CO-LOCATION AND FACILITIES MANAGEMENT
SERVICES AGREEMENT
This CO-LOCATION AND FACILITIES MANAGEMENT SERVICES AGREEMENT (this
"Agreement") is made as of the 28th August, 1997 by and between EXTRANET
TELECOMMUNICATIONS, INC., (ETI) located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇.▇.▇. and STARTEC INC., (STC) located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇,
WHEREAS, ETI has entered into a lease (the "Lease") with P.A. Building
Company ("Landlord") pursuant to which Landlord has leased to ETI, and ETI has
leased from Landlord, nine thousand four hundred and fifty five (9455) square
feet of rentable area (the "Leased Premises" or the "Co-location Center")
located on the fifth (5th) floor of that certain building located at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Building"); and,
WHEREAS, ETI desires to license to STC, and STC desires to license from
ETI, the right to use and occupy approximately two-thousand one hundred and ten
(2,110) rentable square feet of area with a loss factor of twenty-six percent
(26%) for a total of one-thousand five hundred and sixty (1,560) usable square
feet of area (the "Premises"), which Premises is located within the Leased
Premises and which is more particularly described on the floor plan which is
attached to and made a part hereof as Exhibit A; and,
WHEREAS, STC desires to locate in the Premises certain computer and
telecommunications equipment and cabling (hereinafter "Equipment") for the
purpose of interconnecting with ETI's telecommunications network and or other
telecommunications networks as required; and,
WHEREAS, ETI has also agreed to provide STC with co-location and facilities
management services and the parties desire to memorialize their intent.
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and in consideration of the foregoing recitals, each of
which is incorporated in and made a part of this Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
DESCRIPTION OF SERVICES
1. PERMISSIBLE USE; CONTINGENCY:
a. ETI hereby licenses the Premises to STC, and STC hereby licenses the
Premises from ETI upon and subject to the terms, covenants, rentals and
conditions herein set forth. The term (the "Term") of this Agreement shall
be for a period of five (5) years and shall commence (the "Commencement
Date") which shall automatically occur on the earlier of either the date
that STC first causes any of its equipment to be delivered to the Premises
or ninety (90) days from the date of this Agreement; provided, however,
that any construction and/or installations by Time-Warner shall not be
considered deliveries of STC's equipment to the Premises for purposes of
this paragraph. Notwithstanding anything in this Agreement to the contrary,
STC shall have no obligation to commence business operations in the
Premises until ETI has provided STC with reasonable evidence that ETI has
complied with all applicable governmental requirements with respect to the
build-out of the Premises, including obtaining any necessary occupancy or
use permits, and the improvements constructed by ETI in the Premises
conform to the drawings and plans for the build-out of the Premises and
STC's power and VAC requirements. In the event that the Commencement Date
has not occurred by the date which occurs sixty (60) days after the date
that the "Contingency" (as hereinafter defined) is fully satisfied, then,
STC shall have the right, at any time thereafter, to terminate this
Agreement by delivering a notice of termination to ETI. In the event STC
delivers such notice of termination to ETI, ETI shall immediately pay to
STC all amounts that STC has previously paid to ETI in connection with this
Agreement, except that ETI shall not be required to pay to STC any amounts
paid to ETI by STC for the one time electrical power purchased by ETI from
its Landlord on behalf of STC. The parties shall then be relieved of all
liability hereunder, at law or in equity. ETI shall, upon STC's written
request, provide certain other services in order to comply with the
applicable specifications set forth in the Co-location Schedule attached
hereto.
b. This entire Agreement and the obligations of STC to perform its
obligations hereunder shall be contingent upon the occurrence of the
following events (the events that are listed in the following clauses (i)
and (ii) shall hereinafter be collectively referred to as the
"Contingency"): (i) ETI and STC agreeing in writing upon the drawings,
plans and specifications for the build-out of the Premises (the
"Construction Work"); and (ii) ETI's delivery to STC of a fully executed
acknowledgment from the Landlord, substantially in the form of Exhibit B
attached hereto and made a part hereof whereby the Landlord consents to
ETI's use of the Leased Premises as a co-location center and which
authorizes ETI to issue occupancy licenses to third parties who desire
access to the Leased Premises for the purpose of co-locating therein.
