Exhibit 10.5 License Agreement for Use of Co-location Space, dated November
2003, between Sequiam Software, Inc. and FDS Telecommunications, L.P.
000 X. Xxxxxx, Xxxxxxx, Xxxxxxx
LICENSE AGREEMENT FOR USE
OF COLOCATION SPACE
THIS LICENSE ("License") is made this 1st day of October, 2003, by and
between FDS TELECOMMUNICATIONS, L.P., a Texas Limited Partnership, ("Licensor"),
and Sequiam, a ____________________ ("Licensee"). The notice address for both
Licensee and Licensor are the following:
Licensor: FDS TELECOMMUNICATIONS, L.P.
Attn: Xxxxx X. Xxxxxx
00000 Xxxxxx Xxxxxxx
Xxxxx # 000
Xxxxxx, XX 00000
Licensee: Sequiam
Attn: Xxxx Xxxxxx
_____________________
Orlando, FL
WHEREAS, Licensor currently leases (the "Licensor Lease") a portion of the
1st floor, Suite 100 ("Premises") of 000 X. Xxxxxx, Xxxxxxx, Xxxxxxx 00000
("Building").
WHEREAS, Licensee desires access to the Premises to locate certain network
and/or computer equipment including certain telecommunications racks, cabinets
and/or equipment in that certain area of the Premises designated by Licensor in
its sole discretion through Licensor per the terms of this License.
1. Grant of License.
In consideration of the fees and charges set forth herein and subject to
the terms and conditions hereof, Licensor hereby grants to Licensee a limited,
non-exclusive license to install, operate, repair, replace, upgrade and maintain
certain telecommunications racks, cabinets, and/or equipment ("Equipment"), in
that portion of the Premises so designated by Licensor and more specifically
described on Exhibit 2 to this License ("Equipment Space"), and incorporated
herein by reference. In connection with Licensee's use of the Equipment and
Equipment Space, Licensee shall be provided with use of the items listed in Part
1 of Exhibit 1 ("Licensor Installations") in the Premises in the quantities
indicated. Licensee may, with the prior written consent of an interconnecting
tenant, interconnect Licensee's Equipment with equipment of other
telecommunications tenants in the Building and in connection with the foregoing,
Licensee may utilize Licensor's cable trays, raceways and conduit; provided,
however, Licensee shall submit plans for such interconnection to Licensor for
Licensor's approval, such approval not to be unreasonably conditioned, delayed
or withheld. As of the date of this License, Licensee has conducted, or has had
the opportunity to conduct a comprehensive investigation of the Equipment Space,
Premises and Building and all other matters which in Licensee's judgment may
affect the suitability of the Equipment Space, Premises and Building for
Licensee's intended use.
Exercise of the license rights granted above shall at all times be subject
to Licensor's standard security, safety and operational policies and procedures.
Accordingly, Licensee agrees not to employ any actions, equipment, tools or
methods that may, in the reasonable judgment of Licensor, endanger or interfere
with the personnel, property, systems or operations of Licensor.
The Licensing of the Equipment Space, the installation of Equipment, the
provision of electrical power and other services, and the receipt of payment
therefore by Licensor shall not create or vest in Licensee any leasehold estate,
easement, ownership interest, or other property right. Licensee shall not cause
or permit the Premises to be
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subject to any lien, pledge, trust, or security interest arising out of any
equipment, materials, or services provided by or for Licensee, and Licensee
shall indemnify and hold Licensor harmless from the same.
Licensee acknowledges that other licensees and licensees in the Premises
will also be using similar Licensor Installations in the Premises. Licensee
agrees to use the Equipment and Equipment Space only for the purpose of (a)
facilitating interconnections between Licensee's telecommunications system and
the telecommunications systems of other licensees and licensees who reserve
Licensor Installations in the Premises and who consent in writing to such an
interconnection, or (b) making connections to the systems of other
telecommunications carriers who are given access to the Premises by Licensor and
the landlord of the Building and who agree in writing to permit such connections
by Licensee. Licensee agrees not to store, install or use any equipment,
conduit, cable, wiring, connecting lines or other property of Licensee in the
Licensor Installations or Equipment Space for any other purpose. Licensee shall
cooperate in keeping the Premises and the Licensor Installations locked and in
restricting access to the Premises and Equipment Space to employees, contractors
and other persons who need access in order to facilitate such interconnections.
