EXHIBIT 10.7
SWITCH AND DATA FACILITIES CO. CO-LOCATION LICENSE
FOR
SniP Link, LLC and You Tools Corporation
This Co-location License (the "License") made this as of the 1st day of
January, 1999, by and between Switch and Data Facilities Site Two, LP, a
Delaware limited partnership, having an address at 000 Xxxxxxxx Xxxx, Xxxxxxx,
XX ("S&DFS2") and SNiP Link, LLC and You Tools Corporation DBA Fastnet, as Joint
Licensees, having an address c/o SniP Link at 000 Xxxxx 000, Xxxxx X0,
Xxxxxxxxx, XX 00000 ("Licensees").
W I T N E S S E T H:
WHEREAS, S&DFS2 and Broad and Noble Associates, Inc. have entered into a
lease covering Suite 990 comprising of a portion of the 9th floor of an office
building located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX ("Prime Lease").
WHEREAS, Licensees wishes to operate its computer and/or communications
systems located at the S&DFS2 premises in 000 Xxxxx Xxxxx Xxxxxx, and S&DFS2 is
willing to grant to Licensees a nonexclusive license to use a portion of the
S&DFS2 premises for such purposes under the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DFS2 and
Licensees hereby agree as follows:
1. Use of Space. Licensees shall use a part of S&DFS2 premises comprising 997
sq. ft (the "Space") to accommodate:
Equipment located in the space designated in Exhibit I. S&DFS2 will supply
power of the type and in the amount designated in Exhibit II. Space shall
be equipped as designated in Exhibit II.
The Space shall be used solely for the installation and operation of
equipment as listed in Exhibit A "Equipment List" and such additional
equipment as will be consistent with Licensee's initial installation, in
connection with Licensee's business and for any directly related reasonable
business purposes, to the extent allowed in the Xxxxxxxxx, a copy of which
has been delivered to Licensee. Licensees covenants and agrees that
Licensees shall not use the Space for any other purposes whatsoever unless
otherwise specifically authorized in writing by S&DFS2. Licensees' use of
the Space is to be conducted in accordance with all security procedures
adopted by S&DFS2. It is expressly agreed that the License granted
hereunder is a nonexclusive license to use the Space along with other
licensees similarly licensed by S&DFS2. S&DFS2 may, at its option, elect by
notice to Licensees to substitute for the Space other space at the site
designated by S&DFS2, provided that the substitute space contain
approximately equal area and have substantially similar configuration.
Expenses for such move will be borne by S&DFS2. This License is and at all
times shall be subject and subordinate to the Prime Lease.
2. Prohibited Uses. Licensees shall not at any time use or allow any person
to use the Space or do or permit anything to be done or kept in or about
the Space that: (a) violates any certificate of occupancy in force for the
Building; (b) causes or is likely to cause damage to the Building or the
Space, any equipment, facilities or other systems therein; (c) constitutes
a violation of any Legal Requirement of which Licensees has been put on
written notice, unless it is a violation of any state, federal, or local
law or regulation; (d) violates a requirement or condition of the standard
fire insurance policy issued for office or data processing buildings in the
City of Philadelphia or, in the reasonable judgement of S&DFS2 constitutes
an extra-hazardous condition; (e) constitutes a nuisance, annoyance or
inconvenience to other lessees, licensees or occupants of the Building or
any portion of the Space or interferes with or disrupts the use or
occupancy of any area of the Building or any portion of the Space by other
lessees, licensees or occupants of the Building or the Space; (f)
interferes with the computer or telecommunications operations of the
Building or the Space; (g) constitutes an unlawful, immoral or
objectionable occurrence or condition; or (h) violates any provision of the
Prime Lease.
Licensees shall be allowed to use the Space for all reasonable business
purposes, including without limitation the location of computer equipment,
telecommunications equipment, storage space, office space and other uses
related to the providing of internet, telecommunications, computer and
related services. Licensees shall be allowed to located, within the
licensed Space, any and all telecommunication, computer and/or Internet
related equipment it wishes, provider however it is consistent with the
power supplied to the space outlined in Exhibit II.
