Exhibit 10.10
THIRD AMENDMENT TO AGREEMENT OF LEASE
The Third Amendment to Agreement of Lease (the "Amendment") is made and is
entered into as of March 2, 1998 by and between Teachers Insurance & Annuity
Association, a New York Corporation (the "Landlord"), and Focal Communications
Corporation, (the "Tenant"), for the purpose of amending that certain Agreement
of Lease entered into by and between Landlord and Tenant on December 31, 1996,
amended on the 14th day of May 1997, and amended the 15th day of November 1997,
(the "Lease"), pursuant to which Landlord leased to Tenant approximately 20,591
rentable square feet in the building located at and known as the Florsheim
Tower, 000 Xxxxx XxXxxxx, Xxxxxxx, Xxxxxxxx 00000, Suites 820 and LL05; Lower
Level and the Eighth Floor (the "Building"), which Building is situated on that
certain parcel of realty property described in the Lease (as the "Land").
WITNESSETH:
WHEREAS, Tenant desires to install on the roof of the Building a non-
penetrating, pedestal-mount, Global Timing Receiver Antenna, 12 inches in
diameter and 7 inches in height, (hereafter referred to as the "Communications
Device").
WHEREAS, Landlord has agreed, subject to the terms and conditions herein, to
permit Tenant to install, at Tenant's sole cost and expense, the Communications
Device.
NOW, THEREFORE, Landlord and Tenant agree, for good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, that the Lease
shall be hereby amended as follows:
1. Tenant may install, at Tenant's Sole cost and expense, the Communications
Device on the roof of the Building for Tenant's exclusive use in a location
acceptable to Landlord; provided, however, that if, at any time, the
Communications Device conflicts with any existing communication rooftop
devices, Tenant must replace the equipment with a less powerful device, or
remove it at no cost to the Landlord. Tenant shall install the
Communications Device in a method acceptable to Landlord in Landlord's sole
and reasonable discretion. Prior to commencing the installation of the
Communications Device, Tenant shall (i) provide Landlord with a copy of the
plans and specifications pertaining to the Communications Device and
installation thereof, which plans and specifications must be approved by
Landlord prior to Tenant Commencing installation of the Communications
Device, said approval not to be unreasonably withheld and (ii) obtain, at
Tenant's sole cost and expense, all permits, licenses, zoning and other
approvals (collectively "the Approvals") required for the lawful
installation and operation of the Communications Device, copies of which
Approvals shall be provided to Landlord
by Tenant prior to Tenant commencing installation of the Communications
Device. Landlord hereby agrees to cooperate with Tenant (at no cost to
Landlord) as necessary in connection with obtaining the Approvals. Any
costs incurred by the Landlord in connection with the installation of the
Communications Device and approvals will be reimbursed to the Landlord by
Tenant. Tenant acknowledges that all work performed in connection with the
installation of any satellite dish and/or electronic transmitter shall be
performed in such a manner so as to preserve all of Landlord's warranties
with respect to the roof.
2. Effective on the installation of the Communications Device ("Effective
Date") through the remaining term of the Lease, Tenant shall pay to
Landlord as Communications Device Rent the annual sum of two thousand five
hundred dollars ($2,500.00), payable in equal consecutive monthly
installments of two hundred eight and 33/100 dollars ($208.33) along with
the Monthly Installment of Base Rent as outlined in the Lease. In the
event the Effective Date is not the first day of the month, the
Communications Device rent from the Effective Date to the end of the month
will be prorated.
3. Except in the event of an emergency in which case no advance notice shall
be necessary, if Landlord contemplates or desires to make any repairs to
the roof of the Building or requires access to the roof of the Building
which either (a) requires temporary removal or relocation of the
communications Device, or (b) may result in an interruption in Tenant's use
of the Communications Device, Landlord agrees to notify Tenant at least
five (5) business days prior to the date on which such roof repair work or
access will commence or be necessary.
4. Tenant and/or its agents and representative shall not enter on to the roof
of the Building for purposes of examination and repair and maintenance of
the Communications Device without the prior written consent of Landlord,
which consent shall not be unreasonably withheld.
5. Tenant and Landlord acknowledge that Tenant's right to install a
communications device is not an exclusive right and that Landlord may grant
other parties the right to install other communications devices on the roof
of the Building so long as any such installation made after Tenant's
installation of Tenant's Communications Device does not, in Landlord's
judgment, materially interfere with Tenant's use of the Communications
Device.