In no event shall Licensee cause (or permit its employees, representatives,
contractors or invitees to cause) any interference with or damage to the
Licensor Installations, equipment, conduits, cable, wiring or connecting lines
owned or used by other licensees in the Premises. At Licensor's election,
Licensor may equip the Premises with security cameras and a 24-hour security
access system. Licensor shall provide HVAC services to the Premises (on a
twenty-four (24) hour per day, seven (7) days a week basis) and backup power to
Licensee's Equipment and Equipment space from a building generator. Licensor
shall also provide all licensees of Licensor who use the Premises and/or
Licensor Installations with standard specifications for all wiring, cabling and
connecting lines to be installed in the Licensor Installations, Equipment Space
and Premises by such licensees. Licensor also shall have the right, in
Licensor's reasonable discretion, to enforce such other security measures and
installation guidelines as Licensor deems appropriate. However, Licensor shall
have no liability to Licensee for any damage or interference caused by any
person to the Licensor Installations assigned to Licensee or to the cable,
wiring, connecting lines, equipment or other property of Licensee in the
Equipment Space or the Premises unless such damage or interference is
attributable to Licensor's gross negligence or willful misconduct.
Licensor's only obligation to Licensee regarding the installation of
facilities pursuant to this License shall be to install the Licensor
Installations assigned to Licensee in the Equipment Space, all of which shall
remain the property of Licensor.
All installation of wiring, cabling and connections for Licensee's use
within the Equipment Space and/or Premises, including but not limited to any
wiring, cabling or connections in or about the Licensor Installations, shall be
performed at Licensee's sole expense by a qualified, duly licensed contractor
selected by Licensee and approved by Licensor. Licensor shall have no
obligation or liability with respect to such work by Licensee's contractors.
Licensee shall cause all such work by Licensee's contractors to be completed and
paid for promptly to prevent any mechanic's liens being filed. Licensee shall
also cause all such work by Licensee's contractors to comply with Licensor's
rules and regulations in effect from time to time for work in the Building, as
well as the requirements in Licensor's Meet Me Room Rules in effect from time to
time. Such requirements include, but shall not be limited to, the requirement
that, prior to starting the work, the contractor or Licensee must provide to
Licensor, upon Licensor's request, (i) evidence of insurance coverage for the
work in conformity with the standards in Licensor's rules, (ii) copies of all
legally required permits for the work, and (iii) a copy of the written consent
of any other licensee or other entity in the Premises with whose facilities a
connection will be made as part of the work. Licensee shall notify Licensor in
writing before Licensee's contractor commences any such work, so that Licensor
may, if Licensor so elects, post notices of nonresponsibility. Licensor may
require installation of cable or wiring within the Equipment Space and Premises
to be performed by Licensor's approved contractor at Licensee's sole expense.
2. License Fees.
Licensee shall pay Licensor a monthly license fee (the " Monthly License
Fee") for use of the Equipment Space in the Premises, which shall be
____________________ as outlined in Exhibit 1 during the initial term of this
License. Such monthly license fee shall be due and payable to Licensor on the
first day of each month in advance. The first such installment of the monthly
license fee shall be due upon execution of this License. The monthly license
fee for any partial calendar month shall be equitably prorated based upon a
30-day month. In addition, Licensor shall provide electrical service to
Licensee and Licensee shall pay monthly for its electrical usage the
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power charge set forth on Exhibit 1. The power charges shall be increased by any
increases incurred by Licensor and required under the Licensor Lease relevant to
the Premises. Licensee shall pay to Licensor its pro rata share of any such
increases.