3. Services Provided. S&DFS2 shall provide certain support (collectively, the
"Services") for the Licensee's equipment installed in the Space: (1)
installation support ("Installation Services") including necessary power
connections, floor tile cutouts or ceiling conduit, equipment and terminal
connections as detailed in the Installation Support Work Description
attached hereto as Exhibit B and incorporated by reference herein; (2)
conditioned environment with controlled access for operation on shared
basis which environment shall be maintained in a manner
consistent with the requirements of telephony and data storage and
transmission equipment as outlined in Exhibit II, including, generator
backed electricity which standby power source shall be sufficient to meet
100% of licensees power needs and shall be maintained in a first class
manner and designed to turn on automatically in the event of interruption
of building power, (3) operational support ("Operational Services") for the
operation and maintenance of Licensee's equipment as detailed in the
Operational Support Work Description attached hereto as Exhibit C and
incorporated by reference herein, (4) engineering support ("Engineering
Services") for the ordering, installation coordination and acceptance
testing of telecommunications facilities and services as detailed in the
Engineering Support Work Description attached hereto as Exhibit D and
incorporated by reference herein, and (5) the operation of the entire
premises in a manner consistent with the requirements of the Prime Lease so
as not to disturb or adversely effect the use and quiet enjoyment of the
Space by Licensees hereunder. Any additional services other than the
Services thus defined and the fees to be paid for such additional services
are subject to written amendment of this License upon mutual agreement
between S&DFS2 and Licensee. Licensees acknowledges that S&DFS2 may
temporarily interrupt the Services for the reasons of mandate by law,
utility stoppage beyond its control, or inspection and repair required to
operate and maintain the plumbing, mechanical and electrical systems of the
Building. S&DFS2 shall endeavor to provide the maximum possible prior
written notice to Licensees of such scheduled inspections and repairs.
However, any such interruptions of Power will be for the shortest
reasonable time required and so as to cause the minimum of service
disruption to the Licensee.
4. Floor Load. Licensees shall not place a load upon any floor of the Space,
which exceeds either the load per square foot, which such floor was
designed to carry (200 lbs. per square foot), or that which is allowed by
law. S&DFS2 reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Licensees shall be
responsible for the costs of engineering evaluation and installation of
floor supports, if necessary for batteries and other equipment exceeding
floor load specifications.
5. Equipment Installation and Removal. Licensees shall provide the equipment
installation work. Prior to and/or by the expiration of this License,
Licensee, at its expense, shall remove from the Space, all of Licensee's
property, and Licensees shall repair any damage to the Space or the
Building resulting from the installation or removal of Licensee's property,
reasonable wear and tear excepted.
6. Term. The term of this License (the "Term") shall be three (3) years,
commencing January 1, 1999 (the "Commencement Date"). Licensees shall have
an option to renew the License for the Space for an additional two (2) year
upon notice no less than 90 days prior to the end of the initial term.
Except as set forth herein, Licensee shall have no right to terminate this
Agreement prior to the end of the term.
7. License Fees. Licensees shall pay to S&DFS2 the following fees (License
Fees) for the License granted and the Services provided hereunder by
S&DFS2: (i) commencing on the
Commencement Date, $[*] per month for the Space and Operational
Services as provided above during the first three years of the five year
term, and if the option is exercised, during the option period $[*]
per month during the remaining two years and (ii) a one time payment of
$[*] for Installation Services as provided above which has been
paid. All recurring Licensees fees are payable monthly in advance on the
first day of each month during the Term. One-time fees are due and payable
30 days after receipt of invoice. In addition to any fees specified herein,
Licensees shall also be responsible for the payment of sales and/or use
taxes, if any, imposed by any governmental authority or agency in
connection with the license granted here or services performed hereunder.
Any additional services, including additional equipment operation to be
performed by S&DFS2 for Licensees which are not covered by this License and
the consideration to be paid by Licensees for such additional services
shall be subject to the mutual agreement of S&DFS2 and Licensees and shall
be set forth in writing. In the event that Licensees fails to pay the
License Fees set forth in this Section within ten days (10) after such
payment is due, then Licensees shall pay S&DFS2 a late charge equal to 5%
of such past due payment as an agreed liquidated amount as compensation for
S&DFS2's additional administrative expense relating to such late payment.
