Exhibit 10.7
SCHEDULE
TO
FORM OF MASTER COMMUNICATIONS LICENSE TRANSACTION AGREEMENT
The following information sets forth the material details of our master
communications license transaction agreements which are not set forth in the
form of such agreement which immediately follows this schedule:
Square Footage Square Footage
Total Square Owned or Owned or
Total Number of Footage of Controlled Controlled by
Party Buildings Buildings by Party Affiliate of Party
----- --------- --------- -------------- ------------------
AEW Capital Management LP 15 4,000,376 2,388,560 1,611,816
Allegis Realty Investors, LLC,
as agent to property owners 27 6,734,369 6,734,369 0
Boston Properties Limited Partnership 32 15,322,759 14,385,210 937,549
Brookfield Properties Inc. 10 11,610,520 11,610,520 0
Cornerstone Properties Limited Partnership 71 18,001,501 10,496,870 7,255,424
Cousins Properties Incorporated 19 7,352,795 2,243,853 5,108,942
Lend Lease Real Estate Investments, Inc. 123 46,561,496 10,731,485 35,830,011
XxXxxx Development, Inc. 8 1,011,077 701,074 310,003
Xxxxxxxxx Investors Partners 41 6,858,926 6,858,926 0
Principal Office Investers 11 1,445,669 1,445,669 0
Shorenstein Company, L.P. 33 15,094,609 5,205,069 9,889,540
SJ Plaza, LLC 2 347,570 347,570 0
Tower Realty Management Corporation 29 14,157,235 10,244,450 3,912,785
Transwestern Investment Company, L.L.C. 33 5,389,318 3,505,229 1,884,089
TrizecHahn Office Properties, Inc. 35 6,690,000 6,690,000 0
Vornado Communications, L.L.C. 62 28,893,619 19,081,381 9,812,238
Xxxxxxxxx Fund III Acquisitions, L.L.C. 48 8,O68,069 8,068,069 0
101 Park, LLC 1 161,058 161,058 0
Term of License Fee
Property-Specific under Property-
Exclusivity License Specific License
Party (Square Footage) Agreements Agreements*
----- ---------------- ----------------- ----------------
AEW Capital Management LP 4,000,376 10 years 6%
Non-Exclusive
Allegis Realty Investors, LLC 6,734,369 5 years with two 6%
Non-Exclusive 5 year renewals
Boston Properties Limited Partnership 11,952,058 5 years with one 6%
Semi-Exclusive 5 year renewal
3,370,701
Non-Exclusive
Brookfield Properties Inc. 11,610,520 5 years with one 6%
Exclusive 5 year renewal
Cornerstone Properties Limited Partnership 4,343,690 5 years with one 6%
Semi-Exclusive 5 year renewal
13,408,604
Non-Exclusive
Cousins Properties Incorporated 7,352,795 5 years with one 6%
Non-Exclusive 5 year renewal
Lend Lease Real Estate Investments, Inc. 46,561,496 5 years with one 6%
Non-Exclusive 5 year renewal
XxXxxx Development, Inc. 1,011,077 10 years 6%
Non-Exclusive
Mezzanine Investors Partners 6,858,926 5 years with one 6%
Non-Exclusive 5 year renewal
Principal Office Investers 1,445,669 5 years with one 6%
Non-Exclusive 5 year renewal
Shorenstein Company, L.P. 15,094,609 5 years with one 6%
Non-Exclusive 5 year renewal
SJ Plaza, LLC 347,570 5 years with one 6%
Non-Exclusive 5 year renewal
Tower Realty Management Corporation 14,157,235 5 years with one 6%
Non-Exclusive 5 year renewal
Transwestern Investment Company, L.L.C. 5,389,318 5 years with one 6%
Non-Exclusive 5 year renewal
TrizecHahn Office Properties, Inc. 6,690,000 5 years with one 6%
Non-Exclusive 5 year renewal
Vornado Communications, L.L.C. 28,893,619 5 years with one 6%
Non-Exclusive 5 year renewal
Xxxxxxxxx Fund III Acquisitions, L.L.C. 8,068,069 5 years with one 6%
Non-Exclusive 5 year renewal
101 Park, LLC 161,058 5 years with one 6%
Non-Exclusive 5 year renewal
* Some of the license agreements contain additional fees that we deem to be immaterial.
FORM OF
MASTER COMMUNICATIONS LICENSE TRANSACTION AGREEMENT
THIS MASTER COMMUNICATIONS LICENSE TRANSACTION AGREEMENT (this "Agreement")
is made this _____ day of __________________, 1999 (the "Date of this
Agreement"), by and between CYPRESS COMMUNICATIONS, INC., a Delaware corporation
having offices at Fifteen Piedmont Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
("Cypress"), and ___________________________________________, a
______________________________, having an address at
___________________________________________________________ (collectively,
"Company"). Cypress and Company are sometimes referred to in this Agreement
individually as a "Party" and collectively as the "Parties."
WHEREAS, the Parties desire to execute definitive agreements by which: (a)
Company would grant licenses to Cypress to permit Cypress to install, manage,
and operate communications infrastructures within certain commercial office
buildings owned, operated, or managed by Company or various affiliated entities,
and to provide enhanced communications services within those buildings to
tenants and other occupants thereof (the "Master Agreement"); and (b) Cypress
would grant rights and options to Company to purchase shares of outstanding
voting common stock in Cypress (the "Warrant Agreement"); and
WHEREAS, the Parties agree that, in reliance upon each of the
representations and warranties set forth in this Agreement, they will enter
into, or use reasonable efforts to cause an affiliated entity as appropriate to
enter into, a Communications License Agreement in the form of the attached
Exhibit A, or a lease on substantially identical terms as such License
---------
Agreement, at Company's election (said License Agreement and lease being
hereinafter referred to as the "License Agreement") with respect to each of the
office buildings or office building complexes the Parties identify in the
attached Exhibit B as amended from time to time in accordance with this
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Agreement ("Buildings List");
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the receipt and sufficiency of which the Parties hereby acknowledge,
Cypress and Company hereby covenant and agree as follows:
1. DEFINITIONS.
Terms used herein that are defined in the form License Agreement attached as
Exhibit A hereto shall have the meanings given such terms unless a different
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meaning is expressly provided herein. In addition, the following terms shall
have the following meanings for purposes of this Agreement:
(a) "Affiliate" shall mean and include any person or entity (i) that directly
or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, a Party; (ii) that beneficially owns
or holds, directly or indirectly by attribution, more than fifty percent
(50%) of any class of the outstanding voting stock or other voting
ownership interests of a Party; or (iii) more than fifty percent (50%) of
the outstanding voting stock or other voting ownership interests (or in the
case of a person or entity that is not a corporation, more
than fifty percent (50%) of the equity interest) of which is beneficially
owned or held, directly or indirectly by attribution, by a Party.
(b) "Building" or "Buildings" shall mean the applicable building(s) described
in, and that are the subject of, a License Agreement.
(c) "Diligence Period" shall mean the period commencing upon the Date of this
Agreement and ending at 5:00 p.m. on the sixtieth (60th) day thereafter.
(d) "GLA" shall mean, with respect to any Building, the gross leasable area
within such Building, as stipulated in the License Agreement with respect
to such Building.
(e) "Owner" shall mean, with respect to any Building, the person or entity
holding record or beneficial title to such Building.
(f) "Total GLA" shall mean the aggregate GLA of all Buildings.
2. REPRESENTATIONS AND WARRANTIES.
Each Party hereby represents and warrants to the other the following:
(a) Such Party has full corporate power and authority to execute and
deliver each License Agreement to which it is a party, and perform each of its
obligations related thereto; and
(b) As of the end of the Diligence Period, all consents,
authorizations, orders and approvals of (or filings or registrations with) any
governmental commission, board or other regulatory body required in connection
with the execution, delivery, and performance of each License Agreement to which
such Party is a party and the performance of the obligations related thereto
have been obtained or made.
3. BUILDINGS LIST; OPERATIONS ROLLOUT SCHEDULE.
(a) The list of commercial office buildings and commercial office
building complexes attached to this Agreement as Exhibit B sets forth (i) the
---------
buildings that are eligible to become the subject of one or more License
Agreements executed by Cypress and either Company or the Owner thereof and (ii)
the GLA for purposes of this Agreement or any License Agreement of each such
building. The Parties may amend Exhibit B from time to time to reflect the
---------
then-current identity of the Owner of such identified buildings, but no change
in GLA will be permitted without Cypress's consent, which will not be
unreasonably withheld. During the Diligence Period, Company shall have the right
and option to remove certain building(s) that are not identified by an asterisk
(*) on Exhibit B attached hereto from this Agreement and the Warrant Agreement,
---------
in accordance with Section 3(e) below, by notice to Cypress in accordance with
Section 6 below.
(b) Before the expiration of the Diligence Period, Cypress and Company
will negotiate diligently and in good faith to establish a schedule for Cypress
to install Cypress's cable, electronics, and other equipment and facilities
required to commence Cypress's operations
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pursuant to the respective License Agreements within each of the buildings
remaining on Exhibit B after the Diligence Period. The mutually agreed schedule
---------
resulting from such negotiation shall be consistent with the schedules Cypress
agrees upon with other commercial office building owners and managers entering
into similar arrangements with Cypress during the Diligence Period and the
Parties shall thereupon amend this Agreement and cause such schedule to be
attached to this Agreement by such amendment as Exhibit C. Cypress shall not
---------
discriminate among any such commercial office building owners and managers in
the offering or completion of the terms, conditions, or operations rollout
schedules of such arrangements.
(c) From time to time in accordance with the rollout schedule attached
hereto as Exhibit C, Cypress may request of Company in writing that Cypress and
---------
Company, or, as applicable, the Affiliate or other third party Owner of the
applicable buildings, execute a License Agreement with respect to one or more
buildings listed in the then-current Exhibit B. Within thirty (30) days after
---------
Cypress makes any such written request, Cypress and Company or the Affiliate or
other third party Owner shall (i) negotiate diligently and in good faith to
establish the location of the Licensed Area in such Building(s) and (ii) execute
a separate License Agreement for each such Building or complex of Buildings in
accordance with the terms of this Agreement. Each such License Agreement shall
be substantially in the form of Exhibit A attached hereto and shall (x) identify
---------
and describe the Building and Licensed Area with respect to such License
Agreement, and (y) identify any Building-specific access or construction issues
with respect to such Building.
(d) On Exhibit B attached hereto, Company has designated the nature of the
---------
license to be granted to Cypress, on a per building basis, for each of the
buildings on Exhibit B, i.e., Exclusive, Semi-Exclusive or Non-Exclusive (as
---------
those terms are defined in the form License Agreement attached as Exhibit A).
---------
Company represents that at least 75% of Total GLA represented on Exhibit B has
---------
received the same type of designation by Company (that is, Exclusive, Semi-
Exclusive or Non-Exclusive).