6. Tenant shall provide written notice to Landlord of the party or parties to
be responsible for installation, repair, maintenance and service of the
Communications Device, which party or parties must be approved by Landlord
prior to their undertaking any such installation, repair, maintenance or
service on or to the Communications Devices. All responsible parties must
maintain and provide insurance coverage to the Landlord in an amount and in
a term acceptable to Landlord. Upon Landlord's request from time to time,
Tenant shall provide or cause to be provided to Landlord evident of such
insurance.
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7. At the termination of the term of the Lease, Tenant shall, subject to the
terms of Paragraph 8 hereof and unless otherwise directed by Landlord,
remove the Communications Device from the roof of the Building.
8. Notwithstanding any other provisions hereof to the contrary, Tenant does
hereby agree to indemnify and hold harmless Landlord from any losses,
costs, claims, injuries, actions, causes of action, expenses or liabilities
of any sort whatsoever (including attorneys' fees) arising by reason of the
installation, construction, maintenance or use of Communications Device,
connecting equipment and associated wiring. Upon termination of the Lease
for any reason, whether upon the expiration of the lease term, by reason of
Tenant's default, or otherwise, Tenant shall remove the Communications
Device, connecting equipment, associated wiring and any non-structural
additions and alterations to the Premises and roof and repair and restore
any damage resulting from such removal to a condition materially equivalent
to the condition existing prior to the installation of such Communications
Device and connecting equipment at Tenant's sole cost and expense. Tenant
shall be responsible for all repairs and maintenance of Communications
Device, connecting equipment and such associated wiring, and Landlord shall
have no responsibility for, and Tenant hereby waives all claims against
Landlord in connection with, any damage to the Communications Device,
connecting equipment or associated wiring from any cause whatsoever.
Notwithstanding any other provision hereof to the contrary, Tenant shall be
responsible for all damage and injuries resulting from the installation,
maintenance, operation or use of the Communications Device, connecting
equipment and associated wiring, including, but not limited to, damage to
the roof, or Building, or Landlord's or any other tenant's personal
property, by reason of any roof damage or leaks resulting therefrom. In
the event Tenant fails to pay any amounts for which it is responsible
hereunder within fifteen (15) days after receipt of written notice thereof
by Tenant, Landlord may elect to pay the same for and on behalf of Tenant
and thereafter collect from Tenant the amounts so expended together with
interest thereon at the rate of Ten percent (10%) per annum.
9. Tenant agrees to cooperate with and take responsible steps to relieve and
correct any interference with broadcasting activities of the Landlord or
any other tenant of the Building caused by Tenant's use of such roof space.
As used herein and throughout this Lease, "interference" with the
broadcasting activities shall mean (i) interference within the meaning of
the provisions of the recommended practices of the Electronics Industries
Association ("EIA") and the rules and regulations of the FCC then in
effect, or (ii) a material impairment of the quality of either sound or
picture signals on a broadcast activity in any material portion of the
protective service area (as such area is or may be defined by the FCC
during the period of operation of such activity), as compared with that
which would be obtained if no other broadcaster was broadcasting from the
roof of the Building or had any equipment on the roof of the Building.
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If interference results from the failure to comply with the recommended
practices of the EIA or the rules and regulations of the FCC on the part of
the Tenant, then Tenant shall promptly remove such interference at its sole
cost and expense.
During the term of this Lease, interference caused by change of facilities
or in a manner of operation thereof by Tenant or by the operation of
additional facilities by Tenant, shall be promptly eliminated at the sole
cost and expense of Tenant.
10. Tenant, at its sole cost and expense, shall install any screening device
reasonably requested by the Landlord at any time to ensure that the
satellite dish Communications Device cannot be viewed by the public. Such
screening device shall comply with all governmental and quasi-governmental
laws, rules, and regulations, as well as any requirements regarding the
construction, maintenance, and removal of such device that Landlord may
establish from time to time.
All capitalized terms not otherwise defined or redefined herein shall have
the same meaning as in the Lease. To the extent there is any conflict or
inconsistency between the terms of this Amendment and the Lease, the terms
of this Amendment shall govern. Except as set forth herein, the Lease
shall remain in full force and effect. The parties hereby confirm that all
of the other terms, conditions and provisions of the Lease have not been
changed or modified hereby and are hereby ratified and confirmed and shall
remain in full force and effect.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the
date first set forth above.
Tenant: Focal Communications Landlord: Teachers Insurance &
Annuity Association
By: /s/ Xxxxx X. Xxxx By: /s/ S. Xxxx Xxxxxxxx
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Its: Executive Vice President Its: Assistant Secretary
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