c. Promptly after the execution of this Agreement, ETI shall diligently
pursue satisfaction of the Contingency at the earliest possible date. In
the event that the Contingency is not fully satisfied within thirty (30)
days from the effective date of this Agreement, then STC shall have the
right prior to final satisfaction of the Contingency to terminate this
Agreement by written notice to ETI. Upon such termination, ETI shall
immediately refund to STC any amounts that were previously paid by STC to
ETI in connection with this Agreement, except that ETI shall not be
required to pay to STC, all amounts paid to ETI by STC for the one time
electrical power purchased by ETI from its Landlord on behalf of STC. The
parties shall then be relieved of all liability hereunder, at law or in
equity. Despite the foregoing, STC shall have the right in the exercise of
its sole and absolute discretion, to waive the satisfaction of all or any
portion of the Contingency. To be effective, any such waiver must be in a
writing that is signed by STC.
2. RESPONSIBILITY AND UNDERTAKINGS
a. ETI represents and warrants to STC that the Premises is sufficient for
the placement of STC provided switching and telecommunications equipment,
as well as such other peripheral computer and networking equipment that may
be required within the Co-location Center, and that ETI shall provide to
STC the services described in paragraph 6 of the Co-location Schedule
attached hereto.
b. Both ETI and STC hereby acknowledge and accept that ETI shall, as part
of this Agreement, furnish and install an FM-200 type fire protection
system within the Premises. The existing landlord provided building
sprinkler system will be decommissioned and removed from service. STC
acknowledges further that the FM-200 fire protection system may not be
removed, reconfigured, modified, or otherwise altered or replaced without
the prior written consent of ETI and its Landlord which approval shall not
be unreasonably withheld, conditioned or delayed.
c. Additional space within the Leased Premises is available from ETI in
single rack or cabinet increments or on a per square foot basis. Additional
measured square footage will be provided to STC, upon their request,
according to the same terms, conditions and rates as established in this
Agreement. If ETI no longer has additional space available, ETI shall so
inform STC upon STC's request for additional space; and if STC is still
interested in additional space, ETI may be required to contract with its
Landlord for additional space, provided that it is available from the
Landlord, as a result of an STC request for additional measured square
footage. Upon STC's request to ETI to obtain additional space from
Landlord, ETI shall negotiate to lease additional space from Landlord and,
if STC approves the terms of such lease, then and in that event, ETI shall
pass on to STC and STC agrees to pay to ETI, any additional costs or
increases imposed on ETI by its Landlord as a result of the STC request.
d. A single rack or cabinet is defined as a volume not greater than
nineteen (19") inches wide, twenty-eight (28") inches deep and eighty-four
(84") inches high. The height and depth specifications are physical
limitations of ETI's Co-location Center and cannot be exceeded. A rack or
cabinet in excess of nineteen (19") inches in width will be considered to
be multiple racks or cabinets. A rack, cabinet, or equipment enclosure of a
width less than nineteen (19") inches will still be considered a complete
rack under this Agreement. Space for additional racks or cabinets will be
billed by ETI and paid for by STC in accordance with the attached
Co-location Schedule. Pricing dos not include power distribution or usage,
phone expenses, or normal hours support.
e. ETI currently employs technical staff to maintain and manage technical
facilities. Upon STC's written request, ETI technical staff shall perform
necessary technical work related specifically to STC owned or leased
equipment and/or services to STC's facilities on a "time and material"
basis as set forth in the attached Co-location Schedule. Such work and or
services will be performed only at STC's request and under STC's direction.
Request for all adds, moves, and changes, must be in writing from STC to
ETI.
f. ETI shall, in good faith, use commercially reasonable efforts to cause
Landlord to (i) comply with the terms and conditions of the Lease as the
same relate to STC's use and occupancy of the Premises, and (ii) cooperate
with STC in connection with any consents or approvals that ETI and/or STC
may be required to obtain from Landlord in connection with STC's use or
occupancy of the Premises.
g. As part of the Construction Work (defined in Paragraph l(b)), ETI shall
equip the Premises with; (i) a key or card access entry system; and, (ii) a
remote alarm notification system which shall be connected to the Utility
Systems; and, (iii) an FM-200 type fire protection system. All systems as
identified in (i) thru (iii) are more particularly described in Schedule 1
to the Co-location Schedule.