(e) With respect to each building identified with an asterisk (*) on
Exhibit B attached to this Agreement on the Date of this Agreement, Company
---------
represents and warrants to Cypress that: (i) either Company or an Owner or
Affiliate designated by Company to be the licensor with respect thereto is duly
authorized to enter into a License Agreement and to grant to Cypress the rights
described therein, and (ii) for each building as to which Company designates an
Owner (other than Company) or Affiliate as the proper licensor under a License
Agreement, Company has obtained the agreement of such Owner or Affiliate that it
will enter into a License Agreement with Cypress pertaining to such building.
With respect to each building that is not identified with an asterisk, as
aforesaid, Company represents and warrants that, as of the Date of this
Agreement, Company has commenced discussions with, and solicited the approval
of, Company's partners, joint venturers, investors and Affiliates having an
interest in such building (collectively, "Partners"), or the Owners of such
building, as applicable, with respect to the proposed grant of license
contemplated in this Agreement. Moreover, during the Diligence Period, Company
covenants and agrees to undertake commercially reasonable efforts to obtain from
such Partners and Owners, as necessary, (y) written authority to execute License
Agreements for and on behalf of such Partners and Owners or (z) written
agreements with respect to such buildings which convey to Cypress the rights
described in this Agreement.
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Company shall have the right and option to remove any building(s) from Exhibit B
---------
on or before the expiration of the Diligence Period only if such buildings are
not identified by an asterisk on Exhibit B as of the date of this Agreement and,
---------
despite Company's diligent good faith efforts, (1) the Owners or Company's
Partners having an interest in such building(s) refuse to participate in the
program contemplated in this Agreement or (2) such Owners or Partners are
prohibited from participating in such program as a matter of law or contract, or
pursuant to such Owner's or Partner's organization, authorization or governing
documents. Within fifteen (15) days after the expiration of the Diligence
Period, the Parties shall attach a finalized Exhibit B to this Agreement in
---------
accordance with any permitted withdrawal(s) by Company or Cypress during the
Diligence Period, as described above. By attaching the finalized Exhibit B to
---------
this Agreement, Company shall be deemed to have restated and reaffirmed the
foregoing representations and warranties with respect to all buildings set forth
on such finalized Exhibit B, except with respect to any building(s) for which
---------
the appropriate Owner or Partner of Company has delivered such representation
and warranty to Cypress in writing within fifteen (15) days after the expiration
of the Diligence Period.
(f) With respect to any other buildings that may be owned, managed or
controlled by Company or its Affiliates at any time during the term of this
Agreement, but which do not appear on Exhibit B, Company, Company's Affiliates
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and Cypress may by mutual agreement enter into License Agreements for such other
buildings; provided, however, that any such subsequent License Agreement shall
not affect the number of warrants conveyed to Company under the Warrant
Agreement (except to substitute buildings for previously-designated buildings
sold by an Owner or affiliate, to the extent and as provided in the Warrant
Agreement) or extend to Company the right to make additional purchases under the
Warrant Agreement.
4. CORPORATE SERVICES.
Subject to available space and other technical conditions, Cypress shall
provide, at no charge to Company and so long as any License Agreement between
the parties is in effect, high speed data and Internet connections (with T1 or
equivalent or greater capacity) between the Internet backbone and one (1)
corporate office of Company provided, however, that Company shall be
responsible for payment of any taxes, tariffs, user fees, or other charges that
may be imposed by any government entity or utility provider on account of
Company's access, use, or connection therewith. Subject to the foregoing, such
Services shall be provided to Company subject to and in accordance with the
terms, conditions and limitations of the mutually agreed subscription agreement
attached as Exhibit D.
---------
5. ASSIGNMENT.
Except as hereinafter expressly provided, neither this Agreement, nor the
rights, obligations or duties of either Party under this Agreement may be
assigned or delegated to any other party, person, or entity without the prior
written consent of the other Party hereto, and any attempted assignment or
delegation without such consent shall be void. Notwithstanding the foregoing,
Cypress has the right, without the consent of Company, to assign its rights,
obligations or duties under this Agreement to an Affiliate of Cypress or to any
entity in connection with a merger or
4
consolidation of Cypress under another entity or the sale of all or
substantially all of the assets of Cypress to another entity.
6. NOTICE.
All notices which may be given by either Party to the other shall be in writing
and shall be deemed to have been duly given (a) on the date of dispatch when
delivered in person, (b) one day after dispatch when sent by overnight courier,
maintaining records of receipt, and (c) on the date of dispatch when sent by
facsimile during normal business hours with telephone confirmation of receipt
(and with confirmation notice given by one of the other approved methods of
delivery within three (3) days after such facsimile transmission) and addressed
as follows:
If to Company:
Attention:
Facsimile No.:
If to Cypress:
Cypress Communications, Inc.
Fifteen Piedmont Center, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxxxxx, Xx.
Fax No.: (000) 000-0000
7. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the Parties and their respective successors
and permitted assigns and all references herein to a Party shall include such
successors and permitted assigns of such party.
8. AMENDMENTS.
This Agreement may be amended only by written agreement signed by authorized
representatives of the Parties. No waiver of any provisions of this Agreement
and no consent to any default under this Agreement shall be effective unless the
same shall be in writing and signed by on or on behalf of the Party against whom
such waiver or consent is claimed.
9. WAIVER.
No failure of either Party to strictly enforce any term, right, or condition of
this Agreement shall be construed as a waiver of such term, right or condition.
5
10. ANNOUNCEMENTS.
Neither Company nor Cypress shall use the name, logo, or trademarks of the other
party in any advertising, promotional material, or trade display, or for any
other commercial purpose, or issue any press release or make any written public
announcement relating to this Agreement, except where required by law or allowed
by the prior written consent of the other party; provided, that any such consent
--------
shall not be unreasonably withheld. Without limiting the generality of the
foregoing, (a) Company may in any case withhold its consent to any such press
release or public announcement relating to this Agreement if it determines that
any such press release or public announcement is likely to damage its public
reputation, goodwill, or relationships with its tenants and (b) Cypress may in
any case withhold its consent to any such press release or public announcement
relating to this Agreement if it determines that any such press release or
public announcement is likely to damage its public reputation, goodwill, or
relationships with its customers. Notwithstanding the foregoing, Cypress may
provide a copy of this Agreement to any other licensor-participant in any
program comparable to the stock warrant program contemplated hereunder (in which
Cypress has granted stock warrants in consideration for license rights),
provided that all such persons shall maintain the disclosed information in
confidence at all times thereafter.
11. SEVERABILITY.
If a court or other lawful authority of competent jurisdiction declares that any
one or more of the provisions contained in this Agreement is invalid, illegal or
unenforceable in any respect, such declaration shall not affect the validity or
enforceability of any other provision of this Agreement, but this Agreement
shall be construed as if such invalid, illegal or unenforceable provision or
provisions had never been contained in this Agreement.
12. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to its principles of conflicts of law.
The Parties hereby submit to the non-exclusive jurisdiction of the federal and
state courts of the State of Delaware with respect to any action or proceeding
that may be instituted in connection with this Agreement.
13. HEADINGS.
The headings and numbering of articles, sections and paragraphs in the Agreement
are for convenience only and shall not be construed to define or limit any of
the terms or conditions in this Agreement or affect the meaning or
interpretation of this Agreement.
14. ENTIRE AGREEMENT.
This Agreement, the Warrant Agreement, the License Agreements and the other
agreements contemplated thereby or affixed thereto, together constitute the
entire agreement between the Parties with respect to the subject matter of this
Agreement, and supersede all prior oral or written agreements, representations,
statements, negotiations, understandings, and proposals
6
relating to the subject matter of this Agreement. The stock warrants to be
issued under the Warrant Agreement shall be in addition to, and not in lieu of,
License Fees to be paid under the License Agreements.
15. COUNTERPARTS.
For the convenience of the Parties, this Agreement may be executed in several
counterparts, each of which when so executed shall be, and be deemed to be, an
original instrument and such counterparts together shall constitute one and the
same instrument (and notwithstanding their date of execution shall be deemed to
bear a date as of the date of this Agreement). This Agreement may also be
executed by facsimile, with each Party's facsimile signature being as binding on
such Party as an original signature.
[Signatures appear on the following page.]
------------------------------------------
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
duly executed for it and on its behalf as of the day and year first above
written.
CYPRESS COMMUNICATIONS, INC.
____________________________
Xxxx X. Xxxxxxxxx,
Executive Vice President
_____________________________
By: ______________________ Date
Signature
______________________
Printed Name
______________________
Title
__________________________________________________________________________
DATE
----
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EXHIBIT A
COMMUNICATIONS LICENSE AGREEMENT
THIS COMMUNICATIONS LICENSE AGREEMENT (this "Agreement") is entered into
this ______ day of _________________, between _______________________________ a
______________________________________, having an office at
_______________________________________________________ ("Licensor"), and
CYPRESS COMMUNICATIONS, INC., a Delaware corporation, having an office at
Fifteen Piedmont Center, Suite 710, Atlanta, Georgia 30305 ("Licensee").
RECITALS:
--------
WHEREAS, Licensee is in the business of (i) installing, managing and
operating building-centric communications platforms and related equipment and
facilities within office buildings and office building complexes, and (ii)
providing enhanced communications services within, and for the benefit of
multiple tenants and other occupants of, such buildings and complexes via such
platforms, equipment and facilities;
WHEREAS, Licensor and Licensee desire to enter into this Agreement for the
purpose of permitting Licensee to (i) install, manage and maintain such
communications platforms, equipment and facilities within one or more buildings
owned by Licensor and (ii) provide enhanced communications services to tenants
and other occupants of such building(s) via such platforms, equipment and
facilities;
WHEREAS, Licensor and Licensee each has the authority to enter into this
Agreement and Licensor has the right, power and interest in the building(s)
identified in this Agreement, which building(s) is (are) located on the land
described in Exhibit A, hereto, to allow Licensee to make use of certain spaces
---------
within such building(s) as described in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. DEFINITIONS.
Unless otherwise defined herein, the following capitalized terms used herein
shall have the respective meanings set forth below:
(a) "Antenna Equipment" shall mean the antenna(s) and the associated mounting
and other related equipment installed in the Antenna Site at any time and
from time to time in accordance with Approved Drawings.
(b) "Antenna Site" shall mean the space of not more than twenty-five (25)
square feet on the roof of the Building, in the location designated by
Licensor, as shown on the
9
Approved Drawings or otherwise designated by Licensor in writing, for the
installation of Licensee's Antenna Equipment.
(c) "ARC" shall mean Allied Riser Communications Corp., a Delaware corporation.
(d) "Approved Drawings" is defined in Section 6.1 below.
(e) "Approved Existing Wiring" is defined in Section 6.3 below.