The Monthly License Fee shall be increased on each applicable "Adjustment
Date" as set forth below in accordance with percentage increase. As used
herein, the term "Adjustment Date" shall mean each anniversary of the License
Commencement Date.
Licensor shall not be liable or responsible for any loss, damage, or
expense that Licensee may sustain or incur by reason of any change, failure,
interference, interruption, disruption, or defect in the supply or character of
the electric energy furnished to the Equipment, the Equipment Space, the
Premises or the Building, or if the quantity or character of the electric energy
supplied by the electric service provider selected by Licensor is no longer
available or suitable for Licensee's requirements, and no such change, failure,
defect, unavailability, or unsuitability shall constitute an actual or
constructive eviction, in whole or in part, or entitle Licensee to any abatement
or diminution or rent, or relieve Licensee from any of its obligations under
this License; provided, however, notwithstanding the foregoing, if Licensee
reasonably determines its inability to operate its business operations due to
any change, failure, interference, interruption, disruption, or defect in the
supply or character of the electric energy furnished to the Equipment, Licensee
may terminate this License upon 30 days notice to Licensor.
3. Term and Termination.
Subject to Section 13 below, the term of this License shall commence on
October 1st, 2003, and shall expire on ____________________ ("License
Termination Date").
In the event that the Licensee fails to pay any invoice due under this
License within thirty (30) days of its due date, Licensor may, without limiting
any other remedies available to it, terminate this License and the provision of
service hereunder within ten (10) days after giving written notice and after
Licensee's such non-payment of any invoice.
Licensee acknowledges that the rights granted to Licensee hereunder do not
constitute a lease of any portion of the Licensor Premises nor an easement, but
rather constitute a non-exclusive license for use in common with others. Such
license is revocable by Licensor in Licensor's sole discretion upon any default
by Licensee under this License which is not cured within ten (10) days after
delivery of written notice from Licensor to Licensee or upon any casualty which
destroys the Premises or renders it substantially unusable. Licensor shall
retain such rights of revocation notwithstanding any expenditure of money on the
installations described herein or other actual or alleged reliance by Licensee.
Such revocation shall be made by written notice from Licensor to Licensee.
Unless Licensor breaches its obligations under this License or terminates
Licensee's rights under this License, Licensee shall remain obligated for the
Monthly License Fee described in Section 2 until the License Expiration Date
shown in this Paragraph 3 or earlier termination, In the event of any
termination of this license due to a default by Licensee, Licensor, in addition
to any other rights it may have at law or in equity, may collect from Licensee
all license fees earned at the time of termination.
4. Renewal Option
Provided no Event of Default exists, Tenant may renew this License for one
additional period(s) of one year, by delivering written notice of the exercise
thereof to Landlord not earlier than 12 months nor later than nine months before
the expiration of the term or the applicable renewal term. On or before the
commencement date of the extended term in question, Licensor and Licensee shall
execute an amendment to this License extending the term on the same terms
provided in this License, except as follows:
(a) The Monthly License Fee payable for each month during such
extended term shall be the higher of the current market rates being charged
or the last amount payable hereunder for the month immediately preceding
the commencement date of the extended term in question multiplied by 103%,
beginning on the commencement date of the extended term in question and
adjusted annually on each subsequent anniversary thereof as provided in
this License;
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(b) Tenant shall have no further renewal option unless expressly
granted by Licensor in writing;
(c) During such renewal period, Licensor shall lease to Licensee the
Premises in their then-current condition, and Licensor shall not provide to
Licensee any allowances (e.g., moving allowance, construction allowance,
and the like) or other tenant inducements; and
Licensee's rights under this section shall terminate if (1) this License or
Licensee's right to possession of the Equipment Space is terminated, (2)
Licensee assigns any of its interest in this License, or Licensee is subletting
any portion of the Equipment Space at the time of the exercise of a renewal
option or upon the commencement date of the extended term in question, other
than to an Affiliate as may be permitted by this License, or (3) Licensee fails
to timely exercise its option under this section, time being of the essence with
respect to Licensee's exercise thereof.
