIER 2
----------------------------------------------------------------------------------------------------------------------
NIC Device/Driver Problem Escalate to HSA - Tier 2 CSC Troubleshoot & resolve NIC
card trouble.
----------------------------------------------------------------------------------------------------------------------
Browsers Escalate to HSA - Tier I Troubleshoot & resolve
customer's trouble. May
require referral to
appropriate vendor.
----------------------------------------------------------------------------------------------------------------------
Supported Operating Systems Escalate to HSA Tier 2 - CSC Troubleshoot & resolve
customer's O/S trouble. May
require referral to
appropriate vendor.
----------------------------------------------------------------------------------------------------------------------
Non-supported Operating Systems Educate customer and refer to Educate customer and refer to
appropriate vendor. appropriate vendor.
----------------------------------------------------------------------------------------------------------------------
MAC O/S Issue Escalate to HSA Tier 2 - CSC Troubleshoot & resolve
customer's O/S trouble. May
require referral to
appropriate vendor.
----------------------------------------------------------------------------------------------------------------------
Personal Home Pages Escalate to HSA Tier 2 - CSC
----------------------------------------------------------------------------------------------------------------------
Multiple IP addresses (DHCP) 1. Verify proper billing for Troubleshoot & resolve
multiple IP's. customer's multiple IP address
2. Escalate to HSA Tier 2 - CSC issue.
----------------------------------------------------------------------------------------------------------------------
LAN's Refer customer to appropriate vendor Refer customer to appropriate
vendor
----------------------------------------------------------------------------------------------------------------------
Hubs Refer customer to appropriate vendor Refer customer to appropriate
vendor
----------------------------------------------------------------------------------------------------------------------
Dial Roaming Escalate to HSA Tier 2 - CSC Troubleshoot & resolve
customer's multiple IP address
issue.
----------------------------------------------------------------------------------------------------------------------
Online Services & Service Providers Provide basic troubleshooting.
TCP/IP settings to connect via
the HSA network.
----------------------------------------------------------------------------------------------------------------------
Other Applications Educate customer and refer to Educate customer and refer to
appropriate vendor. appropriate vendor.
--------------------------------------------- --------------------------------------- --------------------------------
Gaming Refer customer to Gaming vendor. Refer customer to Gaming vendor
--------------------------------------------- --------------------------------------- --------------------------------
HSA Policy Questions Refer to HSA Service Assurance Customer Care - Service
department Assurance dept. will provide
direction
--------------------------------------------- --------------------------------------- --------------------------------
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40
The parties agree to modify this table as appropriate to incorporate an
icon-based modem "pinging" procedure to be performed by Charter's Tier 1 Help
Desk CSRs following development of such icon/GUI ping command by HSA.
-40-
41
EXHIBIT 2
CHARTER/HSA NETWORK SERVICES MODEL
(CHARTER IN-HOUSE SYSTEMS SOLUTION)
DEPLOYMENT SERVICES
2.1 GENERAL
2.1.1 At Charter's request, HSA will provide the following
services (the "Deployment Services") on a TTM basis (the "Deployment TTM
Charges") working directly with Charter personnel who will be responsible for
the overall project management, including the coordination with HSA personnel:
engineering planning, site survey, network evaluation and capacity planning,
customer support, CATV network design, data network design, equipment ordering,
delivery and shipping, head-end installation and alpha and beta testing.
Deployment Services are not included in, and are in addition to, the HSA Network
Services Charges and any Miscellaneous TTM Charges.
2.1.2 HSA offers Deployment Services on an all-or-nothing
basis (but no a la carte) either prior to or following the commencement of
Committed Network System launch activities:
2.1.2.1 Charter may elect to use HSA to perform all of the
Deployment Services in connection with the Launch of a Committed Network System.
If Charter wishes to use HSA, Charter will identify the System and issue an
"Authorization to Proceed" in writing prior to commencement of Launch
activities. The election/Authorization to Proceed cannot be revoked once HSA's
deployment process has begun.
2.1.2.2 If HSA is requested to provide Deployment Services
related to Launch activities already commenced by Charter that were not selected
prior to Launch, that request must be in writing and the time will be charged on
a TTM basis. These requests must be approved by Charter regional management and
the Charter Single Point of Contact.
2.1.3 If HSA is authorized to perform the Deployment Services, HSA will
be responsible for all troubleshooting and on-site technical coordination until
the System is successfully released into revenue.