(f) "BCPP" or "Building Centric Platform Provider" shall mean a provider of
Enhanced Communications Services to multiple Tenants of a Building by means
of Cable and Equipment owned by such provider and located in the Building
that includes, without limitation, both of the following components: (a) a
pre-wired vertical transmission riser with installed floor-by-floor
capability to serve Tenants of a floor by the addition of only minimal
wiring to Tenant locations therein and (b) one or more Servers (as defined
below). Notwithstanding the foregoing, none of (i) the ILEC in the
Building, (ii) any other communications provider that delivers Enhanced
Communications Services to Tenants via the existing ILEC infrastructure
pursuant to arrangements with such ILEC or otherwise, or (iii)
communications service providers whose primary business is the sale and
delivery of wireless communications services via a wireless system, shall
be deemed a BCPP hereunder. For purposes of illustration, but not
limitation, the parties acknowledge that those companies listed on
Exhibit C hereto under the heading "BCPP Examples" typically conduct their
---------
operations, as of the date hereof, as BCPPs. Conversely, the respective
companies listed on Exhibit C under the heading "Non-BCPP Examples" do not
---------
typically conduct their operations, as of the date hereof, as BCPPs.
(g) "Building" shall mean a building identified in the attached Exhibit B,
---------
located at the applicable address set forth therein.
(h) "Buildings" shall mean all of the buildings identified in Exhibit B.
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(i) "Cable" shall include, but not be limited to, unshielded twisted pair,
optical fiber, coaxial cable, and related conduit and components necessary
to deliver Enhanced Communication Services and other public network
services from their point of entry or generation to the Tenant Demarcation
point.
"Cable Pathway" shall mean the location(s) designated by Licensor within a
Building, as it exists on the date hereof, that may provide a route between
the Service Provider Demarcation and a Tenant Demarcation including the
location(s) housing Lateral/Station Cables, Risers, and Telephone Closets,
as such terms are defined in this Agreement. Licensee's access to the Cable
Pathway for installation of Cable and other Equipment may require drilling
and/or other work within the Building's structure.
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(j) "Commencement Date" shall mean the date upon which both parties have
executed this Agreement.
(k) "CLEC" shall mean a competitive local exchange carrier.
(l) "Enhanced Communication Services" or "Services" shall mean voice, video,
data, facsimile or other communication services (or any combination of the
foregoing) that Licensee may provide within a Building and to Tenants of
such Building subject to the terms of this Agreement. These Services may
include, without limitation, (i) the provision and resale of local exchange
services and point-to-point telephone communications (including dedicated
long-distance service); (ii) video communications service; (iii) "800" or
other toll-free-number service; (iv) telephone credit or debit card
service; (v) audio conferencing, paging, voice mail and message center
service; (vi) data transmission service; (vii) access to computer
"Internet" or other networked computer-based communications and related
content, including access via Internet "portal" service; (viii) satellite
or cable television service; (ix) wideband digital network service; and (x)
provision of telephone, video communication or other communications
Equipment or infrastructure to the users of such Services in connection
with their use of such Services.
(m) "Equipment" shall mean equipment used for the transmission of
communications services, including (without limitation) Server(s), racks,
cabinets, Cable, junction boxes, hangers, pull boxes, innerducts,
connecting equipment, termination blocks, electrical wiring and related
equipment, or any components thereof.
(n) "Equipment Room" shall mean the space in the Building of not more than one
hundred fifty (150) square feet in the location designated by Licensor and
shown on the attached Exhibit D, which space shall be the location for
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items of Licensee's Equipment, as such Licensee's Equipment may be
installed, replaced, supplemented or substituted by Licensee from time to
time in accordance with this Agreement. Licensor shall have no obligation
to enclose, demise, or provide any security with respect to the Equipment
Room or Licensee's Equipment.
(o) "Exclusive," with respect to the License granted by Licensor to Licensee
pursuant to this Agreement, shall mean that Licensee is the only entity or
person authorized to be BCPP for the Buildings during the Term of this
Agreement.
(p) "Existing Wiring" shall mean any Cable installed and maintained in a
Building by an ILEC, CLEC, or other third party prior to the Commencement
Date and any other Cable owned by Licensor within such Building prior to
the Commencement Date.
(q) "GLA" shall mean, with respect to the Buildings that are the subject of
this Agreement, the total square feet of rentable area within such
Buildings, as
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determined prior to the date of this Agreement by Licensor. Licensor and
Licensee hereby stipulate that, for all purposes of this Agreement, the
total GLA of the Buildings is___________________ square feet.
(r) "Gross Sales," with respect to any Building, shall mean the gross amounts
collected by Licensee on account of the provision or delivery of Services
to Tenants within such Building (including payments for the sale, lease and
upgrade of telephone equipment, but excluding installation charges and one-
time, front-end, non-recurring fees that do not result in significant new
orders for Services or products, including "moves, adds or changes," as
such term is customarily used in the communications industry), whether
Licensee delivers or performs the whole or any part of the Services from
the Premises or from any other place within or outside the Building (but
which Services are provided and received within the Building), and whether
for cash, credit, in-kind, or other consideration. Gross Sales shall not,
however, include any refundable deposits (unless and until Licensee
accounts for such deposits as accrued revenues) and any sums invoiced and
collected and paid out for any sales, rental, use or excise tax or other
governmental or regulatory taxes, charges or fees or rebates payable by
Licensee directly on account of the sale or rental of Services.
Furthermore, there shall be deducted from Gross Sales (i) the amount of any
bad debt or uncollectible credit accounts with respect to sales or rentals
previously taken into account in computing Gross Sales (such deduction in
any calendar year not to exceed one and one-half percent (1.5%) of the
total Gross Sales for such calendar year), and (ii) credits for returned
merchandise, the sale or rental of which previously had been taken into
account in computing Gross Sales. Each sale upon installment or credit
shall be treated as a sale for the full price in the quarter during which
such sale is made irrespective of the time when Licensee receives payment
therefor. Each credit against Gross Sales for uncollected or uncollectible
credit accounts or for returned merchandise shall be applied in the quarter
in which such account is written off by Licensee or such merchandise is
returned; provided, however, that in the event any such account determined
to be uncollectible should subsequently be collected by Licensee, any such
amount so collected by Licensee shall be deemed a part of the Gross Sales
for the quarter in which such amount is collected.
(s) "Hazardous Materials" shall mean any substance that now or in the future is
regulated or governed by, requires investigation or remediation under, or
is defined as a "hazardous substance," petroleum product, PCB,
formaldehyde, or other toxic, explosive, radioactive, corrosive, flammable,
carcinogenic, harmful, hazardous, or dangerous matter in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 U.S.C.
(S)(S) 9601 et seq.; the Hazardous Materials Transportation Act of 1975, 49
U.S.C. (S)(S)31801 et seq.; the Resource Conservation and Recovery Act of
1975, 42 U.S.C. (S)(S) 6901 et seq.; all as amended now or in the future;
or any other federal, state, or local statute, law, ordinance, code, rule,
regulation, order, or decree regulating, relating to, or imposing liability
or
12
standards of conduct concerning hazardous materials or waste or substances
now or at any time hereafter in effect.
(t) "ILEC" shall mean an incumbent local exchange carrier.
(u) "Initial Term" shall mean the period commencing on the Commencement Date
and expiring on the date that is five (5) years after the Commencement
Date.
(v) "Lateral/Station Cables" are those Cables located on a single floor of a
Building that interconnect a Riser with a Service Provider Demarcation or a
Tenant Demarcation within such Building.
(w) "Laws" is defined in Section 8(e) below.
(x) "License" is defined in Section 2.1 hereof.
(y) "License Fees" shall have the meaning set forth in Section 5.1 below.
(z) "Licensed Areas" shall mean the Antenna Site, Equipment Room and Cable
Pathway, collectively, as such areas may be modified from time to time
pursuant to Approved Drawings.
(aa) "Licensee's Equipment" shall mean Equipment owned or leased by Licensee
that may be installed in a Building in accordance with this Agreement,
including, without limitation, the Antenna Equipment, and such Equipment as
Licensee may install in the Equipment Room.
(bb) "Line Problems" shall mean and include any (i) eavesdropping, wiretapping,
or theft of long distance or other access codes by unauthorized parties,
(ii) failure of any of the Cable, Cable Pathway, or Licensed Areas to
satisfy Licensee's requirements, (iii) capacitance, attenuation, cross-
talk, or other problems with Cable, (iv) misdesignation of the Cable or
Existing Wiring in a Building, and (v) shortages, failures, variations,
interruptions, disconnections, losses, or damages caused by or in
connection with the installation, maintenance, replacement, removal, or use
of any Equipment in the Building.
(cc) "Non-Exclusive," with respect to the License granted by Licensor to
Licensee pursuant to this Agreement, shall mean that Licensor may also
authorize any other entities or persons to be BCPP's for the Building or
Buildings.
(dd) "Non-Renewal Notice" shall have the meaning given such term in Section 4.2.
(ee) "Permitted Delays," with respect to the party claiming same, shall mean
delays due to force majeure, as set forth in Section 27 of this Agreement.
13
(ff) "Real Property" shall mean the land described in Exhibit A and the
---------
Buildings, the garage(s) of the Buildings, and the other improvements on
such land (including any plazas and underground areas).
(gg) "Renewal Term" shall mean the period commencing upon the expiration of the
Initial Term of this Agreement and expiring on the day immediately
preceding the tenth (10th) anniversary of the Commencement Date.
(hh) "Risers" shall mean the vertical portions or segments of the Cable.
(ii) "Rules and Regulations," with respect to any Building, shall mean the
security, access, construction, operational, sales, advertising, marketing,
service, and similar policies, standards, and guidelines as may be
promulgated by the management of such Building, which Rules and Regulations
may be modified from time to time in a nondiscriminatory manner, provided
that any such modification does not cause a material increase in the cost
of Licensee's operations within such Building or otherwise impair in any
material manner the marketing rights granted under this Agreement or
delivery of Services by Licensee to its Tenant customers in such Building.
(jj) "Semi-Exclusive," with respect to the License granted by Licensor to
Licensee pursuant to this Agreement, shall mean that Licensee and ARC are
the only entities or persons authorized to be a BCPP for the Buildings
during the Exclusivity Period.
(kk) "Server," with respect to any Building, shall mean a building-centric
communications platform installed, placed or maintained at any time in or
about the Licensed Areas or the Building that has either (i)
characteristics of private branch exchange service for voice and data
transmission or (ii) characteristics of routing or switching equipment for
Internet services, or (iii) both, and through which (or by means of which)
two or more Tenants may obtain one or more Services. A Server does not
include a DSL multiplexer or a terminating device located in the Building
for an outside communications network necessary to provide services from
that network to Tenants, provided that, in each case, such terminating
device and network are under common ownership.
(ll) "Service Provider Demarcation" shall mean a location defined by any Laws,
contract or custom where an ILEC or CLEC terminates its network within the
Building.
(mm) "Services" shall have the meaning set forth in Section 1(m) above.
(nn) "Subscription Agreement" shall mean a written agreement between Licensee
and a Tenant pursuant to which such Tenant subscribes to receive any one or
more Services from Licensee.