8. Security Deposit. Simultaneously with the execution of the License
Agreement, Licensees will deposit with S&DFS2 the sum of $9,000.00 dollars
in cash as a Security Deposit. Such Security Deposit (which shall not bear
interest to Licensees unless required to do so by any provision of law)
shall be considered as security for the payment and performance by
Licensees of all of Licensee's obligations, covenants, conditions and
agreements under this License Agreement. Upon expiration of the term
hereof (or any renewals and extensions thereof) S&DFS2 shall, (provided the
Licensees is not in default under the terms hereof) return and pay back
such security deposit to Licensee, less any amounts appropriated by S&DFS2
to make good on Licensee's obligations hereunder. The Security Deposit may
be waived upon the presentation and acceptance by S&DFS2 of Licensee's
financial statements.
9. Insurance. During the Term of this License, S&DFS2 shall maintain
All Risk casualty insurance, covering the S&DFS2 premises in the Building
and insuring such premises in the amount of its full replacement value.
During the Term, Licensees shall maintain, at their expense, All Risk
casualty insurance covering Licensee' property in the amount of their
replacement value. During the Term of this License, S&DFS2 shall maintain
public liability insurance covering the S&DFS2 premises in the Building and
insuring against all hazards and risks customarily insured against by
persons operating data communications buildings. Licensees, at their
expense, shall maintain, at all times during the Term of the License,
comprehensive general liability insurance, written on an occurrence basis
with blanket contractual liability coverage, with respect to use of the
Space and operation of business therein, with combined single-limit
coverage of not less than Five Hundred Thousand Dollars ($500,000). S&DFS2
may increase the policy amount to be maintained by Licensees under this
[*] We are seeking confidential treatment of these terms, which have been
omitted. The confidential portion has been filed separately with the Securities
and Exchange Commission.
Section 8 as S&DFS2 deems necessary in order to maintain adequate
liability coverage. Licensees shall provide copies of such insurance
certificates to Licensor.
10. Indemnity. Licensees shall indemnify and hold harmless S&DFS2 against all
claims, suits, expenses losses, liabilities or damages resulting from any
breach by Licensees of any material provision of this License or from any
negligence, gross negligence or willful misconduct of
Licensee. S&DFS2 shall, subject of Section 10 below, indemnify and hold
harmless Licensees against all claims, suits, expenses, losses, liabilities
or damages directly resulting from a material breach by S&DFS2 of any
material provision of this License due to gross negligence or willful
misconduct of S&DFS2.
11. Limitation of Liability. Notwithstanding Section 9 above, in no event
shall S&DFS2 be liable for (i) lost profits, lost information or any
damages to Licensees or any of Licensee's customers' business or property
caused by any error in judgement of, or any action taken or omitted by,
S&DFS2, or any interruption of the Services, unless such error, action,
omission or interruption constitutes or results from gross negligence or
willful misconduct of S&DFS2 and/or willful breach by S&DFS2 of the
material provisions of this Agreement; or special, consequential or
punitive damages as a result of its performance or nonperformance of this
License. S&DFS2 shall not be liable for any claims, suits, expenses,
losses, liabilities or damages caused by Licensee's failure to perform its
responsibilities under this License or by failure of S&DFS2 to fulfill its
obligations under this License due to causes beyond its control, including,
but not limited to; defects in computer and/or communications systems
provided by Licensee, acts of God, interruption of power or other
utilities, interruption of transportation or communication services, acts
of civil or military authority, national emergencies, or strike. Licensees
shall not be liable for its failure to perform its non-monetary obligations
hereunder due to causes beyond its control, including but not limited to,
defective telecommunication systems or equipment provided by Licensee, acts
of God, interruption of power or other utilities, interruption of
transportation or communication services, acts of civil or military
authority, national emergencies or strike. In the event S&DFS2 is found to
be liable for claims, suits, expenses, losses, liabilities or damages
pursuant to this Section 10, S&DFS2's liability per wrongful action or
inaction of S&DFS2 shall be the least of (a) the provable amount of actual
damages directly incurred from such action or inaction, or (b) in the case
of services interruption, the amount of the monthly fees paid by Licensees
to S&DFS2 prorated by the number of days in which the Services are
interrupted, or (c) the amount of the monthly fees paid by Licensees to
S&DFS2. In no event shall S&DFS2's liability be greater than the monthly
fees it receives.
