Teleport Services Agreement - Williams Communicatiions Inc. and iBEAM Broadcasting Corp.
Agreement No.___________ [LOGO OF WILLIAMS] Teleport Services Agreement This is an agreement between Williams Vyvx Services, a business unit of Williams Communications, Inc. ("Williams") and iBEAM Broadcasting Corporation ("Customer"), dated as of December 13, 1999, in connection with teleport services to be provided by Williams from Williams Vyvx Teleport New York as its primary signal path and Williams Vyvx Teleport Los Angeles as its redundant signal path (the "Teleport(s)") to Customer (the "Agreement"). The terms of this Agreement are as follows: 1. SERVICES. Williams shall provide Customer with the Teleport services as further described on Exhibit A-1 attached hereto and made a part hereof (collectively referred to herein as the "Services"). From time to time and subject to availability, changes may be made in the Services which will be reflected in amendments to the applicable Exhibit A or the addition of additional Exhibit As. Each amendment shall be executed by authorized individuals of both parties. Each Exhibit A shall be part of this Agreement and incorporated herein. All Exhibit As shall be sequentially numbered for ease of identification, e.g., Exhibits A-1, A-2, A-3 and so forth. 2. TERM. Upon signature by both parties this Agreement shall become effective on the date first set forth above and shall continue in effect until the expiration of any Exhibit A attached hereto (the "Term"). 3. LATE PAYMENT. If any payment is not received by Williams within 30 days after the date of invoice (the "Due Date"), then such overdue amount shall be subject to late payment charges at the lower of 18% per annum or the highest legally permissible rate of interest until the date payment is actually received. If Customer in good faith disputes any portion of an invoice it must pay the undisputed amount of the invoice on or before its Due Date and provide written notice to Seller of the billing dispute at or before the time of payment. Such notice must include documentation substantiating the dispute. Customer's failure to notify Seller of a dispute within one hundred-twenty (120) days after the Due Date shall be deemed to be Customer's acceptance of such charges. The parties will make a good faith effort to resolve billing disputes as expeditiously as possible. If a dispute is resolved in favor of Customer, Customer shall receive an adjustment on its next bill. 4. SUSPENSION RIGHT. In the event that Customer has failed to pay any undisputed amount when due, Williams shall have the right to suspend Services. Williams shall only exercise this Suspension Right by first providing Customer with ten business days' written notice by facsimile. If Williams receives payment from Customer of all amounts due within the ten- day notice period, then Customer's Services shall not be suspended. Suspension of Services does not affect Customer's obligation to pay the Service Charges through the Term of this Agreement unless Customer exercises its termination right as described in this Section 4. In the event Williams suspends Customer's Services, Customer shall have the right but not the obligation to terminate this Agreement at its sole discretion. Customer's liability with respect to such termination shall be an amount equal to twelve (12) months of Service from the date of termination multiplied by the then current monthly Total Service Charge or an amount equal to the number of months remaining in the Term multiplied by the then current monthly Total Service Charge, whichever is less. 5. TERMINATION. 5.1 Customer shall have the right to terminate this Agreement upon a minimum of thirty (30) days' written notice. This right to terminate may only be exercised due to one of the following two circumstances: Page 1 of 27 <PAGE> a. Monthly Interruptions exceed 43 minutes in three (3) consecutive calendar months; or b. A second Daily Interruption in excess of 24 consecutive hours (after the first Daily Interruption in excess of 24 consecutive hours). Customer must exercise its right to terminate pursuant to this Section 5.1 within thirty (30) days of the circumstance giving rise to Customer's right to terminate. This right to terminate is Customer's only right to terminate due to excessive Interruptions, and Customer may not invoke the general termination right as set forth in Section 5.2 due to Interruptions. 