14
(oo) "Subscription Fulfillment Period" is defined in Section 4.4 hereof.
(pp) "Services" shall have the meaning set forth in Section 1(i) above
(qq) "Telephone Closets" shall mean locations designated by Licensor within any
Building at which interconnections between Lateral/Station Cables, Tenant
Demarcations, Risers, Service Provider Demarcations and related components
are made. Telephone Closets may be located on each floor of a Building and
may be designated by Licensor for common use by all communications service
providers.
(rr) "Tenant Demarcation" shall mean the interface point between customer
premises equipment of user Tenants, located within a Building, and
Licensee's Equipment.
(ss) "Tenants" shall mean any tenants, subtenants, licensees or other occupants
now or hereafter within a Building, but solely in their capacity as
occupants of such Building.
(tt) "Term" shall mean, collectively, the Initial Term and, if the Term is
extended pursuant to Section 4.2 of this Agreement, the Renewal Term.
(uu) "Undue Interference" shall mean an unreasonable or material, and adverse,
disruption or interference.
(vv) "Vertical Pathway" shall have the meaning given such term in Section 1(i)
above.
(ww) "Work" shall have the meaning given such term in Section 6.1.
2. LICENSE[; EXCLUSIVITY, if applicable].
2.1 Licensor hereby grants and conveys to Licensee the right and license
(but not an easement or any other interest in property), subject to the terms
and conditions of this Agreement, to (a) be a BCPP with respect to each and
every one of the Buildings, (b) construct, install, operate, maintain, manage,
repair, reconstruct and replace Licensee's Equipment (including, without
limitation, Licensee's Server) and (c) market, sell and provide Licensee's
Services within such Buildings, subject to Licensor's Rules and Regulations and
the terms of this Agreement, solely for the purpose of providing Services to
Tenants in the Buildings, and in any other building approved by Licensor in
writing in advance, and for no other purpose whatsoever (the "License"). So
long as Licensee is not in default under this Agreement, and subject to the
terms and provisions of this Agreement, Licensee shall at all times during the
Term have and enjoy the License and all other rights and interests hereby
granted to Licensee under this Agreement (which shall not include any easement
or other interest in property) without hindrance by Licensor or any person
lawfully claiming through or under Licensor.
15
2.2 The License granted by Licensor to Licensee under Section 2.1 above
shall be [Exclusive] [Semi-exclusive] [Non-exclusive].
2.3 Licensee shall have the right to use and enjoy the Licensed Areas
subject to and in accordance with this Agreement without charge from Licensor
other than as expressly set forth in this Agreement.
3. ACCESS; NON-INTERFERENCE.
3.1 Subject to Licensor's Rules and Regulations and provided that
Licensee gives Licensor reasonable advance notice by telephone or otherwise,
Licensee shall have the right, at Licensee's sole cost and expense, to enter
upon the Licensed Areas, and such areas within the Building as necessary to
reach the Licensed Areas, twenty-four (24) hours a day, seven (7) days a week,
three hundred sixty-five (365) days a year, to conduct the activities described
in Section 2.1 of this Agreement, including the installation, maintenance,
repair, inspection and replacement of the Licensee's Equipment, and provided
that Licensor shall have the right to be present to observe the activities of
Licensee's authorized representatives, subject to Section 24 of this Agreement.
Notwithstanding the foregoing, Licensor may condition any granting of access to
Tenant space, whether emergency or otherwise, on compliance with the leases that
are then in effect between Licensor and any such Tenants, and subject to any
reasonable restrictions of such Tenants for security and privacy purposes.
3.2 If Licensor gives to Licensee prior written approval, Licensee shall
have the right to use Existing Wiring or other Cable installed within a Building
by parties other than Licensee to the extent that Licensor has the right to
grant such access and right of use. Licensor may require Licensee, by giving
Licensee notice within fifteen (15) days after the Commencement Date, to use
existing Risers within a Building, and not to install new Risers, to the extent
such existing Risers are reasonably suitable to Licensee's needs in performance
and delivery of the Services to Tenants.
3.3 In connection with the installation and subsequent operation by
Licensee of any of Licensee's Equipment, or Licensee's related use or occupancy
of the Licensed Areas, Licensee shall not cause any Undue Interference with
respect to the operation or use of communications facilities or equipment that
were installed in the Buildings prior to the date of Licensee's installation
causing such Undue Interference. Conversely, the installation, operation or use
of any communications facilities or equipment in the Building (other than
Licensee's Equipment), and the use or occupancy of the Cable Pathway or Licensed
Areas, by Licensor or any Tenant or other licensee or service provider shall not
cause any Undue Interference with respect to Licensee's operation or use of any
of Licensee's Equipment installed in the Building prior to the date of any such
installation causing such Undue Interference. In the event of any such Undue
Interference caused by Licensee in violation of this Section 3.3, Licensee shall
promptly undertake and diligently pursue efforts to remedy such condition, and
if Licensee fails to do so within ten (10) days after receiving notice of such
condition from Licensor or the
16
affected occupant, Licensor shall be entitled to remedy such condition at
Licensee's expense, and Licensee shall pay to Licensor the costs incurred by
Licensor in providing a remedy for such Undue Interference within ten (10) days
after receipt of Licensor's invoice therefor. In the event of any such Undue
Interference caused by Licensor, its Tenants or other licensees or service
providers in violation of this Section 3.3, Licensor shall, within ten (10) days
after receiving notice from Licensee of such Undue Interference, promptly
undertake and diligently pursue efforts to remedy such condition until such time
as the interference is resolved. Licensor and Licensee shall cooperate in good
faith with one another to identify the source of, and to eliminate, at the
lowest reasonable cost, any Undue Interference.
4. TERM.
4.1 The Term of this Agreement shall commence on the date of this
Agreement and shall continue in effect so long as any Initial Term or Renewal
Term remains in effect.
4.2 At the conclusion of the Initial Term, provided that Licensee is not
then in default under this Agreement beyond applicable grace or cure periods
expressly provided by this Agreement, and subject to Section 4.3 below, the Term
shall automatically be extended (without the necessity of any notice of election
to cause such extension) for a Renewal Term of five (5) years, commencing on the
expiration of the Initial Term, upon the same terms and conditions as set forth
herein, except that the License Fee shall be adjusted as set forth in Section
5.2 below. Notwithstanding the foregoing, Licensee may, at its option, elect to
terminate this Agreement as of the scheduled expiration date of the Initial Term
by giving notice (the "Non-Renewal Notice") to Licensor of such election not
less than one hundred twenty (120) days prior to the expiration of the Initial
Term. If Licensee delivers the Non-Renewal Notice to Licensor at least one
hundred twenty (120) days prior to such expiration, this Agreement shall
automatically terminate as of the scheduled expiration date of the Initial Term.
4.3 Notwithstanding anything herein to the contrary, Licensee may at its
option continue to provide Services to one or more Building Tenants after the
expiration or earlier termination of this Agreement for so long as Licensee's
Subscription Agreement(s) with such Tenant or Tenants remain(s) in effect,
without extension, renewal, or amendment up to a period of either (a) two (2)
years after such expiration or termination if this Agreement is not renewed
beyond the Initial Term, or (b) one (1) year after such expiration or
termination if this Agreement is renewed for the Renewal Term (hereinafter
referred to as the "Subscription Fulfillment Period"), subject to all of the
terms and conditions set forth herein, including Licensee's payment of the
License Fee; provided that, upon Licensor's request, Licensee will give all
Tenant subscribers to Licensee's Services notice of their entitlement to elect
to continue receiving Services during the Subscription Fulfillment Period or to
terminate their subscriptions without termination liability at any time
thereafter, which Licensee shall permit notwithstanding
17
anything to the contrary contained in Licensee's applicable subscription
agreement or tariff; and provided, further, that the Exclusive portions of this
Agreement shall be Non-Exclusive during the Subscription Fulfillment Period and
any holdover period thereafter.
5. LICENSE FEE.
5.1 In consideration of the granting to Licensee of its rights under this
Agreement, Licensee shall pay a license fee with respect to each Building in the
amount of six percent (6%) of Gross Sales for such Building for each calendar
quarter during the Term (the "License Fee").
5.2 Within sixty (60) days after the end of each calendar quarter during
the Term of this Agreement, Licensee shall pay to Licensor the License Fee for
the immediately preceding quarter. Within sixty (60) days after the expiration
or earlier termination of this Agreement, Licensee shall pay to Licensor the
License Fee for the portion of the quarter in which such expiration or
termination occurs falling prior to such expiration or termination. Within
sixty (60) days after the end of each calendar quarter during the Term, Licensee
shall submit to Licensor, with respect to each Building, an itemized, accurate
written statement, certified by a duly authorized officer of Licensee, setting
forth the full amount of Gross Sales for the subject Building during such
quarter.
5.3 The acceptance by Licensor of payments of the License Fee shall be
without prejudice, and shall in no event constitute a waiver of Licensor's right
to assert the existence of a deficiency in the payment of any such fee or to
audit Licensee's books and records relating to Gross Sales. Licensee agrees to
keep, retain and preserve at its address for notice hereunder for at least
thirty-six (36) months after the expiration of each calendar year during the
Term of this Agreement, complete and accurate books and records in accordance
with generally acceptable accounting principles to determine or verify Gross
Sales for each Building. Licensor may, from time to time during the Term of
this Agreement, make an audit of the books and records of Licensee pertaining to
the Gross Sales applicable to any or all Buildings. If any such audit shows a
deficiency in the amount of Gross Sales reported by Licensee that is more than
three percent (3%) of the amount of Gross Sales reported by Licensee for the
period of the audit, and as a result thereof, any License Fee is due and owing,
then (in addition to payment of any delinquent License Fee) Licensee shall pay
to Licensor, within thirty (30) days after written demand from Licensor, the
actual, reasonable costs and expenses of such audit up to an amount equal to
such License Fee deficiency. Except as aforesaid, any audit shall be conducted
solely at Licensor's cost and expense.
5.4 Notwithstanding the provisions of this Section 5 to the contrary, the
License Fees paid by Licensee to Licensor shall be in addition to, and not in
lieu of, the stock warrants issued to Licensor in accordance with the Warrant
Agreement.