h. ETI shall also provide to the Premises, as part of the Construction Work
(defined in Paragraph 1 (b)); (i) sufficient -48VDC power resources to meet
the STC stated DC power resource requirement of six-hundred (600) amps with
one (1) hour back-up battery support; and, (ii) sufficient inverted power
resources to meet the STC stated inverted power resource requirement of
forty (40) amps at 110VAC with one (1) hour battery back-up support; and,
(iii) sufficient commercial building power resources to meet the STC stated
AC power requirement of seventy (70) amps at 110VAC. All systems as
identified in (i) thru (iii) are more particularly described in Schedule 1
to the Co-location Schedule.
i. ETI shall at all times during the Term of this Agreement maintain or
cause the maintenance of the back-up generator, electrical system and
equipment and heating, ventilating and air-conditioning system and
equipment (collectively, "Utility Systems") serving the Premises in good
condition and repair, adequate at all times to provide, without
interruption, all of the Services described in Paragraph 6 of the attached
Co-location Schedule. On or before the Commencement Date, ETI shall provide
STC with a schedule showing all of the procedures to be utilized by ETI to
ensure that all of the Utility Systems will function in accordance with the
terms of this Paragraph 2(i) at all times. Throughout the Term of this
Agreement, ETI shall provide STC with written reports showing that ETI is
following such procedures. Such reports shall be provided within seven (7)
business days after any such procedure is performed, and not less often
than quarterly for heating, ventilating and air-conditioning Utility
Systems, and not less often than monthly for electrical and power
generating Utility Systems. All of the Utility Systems shall be equipped
with alarms programmed to alert both ETI and STC of any failure of such
systems to function in accordance with the terms of this Paragraph 2(i).
j. Upon STC's request, ETI shall, on behalf of STC or its designated
service provider, install a microwave antenna on the roof of the Building,
provided that STC shall obtain ETI's prior written approval of such
antenna, which approval shall not be unreasonably withheld, conditioned or
delayed, and provided that STC shall obtain any necessary governmental
permits and Landlord's approval, if necessary, for such antenna.
3. ADDITIONAL TERMS GOVERNING THE USE OF THE CO-LOCATION SPACE; INSTALLATION
OF EQUIPMENT.
a. Before beginning any infrastructure work, such as cable, ironwork or
relay rack installation, including delivery, replacement, or removal work,
but not including the rearrangement of existing items that are not affixed
to a wall, STC must obtain ETI's written approval of STC's choice of
suppliers and contractors, which approval shall not be unreasonably
withheld, conditioned or delayed and in any event, any objection must be
provided within two (2) business days of receipt of a request for consent,
failing which the proposed supplier(s) and/or contractor(s) shall be deemed
approved. ETI may request reasonable additional information before granting
approval and may require reasonable scheduling changes and substitution of
suppliers and contractors as conditions of its approval, provided in no
event shall any such substitution cause STC to incur any extra costs or
expenses that STC would not have incurred had such substitution not been
required. Approval by ETI shall not be construed as an endorsement of STC's
supplier or contractor, and STC will remain solely responsible for the
selection of the supplier or contractor and all payments for such work.
Only contractors approved by ETI and its Landlord, which approval shall not
be unreasonably withheld, conditioned or delayed, will be permitted to work
within the Premises.
b. STC shall not make any construction changes or material alterations to
the interior or exterior portions of the Premises, including building of
walls or partitions, drop ceilings, lighting, HVAC, plumbing or any
electrical distribution or power supplies for equipment, without ETI's
prior written approval, which approval shall not be unreasonably withheld,
conditioned or delayed, and in any event any objection must be provided
within ten (10) business days of receipt of a request for consent, failing
which the proposed construction change(s) and/or material alteration(s)
shall be deemed approved. ETI reserves the right to perform and manage any
construction or material alterations within the Co-location Center areas at
rates to be negotiated between the parties hereto, which rates shall not
exceed the generally prevailing market rate that is then being charged to
perform such services.