5.2 Either party may terminate this Agreement due to a material breach of this Agreement by the other party. The non-breaching party shall provide written notice to the breaching party of the alleged breach, and the breaching party shall have sixty (60) days to cure the breach. If the breach has not been cured within this sixty-day period, then the non-breaching party may terminate upon thirty (30) days' written notice. Customer shall pay Williams in accordance with this Agreement for all Services performed up to and including the effective date of termination. 6. TAXES. Customer acknowledges and understands that all charges are computed exclusive of any applicable federal, state or local use, excise, gross receipts, sales and privilege taxes, duties, fees or similar liabilities (other than general income or property taxes), including without limitation, any tax or charge levied to support the Universal Service Fund contemplated by the Telecommunications Act of 1996, whether charged to or against Williams, its suppliers or affiliates or Customer for the Service provided to Customer ("Taxes"). Such Taxes shall be paid by Customer in addition to all other charges provided for herein. 7. OUTAGE ALLOWANCE. 7.1 Calculation of Outage Allowance. If applicable, Williams shall grant Customer an Outage Allowance for Services as follows: (a) For purposes of this Agreement an interruption to Services ("Interruption") will be deemed to have occurred when Services are either not provided at all or fail to meet the requirements of the Agreement for a period of ten aggregate minutes on any given calendar day (the "Daily Interruption") or forty-three (43) aggregate minutes in any given calendar month (the "Monthly Interruption"). An Interruption begins the earlier of when Customer notifies Williams of the Interruption or when Williams is actually aware of the Interruption or constructively aware through recordation of the Interruption in Williams' log files. An Interruption will be considered to have ended when Services in accordance with this Agreement have been restored. (b) In the event that Williams has a Daily Interruption as set forth in Section 7.1(a) herein, Customer shall receive a credit for the day the Daily Interruption occurred. Such credit shall include all fees for the day containing the Daily Interruption related to the Primary uplink (the "Uplink Outage Allowance"), which represents 62.5% of the total daily uplink fee. (c) In addition to the Uplink Outage Allowance, a credit will be provided to Customer by Williams based on the outage formula below for the actual outage minutes related to the Space Segment (the "Space Segment Outage Allowance"). Space Segment Outage Allowance = Interruption (in Minutes) x Transponder Charge ---------------------------------------------- 43,200 (deemed number of minutes per month) (d) In the event Williams has a Monthly Interruption as set forth in Section 7.1(a) herein, Customer Page 2 of 27 <PAGE> shall receive a credit for the month in which the Monthly Interruption took place. Such credit will include an Uplink Outage Allowance as defined herein for the month containing the Monthly Interruption. If Customer receives a credit for a Monthly Interruption, Customer shall not receive credits for any Daily Interruptions which occurred during the month in which the Monthly Interruption occurred. 7.2 Audio/Video. Intentionally Left Blank. 7.3 Exceptions to Outage Allowance. In no case shall an Outage Allowance be made for any Interruption that is a result of, or attributable in whole or in part to: (a) Any failure on the part of Customer to perform its material or operational obligations pursuant to this Agreement; (b) The failure of Customer's Signal provided by Customer or by carriers other than Williams; (c) The failure of transmission lines, equipment, or other facilities provided by the Customer; (d) The failure or nonperformance of any earth station not provided by Williams; (e) Reasonable periodic maintenance as approved in advance by Customer, provided Williams provides Customer with 72 hours advance notice of such maintenance and cumulative maintenance time does not exceed two (2) hours per calendar month; (f) Interference from third party transmission or usage; (g) Cooperative testing; (h) Sun transit outage or rain fade; or (i) Any other act or failure to act by Customer. 7.4 Credit Memoranda. Interruptions and Outage Allowances shall be acknowledged by Williams through the issuance of credit memoranda. Such memoranda shall be issued within fifteen (15) days of the close of each calendar month and shall reflect all credit allowances accumulated by Customer during such month. Customer may deduct from its next monthly payment the amount specified in the credit memorandum received in the preceding month. 