18
6. CONSTRUCTION AND INSTALLATION.
6.1 Prior to commencing any construction, installation or material
modification of Equipment and related improvements within a Building
(collectively, "Work"), Licensee shall submit detailed specifications, plans and
drawings related to such Work to Licensor, for Licensor's information and
approval. Licensor shall respond to such request for approval within fifteen
(15) days after Licensor's receipt thereof, and Licensor shall not unreasonably
withhold, condition, or delay any such requested approval, except that, with
respect to Work on or affecting roof-top space, Licensor may withhold,
condition, or delay its approval in its sole discretion. Subject to Section 3.1
of this Agreement, Licensee shall have reasonable access to such Building(s) at
such times and on such terms as Licensor may reasonably declare to conduct such
Work. Licensor shall be entitled to make and retain copies of all such
specifications, plans, and drawings submitted to Licensor. Notwithstanding the
foregoing, Licensee shall be entitled to conduct routine maintenance and minor
reconstruction or alteration of the Equipment and Licensed Areas (collectively,
"Minor Work") without the prior approval of Licensor and without being obligated
to prepare specifications, plans or drawings therefor, provided that (i) the
total cost of any such Minor Work to be performed with respect to any one
logically whole project does not exceed Fifteen Thousand Dollars ($15,000), (ii)
Licensee's Equipment after any such Minor Work is substantially equivalent in
size, function and operation to Licensee's Equipment existing prior to such
Minor Work, and (iii) any work that affects the Building's aesthetic appearance,
structural integrity or mechanical, plumbing, electrical, heating, ventilation,
air conditioning, life safety or other Building systems is, by definition, not
"Minor Work". Licensee shall, at the time of installation, clearly identify all
Licensee's Equipment as Licensee's property, with labels conspicuously
identifying the Licensee's Equipment as property of Licensee.
6.2 All Work shall be (a) performed by Licensee (or a contractor approved
by Licensor in writing) in accordance with Licensor's Rules and Regulations
applicable to the Buildings, (b) performed in a xxxxxxx-like manner, lien-free
and in accordance with all applicable laws and regulations, (c) without
affecting or implicating the Building's asbestos procedures,to the extent such
procedures and the location of asbestos containing materials have been disclosed
in writing to Licensee, and (d) performed in a safe manner consistent with sound
construction standards and practices. No Work shall commence before delivery to
Licensor of a certificate of insurance with respect to Licensee or the
applicable contractor evidencing current insurance coverage in accordance with
the requirements set forth in Section 12 of this Agreement. All construction
and installation of the Licensee's Equipment shall be at Licensee's sole cost
and expense. In addition, upon the request of Licensor, Licensee shall provide
such parties with copies of any required governmental and quasi-governmental
permits, licenses, approvals and authorizations related to such Work and update
such permits as required upon any expiration thereof.
19
7. UTILITIES.
7.1 Licensor shall make available to Licensee reasonable access to
existing electrical power facilities in the Buildings to permit Licensee to
provide electrical current connections necessary for Licensee's provision of
Services to Tenants in the Buildings. The consumption of electricity in the
Building by Licensee will be separately and independently measured, if necessary
by one or more separate sub-meter(s) to be installed and maintained by Licensee
at Licensee's sole expense, using only contractors approved by Licensor in
writing in advance. Such sub-meter(s) shall be of a type (model) and quantity
and in one or more location(s) specified by Licensor. Licensee shall pay such
separately metered utility charges to Licensor at Licensor's actual cost, or
Licensor's average or pro-rata cost if actual cost is not easily determinable,
for such utility consumption at the Building, as charged by the applicable
utility service provider for the subject utility billing period.
7.2 Except as specifically provided in this Section 7, Licensor shall have
no obligation to provide any utilities or services to or for Licensee, the
Licensed Areas, or the Equipment. For any additional services or utilities
Licensee may require for performance and delivery of the Services in the
Building(s), including (without limitation) heating, air conditioning, humidity
control, ventilation, gas, water, fire sprinklers, alarm and security services,
pest and rodent control, cleaning and trash removal, Licensee shall install any
required equipment in the Licensed Areas and shall (a) if feasible, obtain such
utilities and services directly from and pay for the same directly to, the
applicable utility company, municipality, or service provider, and (b) obtain
such other services from such contractors as Licensor uses generally at the
Building, or such other contractors as Licensor shall approve in writing in
advance, and in accordance with Licensor's Rules and Regulations applicable to
the Building, and shall pay for the services provided by such contractors
directly to such contractors.
7.3 Licensor shall not be liable or responsible to Licensee for any loss,
damage or expense which Licensee may sustain or incur as a result of any
failure, fluctuation, outage, or interruption of electrical power or if the
quantity, character, or supply of electrical energy is changed or is no longer
available or fails at any time to be suitable for Licensee's requirements.
8. LICENSEE'S COVENANTS.
With respect to each Building, Licensee hereby covenants and agrees as follows:
(a) From and after Licensee's installation of a Server within a Building,
at Licensor's sole election, Licensee shall provide, throughout the Term of this
Agreement, telephone and Internet connections to Licensor's management office
within such Building at no charge to Licensor for such access and connection;
provided, however, that Licensor shall be responsible for the payment of any
taxes, tariffs, user fees, or other
20
charges hereafter charged by any governmental entity or utility provider on
account of such access, use or connection. Subject to the foregoing, such
Services shall be provided to Licensor subject to and in accordance with the
terms, conditions, and limitations of Licensee's standard form of Subscription
Agreement. Notwithstanding the foregoing, Licensor shall have no obligation to
accept or receive such services from Licensee.
(b) Licensee shall respond to any problems, complaints, or difficulties
asserted by any Tenant with respect to any of the Services provided to such
Tenant as follows:
(i) within one (1) hour if in response to a major problem, complaint
or difficulty, where "major" problems, complaints, and
difficulties include, for example, problems that cause any
complete or material outage or failure of a Service provided to a
Tenant;
(ii) within three (3) hours if in response to a minor problem,
complaint or difficulty, where "minor" problems, complaints, and
difficulties include, for example, problems that limit the
availability or functionality of a Service provided to a Tenant
in any non-material way; and
(iii) within forty-eight (48) hours if in response to a purchase
order signed by such Tenant for any "moves, adds or changes" (as
such terms are customarily used in the communications industry).
(c) Licensee shall install and keep the Licensee's Equipment in good order,
repair and condition in accordance with maintenance standards promulgated by the
manufacturer of the Equipment, if any, and shall promptly and adequately repair
all damage to the Building or any property of any occupant or Licensor caused by
Licensee, ordinary wear and tear excepted;
(d) Licensee shall maintain compliance with the North American Numbering
Plan (NANP) in connection with Licensee's provision of Services to Tenants;
(e) Licensee, at its sole expense, shall comply with all Laws applicable to
the Services or the Licensee's Equipment and the installation thereof(including,
without limitation, all Laws pertaining to Licensee's installation, maintenance
operation, modification, replacement, removal or use of Licensee's Equipment and
Licensee's use, repair or alteration of the Licensed Areas) and shall obtain and
maintain all necessary and required permits, licenses, and authorizations
relating thereto. For purposes hereof, the term "Laws" shall mean all federal,
state, county, regional, municipal, utility commission, and other governmental
laws, ordinances, orders, rules, and regulations, now or hereafter in effect.
Licensor makes no representation that Licensee's contemplated use of Licensee's
Equipment, Approved Existing Wiring, the Licensed Areas or any other portion of
the Building will comply with applicable zoning or other Laws, or with any
private or public
21
easements, covenants, conditions, restrictions, encumbrances or other matters of
record or not of record (and this Agreement is hereby made expressly subject
thereto, and Licensee's violation of any of the same shall be a breach of this
section 8(e). Licensee shall be solely responsible for obtaining, at Licensee's
sole cost and expense, any necessary zoning or other governmental or private
approvals, variances, special use permits or otherwise satisfying any such
requirements (provided that in doing so Licensee shall not adversely affect
Licensor or impair in any way Licensor's current and permitted use of the
Building), and Licensor shall cooperate with Licensee in connection therewith at
no cost to Licensor; provided, however, that Licensor makes no representation
whatsoever that any of the foregoing items may be obtained, and any delays in
Licensee's obtaining the same shall not delay the Commencement Date or
Licensee's obligations under this Agreement. If, after commercially reasonable
efforts, Licensee is unable to obtain any permit required for the operation of
Licensee's business in any Building, or any applicable Laws or any of the other
matters described above in this section 8(e) preclude or substantially impair
such operations, then Licensee shall have the right to terminate this Agreement
with respect to the affected Building upon thirty (30) days' advance notice to
Licensor. If any physical operations of Licensee are atypical of comparable
communications companies, and such atypical operations have the effect of
imposing any requirement on Licensor to comply or cause any portion of any
Building or Real Property to comply with any Laws, Licensee shall be responsible
for and shall pay to Licensor upon demand all costs of such compliance (herein
"Compliance Costs") reasonably incurred by Licensor. Licensor shall give
Licensee written notice of Licensor's estimate of the amount of such Compliance
Costs. Licensor shall provide such notice prior to incurring such costs and
shall state in the notice the anticipated commencement date of the compliance
work, provided it is reasonably possible to compile such estimate and give such
notice to Licensee in advance without substantial risk to Licensor of being
cited or penalized for noncompliance with the applicable Laws. Licensor will use
reasonable care in preparing the estimate, but it shall be a good faith estimate
only and will not limit Licensee's obligation to pay for the actual Compliance
Costs reasonably incurred.
(f) Licensee shall not disrupt, adversely affect or interfere with any
Tenant's use and enjoyment of its leased premises or of the common areas of the
Building or Property.
(g) Licensee shall not use or permit to be used any part of any Building
for any dangerous, noxious, or offensive trade or business or for the
generation, treatment, storage, or disposal of Hazardous Materials or release
any of the foregoing in any Building;
(h) Licensee shall provide in each Subscription Agreement that (i) the
Licensor is not a service provider under such agreement, is not related to
Licensee in any way, shall be an intended third party beneficiary under the
agreement, and shall have no responsibility or liability to the Tenant with
respect to the provision, maintenance, failure, or quality of any Service
received by such Tenant from Licensee pursuant to such Subscription Agreement;
(ii) any cessation or interruption of the Services shall not
22
constitute a default or constructive eviction by Licensor under the leases
between the Tenant and Licensor; (iii) Tenant shall hold Licensor harmless from
any claims the Tenant may have against Licensee pursuant to such Subscription
Agreement; and (iv) the Tenant shall be entitled to number portability such that
Licensee will release to the Tenant its telephone number(s) assigned by Licensee
after the expiration or termination of such agreement, without any warranty or
representation of any kind, including, without limitation, that Tenant shall
have the right or ability to use such number(s) or that such number(s) will be
active or useful for Tenant's intended purpose; and shall cooperate reasonably
at no cost to Licensee in the Tenant's efforts to transfer successfully the
telephone numbers;
(i) Upon written request given to Licensee not more frequently than once
per calendar quarter, Licensee shall deliver to Licensor a list of all Tenants
receiving Services from Licensee and the duration of the applicable Subscription
Agreements, which information shall be subject to the confidentiality covenants
and requirements of Section 19 below;
(j) Licensee shall install a 24-hour "critical eye" system connected to
Licensee's Server in the Building that automatically detects any deviation from
the standard operation thereof and notifies a network operations center of such
deviation;
(k) Licensee shall use commercially reasonable efforts to install a
redundant or diverse system to provide a minimum level of Services to Tenants in
the event Licensee's primary system fails;
(l) Licensee shall install in the Building(s) only "Year 2000 compliant"
Servers and other Licensee's Equipment that may contain microprocessors or any
other date-sensitive logic, which shall mean, for purposes of this Agreement,
that the hardware, software, or system forming any part of such Licensee's
Equipment shall receive, process, and produce date-related data without error
resulting from any data or input containing dates before, on, or after January
1, 2000; and
(m) Licensee shall provide to Licensor and all Tenants receiving Services
from Licensee reasonable cooperation in the course of transition from Licensee
to another Services provider upon the expiration or termination of this
Agreement or the applicable Subscription Agreement or Subscription Fulfillment
Period, including participation in a reasonable cutover procedure designed to
maintain continuous service to such Tenants.