12. Confidentiality. Each party, for itself, its agents, employees and
representatives agrees that it will not divulge any confidential or
proprietary information which it receives from the other party, except as
may be required in the performance of the Services or the implementation of
the project with respect to which the Services are rendered; provided,
however, that no liability shall arise hereunder as a result of the
dissemination of any information which (i) was in the possession or control
of one party prior to the date of disclosure to that party by the other
party
hereunder, or (ii) was in the public domain or enters the public
domain through no improper act by the party to which such information was
disclosed or any of that party's agents or employees, or (iii) was
rightfully given to a party by a source independent of the other party, and
provided further, that each party shall be permitted to disclose any
information to the extent required by applicable law or governmental
authorities. However, Licensor shall be allowed to publicize that Licensees
is a customer of S&DFS2 or Switch & Data Facilities Company, LLC. Any
report or other document prepared by S&DFS2 in the performance of the
Services for use by Licensees shall be deemed to be confidential
information hereunder.
13. Binding Agreement; Assignment. This License shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns, except that Licensees shall not be permitted to assign this
License or any interest herein without the prior written consent of S&DFS2,
which consent shall not be unreasonably withheld. For purposes of the
above sentence a transfer in connection with the sale of essentially all of
either Licensee's business shall not be deemed assignment and shall be
allowed as of right. Licensees shall not pledge, mortgage or encumber this
License or any interest herein and shall not (without the prior written
consent of S&DFS2) assign this License or any interest herein or permit any
other person or entity to occupy the S&DFS2 Space. Each Licensee shall
have the right, after the first 6 months, to assign this agreement to the
other Licensee and be relieved of further liability. However, if the event
the Security Deposit has not been posted, a Security Deposit will be
required at such time. Licensees shall reimburse S&DFS2 on demand for any
reasonable costs that may be incurred by S&DFS2 in connection with any
proposed assignment. Notwithstanding any assignment to a third party,
Licensees will remain fully liable for the payment of fees and for the
performance of all the other obligations of Licensees contained in this
License. The consent by S&DFS2 to any assignment shall not relieve
Licensees of the obligation to obtain the consent of S&DFS2 to any future
assignment.
14. Cooperation of Licensee. Licensees shall fully cooperate with S&DFS2 in
connection with S&DFS2's performance of the Services. Licensees shall, with
reasonable promptness, provide all information reasonably required by
S&DFS2 for its performance of the services, and shall make designated
representatives available for regular consultation at such times and places
as S&DFS2 shall reasonably request.
15. No Agency Relationship Implied. It is acknowledged and agreed by Licensees
that S&DFS2 performs the Services hereunder solely as an independent
contractor and that no joint venture, partnership, employment, agency or
other relationship is intended, accomplished or embodied in this License.
S&DFS2 shall have the sole and exclusive right to supervise, manage,
control and direct its performance of this License.
16. Default. In the event Licensees fails to pay monthly or other fees within
fifteen (15) days of S&DFS2's written notice to Licensees of its failure to
pay when due and demand for the immediate payment thereof, S&DFS2 may at
its sole discretion take any or all of the following actions: i) prohibit
Licensee's access to the Space; ii) turn off electricity; iii) terminate
Operational Services to Licensees as defined in Exhibit C; iv) restrict
vendor access to work
on Licensee's equipment and/or circuits and v) terminate this License.
In the event Licensees fails to perform or comply with any other provision
of this License within twenty (20) days of S&DFS2's written notice to
Licensees of its failure to so perform or comply, or thirty (30) days in
the event the a cure is underway S&DFS2 may terminate this License.
Additionally, in the event of Licensee's default under this License and
failure to cure such default within the time periods specified, Prime
Landlord may also terminate this License. Licensees shall in any event
remain fully liable for damages as provided by law and or all costs and
expenses incurred by S&DFS2 on account of such default, including
reasonable attorneys' fees. Licensee's obligation to pay all fees and
charges which have been accrued shall survive any termination of this
License.
