Strategic Agreement - SPEEDUS.COM Inc. and NEXTLINK Communications Inc.
EXECUTION COPY
STRATEGIC AGREEMENT
BETWEEN
NEXTLINK AND
SPEEDUS.COM
This Strategic Agreement (the "Agreement") is by and between SPEEDUS.COM,
INC., a Delaware corporation, ("SPEEDUS") and NEXTLINK Communications,
Inc., a Delaware corporation ("NEXTLINK") and is dated as of June 13, 1999.
WHEREAS, NEXTLINK owns and operates telecommunications facilities and is in the
business of providing transport services;
WHEREAS, NEXTLINK wishes to provide transport services, collocation facilities
and other support to SPEEDUS pursuant to certain terms and conditions set forth
in this Agreement; and
WHEREAS, SPEEDUS wishes to have NEXTLINK provide such services and facilities;
and
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, the Parties hereby mutually agree as follows:
1. NEXTLINK as Provider of Collocation Facilities to SPEEDUS
Pursuant to a Collocation Agreement to be entered into between SPEEDUS and
NEXTLINK, in all markets where (i) SPEEDUS currently or in the future offers
communications services utilizing FCC licenses currently held by SPEEDUS, as the
same may be expanded in geographic scope from time to time, and (ii) NEXTLINK's
premises are existing and available to support SPEEDUS's collocation
requirements; NEXTLINK will make available premises for SPEEDUS's collocation
purposes. Collocation premises provided by NEXTLINK will be priced at NEXTLINK's
lowest then-current rates at the time the request for collocation is made.
2. NEXTLINK as Provider of Transport Services to SPEEDUS
Pursuant to a separate NEXTLINK Master Services Agreement ("MSA") to be
entered into between SPEEDUS and NEXTLINK, in all markets where SPEEDUS
currently or in the future offers communications services utilizing FCC licenses
currently held by SPEEDUS, as the same may be expanded in geographic scope from
time to time, and where NEXTLINK has the capability to provide intra-city
transport services and can meet or exceed SPEEDUS's service requirements (which
will be set forth in the MSA), NEXTLINK will provide to SPEEDUS intra-city
transport capacity. NEXTLINK services will be priced at the lowest prices then
offered to similarly situated intra-city transport customers of NEXTLINK.
SPEEDUS's obligations under
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the MSA will be subject to its obligations under contracts existing on the date
hereof, and the MSA will not require SPEEDUS to utilize NEXTLINK services where
SPEEDUS currently has access to such capacity at lower cost.
3. Cooperative Purchasing
The parties acknowledge that some of the equipment needed by SPEEDUS to
implement its business plan may be available from vendors with whom NEXTLINK
acquires the same or similar equipment. NEXTLINK will use commercially
reasonable efforts to allow SPEEDUS to submit purchase orders for equipment from
the parties' common vendors pursuant to terms made available by such vendors to
NEXTLINK, provided that SPEEDUS will be solely responsible for complying with
the terms of sale established by such vendors, and NEXTLINK may terminate this
obligation with respect to one or more vendors if, in its discretion, it
determines that its relationship with such vendors is or may be adversely
affected by this cooperative purchasing arrangement.
4. Access to NEXTLAB
Pursuant to a services agreement to be entered into between NEXTLINK and
SPEEDUS, NEXTLINK will make its NEXTLAB facility in Plano, Texas, available to
SPEEDUS on a reasonable basis to facilitate the development and testing of
equipment to be used by SPEEDUS in utilizing the FCC licenses currently held by
SPEEDUS in the implementation of its business plan. Access to NEXTLAB will
include the exclusive use of a portion of a testing room for a period of one
month per year free of charge, which room will be interconnected to and
interoperable with NEXTLAB's telecommunications switch and associated equipment.
NEXTLINK will also make available from time-to-time one or more of NEXTLINK's
wireless engineering staff to assist in the testing and development of SPEEDUS's
equipment at NEXTLAB. SPEEDUS shall pay for and deliver and provide technical
personnel necessary for the temporary installation of its testing equipment in
NEXTLAB. In addition, NEXTLINK shall use commercially reasonable efforts to
allow SPEEDUS to participate in and/or observe the testing of LMDS equipment
which NEXTLINK may test at NEXTLAB for purposes of implementing NEXTLINK's LMDS
service utilizing FCC licenses currently held by NEXTLINK.
5. Regulatory Alliance
NEXTLINK and SPEEDUS agree to consult with one another from time to time on
state and federal regulatory matters of mutual concern in their capacity as LMDS
licensees and providers of wireless communications services and, where each
party determines, in its sole discretion, that it is in its interest to do so,
to coordinate their regulatory initiatives and otherwise collaborate and work
together with respect to such matters.
6. NEXTLINK Collocation with SPEEDUS.
NEXTLINK will evaluate the technical feasibility and business and strategic
advantages of collocation of NEXTLINK network equipment and operations at
SPEEDUS's
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Brooklyn Army Terminal facility, and will send a technical team to perform an
on-site survey (including a review of SPEEDUS's fiber backbone and dark fiber
IRUs) as promptly as reasonably practicable. If such collocation is technically
feasible and beneficial to NEXTLINK from a business and strategic standpoint,
SPEEDUS will be NEXTLINK's preferred provider of such services at such location,
so long as it offers NEXTLINK price and other terms at least as favorable as
those it could obtain elsewhere.