7.5 Time Limitation. In no event shall Williams be liable for allowances for interruption unless the claim for such allowance is made within fifteen (15) days after the date of the interruption. 8. WILLIAMS' RIGHT TO RE-CONFIGURE TELEPORT. Williams shall have the right to re-configure or relocate the Teleport. Notwithstanding the above, any re- configuration must have minimal impact on any Customer performance requirement, and any relocation will be within the continental United States and will require that the two Teleports used by Customer must be at a minimum 1000 miles apart and neither shall be located in Florida or southern Texas. 9. RISK OF LOSS; INSURANCE. 9.1 Insurance Coverage. For Customer's Equipment (as defined in Exhibit A-1) and Customer's employees on the Teleport premises, Customer will carry or cause to be carried and maintained in force throughout the entire Term of this Agreement insurance coverages as described in paragraphs (a) through (c) below with insurance companies Page 3 of 27 <PAGE> acceptable to Williams. The limits set forth below are minimum limits and will not be construed to limit Customer's liability. All costs and deductible amounts will be for the sole account of the Customer. (a) Worker's Compensation insurance complying with the laws of the State or States having jurisdiction over each employee, whether or not Customer is required by such laws to maintain such insurance, and Employer's Liability with limits of $500,000 each accident, $500,000 disease each employee, and $500,000 disease policy limit. If work is to be performed in Nevada, North Dakota, Ohio, Washington, Wyoming or West Virginia, Customer will participate in the appropriate state fund(s) to cover all eligible employees and provide a stop gap endorsement. (b) Commercial or Comprehensive General Liability insurance on an occurrence form with a combined single limit of $1,000,000 each occurrence, and annual aggregates of $1,000,000, for bodily injury and property damage, including coverage for blanket contractual liability, broad form property damage, personal injury liability, independent contractors, products/completed operations, and when applicable the explosion, collapse and underground exclusion will be deleted. (c) Automobile Liability insurance with a combined single limit of $1,000,000 each occurrence for bodily injury and property damage to include coverage for all owned, non-owned, and hired vehicles. 9.2 Waiver of Subrogation. In each of the above described policies, 9.1(a) and 9.1(c), Customer agrees to waive and will require its insurers to waive any rights of subrogation or recovery they may have against Williams, its parent, subsidiary, or affiliated companies. Customer does not waive and its insurers will not waive any rights of subrogation or recovery they may have against Williams, its parent, subsidiary, or affiliated companies under 9.1(b). 9.3 Additional Insureds. Under the policies described in Sections 9.1(b) and 9.1(c) above, Williams, its parent, subsidiary and affiliated companies will be named as additional insureds as respects Customer's operations and as respects any work performed under this Agreement. Any costs associated with naming these additional insureds will be the responsibility of Customer. These policies will be primary insurance as respects Williams. 9.4 Certificates of Insurance. Non-renewal or cancellation of policies described above will be effective only after written notice is received by Williams from the insurance company thirty (30) days in advance of any such non-renewal or cancellation. Prior to commencing the Collocation Service hereunder, Customer will deliver to Williams certificates of insurance on an ACORD 25 or 25S form evidencing the existence of the insurance coverages required above. In the event of a loss or claim arising out of or in connection with the work performed under this contract, Customer agrees, upon request of Williams, to submit the original or a certified copy of its insurance policies for inspection by Williams. 9.5 Risk of Loss. Williams will not insure nor be responsible for any loss or damage, regardless of cause, to property of any kind, including loss of use thereof, owned, leased or borrowed by the Customer, or its employees, servants or agents. 