c. STC's use of the Premises, installation of Equipment, and access to the
Premises shall at all times be subject to STC's adherence to generally
accepted industry standards for facility security and rules of conduct
provided, however, STC shall be permitted to use the Premises and shall
have access through the Leased Premises to the Premises, twenty-four (24)
hours per day, three hundred sixty-five (365) days per year. STC agrees not
to erect any signs or devices to the exterior portion of the Premises
without ETI's prior written approval. ETI agrees that STC shall have the
right to install signage identifying STC on or adjacent to the suite entry
door to the Leased Premises and on or adjacent to the door to the Premises
from the Leased Premises. STC shall obtain ETI's prior approval of STC's
suite entry sign, which approval shall not be unreasonably withheld,
conditioned or delayed. ETI shall use reasonable efforts to cause its
Landlord to insert a listing identifying STC in the directory in the
Building lobby.
d. STC shall not market, license or sell co-location services to any third
party in competition with ETI, except that STC is permitted to allow its
vendors and customers to co-locate within the Premises if such co-location
is needed for purposes of permitting the vendor or customer to connect to
STC's network. However, STC may not market, license or sell co-location
services to other local, interexchange, long distance carriers, or internet
service providers, or other such service providers or carriers for the
purpose of utilizing the Co-location Center as a point of presence from
which the service provider or carrier would provision interconnect services
to other users within the Leased Premises. Except as expressly permitted in
this Paragraph 3(d), if STC should provide or attempt to make available to
any third party use of STC's co-location space in the Premises without
obtaining the prior written consent of ETI, STC shall be in breach of this
Agreement and ETI may pursue any legal or equitable remedy it is entitled
to pursue under Paragraph 10 of this Agreement. Notwithstanding anything to
the contrary in this Paragraph 3(d) or any other provision of this
Agreement, ETI acknowledges and agrees that STC is entitled to engage
Time-Warner (or such other service provider(s) that STC may reasonably
select) to provide interconnection or other services to STC, provided that
such services are provided directly to STC within the Premises, and ETI
agrees to admit Time-Warner or such other service provider(s) onto the
Leased Premises and to cooperate with Time-Warner or such other service
provider(s) (including obtaining all necessary approvals from the Landlord,
(as evidenced by Exhibit C) to permit Time-Warner or such other service
provider to provide such services. ETI further acknowledges and agrees that
STC will be permitted to interconnect with any carrier and to provide
interconnection services to other carriers, in either case other than a
carrier that is an ETI licensee, within the Leased Premises.
4. PAYMENT
a. STC shall pay ETI a monthly recurring fee for use and occupancy of the
Premises (the "Occupancy Fee") as set forth in the Co-location Schedule
attached hereto. In addition to the Occupancy Fee, in the event that STC
requests, in writing, that ETI provide any additional services, STC may be
charged non-recurring fees for the provision of such services or for any
requested build-out of the Premises, including, where applicable,
cross-connect installation fees and/or Dispatch Labor Charges as set forth
in the Co-location Schedule. If STC requests in writing, that ETI provide
services not delineated herein or in the Co-location Schedule, STC agrees
to pay ETI's then current standard charge for such service as in effect at
the time such service was rendered or such charge as the parties may
mutually agree upon prior to the delivery of the service.
b. Commencing on the Commencement Date, monthly installments of the
Occupancy Fee shall be payable in advance on the first day of each calendar
month.
c. Any charges delineated in the Co-location Schedule for build-out of the
Premises ("Build-Out Fees") shall be paid by STC to ETI in accordance with
the following schedule:
i. One-hundred and seventy-five thousand dollars and no cents
($175,000.00) of the Build-Out Fees upon execution of this
Agreement; and
ii. One-hundred and twenty-thousand dollars ($120,000.00) of the
Build-Out Fees fifteen (15) days from the date of this Agreement;
and
iii. One-hundred and twenty-thousand dollars ($120,000.00) of the
Build-Out Fees thirty (30) days from the date of this Agreement;
and
iv. Payment of the remaining seventy-nine thousand dollars
($79,000.00) of the Build-Out Fees will be made sixty (60) days
from the date of this Agreement.