5. Allocation of Risk/Insurance.
It is understood that Licensor is not an insurer, and the parties mutually
agree that Licensee will obtain insurance against the risk of loss, damage, and
liability, as set forth hereinafter. The parties also mutually agree that the
liability will be allocated or limited in accordance with this Section 5 and
with Section 6 following. These insurance and liability provisions are part of
the consideration underlying this License. The parties are cognizant of these
insurance and liability provisions in agreeing upon the contract charges, which
are based upon the value of the rights and services provided under this License.
Licensee elects to accept contract charges calculated on this basis, and does
not desire the License to provide for the assumption of any additional liability
by Licensor.
Throughout the term of this License, Licensee agrees to maintain in effect,
at Licensee's expense, and shall cause any of its agents or contractors
requiring access to Licensor Premises to maintain in effect, (i) Comprehensive
General Liability Insurance in an amount not less than One Million Dollars
($1,000,000.00) per occurrence for bodily injury or property damage, (ii)
Employer's Liability in an amount not less than One Million Dollars
($1,000,000.00) per occurrence, and (iii) Worker's Compensation in an amount not
less than that prescribed by statutory limits. Prior to taking occupancy of the
Equipment Space, Licensee shall furnish Licensor with certificates of insurance
which evidence the minimum levels of insurance set forth herein and which name
Licensor as an additional insured.
Each policy evidencing insurance required to be carried by Licensee
pursuant to this Section 5 must contain a provision that the insurance policy,
and the coverage it provides, shall be primary and noncontributing with respect
to any policies carried by Licensor and that any coverage carried by Licensor
shall be excess insurance.
6. Interference.
The installation and operation of the Equipment shall not interfere
electrically, or in any other manner whatsoever, with the equipment, or
operations of Licensor or with any other present or future licensees or tenants
of Licensor in the Premises. Notwithstanding anything in this License to the
contrary, it is expressly understood and agreed that if the installation or
operation of the Equipment is reasonably determined to interfere with other
communications systems or equipment at any time, Licensee shall upon written
request use best efforts to suspend its operations as soon as possible, but in
no event later than 24 hours, suspend its operations and do whatever Licensor
deems necessary, at Licensee's expense, to eliminate or remedy such
interference. If it is determined that such interference cannot be rectified,
then Licensor may at its option after written notice to Licensee and expiration
of a reasonable cure period in Licensors sole discretion, terminate this License
or request Licensee to remove any and all of the Equipment at Licensee's sole
cost and expense, or eliminate or remedy such interference at Licensee's sole
cost and expense. Licensor shall include similar non-interference terms in all
of its agreements with future users of this building.
Licensee hereby acknowledges that Licensor has licensed, and will continue
to license, space at and upon the Premises to third parties for the installation
and operation of communication equipment. Licensee accepts this License with
this knowledge and waives any and all claims against Licensor resulting from or
attributable to interference caused by present or future equipment, or methods
of operation employed by Licensor in its business
xxiii
upon the Premises. Licensee also waives any and all claims against Licensor or
against any other licensee or tenant of Licensor because of interference
resulting to Licensee by virtue of the equipment, or operations employed by
Licensor or by any other licensee or tenant of Licensor in its business upon the
Premises. Notwithstanding the foregoing, if Licensor or any other tenant or
licensee causes interference with Licensee's operations, Licensor shall take
immediate steps to correct such interference. If such interference is not
corrected within twenty-four (24) hours, Licensee's liability and obligation to
pay any fees to Licensor shall cease until such time as such interference is
corrected and ceases and Licensee is able to resume normal business operations
in the Premises. In the event that any such interference occurs and after 30
days has not been corrected to Licensee's reasonable satisfaction, Licensee
shall have the option to terminate this License at any time thereafter by giving
Licensor thirty (30) days' prior written notice to that effect, and such
termination shall be effective at the end of such thirty (30) day period.