17. Termination of License. If (a) S&DFS2 exercises its right to terminate the
License pursuant to Section 16 above, or (b) Prime Landlord terminates this
License pursuant to Section 16 above, or (c) the Term of the License shall
expire and terminate, then in each such case, Licensees shall immediately
quit and peacefully surrender the portion of the Space it occupies to
S&DFS2, and S&DFS2 may recover the Space, by summary proceedings or any
action or proceeding, and remove all occupants and property from the Space.
If the space is not surrendered upon the expiration or earlier termination
of the License, Licensees hereby indemnifies S&DFS2 against loss, cost,
expense, damage, claim or liability, including reasonable attorneys fees,
resulting from delay by Licensees in so surrendering the space. Licensee's
obligations under this Section 17 shall survive the expiration or early
termination of the License.
Notwithstanding anything contained herein if Prime Landlord terminates the
Prime Lease as a result of any breach or other conduct of Licensor then
Licensor will be responsible to Licensees for any loss, cost or expense of
Licensees related to the surrender of the leased spaces and/or relocation.
Licensor represents that Licensor, to the best of its knowledge Prime
Landlord does not intend to terminate this lease, nor is there any
condition or event known to Licensees which would cause Prime Landlord to
terminate the Prime Lease.
18. Notices. All notices, reports, requests or other communications given
pursuant to this License shall be made in writing, shall be delivered by
hand delivery, overnight courier service or fax, shall be deemed to have
been duly given when delivered, and shall be addressed as follows:
To Licensees:
SniP Link, LLC and You Tools Corporation
C/o SniP Link
000 Xxxxx 000, Xxxxx X0
Xxxxxxxxx, XX 00000
Fax: 0-000-000-0000
To S&DFS2:
Switch and Data Facilities Site Two, LP.
C/O SD Philadelphia, LLC, GP
000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Fax: 000-000-0000
Or to such other location as S&DFS2 shall designate via certified return receipt
notification to Licensee.
19. Governing Law. The rights and obligations of the parties under this License
shall be governed by and construed and enforced in accordance with the laws
of the State of New York without giving effect to conflicts of laws
provisions.
20. Entire Agreement. The License constitutes the entire agreement between
S&DFS2 and Licensees with respect to the use of the Space and the Services,
and may be modified only by a written instrument signed by a duly
authorized officer on behalf of each party. No representation or statement
not contained in this License shall be binding upon S&DFS2 as a warranty or
otherwise.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as
of the day and year first above written.
SniP Link, LLC
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: President
You Tools Corporation
By: /s/ Xxxxx X. Xxx Xxxxx
Name: Xxxxx X. Xxx Xxxxx
Title: CEO
Switch and Data Facilities Site Two, LP.
By: /s/ Xxxxx. X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Managing Member SO Philadelphia, LLC, G.P.
Attachments:
Exhibit A Licensee's Equipment List
Exhibit B Installation Support Work
Exhibit C Operational Support Work
Exhibit D Engineering Support Work
Exhibit I -- Space Diagram
Exhibit II-- Environmental Specifications
Exhibit III-- Security
License Rider
SNIP
S&DFS2 Doc. #1
000 Xxxxx Xxxxx Co-location December 28, 1998
By:
Name:
Title:
EXHIBIT A
EQUIPMENT LIST
(To Be Provided by Licensees)
EXHIBIT B
INSTALLATION SUPPORT WORK
S&DFS2 shall provide the following Installation Services:
1. The provision of a drywall demised space enclosing approximately 997 square
feet.
2. The installation of a lockable door on said space.
3. The installation of a main AC panel with generator backed power feed of 250
Amp capacity, 208 V, 3 Phase.
4. Provision of a 40 circuit 100/220V Subpanel with 200A main breaker.
5. Eight (8) 110V 20A circuits from Subpanel terminating 1 each into 4 gang
outlet boxes evenly distributed on the raised flooring.
EXHIBIT C
OPERATIONAL SUPPORT WORK DESCRIPTION
S&DFS2 shall provide the following support:
1. Access for visiting public telecommunications carriers staff for the
installation and testing of circuits.