d. Both ETI and STC agree to reimburse the other for all reasonable repair
or restoration costs associated with damage or destruction caused by the
other's personnel, agents, suppliers, contractors or visitors or as a
consequence of any removal of Equipment or other property installed in the
Premises or the Leased Premises. Such reimbursement shall be made within
thirty (30) days of the damage or destruction.
e. The monthly charges for all services used shall be payable in U.S.
dollars within thirty (30) days from the date of ETI's invoice. Payment
shall be remitted to ETI at the address or wired to the account set forth
in Paragraph 16, and will not be deemed to have been made until the funds
are received by ETI.
f. Any payment (including monthly service charges due under this Paragraph
or any other amount due hereunder) not made when due will be subject to a
late charge of one percent (1%) per month, provided, however, ETI shall
provide STC with a written notice of any payment which is overdue, and if
STC makes any such payment to ETI within five (5) days after receiving such
written notice, the late charge shall be deemed waived.
g. ETI hereby grants STC a right of first refusal to assume ETI's rights
and obligations under its Lease with ETI's Landlord in the event of a
default by ETI which remains uncured by ETI for a period of not less than
thirty (30) days after notice of the default has been received by ETI from
its Landlord pursuant to the written lease. ETI shall give STC prompt
written notice of any default by ETI under the Lease, which notice shall
include any offer by ETI to assign to STC, ETI's interest as tenant under
the Lease (any such notice being hereinafter referred to as "Offer"). In
the event that STC desires to exercise its right to assume ETI's interest
as tenant under the Lease pursuant to an Offer from ETI, then, within
fifteen (15) days after its receipt of the Offer, STC shall deliver a
notice of acceptance to ETI. In the event STC delivers such notice to ETI,
then ETI shall immediately take all affirmative steps necessary and
reasonable to effect an STC assumption of ETI's Lease.
5. TAXES
STC shall submit to ETI the appropriate tax certificates as required by any
city, state, federal or other lawful taxing authority within ten (10) days
from date of written request by ETI. STC shall submit such other documents
and certificates related to taxes as ETI shall reasonably request. STC
shall be responsible for the prompt payment of all federal, state and local
taxes, except ETI's income and franchise taxes, upon the use of or sale of
services hereunder or STC's use of or resale of property of ETI. If ETI
should pay or become obligated to pay any such taxes, STC shall, within
thirty (30) days, reimburse ETI therefor.
6. HOURLY RATES FOR ADDITIONAL SERVICES
a. When ETI technical support assistance is requested by STC in writing for
resolution or coordination of problems, STC agrees to pay ETI a per hour
rate set forth in the attached Co-location Schedule. ETI will inform STC in
advance and in writing, if any services to be performed by ETI for STC are
billable and ETI will provide STC with a reasonable estimate prior to
performance of the services.
b. For any services which it may require, STC shall contact ETI customer
service as specified in Paragraph 16.
7. INTERCONNECT TO PRIVATE LINE CUSTOMERS
a. STC may arrange for its own interconnection facilities with the carriers
or providers of its choice. Any interconnection facilities arranged by STC
shall be provisioned solely to the STC occupied Premises within the Leased
Premises. Subject to the provisions of Paragraph 3(d) herein, STC shall not
market, license or sell interconnection facilities or services to others
located within the Leased Premises, except existing clients of STC, without
the express written authorization of ETI. All costs and arrangements for
local interconnect will be STC's responsibility, unless otherwise agreed to
by the parties in writing. If STC is utilizing ETI's services under this
Paragraph 7(a), STC's facilities management personnel must coordinate with
ETI in the exchange of technical information relating to their requirements
for local interconnect in order for ETI to provide the necessary support to
STC with the provisioning and installation of the interconnect facilities.