9.6 Insurance Requirement for Contractors. If Customer utilizes contractor(s) per this Agreement, then Customer shall require such contractor(s) to comply with these insurance requirements and supply certificates of insurance before any work commences. 10. CONTRACT NOTICES. Any required notices pursuant to this Agreement shall be sent by facsimile, with confirmation by overnight courier to the parties at the following addresses: Williams Vyvx Services, a business unit of iBEAM Broadcasting Corporation Williams Communications, Inc. 645 Almanor Ave., Suite 100 Page 4 of 27 <PAGE> One Williams Center, MD 26-3 Sunnyvale, CA 94086 Tulsa, OK 74172 Tel: (408) 523-1600 Telephone: (918) 573-5602 Fax: (408) 730-8937 Fax: (918) 574-6042 Attn: CFO Attention: Contract Administration 11. OPERATIONAL NOTICES. If Customer has any technical problems with Customer's Equipment, Customer's signal(s) or the Services, Customer may call the Primary Teleport at (732)-969-3191 or (732)-969-3610 or the Secondary Teleport at (800)-922-4424 or (909)-943-5399 on a 24 x 7 basis. Williams will communicate with Customer as promptly as possible regarding any technical problems with Customer's Equipment, Customer's signal(s) or the Services. For purposes of these communications from Williams, Customer agrees that Williams should contact the operational contacts of Customer, in the order listed in Exhibit B hereto. Customer shall update its list of Operational Contacts with Williams as needed. Williams shall not be responsible for any Interruptions or other technical problems with Customer's Equipment, Customer's signal(s) or the Services in the event that Williams has attempted to communicate with Customer's Operational Contacts according to the information provided by Customer to Williams and Williams is unable to establish communications with them. 12. LIMITATION OF LIABILITY 12.1 EXCEPTING ONLY LIABILITY FOR WILLIAMS' RECKLESS OR WILLFUL MISCONDUCT, WILLIAMS' LIABILITY ARISING OUT OF ITS PROVISION OF SERVICES HEREUNDER, INCLUDING BUT NOT LIMITED TO LIABILITIES ARISING OUT OF WILLIAMS' NEGLIGENCE, MISTAKES AND OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, OR OTHER DEFECTS IN THE SERVICES OR BREACH OF CONTRACT OR ARISING OUT OF THE FAILURE TO FURNISH SERVICES, WHETHER CAUSED BY ACTS OF COMMISSION OR OMISSION, SHALL BE LIMITED TO THE EXTENSION OF ALLOWANCES FOR INTERRUPTIONS AS SET FORTH IN THIS AGREEMENT. SUCH ALLOWANCES FOR INTERRUPTION SHALL BE THE SOLE REMEDY OF CUSTOMER, INCLUDING ANY END USER OF CUSTOMER, AND THE SOLE LIABILITY OF WILLIAMS HEREUNDER. WILLIAMS' LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND ARISING OUT OF ITS FURNISHING SERVICES SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ITS FIXED MONTHLY OR OTHER CHARGE ALLOCABLE TO THE FAULTY OR DEFECTIVE SERVICE. 12.2 NOTWITHSTANDING THE PROVISIONS OF THE PRECEDING SUBPARAGRAPH, WILLIAMS SHALL NOT BE LIABLE TO CUSTOMER OR ANY END USER FOR ANY LOSS OF, DEFECTS IN OR ANY INABILITY TO FURNISH SERVICE DUE TO ACTS OF GOD, ACTS OF GOVERNMENT, WARS, RIOTS, STRIKES, FAILURE OF A TRANSPONDER, FAILURE OF A SATELLITE, FAILURE OF ANY OTHER TRANSMISSION EQUIPMENT OR OTHER CAUSES BEYOND WILLIAMS' CONTROL. 12.3 ANY AND ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE SERVICES INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE OR USE, ARE EXPRESSLY DISCLAIMED. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS WILLIAMS FROM ANY CLAIMS MADE UNDER A WARRANTY OR REPRESENTATION MADE BY CUSTOMER TO ANY THIRD PARTY WITH RESPECT TO THE SERVICES. 12.4 EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), Page 5 of 27 <PAGE> REGARDLESS OF THE FORESEEABILITY THEREOF, OCCASIONED BY THE TERMINATION OF CUSTOMER'S RIGHTS TO USE, OR THE PREEMPTION OF OR THE FAILURE OF, OR LOSS OF TECHNICAL QUALITY OF, THE SERVICES OR BY ANY DELAY IN COMMENCEMENT OF THIS AGREEMENT OR BY ANY OTHER CAUSE OR MATTER WHATSOEVER. 12.5 EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS HEREUNDER, IN NO EVENT SHALL CUSTOMER BE LIABLE TO WILLIAMS FOR DIRECT DAMAGES IN EXCESS OF ONE MILLION DOLLARS. 13. CUSTOMER'S CONTENT 13.1 Responsibility for Content. Customer shall be solely responsible for all content transmitted by Williams as part of the Services. Further, Customer shall make all arrangements with other common carriers, stations, networks, sponsors, music licensing organizations, performers, representatives or other parties for the authorizations necessary to avail itself of the Services. Customer shall indemnify, defend, and save harmless Williams from any liability arising out of failure to make such arrangements. 