2.1.4 Because of the highly sensitive dependencies inherent in the
technical launch of high speed data, if Charter elects NOT to engage HSA to
handle Deployment Services for a particular Committed Network System, then (i)
Charter will issue a waiver of responsibility relieving HSA of any ongoing
responsibility for troubleshooting, delays, or service issues stemming from
activities related to the technical launch, and (ii) HSA will provide Charter
with the written technical specifications necessary for HSA to monitor the
system and perform its HSA Network Services, such information to be provided to
Charter within 5 days of the written request or within 20 days prior to alpha.
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2.2 SITE SURVEY
2.2.1 If selected to render Deployment Services, HSA will
perform an engineering inspection of the head-end/RF plant to obtain the
necessary cable system and local information to properly configure the service
(a "Site Survey"). Information related to the cable plant, the head-end
installations and environmental conditions, the channel line-up, signal source
and delivery, the interconnection of hubs, the connection to HSA's network and
services are collected in the process. The on-site portion of this process
varies substantially with the size of the System under analysis. The outcome of
the process is a detailed document that forms the basis for IP Network Design
and RF Network Design (i.e., a complete "Head-End Record"), plus HSA's
proposals, if any, for any upgrades or changes ("Attainment Measures") that may
be necessary for the Committed Network System to conform to system data
requirements. HSA is not responsible for the completion of any Attainment
Measures. If Charter in its discretion refuses to take the Attainment Measures,
then HSA's Deployment Services will cease and HSA shall be reimbursed its
Deployment TTM Charges to date.
2.2.2 All Site Surveys are coordinated by permanent HSA
project planning personnel, and are normally carried out by contractors employed
specifically for this task by HSA. Once the Site Survey is complete, Charter's
Single Point of Contact must approve the final document.
2.2.3 If Charter orders/HSA schedules a Site Survey, and upon
arrival the System is not ready for such Site Survey (OTNs not balanced, swept,
etc.), Charter shall pay/reimburse for all TTM costs associated with such
aborted Site Survey, and any rescheduling expense.
2.3 RF NETWORK DESIGN
2.3.1 HSA will apply fundamental RF network strategies to
design (i) the interconnection of the cable modem service to Charter's cable
plant, relying heavily on the completed site survey documentation to identify
the composition of the downstream (towards the home) and upstream (from the home
to the head-end) CATV networks, and (ii) the cable modem head-end system. This
work will be performed by full-time HSA network engineers.
2.4 IP NETWORK DESIGN
2.4.1 HSA applies its overall IP network strategy to the
head-end infrastructure that interconnects the cable modem equipment to HSA's
network and services, and ultimately the end-user to the Internet. The head-end
equipment includes the following components:
[X] Backbone and/or regional access routers.
[X] Ethernet switches for the interconnection of hubs to the main
head-end, and all other network elements.
[X] File and computer servers used to implement access control
through authentication and authorization, assignment of IP
addresses, domain name resolution, the provision of proxy and
caching services, and other such tasks.
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[X] Remote-access terminal components for management and
maintenance.
[X] Racks and other hardware, UPS systems, cabling, fiber
transceivers, etc.
This work is performed by full-time HSA personnel who are familiar with, and
have been provided with copies of, Charter's local and backbone network
strategies, as well as HSA's practices in providing network services and
connections to the public Internet.
2.4.2 HSA has/will develop a standard set of IP Network
Design/operating procedures, including standards related to caching servers. If
Charter does not select HSA Deployment Services, Charter agrees to conform its
IP Network/Equipment designs within the HSA parameters unless a deviation if
approved by HSA's SPOC.
2.5 EQUIPMENT PURCHASE
2.5.1 HSA is responsible for providing Charter with a complete ▇▇▇▇ of
Materials (BOM) as a result of the RF and IP Network Design. Charter will
immediately issue purchase orders to the appropriate vendors and will instruct
these vendors to send the equipment to the designated HSA facility performing
the equipment configuration as described below. It is Charter's responsibility
to inform HSA when the BOM has been processed into Purchase Orders by faxing the
purchase orders and contact information to the HSA location designated to
receive the equipment. It will be Charter's responsibility to track the
equipment purchased and inform HSA's project manager of the expected equipment
arrival date to HSA. If there are any delays as a result of capital approvals or
vendor inventory issues, it is Charter's responsibility to inform HSA of the
delays and a revised launch date will be agreed upon. If Charter decides to
deviate from the BOM provided to them by HSA, either by changing the required
equipment or by not ordering equipment listed on the BOM, a waiver of
responsibility is required from Charter explaining the specific actions taken by
Charter and relieving HSA of all responsibility for delays or lack of equipment
that may adversely affect the technical launch. It will be the responsibility of
Charter to set up a shipping account with a freight company that has been agreed
upon by Charter and HSA so that all shipping charges incurred by Charter
in-house systems, to include equipment and packing slips, can be directly billed
to Charter.