9. CASUALTY DAMAGE; EMINENT DOMAIN.
If any Building or Licensee's Equipment should become unsuitable for use by
Licensee at any time during the Term of this Agreement due to fire or other
casualty, or a taking by eminent domain, Licensor shall not be required to
restore such Building or Licensee's Equipment so as to permit resumption of
operation by Licensee. In the event
23
of any such unsuitability, this Agreement may be terminated by either party by
giving written notice to the other party within ten (10) days following such
casualty event or taking and not less than thirty (30) days prior to the
termination date specified in such notice. Notwithstanding the foregoing, if
Licensor elects to restore the Building after any such fire or other casualty,
or a taking by eminent domain, then Licensor shall not be entitled to terminate
this Agreement as aforesaid (or, if terminated, Licensee shall have the right to
reinstate this Agreement for the balance of the existing Term), and Licensor, at
Licensor's election, may require Licensee to restore Licensee's Equipment and
resume operations in the Building, in which event Licensor and Licensee shall be
bound by all of the terms and conditions of this Agreement; provided, however,
that if any such casualty or condemnation occurs during the last two (2) years
of the Term, then either party may terminate this Agreement by giving notice to
the other party prior to the date that is ten (10) days after the date on which
Landlord gives Tenant notice of Landlord's intention to restore the Building and
not less than thirty (30) days prior to the termination date specified in such
notice, without regard to such other party's election to restore the Building or
Licensee's Equipment; provided, however that if such casualty or condemnation
occurs during the last two (2) years of the Initial Term, Licensor shall not
have the right to terminate this Agreement if Licensee has not exercised its
right to terminate this Agreement upon the expiration of the Initial Term in
accordance with Section 4.2 hereof. License Fees shall xxxxx for so long as
Licensee has ceased all operations providing Services to Tenants as a result of
any such casualty event or taking. Notwithstanding anything herein to the
contrary, no termination of this Agreement under this Section 9 or for any other
reason shall cause a termination of any other license agreement between Licensor
and Licensee.
10. RISK OF LOSS; REMOVAL OF EQUIPMENT; NO SUITABILITY WARRANTIES.
10.1 The presence of the Equipment and any other personal property of
Licensee within any Licensed Areas, Cable Pathway or other portion of a Building
shall be at the sole risk of Licensee, and Licensor and its members, partners,
officers, directors, employees, and affiliates shall not be liable for damage
thereto or theft, misappropriation or loss thereof, except to the extent caused
by the gross negligence or willful misconduct of Licensor or its affiliates, or
their agents or employees. Within ninety (90) days after the expiration or
earlier termination of this Agreement and any subsequent Subscription
Fulfillment Period, Licensee shall, unless otherwise agreed by Licensor and
Licensee, remove all of Licensee's Equipment from the Building at Licensee's
sole cost and expense. Licensee shall repair any damage caused by
installation and such removal of Licensee's Equipment, ordinary wear and tear
excepted. Any such Licensee's Equipment not so removed within ninety (90) days
after the expiration or earlier termination of this Agreement and any subsequent
Subscription Fulfillment Period may, at Licensor's option and upon written
notice to Licensee, (i) be removed and disposed of by Licensor within ninety
(90) days thereafter, at Licensee's reasonable cost and expense, or (ii) be
deemed the property of Licensor, at no further cost, expense or liability to
Licensee.
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10.2 Licensor makes no warranty or representation that any Building is
suitable for the use contemplated by this Agreement, it being assumed that
Licensee has satisfied or will satisfy itself as to the suitability of such
space. Prior to executing this Agreement, Licensee has inspected the
Building(s) and accept the same "as is," and Licensee hereby agrees that
Licensor is under no obligation to perform any work or provide any materials to
prepare the Building(s) for Licensee, except as provided in this Agreement.
11. MARKETING INFORMATION.
11.1 Licensor acknowledges that Licensee intends to market the Services to
the Tenants of each Building and to emphasize to such Tenants the enhanced
capabilities and benefits associated with obtaining Services from Licensee as
the on-site provider thereof. Therefore, subject to the good faith requirements
of Licensor, Tenants or prospective Tenants, with respect to confidentiality,
Licensor shall notify Licensee, as promptly as reasonably practicable, of the
reasonably anticipated entry of a prospective Tenant in such Building and such
Xxxxxx's intended location therein. Licensor does not guarantee the provision
of such information in all instances but does recognize that receipt of
information regarding new Tenants as early as reasonably practicable in the
leasing cycle is important to Licensee's success.
11.2 Licensor acknowledges that Licensee intends to contact Tenants and
prospective Tenants and to market its Services as an amenity and benefit
available within each Building. In connection therewith, Licensor agrees that,
subject to Licensor's Rules and Regulations applicable to the Buildings, (a)
Licensee may leave for Tenants' review in the marketing or leasing office for
each Building marketing and information materials concerning Licensee and the
Services available from Licensee that have been approved by Licensor in writing
in advance ("Marketing Materials"), (b) Licensor shall use reasonable efforts to
advise existing, new and prospective Tenants of the availability of Licensee's
Services, and (c) Licensee shall be entitled to sponsor and host at least one
(1) promotional event per calendar year during the Term of this Agreement in the
lobby or other suitable area of the Building, at which event Licensee may
display and distribute Marketing Materials and provide refreshments or other
forms of entertainment (subject to the Building owner's prior written approval)
to Tenants.
11.3 Licensee and Licensor shall conduct at least one (1) meeting per
calendar year with Licensor's marketing or leasing agents to discuss the status
of, and strategy for, marketing the Services to Tenants and potential Tenants
within the Buildings. Licensee shall schedule and coordinate such meetings with
Licensor for mutually acceptable times and locations. Licensor will cooperate
with Licensee in the scheduling and attendance of said meetings.
25
12. INSURANCE; INDEMNITY.
12.1 Licensee shall defend, indemnify, and save Licensor, its affiliates,
trustees, beneficiaries, general and limited partners, and members, and the
officers, directors, and employees thereof (collectively with Licensor, the
"Indemnified Parties") harmless from and against any and all (a) liens, claims,
liabilities, damages, losses, costs, and expenses, including reasonable expert's
and attorney's fees, arising from or by reason of the installation, placement,
maintenance, repair, operation, use, and/or removal of Licensee's Equipment in,
on, or from the Real Property (physical damage to the Real Property resulting
from ordinary wear and tear excepted), (b) breaches or defaults by Licensee in
the performance of any covenant or agreement on the part of Licensee to be
performed pursuant to the terms of this Agreement, (c) acts of Licensee, its
agents, contractors, or employees in or about each Building, (d) all damages,
losses, judgments, settlements, costs, and expenses, including reasonable
expert's and attorney's fees, arising out of any claims by and against any
person related to Line Problems, provided such Line Problems are not related to
Risers that Licensee is obligated to use pursuant to Section 3.2 of this
Agreement, and (e) Licensee's provision or alleged failure to provide Services
to any Tenant. Notwithstanding the foregoing, Licensee shall not have any
obligation under this Section 12.1 respecting any liens, claims, liabilities,
damages, losses, costs and, expenses to the extent caused by or attributable to
the negligence or willful misconduct of Licensor or its agents, employees or
contractors (other than Licensee).
12.2 Licensee shall, at Licensee's expense, maintain during the term of
this Agreement (and, if Licensee shall occupy or conduct activities in or about
any portion of the Building prior to or after the Term hereof, then also during
such pre-Term or post-Term period): (a) commercial general liability insurance
including contractual liability coverage, with a minimum coverage of One Million
Dollars ($1,000,000) per occurrence/Two Million Dollars ($2,000,000) general
aggregate per location, plus a Five Million Dollars ($5,000,000) umbrella per
location, for injuries to, or illness or death of, persons and damage to
property occurring in or about the License Areas or otherwise resulting from
Licensee's operations in the Building, (b) property insurance protecting
Licensee against loss or damage by fire and such other risks as are insurable
under then-available standard forms of "special coverage" insurance policies
(excluding earthquake and flood but including water damage), covering Licensee's
Equipment and any other Licensee property in or about the Licensed Areas or the
Real Property and also covering any fixtures that may belong to Licensee and any
improvements or alterations, for the full replacement value thereof without
deduction for depreciation; and (c) workers' compensation insurance in statutory
limits. All such policies shall provide coverage on an "occurrence" rather than
a "claims made" basis. The above-described liability policies shall protect
Licensee, as named insured, and Licensor and all the Indemnified Parties and any
other parties designated by Licensor, as additional insureds; shall insure
Licensor's and such other parties' contingent liability with regard to acts or
omissions of Licensee; shall specifically include blanket contractual liability
coverage (provided, however, that such contractual liability coverage shall not
limit or be deemed to satisfy Licensee's indemnity obligations under this
Agreement); and shall be primary to, and not contributing with, any liability
26
policies carried by such additional insureds. Nothing in this Section 12 shall
be construed as creating or implying the existence of (i) any ownership by
Licensee of any fixtures, additions, alterations, or improvements in or to any
portion of the Building or (ii) any right on Licensee's part to make any
addition, alteration, or improvement in or to any portion of the Building.
12.3 Each insurance policy required pursuant to this Section 12 shall be
issued by an insurance company licensed to do business in the state in which the
Building is located and with a general policyholders' rating of "A" or better
and a financial size ranking of "Class VIII" or higher in the most recent
edition of Best's Insurance Guide, or any equivalent rating service if Best's
Insurance Guide is discontinued or revised. Such insurance may be carried under
a policy or policies covering other liabilities and locations of Licensee;
provided, however, that the insurance coverage and the amounts available to the
location of the Real Property shall not ever be less than the amounts specified
in Section 12.2. From time to time, Licensee shall furnish Licensor such
evidence as Licensor may require to indicate that the foregoing insurance is in
full force and effect and the premiums have been paid. Each such insurance
policy or a certificate thereof shall be delivered to Licensor by Licensee on or
before the effective date of such policy and thereafter Licensee shall deliver
to Licensor renewal policies or certificates at least thirty (30) days prior to
the expiration dates of expiring policies. If Licensee fails to procure such
insurance or to deliver such policies or certificates, Licensor may, at its
option, procure the same for Licensee's account, and the cost thereof shall be
paid to Licensor by Licensee upon demand.