13.2 Content Indemnity. Customer shall indemnify, defend, and save harmless Williams from and against all loss, liability, damage and expense, including reasonable attorneys' fees, due to claims arising out of the content of any programming transmitted over Williams' facilities pursuant to this Agreement including without limitation, any claim for libel, slander, or infringement of copyright and any other claim resulting from any act or omission of Customer arising from the use of Williams' facilities or the Services provided that Customer be given immediate written notice of any such claims and of any suits brought or threatened against Williams and authority to assume the sole defense thereof through its own counsel and to compromise or settle any suits so far as this may be without prejudice to Williams' rights. 13.3 No Violation of Law. Customer shall not use the Services for an unlawful purpose, including (without limitation) any use which constitutes a violation of any local, state, federal, national or international laws. Williams shall have the right to terminate this Agreement and the Services provided hereunder without liability to Customer in the event that Williams, its officers, employees or agents, becomes the subject of any investigation, or is threatened with or made a party to any administrative proceeding or litigation, related to the alleged illegal use of the Services by Customer. Notwithstanding the foregoing, Williams will not terminate this Agreement pursuant to this Section 13.3 if, immediately upon notification by Williams of such alleged illegal use, Customer is able to satisfy Williams subject to Williams' sole and reasonable discretion within forty-eight (48) hours that Customer has ceased the aforementioned alleged illegal use. 14. NO THIRD-PARTY BENEFICIARY. The provisions of this Agreement are for the benefit only of the parties hereto, and no third party may seek to enforce, or benefit from these provisions. 15. LEGAL EXPENSES. If any proceeding is brought for the enforcement of this Agreement, or because of an alleged or actual dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and other costs and expenses incurred in such action or proceeding in addition to any other relief to which such party may be entitled. 16. FORCE MAJEURE. Notwithstanding any other provision of this Agreement, neither Williams nor Customer shall be held liable for any delay or failure to perform any part of this Agreement (other than non-payment of amounts due hereunder) for any cause beyond its control and without its fault or negligence, including but not limited to acts or omissions of civil or military authorities, national or local emergencies, government regulations, embargoes, epidemics, wars, terrorist acts, sabotage, riots, insurrections, fires, lightning, sun, hail, high winds or Page 6 of 27 <PAGE> other adverse weather conditions , explosions, nuclear accidents, strikes, extended power blackouts, natural disasters including but not limited to earthquakes, floods or volcanic action, failure of satellite transponder or failure of any third party facilities, equipment or services (outside of the control of Williams and its subcontractors) or any law, regulation or order of any government agency or court of competent jurisdiction affecting either of the parties hereto in the performance of their obligations hereunder. 17. INDEPENDENT CONTRACTORS. The parties to this Agreement are independent contractors, and none of the provisions of this Agreement shall be interpreted or deemed to create any relationship between Williams and Customer other than that of independent contractors. Without limiting the generality of the foregoing, Williams and Customer shall have sole responsibilities for the withholding of all federal and state income taxes, unemployment insurance tax, social security tax and other withholding with respect to payments made by it to its employees performing services for it under this Agreement. Neither party's directors, officers, employees, contractors or agents shall be deemed employees of the other party or shall be entitled to compensation or any employment benefits of any kind provided by the other party to its employees. 18. WAIVER. No delay or failure of Williams or Customer to insist on performance of any of the terms or conditions herein or to exercise any right or privilege, or either party's waiver of any breach hereunder, shall be construed to be a waiver thereof or a waiver of any other terms, conditions or privileges, whether of the same or similar type. 19. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its choice of law provisions. 20. SEVERABILITY. If any term or provision of this Agreement shall, to any extent, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then (a) both parties shall be relieved of all obligations arising under such provision and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent, and (b) the remainder of this Agreement shall be valid and enforceable. 21. SURVIVAL OF TERMS AND CONDITIONS. The terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate. 22. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. 23. PARTIES BOUND BY AGREEMENT; ASSIGNMENT. This Agreement is binding upon and shall inure to the benefit of the parties hereto and upon their respective successors and permitted assigns. Customer may not assign this Agreement without the prior written consent of Williams, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, upon written notice, either party may assign to a parent, affiliate, subsidiary company and/or any entity that acquires, substantially all the shares or assets of a Party, without the consent of the other. 24. OUTSOURCING OF NETWORK MANAGEMENT. Should Customer establish an outsourcing relationship with a third party to manage its network, Williams agrees to work with such third party as designated by Customer in order to facilitate optimum performance of Customer's network. 25. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes any prior understandings, oral agreements and/or writings between the parties regarding the subjects within this Agreement. This Agreement may only be amended or modified in writing signed by Customer and Williams. Page 7 of 27 <PAGE> IN WITNESS WHEREOF the parties have executed this Agreement by the hand of their respective duly authorised officers. WILLIAMS VYVX SERVICES, A BUSINESS UNIT iBEAM BROADCASTING CORPORATION OF WILLIAMS COMMUNICATIONS, INC. /s/ Laura Kenny /s/ Chris L. Dier ------------------------------------------ ---------------------------------- SIGNATURE SIGNATURE Laura Kenny Chris L. Dier ------------------------------------------ ---------------------------------- PRINT NAME PRINT NAME Sr. VP & General Manager CFO ------------------------------------------ ---------------------------------- TITLE TITLE 12-14-99 12/18/99 ------------------------------------------ ---------------------------------- DATE DATE Page 8 of 27 <PAGE> Agreement No.______________ [LOGO OF WILLIAMS] VYVX SERVICES Teleport Services Agreement - Exhibit A-1 1. SERVICE DESCRIPTION. Williams shall provide to Customer the use of the Teleport for a dedicated use transmission, based on the terms contained herein, to uplink Customer's signal(s) from the Teleport to Williams-provided space segment on TelStar 7, transponder 15. 2. SERVICE INITIATION. Williams shall initiate the Services described herein on January 4, 2000 (the "Service Initiation Date"), provided, however that Customer has signed this Agreement no later than December 14, 1999. Customer's obligation to pay for the Services shall begin on the Service Initiation Date. Loral has agreed to provide a transponder for testing purposes up to a maximum of 15 MHz, and Williams will provide the Services during a Testing Period, which shall begin as early as possible during the week of December 13, 1999 and continue until January 2, 2000. Loral has informed Williams that Telstar 7, Transponder 3 has been designated for such Testing Period and service will switch to Telstar 7, Transponder 15 on January 4, 2000. 3. TERM. The term of this Exhibit A-1 shall begin on the Service Initiation Date and shall continue for a period of thirty-six (36) months, or until December 31, 2002 (the "Original Term"). 4. DEMARCATION POINT FOR SERVICES. The Demarcation Point for Services described herein shall be defined as either 4.1 RF Chain Demarcation a) X Customer provided equipment ("CPE") demarcation - the ---- DVB/ASI data stream from Customer Provided encapsulator to the input of Williams provided modulator for all uplink services from the Teleport; b) Williams provided equipment demarcation - the Telco ---- demarcation point as defined by the local loop provider (RBOC, CAP, etc.), with Williams responsible for connectivity between RF Chain and local loop demarcation; 4.2 Local Loop Demarcation a) Williams provided local loop demarcation - Customer ---- premise - Williams provisions the local