2. Access for visiting maintenance staff from any authorized maintenance
organization.
3. Accompanying and supervising visiting Licensee's staff when necessary.
Above support is available 24 hours per day, 365 days per year.
EXHIBIT D--Engineering Support Work
Shall be handled by Licensees.
Exhibit I--Space Diagram
Exhibit II--Environmental Specifications Environmental Controls
COOLING: All cooling provided by computer-room grade equipment. All units have
multiple compressors and multiple circuits for internal redundancy. Cooling not
less than 150 BTU/h with an N+l redundancy.
TEMPERATURE: Temperature is maintained at 72 degrees F dry bulb at ASHRAE 1%.
HUMIDITY: 30% to 60% humidity non-condensing. Humidity control delivered
through Xxxxxxx units via infra-red humidifier.
STATIC CONTROL/GROUNDING: Master station ground bus and grounding to the floor.
EXHIBIT III--Security
FIRST LEVEL: 24 hours per day, seven days per week key card entrance security
for entire premises. The key card system chosen by S&DFCo for this purpose is a
computer/database controlled state-of-the-art system that requires BOTH a
currently valid computer readable pass card AND the correct PIN number to gain
access through the main entrance doors to the facility. Hence possessing the
card does not automatically grant the finder access to the facility. Each tenant
shall designate the names and PIN numbers for those to be admitted to the space
and/or to their demised space along with a completed S&DFCo Security Form
containing pertinent personal information. S&DFCo who will then issue one card
per applicant to the Tenant. It is the responsibility of each tenant to notify
S&DFCo of revocation of privileges or loss of cards for any cards issued.
Replacement of lost cards will be issued at $10 per card. S&DFCo reserves the
right to require periodic change of PIN numbers to keep cards current.
Procedures will be issued to tenants in writing concerning these and any other
relevant security matters.
SECOND LEVEL: Each tenant shall have either lockable cages, and/or cabinets. The
tenant shall be solely responsible for access control to its cabinets and/or
cages. Those tenants that have separately demised rooms will also have key card
readers at their entrance doors that allow access to their space only to those
authorized by that tenant. S&DFCo will have no security responsibility within
such demised spaces.
THIRD LEVEL: S&DFCo will provide and maintain 24 hour per day, seven days per
week video recording with multiple, strategically placed cameras to capture all
activity in the entire premises. The cameras will be positioned to obtain "face
shots" of all those entering and leaving all key areas of the entire premises.
These tapes will be saved for three months then recycled. Certain tenants may be
granted access via the Internet to camera(s) in or near their suites. Such
hook-ups and related equipment shall be at the sole expense of the tenant
requesting/requiring such off-site access.
FOURTH LEVEL: The computer system selected will record all entrance activity at
all key card readers for traffic and security reporting. Certain areas will
require a keycard and pass code to exit. Those shall be recorded for analysis as
well and be available upon request from S&DFCo.
FIFTH LEVEL: It is S&DFCo intention to provide one on-site security/maintenance
person, 24 hours per day, seven days per week before year end 1999. However, the
staffing levels will be dictated by the number, types, service requirements and
timing of tenants added to the space. The actual timing of local staffing will
remain at the sole discretion of S&DFCo.
SIXTH LEVEL: 000 Xxxxx Xxxxx is a major telecom facility. The landlord provides
a modest level of overall security for the entire building. While S&DFCo is NOT
relying on the landlord for significant security, the nature of the building,
the guard position in the lobby, and the familiarity of the staff with those
authorized to be in the building, does provides some deterrence to
unauthorized personnel.
License Rider:
1) Cross Connection: There are no fees for cross connection to other carriers
or Licensees in the S&DFS2 space. All cable cross connects installed by
Licensees must meet standards set by S&DFS2.
2) Power
a) Independent of S&DFS2 UPS: Licensees will be charged, on a monthly
basis, 120% of S&DFS2's metered cost for power drawn upstream of the
UPS equipment. S&DFS2 will provide Licensees with either a 208V or a
480V feed for Licensee's rectification equipment.
b) Through S&DFS2 UPS: Licensees will be charged, on a monthly basis,
150% of S&DFS2's metered cost for power drawn downstream of the UPS
equipment.