2.5.2 HSA will provide Charter with a complete ▇▇▇▇ of Materials (BOM)
as a result of the RF and IP Network Design. Charter will then immediately issue
a purchase order to the appropriate vendors and will instruct these vendors to
send equipment to the designated HSA facility that will perform the equipment
configuration described below. It is Charter's responsibility to inform HSA when
the BOM is processed and to track the equipment purchase and inform HSA's
project manager of the expected equipment arrival date to HSA. If there are any
delays as a result of capital approvals, vendor inventory issues, etc., it is
Charter's responsibility to inform HSA and a revised launch date will be agreed
upon.
2.6 EQUIPMENT CONFIGURATION AND TESTING
2.6.1 HSA personnel will carry out the specific equipment
wiring, configuration, and cabinet installation instructions, and follow
appropriate testing procedures to verify that the equipment to be sent to the
site operates correctly. The process takes place at HSA facilities. Upon receipt
of the equipment from the corresponding vendors, HSA personnel installs it on
the corresponding racks, makes the appropriate power and data connections,
configures the equipment, and performs exhaustive tests to ensure the proper
configuration and operation of all
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44
the equipment. The fully configured set is then shipped to the appropriate
location for final installation as described in the Site Coordination section
described below.
2.7 HEAD-END INSTALLATION
HSA personnel will perform or hire qualified contractors to perform the
following:
2.7.1 Installation Procedures. Each on-site installation will
require specific steps and verifications as outlined below.
1) Receive and inventory equipment.
HSA will provide a detailed shipping list of equipment for each
site. Installation personnel or contractor must reconcile this
list against received equipment and immediately notify HSA of
any missing or damaged items.
2) Install Racks/Frames
Shipping company personnel will remove the racks/frames from the
special shipping crates and assist with physically moving the
equipment to the final installation location and position.
Installation personnel or contractor must complete installation
by securing the rack/frame in a manner consistent with operator
policy and practices.
3) Connect Power and Grounds
Installation personnel or contractor shall complete all power
connections including:
a) connect the UPS to commercial power
b) connect power management equipment to the UPS
c) connect all individual equipment to the power management
equipment as depicted in installation drawings. Installation
personnel or contractor shall complete grounding/bonding of
racks to operator grounding system. Ground cable shall be #6
or consistent with cable operator requirements, whichever is
greater.
4) Complete Power Test of All Equipment
Installation personnel or contractor shall complete powering
test of all equipment to verify:
a) operability
b) control through power management equipment
c) switch-over to UPS upon loss of commercial power
d) auto-power-up after loss of total power and subsequent
restoration
5) Connect Backbone, Dial-Access and POTS Circuits
Installation personnel or contractor shall complete connection
and testing of backbone (IP) and dial-access circuits, if any,
including:
a) assemble necessary jumpers to reach from telco service
backboard to equipment racks
b) connect circuits to CSU/DSU's and Dial-Access Platforms,
if any, as appropriate
c) after completing physical connections, contact HSAC
Deployment Engineering personnel to coordinate and assist
with circuit testing
d) record circuit id numbers and appropriate connections
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45
6) Complete Turn-up and Test of IP Equipment Installation
contractor shall contact and assist HSAC Deployment Engineering
to complete turnup and activation of all IP equipment including,
but not limited to, routers, dial-access platforms, switches,
servers, and power management consoles.
7) Complete Turn-up and Test of CMTS Equipment
Installation personnel or contractor shall contact and assist
HSAC Deployment Engineering to complete turnup and activation of
all CMTS equipment including, but not limited to, cable modem
termination system (CMTS) and associated up-converter(s).
8) Connect Forward/Downstream Signal to Cable Plant
Installation personnel or contractor shall connect the output
signal from the CMTS to the downstream combining system of the
cable plant. Frequency allocation and signal levels shall be set
according to Cable Operator's direction.