loop between the Customer premise and the respective local facility, whether that facility is a Williams POP or 3rd party POP, with the demarcation point being the Customer end of the local loop; b) Williams provided local loop demarcation - Teleport ---- premise - For the Primary uplink out of New York, Williams provisions the local loop between the Teleport and the respective local facility, whether that facility is a Williams POP or 3rd party POP, with the demarcation point being the local facility end of the local loop. Williams is responsible for provisioning and continued operation of the local loop for the Primary signal path as defined herein; c) Customer provided local loop demarcation - Customer ---- premise - Customer provisions the local loop between the Customer Premise and respective local facility, whether that facility is a Williams POP or 3rd party POP with the demarcation point being the local facility end of the local loop; d) X Customer provided local loop demarcation - Teleport ---- premise - For the Redundant uplink out of Los Angeles, Customer provisions the local loop between the Teleport and the respective local facility, whether that facility is a Williams POP or 3rd party POP, with the demarcation point being the Teleport end of the local loop. Customer is responsible for provisioning, payment and continued operation of the local loop for the Redundant signal path as defined herein. 4.3 IXC Demarcation. Intentionally Left Blank. 4.4 "Other." Intentionally Left Blank. Page 9 of 27 <PAGE> 5. WILLIAMS RESPONSIBILITIES. (collectively, the Service[s]) [GRAPHIC OMITTED] Generic Signal Path diagram 5.1 Terrestrial Fiber Connectivity: a) Local Access. Customer Premise (City A) Intentionally Left Blank. b) Interexchange Fiber. Intentionally Left Blank. c) Local Access - Teleport (City Z) City Z Customer Premise: IXC POP, 12th Flr, 60 Hudson St City Z NPA / NXX: T.B.D. Williams Teleport: Primary - Williams Vyvx Teleport New York, 27 Randolph Street, Carteret, NJ 07008 Circuit Type: _________ Analog X Digital -------- Circuit Capacity: DS-3(45 Mbps) Transmission Type: _________ Simplex X Duplex -------- 5.2 Space Segment (the "Transponders") a) Williams shall provide two Ku-band transponders (the "Transponders") on Telstar 7 at the 129 West orbital slot. The Transponders shall be provided on a "ramp-up" schedule by which Customer commits to pay for increasing amounts of the space segment on the Transponders. The ramp-up schedule is depicted on the Ramp-Up and Pricing Schedule attached hereto as Exhibit D. Customer's commitment for the space segment depicted on Exhibit D begins on the first day of the first month of the respective quarter identified. With appropriate notice, Customer may accelerate the ramp-up of space segment, together with the corresponding charges. Once an increased level of space segment has been activated, however, the level may not be decreased. The full use of both Transponders as depicted on Exhibit D beginning no later than [*] shall continue through the end of the Term of the Agreement. The second transponder is subject to the Right of First Refusal described below in subparagraph (c). b) Additional bandwidth is available under the Bursting provision in Section 6.6 (b) herein. c) Williams shall provide Customer with a Right of First Refusal on a Fully- Protected Ku-band transponder on Telstar 7. The Right of First Refusal shall be activated at the time Loral Skynet receives a bona fide offer for Loral's last Fully Protected Ku-band transponder on Telstar 7. In order to implement such Right-of-First Refusal, Williams shall provide Customer with written notice that Loral has received such bona fide offer. If Customer chooses to lease the transponder in question, Customer must respond, in writing, to Williams within twenty (20) calendar days of Customer's receipt of Williams' written notice and must begin full service on the second transponder no later than forty-five (45) days following receipt of Williams' written notice. The monthly rate for the second transponder shall [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. Page 10 of 27 <PAGE> immediately be [*] without any ramp-up schedule as depicted on Exhibit D hereto. Customer's failure to respond to Williams' notification shall be deemed a refusal of the second transponder. This Right of First Refusal terminates when service on the second transponder begins on [*] or when Customer declines service under the Right of First Refusal. (d) Williams' Standard Satellite