3) Licensees will receive the first 7% of their monthly license rate as credit
towards power charges. Licensor shall provide a separate submeter for
Licensee's space
4) Fire Suppression
5) Preaction Water: A preaction water fire suppression system is included in
the monthly license fee stated in paragraph 7.
6) Right of First Refusal. Licensees shall have a right of first refusal on
the adjacent 800 Square Foot space outlined in Exhibit I during the first
18 months of its License. Upon a bona fide offer to utilize such space,
Licensor shall so inform Licensees of said offer and Licensees shall have
the right within 10 days to accept or reject said offer. Such offers may be
for all or a portion of the space outlined in Exhibit I. A refusal for a
portion of the space shall not extinguish Licensee's rights hereunder.
JOINT TENANCY AGREEMENT
This Agreement entered into this __day of January, 1999 by and between SNIP
Link, L.L.C., a New Jersey limited liability company ("SNIP") and You Tools
Corporation, a Pennsylvania corporation dba "FastNet" ("FASTNET") (SNIP and
FastNet are sometimes collectively referred to as the "PARTIES" or each as a
"PARTY").
The Parties desire to jointly enter into a License Agreement (defined below
as the "LICENSE AGREEMENT") with Switch and Data Facilities Site Two, LP, a
Delaware limited partnership ("LICENSOR"), pursuant to which the Parties shall
jointly obtain a license to occupy certain space identified in the License
Agreement at premises located at Xxxxx 000, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx
XX (the "PREMISES"). The Parties intend that except as otherwise agreed to in
writing between them, each Party shall be entitled to occupy and utilize
one-half (2) of the Premises and each Party shall be responsible to pay one-half
(2) of all costs and expenses of every nature whatsoever associated with the
Parties' occupancy of the Premises, all as more fully set forth herein.
NOW, THEREFORE, intending to be legally bound hereby, the Parties hereby agree
as follows:
1. APPROVAL OF LICENSE AGREEMENT. The Parties hereby approve of the License
Agreement with Licensor in the form attached hereto ("LICENSE AGREEMENT")
and each Party shall execute such License Agreement as a joint tenant
thereunder.
2. ACCESS TO PREMISES AND SHARING OF COSTS OF OCCUPANCY.
1. Except as otherwise set forth in writing between the Parties, each
Party shall be entitled to use up to one-half (2) of the space located
at the Premises for the purposes authorized in the License Agreement
and each Party shall be entitled to retain all revenue, if any, of
every nature whatsoever generated by such Party in connection with
such Party's occupancy of the Premises. Except as otherwise agreed to
by the Parties, each Party shall solely own all equipment placed or
installed by such Party on the Premises. The Parties agree to
cooperate in good faith regarding the allocation between them of the
use of the physical space located at the Premises.
2. Except as otherwise set forth in writing between the Parties, each
Party shall be responsible for one-half (2) of all costs, obligations
and expenses of every nature whatsoever incurred in connection with
the Parties' occupancy of the Premises, including without limitation,
the following costs, obligations and expenses (collectively the
"OBLIGATIONS"):
1. All obligations to the Licensor under the License Agreement of
every nature whatsoever, including without limitation, all
obligations for required security deposits, monthly license fees
and all other obligations to the Licensor of every nature
whatsoever; provided however in the event the Licensor imposes a
cost or fee upon the Parties which is attributable to any service
provided at the request of a Party solely for that Party and not
the other, the Party requesting such service shall be solely
responsible for the payment of any such cost or fee so imposed by
the Licensor.
2. All premium obligations for the procurement and maintenance of
the comprehensive general liability insurance policies required
to be maintained by the Parties pursuant to the License Agreement
and any all other obligations imposed upon or required to be paid
by the Parties under or related to the License Agreement or
otherwise directly related to the Parties' occupancy of the
Premises.
3. The Parties shall cooperate in good faith with each other
regarding administrating the payment of all of the Obligations
referred to in Subsection b. above by each Party either paying
directly to the Licensor (or other applicable payee) one-half (2)
of all such Obligations or by one Party paying to the other such
Party's share of such Obligations. In all events each Party
shall pay such Party's share of the Obligations in a timely
manner and in all events within the time-frame required therefor
set forth in the License Agreement or other applicable agreement.