Licensee shall pay Licensor any amounts due under this License for the period up
to the termination of this License.
7. Limitation of Liability.
In no event shall Licensor, Licensor affiliates, Licensee, Licensee
affiliates, or any of their respective officers or employees, be liable, one to
the other, for any loss of profit or revenue or for indirect, incidental,
special, punitive or exemplary damages incurred or suffered by each other,
arising from or pertaining to Licensee's use or occupancy of the Premises
including (without limitation) damages arising from interruption of electrical
power or HVAC services.
Licensee agrees and acknowledges that its use of the Equipment and
Equipment Space is at its sole risk, and Licensee hereby absolves and fully
releases Licensor, employees, affiliates, agents and representatives
(collectively, the "Licensor Parties") from any and all cost, loss, damage,
expense, liability and causes of action, whether foreseeable or not, from any
cause whatsoever, that Licensee may suffer to its Equipment and Equipment Space
or personal property located at the Equipment and Equipment Space and/or
Building. In addition, Licensee hereby agrees to indemnify, defend, protect and
hold Licensor and the Licensor Parties harmless from and against any loss, cost,
damage, liability, claim, action or cause of action (including, but not limited
to, attorneys' fees) of any third party, whether foreseeable or not, resulting
as a consequence of Licensee's use of the Equipment or Equipment Space, any part
of the Building, or access areas to the either. Licensee hereby assumes the
risk of the inability to operate as a result of any structural or power failures
at the Equipment and Equipment Space, the Building or any failure of Licensee or
the Equipment and Equipment Space for any reason whatsoever and agrees to
indemnify and hold Licensor harmless from all loss, liability, damages and costs
of defending any claim or suit of any kind including business interruption (and
attorneys' fees) asserted against Licensor by reason of such failure.
8. Force Majeure.
If the performance of the respective obligations of Licensor or Licensee
under this License shall be prevented or interfered with by reason of a Force
Majeure, then that party shall not be liable to the other for its failure to
perform such obligations and such failure shall not constitute a breach of this
License. "Force Majeure" as used herein shall include without limitation, fire,
flood, earthquake, other acts of God, explosion, strike or other dispute, riot
or civil disturbance, war or armed conflict, municipal ordinance including any
state or federal law, government order or regulation or order of any court of
competent jurisdiction, or any other similar thing or occurrence not within the
control of the party.
9. Assignment Rights.
This License and the license rights granted hereunder shall not be assigned
or transferred by Licensee to another party without the prior written consent of
Licensor, which consent may be withheld in Licensor's sole discretion.
Furthermore, Licensee shall not permit any third parties to collocate within
Licensee's Equipment Space. Notwithstanding the foregoing, Licensee shall have
the right, after giving notice thereof to Licensor, but without the necessity
of obtaining Licensor's consent, to assign or transfer this Agreement in its
entirety (a) in connection with any corporate reorganization, consolidation or
merger to which Licensee is a party, or the sale of all or substantially all of
Licensee's assets,(b) to an Affiliate or a combination of Affiliates or
Successor of Licensee and (c) any "change of control" of Licensee, whether by
change of ownership or otherwise, shall not be deemed to constitute an
"assignment" for purposes of this Agreement. For purposes hereof, an "Affiliate
or "Successor" of Licensee is an entity which acquires Licensee , or is under
common control with or controlled by Licensee, including an entity
xxiv
resulting from a merger or consolidation by Licensee, but excluding, in each
case, any entity formed to avoid the restrictions on assignment by Licensee
hereunder.
10. Removal of Cable, Wiring and Connecting Lines.
Licensee agrees that, upon the expiration or termination of this License
upon Licensor's written request, Licensee (or, at Licensor's election, the
contractor designated by Licensor) shall promptly remove, at Licensee's sole
cost and expense, all cable, wiring, connecting lines, and other installations,
equipment or property installed or placed by or for Licensee in the Premises and
restore those portions of the Premises damaged by such removal to their
condition immediately prior to the installation, normal wear and tear excepted.