Terms and Conditions are attached as Exhibit C and are considered an integral part of the Agreement. In the event of conflict, the terms of this Agreement shall supersede the terms and conditions in Exhibit C. 5.3 Uplinking/Downlinking. Williams shall modulate Customer's DVB/ASI data stream to 70 MHz, upconvert the signal to 14 GHz and then transmit the signal from the Teleport to the Transponder in accordance with the predicted performance parameters which have been established based on the technical specifications calculated in the New York link budget attached as Exhibit A-1(a). Customer acknowledges and agrees that any equipment substitutions or technical changes made by Customer or Williams may affect the attached link budget calculations and could result in corresponding changes to the following predicted performance specifications: Williams will provide a Primary signal path via its New York Teleport. The Customer's signal will be transmitted from New York at a calculated power level of 73.11 dBW to TelStar 7's Ku-band transponder 15, resulting in a predicted downlink EIRP of 47 dBW per carrier to CONUS. Williams understands that this signal will be received by Customer's downlink equipment utilizing a minimum 1.0 meter antenna in CONUS providing approximately 40 dBi gain at 12 GHz. Calculations are based on Loral Skynet provided specifications for TelStar 7. These values assume 6 dB of rain fade margin and 99.7% equipment availability. Additionally, these values predict an approximate data rate capacity of 39 MBps. Williams will provide a Redundant signal path via its Los Angeles Teleport. The Customer's signal will be transmitted from Los Angeles at a calculated power level of 70.34 dBW to TelStar 7's Ku-band transponder 15, resulting in a predicted downlink EIRP of 47 dBW per carrier to CONUS. Williams understands that this signal will be received by Customer's downlink equipment utilizing a minimum 1.0 meter antenna in CONUS providing approximately 40 dBi gain at 12 GHz. Calculations are based on Loral Skynet provided specifications for TelStar 7. These values assume 6 dB of rain fade margin and 99.7% equipment availability. Additionally, these values predict an approximate data rate capacity of 39 MBps. When Williams has actual knowledge that there is an outage to Customer's Service, Williams must switch signal delivery from the Primary uplink to the Redundant uplink as described herein. Williams will switch the signal within five (5) minutes upon Williams' actual knowledge of the outage. To accommodate Williams' switch of signal delivery, Customer shall maintain the delivery of the data signal to the Redundant uplink on a continuous basis. It is understood and agreed to by both parties that while these initial uplink systems do not support iBEAM's long term growth requirements, approximately [*] MBps for a CONUS service, but they do provide sufficient capacity for iBEAM to develop their service offering. At such time that both parties deem this current capacity to be insufficient to meet iBEAM's market requirements, both parties will work together to expand these systems to support iBEAM's long term growth requirements of [*] MBps. Such expansion of Services shall be reflected in an amendment to this Agreement. <TABLE> <CAPTION> ----------------------------------------------------------------------------------------------------------- Uplink Uplink Downlink Downlink Direction Data Rate Freq. Polarity Freq. Polarity Modulation FEC ----------------------------------------------------------------------------------------------------------- <S> <C> <C> <C> <C> <C> <C> <C> Simplex Uplink-NY 39 MBps 14300 Horizontal 12000 Vertical QPSK 3/4 MHz MHz ----------------------------------------------------------------------------------------------------------- Simplex Uplink-LA 39 MBps 14300 Horizontal 12000 Vertical QPSK 3/4 MHz MHz ----------------------------------------------------------------------------------------------------------- </TABLE> [*] Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. 5.4 Equipment. Williams shall provide the necessary equipment to uplink Customer's signal(s) to/from the customer provided modem in accordance with this Agreement. Uplink system will operate with data modulators, frequency upconverters and High Power Amplifiers in a 1:N automatic redundancy mode where N<4. Williams will supply an environmentally controlled facility, including 2 19" racks for Customer's equipment and 2 POTS lines for remote Page 11 of 27