9) Connect Cable Return/Upstream Signal to Data Equipment:
Installation personnel or contractor shall connect cable plant
upstream returns to the CMTS. Frequency allocation and signal
levels shall be set according to Cable Operator's direction.
10) Complete As-Built Documentation Installation personnel or
contractor shall complete as-built documentation with all
connections, modifications, and installation parameters to
accurately reflect the final installation configuration.
Documentation shall be delivered to HSA Deployment Engineering
and the Charter project manager who shall review completed
head-end installation and as-built documentation and accept
contracted work as complete
2.8 MILESTONE MANAGEMENT
Charter will manage each milestone of the technical deployment to
ensure milestones are accomplished on time and in the proper sequence.
Prior to commencing any Deployment Services, HSA will review the
estimated cost to perform the above activities based on the Site Survey. If
based on the complexity and size of the System, HSA cost will exceed the amounts
quoted above. HSA will issue in writing revised cost estimates. If Charter
accepts the revised quotes, Charter will issue a purchase order for the
Deployment Services at the revised quotes prior to the commencement of any such
services, except the Site Survey.
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EXHIBIT 3
LIST OF COMMITTED NETWORK SYSTEMS
CHARTER PIPELINE
NETWORK SERVICES SYSTEMS
Division Region System Headend State Total Homes
======== ====== ====== ======= ===== ===========
Eastern Southeast Simpsonville Greycourt SC 73,164
Western Central Maryville Maryville IL 78,295
Eastern Mid-Atlantic Worcester Chicopee MA 51,826
Eastern Mid-Atlantic Worcester Worcester MA 163,289
================================================================================
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ 26,032
Western LA San ▇▇▇▇ Obispo San Luis Obispo CA 33,496
Western North Central Wausau ▇▇▇▇▇▇▇ Pt WI 41,012
Western North Central Fond du Lac Sheboygan WI 29,474
Western ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇ 100,197
Eastern SouthEast Lincolnton Hickory NC 23,386
Eastern Gulf States Birmingham Montevallo AL 22,944
Eastern Mid-Atlantic Johnstown Altoona PA 51,030
Eastern SouthEast Hickory Hickory NC 91,068
Eastern SouthEast Lenoir Hickory NC 6,197
Western LA High Desert Victorville CA 46,750
Western North Central Janesville Janesville WI 112,930
Western North Central Clintonville Clintonville WI 25,282
Eastern Mid-Atlantic Parkersburg Parkersburg WV 67,589
Eastern Gulf States Birmingham Gardendale AL 53,029
Eastern Gulf States Birmingham Mtn Brook AL 31,278
Eastern SouthEast Waynesville Waynesville NC 20,422
Eastern Gulf States St. Tammany Slidell LA 64,227
Eastern SouthEast Black Mountain Ashville NC 10,840
Western LA Long Beach Long Beach CA 188,102
Eastern North-East Pepperell Worcester MA 37,763
Eastern Mid-Atlantic Charleston Charleston WV ▇▇▇,▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ 45,119
Eastern Mid-Atlantic Beckley Beckley WV 52,565
Eastern Gulf States Birmingham Sumiton/Monteval AL 20,389
Eastern North-East Belchertown Chicopee MA 5,640
Western LA Malibu Long Beach CA 24,000
Eastern Gulf States Birmingham Jasper AL 19,894
================================================================================
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ 42,198
Eastern Southeast Athens Athens GA 54,082
Eastern Southeast Asheville Asheville NC 42,115
Eastern Southeast Greenville Spartanburg SC ▇▇▇,▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ 91,200
Eastern Mid-Atlantic Johnstown Johnstown PA 46,480
Eastern Mid-Atlantic Bedford Bedford VA 11,829
Eastern Mid-Atlantic ▇▇▇▇▇▇▇ Radford VA 11,913
Eastern Mid-Atlantic Charleston Milton WV 12,500
Eastern Mid-Atlantic Uniontown Uniontown PA 50,850
Eastern Mid-Atlantic Point Pleasant Point Pleasant WV 18,090
Eastern Mid-Atlantic Oak Hill Oak Hill WV 10,050
Eastern Southeast Boone Boone NC 33,793
Eastern Southeast Simpsonville Anderson SC 28,563
================================================================================
2,390,969
47
EXHIBIT 4
FORM OF AMENDED AND RESTATED SECURITIES PURCHASE WARRANT
See attached
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