13. MISCELLANEOUS.

CISPA hereby represents and warrants that it has not heretofore assigned or transferred any claim, debt, liability, demand, obligation, cost, expense, damages, action or cause of action released herein. CISPA further agrees to indemnify and hold the Defendants, and each of them, harmless and defend the Defendants, and each of them, against any such claim, debt, liability, demand, obligation, cost, expense, damages, action or cause of action based on any such transfer or assignment or purported transfer or assignment.

(1) SBC California and ASI agree to pay collectively to CISPA $550,000 in consideration of costs incurred by CISPA, including attorneys fees, legal costs and expenses in connection with this Complaint and this Agreement. CISPA shall be solely responsible for actual payments to its respective attorneys or other vendors. Except as provided in the previous sentence, SBC California, ASI and CISPA each agree to pay its own respective fees, costs and expenses and those of its agents and third party vendors, independent contractors or consultants, in connection with the Complaint and this Agreement, including without limitation its own legal, accounting and administrative expenses in connection with the negotiation of the Agreement or any related activities.

(2) SBC California and ASI agree collectively to establish through CISPA a cooperative marketing fund in the amount of $725,000 for the benefit of CISPA's ISP members engaged in promoting ASI's DSL Transport with their ISP service (the "Fund"). The Fund will be created by the payment by Defendants collectively of three payments totaling $725,000. The first payment, in the amount of $362,500, will be made 30 days following the Effective Date of the Agreement, with one subsequent payment of $181,250 sixty (60) days after the Effective Date and one subsequent payment of $181,250 ninety (90) days after the Effective Date. CISPA members may request and be reimbursed from the Fund for advertising, promotional activities and special events that have the specific purpose of promoting ASI's DSL Transport. CISPA will determine all amounts to be paid to its members from the Fund pursuant to the guidelines set forth in the Agreement. In no event shall CISPA authorize a payment from the Fund to a CISPA member to defray SG&A ("selling, general and administrative") expenses or infrastructure costs necessary to provision ASI DSL Transport. CISPA may be reimbursed in an amount up to 10% of the Fund, or $72,500, for the costs of the Fund's administration, oversight and controls. CISPA shall provide to SBC California and ASI a general accounting of disbursements from the Fund on a quarterly basis.

Modifications of and amendments to this Agreement must be in a writing that expressly refers to this Agreement and that is signed by an authorized representative of each party.

If a court of competent jurisdiction holds that any provision of this Agreement is unenforceable, illegal, or void, such terms shall be enforced only to the extent it is otherwise enforceable or is not in violation of such law, and all other terms of this Agreement shall remain in full force and effect.

The section headings and subheadings contained herein are for the purpose of convenience and are not intended to define or limit the contents of this Agreement.

No breach of any provision of this Agreement shall be deemed waived unless the waiver is in writing signed by a duly authorized representative of the waiving party. Waiver of any one breach shall not be deemed as a waiver of any other breach of the same or of any other provision of this Agreement.

This Agreement represents the complete and exclusive statement of the entire Settlement between the parties and supersedes all prior and contemporaneous promises and agreements of any kind, as well as all negotiations and discussions between the parties hereto and/or their respective legal counsel. No other agreements, covenants, restrictions, representations, or warranties, express or implied, oral or written, have been made to any of the parties hereto.

Each person executing this Agreement on behalf of any party represents and warrants that he or she is fully authorized to execute this Agreement on behalf of such party, including the releases contained herein.

The following provisions shall survive termination of this Agreement: Sections 8 and 11-13, 14 (e)-(n).

The recitals contained in this Agreement are made a part of the terms, provisions and conditions of this Agreement, and shall be fully binding on the parties as if fully set forth herein.

This Agreement shall be binding upon and for the benefit of the parties hereto and everyone they have the power to bind, including, but not limited to their respective heirs, executors, administrators, successors and assigns.

The provisions of this Agreement shall be governed by California law. The parties agree to submit to the jurisdiction of California courts, located in San Francisco County, to resolve disputes concerning the Agreement; provided, however, that an action may be filed with the CPUC if the conduct at issue violates a provision of the California Public Utilities Code and is not otherwise a claim released pursuant to the Agreement and further provided, however, that nothing contained herein shall be deemed to expand or limit the original jurisdiction of the relevant authority. This Section 15(m) shall remain in effect indefinitely despite any termination or expiration of this Agreement.

The parties hereto agree that this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute a single document having the same force and effect as if all parties had signed the same counterpart.

The parties hereby accept and agree to the foregoing terms and conditions as of February ___, 2003.

 

    For ASI

      For CISPA

    Name

    _____________________

      _____________________

    Title

    _____________________

      _____________________

    Signature

  

      _____________________

    Date

  

      _____________________

 

    For SBC California

 

    Name

    _____________________

  

    Title

    _____________________

  

    Signature

    

    Date

    

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