12.4 By executing this Agreement, each party hereto hereby releases the
other party and, in the case of Licensee as the releasing party, the other
Indemnified Parties identified in Section 12.1 above, and the respective
partners, shareholders, agents, employees, officers, directors and authorized
representatives of such released party, from any claims such releasing party may
have for damage to the Building, the Licensed Areas or any of such releasing
party's fixtures, personal property, improvements, and alterations in or about
the Licensed Areas, the Building, or the Real Property, or for loss of revenue
due to business interruption that is caused by or results from risks insured
against under any property and business interruption insurance policies actually
carried by such releasing party or deemed to be carried by such releasing party;
provided, however, that such waiver shall be limited to the extent of the net
insurance proceeds payable by the relevant insurance company with respect to
such loss or damage, plus the amount of any deductible or self-insured retention
thereunder. For purposes of this Section 12.4, Licensee shall be deemed to be
carrying any of the insurance policies required pursuant to this Section 12 but
not actually carried by Licensee, and Licensor shall be deemed to carry a
standard special coverage property and business interruption policy with respect
to the Real Property and Licensor's business operations therein. Each party
hereto shall cause each such property insurance policy and business interruption
insurance policy obtained by it to provide that the insurance company waives all
rights of recovery by way of subrogation against the other respective party and
the other aforesaid released parties in connection with any matter covered by
such policy. Each such party shall indemnify the other party from and against
27
any loss or expense, including reasonable attorneys' fees, resulting from the
failure to obtain the waiver required under this Section 12.4. The provisions
of this Section 12.4 are paramount and shall control any conflict with any other
provisions of this Agreement.
13. LIENS.
Licensee shall not permit the creation of any security interest in or other
encumbrance upon any Building or any other property of Licensor, or the
attachment or encumbrance of any mechanic's, materialman's or other lien against
any Building or any other property of Licensor, as a result of any Work or
provision of Services by or on behalf of Licensee. Licensee shall indemnify and
hold Licensor and its Affiliates harmless from and against any such liens,
including reasonable attorneys' fees and costs. Any such lien shall be removed
or bonded over by Licensee within thirty (30) days after Licensee's receipt of
notice of attachment thereof, unless otherwise agreed to by Licensor. If any
such lien is not removed or bonded over by Licensee within such period, Licensor
may take such reasonable and necessary action to remove the same, and the
reasonable cost thereof, including reasonable attorneys' fees and expenses
actually incurred, shall be immediately due and payable from Licensee to
Licensor.
14. EVENTS OF DEFAULT.
The occurrence of any one or more of the following shall constitute an
"Event of Default" under this Agreement:
(a) The breach by either party of any material provision of this Agreement,
and failure to cure such breach within thirty (30) days after receipt of written
notice thereof from the non-breaching party, provided that for any breach that
is curable but cannot reasonably be cured within such thirty (30) day period, in
which case the breaching party must begin to cure such Event of Default within
such thirty (30) day period and diligently pursue such cure until completion;
(b) Licensee commences a voluntary proceeding under the Federal Bankruptcy
Code, or any action or petition is otherwise brought by Licensee seeking similar
relief or alleging that it is insolvent or unable to pay its debts as they
mature; or any action is brought against Licensee seeking its dissolution or
liquidation of any substantial portion of its assets, or seeking the appointment
of a trustee, interim trustee, receiver, or other custodian for any substantial
portion of its property, and any such action is consented to or acquiesced in by
Licensee or is not dismissed within three (3) months after the date upon which
it is instituted.
(c) Licensee's failure to pay any portion of the License Fee or other
charges payable to Licensor on or before the date on which the same becomes due
and payable, if such failure continues for ten (10) days after notice thereof
from Licensor. Licensee shall
28
also pay to Licensor a late charge equal to one and one-half percent (1.5%) per
month on all amounts not timely paid until they are paid in full; provided,
however, that such charge shall not apply to any amounts paid as a result of any
audit by Licensor of Gross Sales as provided in Section 5.4.
15. REMEDIES.
15.1 Upon the occurrence of an Event of Default by Licensee, Licensor shall
be entitled to terminate this Agreement upon fifteen (15) days' notice to
Licensee, in addition to the exercise of any other rights or remedies available
to Licensor at law or in equity.
15.2 Upon the occurrence of an Event of Default by Licensor, Licensee shall
have, in addition to any rights or remedies expressly provided herein, the right
to (i) seek equitable relief (exclusive of self-help remedies) in accordance
with applicable law, (ii) sue for actual damages (but not incidental or
consequential damages or lost profits) or (iii) terminate this Agreement upon
fifteen (15) days' written notice to Licensor, and thereafter to remove the
Licensee's Equipment in accordance with Section
16. ASSIGNMENT; SUBORDINATION.
16.1 Except as expressly permitted under Section 16.2 below, Licensee may
not, by operation of Law or otherwise, transfer, assign, sublicense or encumber
all or any portion of its rights and obligations under this Agreement to another
person or entity (collectively, an "assignment") without the prior written
approval of Licensor, which approval shall not be unreasonably withheld,
conditioned or delayed. Any attempted assignment, sublicense or transfer
without consent as required above (except as permitted in Section 16.2) shall be
void and shall be deemed an Event of Default by Licensee. If Licensor
reasonably disapproves any such assignment, Licensee shall have the right and
option, exercisable by written notice within ninety (90) days after Licensee's
receipt of such disapproval notice, to terminate this Agreement and remove the
Licensee Equipment in accordance with Section 10.1 hereof.
16.2 Notwithstanding the foregoing, however, Licensee may assign this
Agreement, or its rights hereunder, to (a) any corporation, company or other
entity controlling, controlled by, or under common control with Licensee, (b)
any partnership in which Licensee has a controlling interest, or (c) any person
or entity which has purchased the assets of Licensee or into which or with which
Licensee has merged or consolidated, provided that Licensor receives prior
written notice of such assignment. For the purposes hereof, control shall mean
the direct or indirect ownership of more than fifty percent (50%) of the voting
rights of, and beneficial interest in, the entity in question.
16.3 In the case of any assignment approved under Section 16.1 or permitted
under Section 16.2, the assignee shall be deemed to have assumed, without
releasing
29
Licensee, all obligations under this Agreement. Notwithstanding the foregoing,
if Licensee's assignee (or a guarantor thereof) has an audited tangible net
worth equal to or greater than Twenty-Five Million Dollars ($25,000,000) (the
"Minimum Net Worth"), Licensee shall be released from any further liability
-----------------
under this Agreement from and after the effective date of such assignment. If
such assignee does not have the Minimum Net Worth as of the effective date of
such assignment, but such assignee attains the Minimum Net Worth thereafter,
Licensee shall be released from any further liability hereunder from and after
such subsequent date. As used herein, "tangible net worth" of an entity as of
any given time shall be equal to the shareholders' equity of such entity (if a
corporation) or the partners' or members' equity (if a partnership or limited
liability company), less the value as listed on the audited annual report or
audited financial statement of such entity of all items recognized as intangible
assets under generally accepted accounting principles.
16.4 This Agreement and any renewal hereof shall be subordinate to any
mortgage or similar security instrument now or hereafter affecting the Building,
provided that the owner and holder of such mortgage or similar security
instrument enters into an agreement in the customary form of such owner or
holder providing that, so long as no Event of Default exists, Licensee's rights
under this Agreement respecting such Building shall not be affected by any
foreclosure of, or enforcement proceedings under, such mortgage or security
instrument.
17. NOTICES.
Every notice required or permitted hereunder shall be in writing and shall
be deemed to have been duly given when delivered by hand, mailed by certified or
registered mail, return receipt requested, or sent by recognized overnight or
same-day delivery service, to the party's address set forth below. Notices
shall be deemed given upon receipt or refusal of receipt. Either party may
change its address for the purpose of notice hereunder by providing to the other
party notice of such change of address. In addition to the foregoing, Licensor
may contact Licensee at the following telephone number twenty-four (24) hours
per day, seven (7) days a week respecting emergencies relating to the
performance of Services hereunder (which number Licensee may change from time to
time by giving notice to Licensor as provided above): (000) 000-0000.
If to Licensor:
Attention:
Fax No.:
30
If to Licensee:
Cypress Communications, Inc.
Fifteen Piedmont Center, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Xx.
Fax No.: (000) 000-0000
18. RULES AND REGULATIONS.
Licensee shall comply with all Rules and Regulations promulgated by
Licensor with respect to any Building; provided, however, that with respect to
any conflict between such Rules and Regulations and the terms of this Agreement,
this Agreement shall control.
19. CONFIDENTIALITY.
The terms and conditions of this Agreement constitute confidential
information of Licensor and Licensee. All non-public information provided by
either party to the other relating to its customers, tenants, business
strategies, marketing plans, technology, finances, and personnel shall also
constitute confidential information if it is clearly identified as such at the
time of disclosure by prominent marking with "Confidential," "Proprietary," or
other similar notices, when disclosed in written or other tangible form, or by
oral notice of confidential status at the time of disclosure, followed by
written notice within fifteen (15) days after disclosure identifying the
information (in a non-confidential fashion), when disclosed orally. Except as
may be required to be disclosed by Law or court order, and subject to the
exclusions set forth below, all confidential information received under this
Agreement shall be maintained in confidence by the recipient for a period of
five (5) years after receipt thereof, through the exercise of the same level of
care the recipient uses with respect to its own confidential information of
similar sensitivity (but in no event less than a reasonable degree of care) to
avoid any unauthorized disclosure to, or access by, any third party other than
the accountants, attorneys, employees, agents, and representatives of the
recipient and its affiliates who have a need to know the information for
purposes of this Agreement and who have obligations of confidentiality with
respect to the confidential information received hereunder commensurate with the
obligations set forth in this Section 19. Notwithstanding the foregoing,
Licensor and Licensee may disclose the existence and general nature of the
relationship between the parties to this Agreement and either party may use any
or all of the provisions of this Agreement in any other license agreement that
either of them might enter into with third parties, so long as specific
references to any Building, Licensor, or Licensee is not made in such other
agreement. The obligations of the parties under this Section 19, to the extent
they then exist, shall survive termination or expiration of this Agreement for a
period of two (2) years.
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20. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
internal laws of the state in which the Building that is the subject of any
dispute or question of law is located.
21. HAZARDOUS MATERIALS.
21.1 Licensor shall promptly notify Licensee in writing of the presence and
precise location of any Hazardous Materials (including asbestos) within the
Building. If Licensee encounters any materials that Licensee determines to be
Hazardous Materials, Licensee shall promptly notify Licensor of such event, and
Licensee shall not proceed with any Work in the area containing such materials
without prior written authorization from Licensor with respect to such Work.
Licensee shall handle any such materials in accordance with applicable
environmental and safety laws. Notwithstanding the foregoing, if any Hazardous
Materials, including asbestos, are found in the Buildings, and provided such
Hazardous Materials have not been brought in the Buildings by or through
Licensee, its agents, employees, or contractors, Licensee shall not be required
by this Agreement to remove, xxxxx, or remediate the Hazardous Materials, but
Licensor shall be solely responsible for any such removal, abatement, and
remediation of the same it chooses to undertake, including any environmental
assessments and any clean-up of the Buildings or Licensee's Equipment located
therein which may be contaminated, and Licensee shall not be responsible for any
of the costs or expenses associated therewith.