1. In the event a Party (the "Defaulting Party") does not
pay when due any Obligations due from such Party, which
default continues uncured for a period of five (5) business
days following written notice thereof to the Defaulting
Party, the non-breaching Party ("Non-Breaching Party") shall
have the right (but not the obligation), in addition all
other rights and remedies under this Agreement or otherwise,
to elect to terminate the occupancy of the Premises by the
Defaulting Party and to assume occupancy of and
responsibility for 100% of the Premises from and after such
date.
4. The Parties shall cooperate regarding obtaining and maintaining the
comprehensive general liability insurance coverage required to be
maintained by the Parties under the License Agreement. In all events
such comprehensive general liability insurance policies shall name
each Party as either a named insured or as an additional insured under
such insurance policy. Each Party shall be solely responsible, at its
own cost and expense, to obtain and maintain such casualty insurance
as such Party may deem necessary or appropriate in connection with its
equipment located at the Premises.
3. RENEWAL OF LICENSE AGREEMENT. Upon the termination of the initial three (3)
year term of License Agreement if both Parties do not want to renew and
extend the License Agreement, the Party, if any, desiring to so extend may
do so alone without the other party. Each Party shall give the other
written notice of its intention to renew the License term at least 120 days
prior to the expiration of the initial License term (or the expiration of
any renewal term thereof). In the event both Parties desire to renew or
obtain a new License for the Premises individually (without the other
Party), neither Party shall have priority with respect to such License
rights and each Party shall "bid" with the other (not with the Licensor)
for such renewal rights.
4. INDEMNIFICATION. Each Party (herein the "INDEMNIFYING PARTY") shall
indemnify, defend and hold the other Party ("OTHER PARTY") harmless
(including reasonable attorneys' fees) from any loss or liability of any
nature whatsoever incurred by the Other Party arising out of or related to
(i) the Indemnifying Party's breach of this Agreement or (ii) any acts of
the Indemnifying Party under the License Agreement.
5. MISCELLANEOUS PROVISIONS.
1. NOTICES. All notices and other communications hereunder shall be in
writing and shall be made by delivery by means by which the sender
obtains a receipt of delivery (including without limitation, certified
mail return receipt requested, overnight courier services or
confirmation of facsimile transmission), addressed to the party to
whom a request or demand is to be made at the addresses of the parties
set forth below. Notices given as provided herein shall be deemed to
have been given or served on the earlier of (i) the date of personal
delivery or the date indicated on the receipt of delivery, (ii) the
business day next following any such notice sent by overnight courier,
or (iii) the third business day following the date on which any such
notice shall have been sent by certified mail.
The addresses of the parties are as follows:
(i) To SNIP, as follows:
000-X Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(ii) to FastNet, as follows:
2. GOVERNING LAW. This Agreement shall be governed by, interpreted and
enforced in accordance with the laws of the State of New Jersey
without giving effect to the conflict of law principles thereof.
3. SUCCESSOR AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the
benefit of the parties hereto and their respective successors,
assigns, heirs and representatives, and upon any person, firm,
corporation, or organization succeeding to the affairs of either of
the parties hereto by way of sale of assets, capital stock, merger,
reorganization or any other transaction of any nature whatsoever.
4. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof,
superseding all prior agreements or contemporaneous oral agreements
with respect to such matters. This Agreement can not be modified
except by a writing signed by the parties hereto.
5. NO JOINT VENTURE OR PARTNERSHIP. The Parties acknowledge that no joint
venture or other partnership relationship is created by the Parties'
relationship created by this Agreement and in no event is either Party
authorized to incur or bind the other Party on account of any cost or
liability, except with the prior written consent of the other Party.
IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands on the
date first above written.
SNIP LINK, L.L.C. YOU TOOLS CORPORATION,
DBA
FASTNET
BY: /s/ Xxxxxxx Xxxxx BY: /s/ Xxxxx X. Xxx Xxxxx
-------------------------------- -----------------------------------
Xxxxxxx Xxxxx, duly authorized Xxxxx X. Xxx Xxxxx, President
Member