7. Miscellaneous
a. Term. The initial term of this Agreement shall continue for three
years from the date hereof (the "Initial Term"). Thereafter, this
Agreement shall be extended automatically for one year periods (each a
"Subsequent Term") unless either party shall provide a notice of
termination not less than three months prior to the expiration of the
Initial Term or any Subsequent Term.
b. Termination. This Agreement will terminate immediately upon
termination of the Agreement to Manage and Assignment of LMDS License
entered into between the parties hereto dated June 13, 1999.
c. No Third Party Beneficiaries. Except as specifically provided herein,
this Agreement does not provide and will not be construed to provide
third parties, including any customer, with any remedy, claim, and
cause of action or privilege.
d. Force Majeure. Neither party will be responsible for any failure to
perform any obligation or provide service hereunder because of any (i)
act of God, (ii) war, riot or civil commotion, (iii) governmental acts
or directives, strikes, work stoppage, or equipment or facilities
shortages, in any such case which are being experienced by providers
of telecommunications services, or (iv) other similar force beyond
such party's reasonable control.
e. Limited Liability. In no event will either party hereto and/or any of
its affiliates be liable to or through the other party for any of the
following: (i) damages caused by the other party's and/or any of its
affiliates' failure to perform their obligations and responsibilities;
(ii) claims or demands brought against the other party by third
parties, other than those third party claims in respect of which such
party is expressly obligated to indemnify the other party pursuant to
a provision of this agreement; or (iii) except as otherwise set forth
herein, any lost profits, loss of business, loss of use (or
interruptions of business), lost savings, lost opportunities or other
consequential, special, incidental, indirect, exemplary or punitive
damages, any or all of which arise from or in connection with the
delivery, use, or performance of service governed by this Agreement,
even if a party and/or any of its affiliates has been advised of the
possibility of such loss.
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f. Entire Agreement; Amendment in Writing; Severability. This Agreement
and other agreements expressly referenced herein, constitute the
entire agreement between the parties concerning the subject matter
hereof and supersedes any prior agreements, representations,
statements, negotiations, understandings, proposals or undertakings,
oral or written, with respect to the subject matter expressly set
forth herein. Any amendment or supplement to this Agreement will be in
writing and duly executed by both parties. If any provision of this
Agreement will be held to be illegal, invalid or unenforceable, each
party agrees that such provision will be enforced to the maximum
extent permissible so as to effect the intent of the parties, and the
validity, legality and enforceability of the remaining provisions of
this Agreement will not in any way be affected or impaired thereby.
g. Expenses. Each party will pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance
of this Agreement and the other agreements described herein.
h. Choice of Law. This Agreement is to be construed in accordance with
and governed by the internal laws of the State of Delaware without
giving effect to choice of law.
i. Notices. All notices or other communications to be delivered to any
party under this Agreement will be in writing and will be sent by
registered or certified mail, by courier or express delivery service
or by facsimile, addressed or sent: (a) if to SPEEDUS: 140 58th
Street, Suite 7E, Brooklyn, New York 11220, Attention: Shant S.
Hovnanian, Telecopier: 718-567-4388, and (b) if to NEXTLINK: NEXTLINK
Communications, Inc., 500 108th Avenue N.E., Suite 2200, Bellevue,
Washington 98004; Attention: R. Bruce Easter, Jr. Esq., Telecopier:
425-519-8910.
j. Assignment. Neither party may assign or transfer all or any part of
its rights or obligations under this Agreement without the prior
written consent of the other party, which consent may be withheld for
any reason. The parties acknowledge that this Agreement involves the
provision by NEXTLINK of services and facilities that are personal to
SPEEDUS. SPEEDUS will not resell, sublet or otherwise transfer any of
the facilities or services made available to it by NEXTLINK pursuant
to this Agreement or any of the other agreements described herein. For
purposes of this Agreement, a change in control, merger, or sale of
all or substantially all of the assets of SPEEDUS will constitute an
assignment that is subject to consent pursuant to this paragraph (j).
h. Confidentiality; Publicity. Without the prior approval of the other
party, none of the parties hereto will disclose to the public or to
any third party any information concerning the transactions
contemplated hereby, other than disclosures to their financial, legal
and other advisors and to governmental
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authorities or the public as may, in the opinion of counsel, be
required by law. Notwithstanding the foregoing, SPEEDUS and NEXTLINK
will be permitted to disclose such details of the transaction
contemplated hereby as may be required by law; provided that NEXTLINK
will have the right to review and comment thereon prior to such
disclosure.
The parties hereto have executed this Agreement as of the date set forth in the
first paragraph hereof.
SPEEDUS.COM, INC.
By: /s/ Shant Hovnanian
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Title: Chief Executive Officer
NEXTLINK COMMUNICATIONS, INC.
By: /s/ Scott G. Macleod
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Title: Chief of Business Development
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