21.2 Licensee will not store, use, generate, release, or dispose of any
Hazardous Materials in, on, or about any Building nor will Licensee cause or
permit its agents, employees, or contractors to do so. No semiconductors or
other electronic equipment containing Hazardous Materials will either be used or
stored by Licensee in or around any Building and no such materials will be used
in any of the Equipment installed by Licensee in any Building, except as
expressly permitted under environmental laws, regulations and guidelines
governing same. Notwithstanding the forgoing, Licensee may use batteries, which
may contain environmentally sensitive materials, as a back-up power supply for
certain items of its Equipment. Such batteries will be installed, maintained,
and removed by Licensee in accordance with all applicable Laws and Section 6
above, and will be the sole responsibility of Licensee. If Licensee breaches
this Section 21.2, or if Licensee, its agents, employees, or contractors
introduce any materials to any Premises or Building which result in the
contamination of such Premises or Building, and such materials aredeemed, as a
matter of law, to be Hazardous Materials at the time of installation or
introduction thereof, then Licensee shall indemnify, defend and hold Licensor
and Licensor's Affiliates harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including reasonable expert's
and attorneys' fees actually incurred) which arise as a result thereof.
Notwithstanding anything herein
32
to the contrary, however, Licensee shall not have any responsibility for
managing, monitoring or abating, nor be the owner of, nor have any liability
for, any Hazardous Materials that Licensee, its agents, contractors or employees
have not brought into a Building or disturbed in such Building in contravention
of Licensee's covenants and obligations under this Section 21 and Section 6
above.
22. ENTIRE AGREEMENT; MODIFICATIONS.
This Agreement, which includes all exhibits and attachments incorporated by
reference or attachment, contains the entire agreement of the parties with
respect to its subject matter and supersedes any prior or contemporaneous
agreements or understandings with respect to such subject matter. The terms and
conditions of this Agreement may not be modified, amended, or waived, except by
an instrument in writing signed by both parties.
23. SEVERABILITY.
If any clause or provision of this Agreement is or becomes illegal, invalid
or unenforceable because of present or future laws or any rule or regulation of
any governmental body or entity, effective during the Term, the intention of the
parties hereto is that the remaining parts of this Agreement shall not be
affected thereby.
24. ACCESS BY LICENSOR.
Licensee shall not interfere with Licensor, or its employees, agents, or
representatives, in their access to any portion of the Cable Pathway and other
parts of the Building and Licensed Areas at all times to inspect the same or to
clean or make repairs, alterations, or additions thereto, and Licensee shall not
be entitled to any abatement or reduction of License Fees by reason thereof.
25. LIMITATION OF LIABILITY.
25.1 Licensee shall neither assert nor seek to enforce any claim for breach
of this Agreement, or otherwise, against any of Licensor's assets or against the
assets of Licensor's managing agent, other than the interests of such parties in
the Real Property, and the rents, issues, profits, and proceeds thereof, and
Licensee agrees to look solely to such interest for the satisfaction of any
liability of Licensor, or its managing agent under this Agreement or otherwise,
it being specifically agreed that in no event shall Licensor, its Affiliate or
managing agent (which terms shall include, without limitation, any of the
officers, trustees, directors, partners, beneficiaries, joint ventures, members,
stockholders,
33
or other principals or representatives thereof, disclosed or undisclosed) ever
be personally liable for any such liability.
25.2 Licensor shall neither assert nor seek to enforce any claim for breach
of this Agreement, or otherwise, against any of the assets of any of the
officers, trustees, directors, partners, beneficiaries, joint ventures, members,
stockholders, or other principals or representatives of Licensee, disclosed or
undisclosed, it being agreed that no such persons or entities shall ever be
personally liable for any such liability.
25.3 In no event shall either party to this Agreement, or such party's
agents or employees (or any of the officers, trustees, directors, partners,
beneficiaries, joint ventures, members, stockholders, or other principals or
representatives thereof and the like, disclosed or undisclosed) ever be liable
for indirect, special, consequential, punitive, or incidental damages of the
other party arising out of this Agreement.
26. NO IMPLIED WAIVER.
The failure of either party to insist at any time upon the strict
performance of any covenant or agreement herein or to exercise any option,
right, power or remedy contained herein shall not be construed as a waiver or a
relinquishment thereof. No provisions of this Agreement shall be waived by
Licensor or Licensee unless such waiver is in a writing signed by the party
giving such waiver. The waiver by either party of any breach of any provision
of this Agreement by the other party shall not be deemed a waiver of any
subsequent breach of the same or any other provision of this Agreement. No
payment by Licensee of a lesser amount than the monthly installment of License
Fee due hereunder shall be deemed to be other than on account of the earliest of
such fees due hereunder, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment be deemed an accord and
satisfaction, and Licensor may accept such check or payment without prejudice to
its right to recover the balance of such fees or pursue any other remedy or
herein.
27. FORCE MAJEURE.
Licensee and Licensor shall be excused for the period of any delay in
performance of any obligations hereunder by reason of the wrongful or negligent
acts or omissions of the other party, their agents, employees, or contractors,
or by reason of labor disputes, civil disturbance, war, war-like operations,
invasions, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, fires or other casualty, inclement or
adverse weather of unusual amount or duration for the subject season, or acts of
God. In order to be entitled to an excuse for any delay or failure to perform
under this Agreement pursuant to this Section 27, the party claiming such excuse
shall promptly give written notice to the other party hereto of any event or
occurrence which the notifying party asserts to be within the contemplation of
this Section 27 and
34
shall exercise all reasonable efforts to remove the cause of such delay. This
Section 27 shall not apply to the payment of the License Fee or any other monies
due hereunder. In no event will insufficient funds constitute an event of force
majeure.
28. COMMISSIONS.
Each party to this Agreement indemnifies and holds the other harmless
against any loss, claim, expense, or liability (including, without limitation,
court costs and attorneys' fees) with respect to any commissions or brokerage
fees claimed on account of the execution and/or renewal of this Agreement, or
expansion of equipment space hereunder, if applicable, due to any action of the
indemnifying party. Licensor acknowledges that Licensor is not owed any
commissions or brokerage fees from Licensee in relation to the negotiation or
execution of this Agreement.
29. MODIFICATIONS.
Any modification of this Agreement or any additional obligations assumed by
either party in connection with this Agreement shall be binding only if
evidenced in writing, signed by each party.
30. RECORDATION.
This Agreement is not in recordable form and the parties hereto shall not
record or permit the recording thereof or any memorandum thereof in the public
real estate records of the jurisdiction in which any Building is located.
31. SURVIVAL.
Without limiting any other obligations which, by their terms, may survive
the expiration or prior termination of the term of this Agreement, all
obligations on the part of either party to indemnify, defend, or hold the other
party harmless, as set forth herein (including, without limitation, Licensee's
obligations under Sections 12.1 and 21.2) shall survive the expiration or prior
termination of any such term.
32. BIND AND BENEFIT.
The terms and conditions contained herein shall inure to the benefit of and
be binding upon Licensor and Licensee and each of their respective heirs,
executors, administrators, successors, and permitted assigns.
35
33. ESTOPPEL.
Each party to this Agreement shall, upon fifteen (15) days' prior notice
from the other party issued not more than two (2) times in any period of twelve
(12) consecutive months, execute, acknowledge, and deliver to the requesting
party a statement in writing (a) certifying that this Agreement is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Agreement, as so modified, is in full
force and effect) and the date to which the License Fee and other charges are
paid, if any, and (b) acknowledging that there are not, to the certifying
party's knowledge without any obligation to investigate, any uncured defaults on
the part of the requesting party, or specifying such defaults if any are
claimed.
34. MULTIPLE-BUILDING COMPLEXES.
The sale or other conveyance, destruction or condemnation of one or more,
but not all, of the Buildings, or any other such occurrence causing the
termination of this Agreement with respect to one or more, but not all, of the
Buildings (collectively, a "Terminated Building"), shall not terminate this
Agreement with respect to any remaining Building or Buildings, and in such
event, Licensee's rights hereunder shall continue in full force and effect with
respect to such remaining Building(s); provided, however, that all site-specific
terms and conditions hereof relating to any such Terminated Building shall be
rendered void or applied to the other Building(s), as appropriate under the
circumstances. Licensor further acknowledges and agrees that if, at any time
during the term of this Agreement, Licensee's access or other rights with
respect to the Licensed Areas are terminated, or materially and permanently
impaired, or otherwise expire, due to (a) casualty or eminent domain, (b) the
sale or other conveyance of a Building, (c) requirements of law or other
authority, or (d) for any other reason, but such event does not effectively
terminate this Agreement as to all of the Buildings, Licensor shall exercise
commercially reasonable efforts to permit Licensee to relocate Licensee's
Equipment to another primary telephone switch room or other area in the
remaining Buildings that is functionally equivalent to the Licensed Area and
provides commercially viable access to the Cable Pathway and related
telecommunications facilities in the other Building(s), all in accordance with
the terms and conditions of this Agreement.
[Signatures commence on the following page.]
36
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
______ day of November, 1999.
WITNESS: LICENSOR:
------------------------ -------------------------------------
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
-------------------------------
ATTEST:
By: ________________________________
Name: ______________________________
[Signatures continue on the following page.]
37
WITNESS: LICENSEE:
CYPRESS COMMUNICATIONS, INC.
_______________________
By: ________________________________
Name: ______________________________
Title: _____________________________
Date: ______________________________
ATTEST:
By: ________________________________
Name: ______________________________
38
EXHIBIT A
---------
Land
39
EXHIBIT B
---------
Building(s)
40
EXHIBIT C
---------
BCPP Examples:
-------------
The following companies typically operate their businesses as of the date of
this Agreement in a manner such that they would be deemed BCPP's:
. ARC
. Intermedia (Shared Technologies Xxxxxxxxx)
. Nextlink One
. OnSite Access
. Urban Media
. Xxxxxxxxx.xxx
. Eureka
. Allegiance (Xxxxx.xxx)
. Site Line
. Intellispace
. RealCom component or division of MCI WorldCom
Non-BCPP Examples:
-----------------
The following companies typically operate their businesses as of the date of
this Agreement in a manner such that they would not be deemed BCPP's:
. AT&T (TCG)
. Nextlink (excluding Nextlink One)
. Level 3
. Metromedia Fiber
. MCI WorldCom (excluding the former RealCom)
. Qwest
. Winstar
. Teligent
. ART
. GST
. Hyperion
. Electric Lightwave
. Colomotion
. IXC Communications
. Verio
. Netswork
. Riser Management
. Local Bell Companies
. Providers of DSL access services
41
EXHIBIT D
---------
Equipment Room Location
42