If Licensee fails to promptly remove all such items pursuant to this Section 10,
or if Licensor elects to have such work performed by Licensor's contractor,
Licensor may remove such items and restore those portions of the Premises
damaged by such removal to their condition immediately prior to the installation
or placement of such items, in which case Licensee agrees to pay Licensor's
reasonable costs of removal and restoration, including Licensor's reasonable
administrative fee, such fee not to exceed 3% of the reasonable costs of removal
and restoration, within thirty (30) days of invoice therefore.
11. Waiver of Jury Trial.
Licensor and Licensee each waive trial by jury in any action or proceeding
brought by either of the parties hereto against the other or on any counterclaim
in respect thereof on any matters whatsoever arising out of, or in any way
connected with, this License or the relationship of Licensor and Licensee.
12. Applicable Law.
This License shall be governed by the laws of the State of Florida, without
regard to Florida's choice of law principles.
13. Entire Agreement.
This License, including any attachments, constitutes the entire License
between the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous Licenses of such parties in connection herewith.
Licensee acknowledges that it has not been induced to enter into this License by
any representation or promise not specifically expressed in this License. Any
modification made hereto shall not be valid and binding unless it is in writing
and signed by both parties.
14. Attorneys' Fees.
In the event that either Licensor or Licensee should bring suit for the
possession of the Equipment or Equipment Space, for the recovery of any sum due
under this License, or because of the breach of any provision of this License or
for any other relief against the other, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
15. Licensor Lease.
Licensee expressly agrees and acknowledges that Licensor's obligations under
this License shall be subject in all respects to the terms of, and the rights of
Licensor, as tenant, under the Licensor Lease (including without limitation
termination as a result of damage and destruction, condemnation or default).
16. Expansion Option; Right of First Refusal.
Licensee shall have a right of first refusal for a 4 x 8-foot cage
adjacent to Licensee's Equipment Space upon Licensor's receipt of a bona
fide offer therefor from a third party exercisable within 10 days after
written notice from Licensor at market rental rates.
xxv
17. Roof Rights.
Should Licensee desire roof rights on the Building for placement of
antennae/satellite dish(es) and connection of such antennae/satellite
dish(es) to Licensee's Equipment, Licensor hereby agrees to use reasonable
efforts to grant Licensee roof rights and the right to such connection by
incorporating an amendment to this License. In the event that Licensee
should desire the aforementioned roof rights, Licensee and Licensor hereby
agree to discuss fair market rental rates for such roof rights.
18. Access.
Licensee shall have access to the Building, the Premises, Licensee's
Equipment Space, Licensee's Equipment, Licensee's dedicated conduits, and
the cable trays, raceways and conduit (and, if applicable, any roof
equipment and related connections to Licensee's Equipment). on a
twenty-four (24) hour per day, seven (7) day per week basis.
IN WITNESS WHEREOF, the parties have executed this License as of the date
first above written.
FDS TELECOMMUNICATIONS L.P. (Licensor)
By: FDS Realty Partners L.L.C.
Its: General Partner
By:
-----------------------------------
Name: Xxxxx X. Xxxxxx
Its: Manager
SEQUIEM (Licensee)
By:
------------------------------------
Its:
------------------------------
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EXHIBIT 1
1. SPACE ALLOCATION
----------------
36/sf cage $500 per month
72/sf cage $900 per month
108/sf cage $1,200 per month
144/sf cage $1,500 per month
180/sf cage $1,700 per month
216/sf cage $1,900 per month
2. MONTHLY RECURRING SERVICE FEES
------------------------------
Power Charge
One (1) 20 amp AC circuit (120 volt) ($125.00 per month per 20 amp
AC circuit) , which is Landlord's current estimate of such rate and
may be reasonable adjusted to reflect Licensor's reasonably estimated
cost in the future.
EXHIBIT 2
APPROXIMATE LOCATION OF EQUIPMENT SPACE
(To be designated by Licensor prior to installation)
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