In addition, for all services to be provided by ETI under this Paragraph
7(a), STC agrees to provide ETI notice at least thirty (30) days prior to
the commencement date of the services. Coordination regarding exchange of
technical information relating to local interconnects shall be provided to
ETI as specified in Paragraph 16.
b. Upon STC's request, ETI shall, on behalf of STC, install intra building
conduit and cable to allow STC to interconnect with other carriers within
the Building. STC shall select the contractors to perform any such
installations, subject to the approval of ETI and its Landlord, as set
forth in Paragraph 3(a). ETI shall use reasonable efforts to promptly
obtain its Landlord's approval of any such contractors. STC's facilities
management personnel must coordinate with ETI in the exchange of technical
information relating to their requirements for intra building conduit and
cable in order for ETI to provide the necessary support to STC with the
provisioning and installation of the facilities. ETI will invoice, and STC
shall pay to ETI, a project management fee equal to ten percent (10%) of
the total cost to provision and install the intra building conduit and
cable. STC shall, at its own discretion utilize ETI or another Landlord
approved contractor to install the conduit and cable on behalf of STC. All
intra building conduit and cable requested by and installed for STC will
terminate within the Premises occupied by STC and will remain under the
direct management and control of STC. In addition, for all services to be
provided by ETI under this Paragraph 7(b), STC agrees to provide ETI notice
at least thirty (30) days prior to the commencement date of the services to
be provided by ETI. Coordination regarding exchange of technical
information relating to intra building conduit and cable shall be provided
to ETI as specified in Paragraph 16.
c. ETI shall invoice and STC shall pay to ETI, all one-time and monthly
usage charges normally imposed by its Landlord plus a ten (10%) percent fee
to ETI for the allocation and provision of all intra building conduit and
cable as specified in the attached Co-location Schedule. STC acknowledges
that the Landlord's rates are subject to change at any time.
Notwithstanding anything herein or in the Co-location Schedule to the
contrary, all such fees that are payable to ETI for the allocation and
provision of any intra building conduit and cable shall be due and payable
prior to the allocation and provision of any intra building conduit and
cable. All of the fees that are payable to ETI for the installation of the
intra building conduit and cable shall be payable in accordance with the
following terms: fifty (50%) percent shall be due and payable upon written
approval by STC of the specifications for the installation of the intra
building conduit and cable, and fifty (50%) percent shall be due and
payable upon completion of the intra building conduit and cable system.
d. Upon STC's written request, ETI shall authorize STC, on an as required
basis, to utilize any available ETI owned intra building conduit and cable.
In such event, ETI shall invoice and STC shall pay to ETI, a monthly usage
charge as specified in Paragraph 13 of the attached Co-location Schedule.
e. Upon STC's written request, ETI shall on an as required basis, act as
STC's agent in the turning-up of local interconnects and to provide
on-going loop maintenance between the ETI Co-location Center and any
third-party facilities of STC's customers. In such event, ETI shall invoice
and STC shall pay to ETI, a monthly usage charge as specified in Paragraph
12 of the attached Co-location Schedule.
f. All interconnects must be at the DS3, DS1 or DSO level utilizing up to
28 T1's per DS3, 24 ports per DS1 and 8 ports per DSO. The interface point
for ETI's service will be ETI's DSX "CROSS-CONNECT" panel.
8. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performance
caused by labor dispute, fire or other casualty, weather or natural
disaster, damage to facilities, the conduct of third parties, or other
cause beyond its reasonable control ("Force Majeure"). Performance times
under this Agreement shall be automatically extended for the period of time
equivalent to the time lost because of any delay or failure to perform by
either party; provided, however, that any such delay or failure shall not
last for a period of more than thirty (30) days. After this thirty (30) day
maximum extension has elapsed, this paragraph shall have no further force
nor effect on either party's obligation to perform.
9. EMERGENCIES AND INTERRUPTIONS
In case of an interruption of any services furnished hereunder, including
but not limited to power, back-up power, HVAC, and transmission services
(the "Services"), ETI shall use its best efforts to restore service as soon
as possible. If ETI elects, it may substitute an equivalent service. ETI's
liability for all mistakes, errors, omissions, interruptions, delays or
defects in Services occurring in the course of engineering, installation
and operation of its system or the provision of Services shall in no event
exceed the charges paid by STC for the period of time during which
mistakes, errors, omissions, interruptions, delays or defects in Services
occurred. In no event shall ETI be liable for any special, consequential or
incidental damages. In the event STC experiences an interruption of
transmission services for reasons other than Force Majeure which results in
the loss of fifty percent (50%) of STC's service for a period of three (3)
hours or more, or if ETI fails to provision transmission service in
accordance with industry standards and fails to cure its failure within
fifteen (15) days, STC shall have the right to terminate this Agreement
upon ten (10) days notice to ETI. In the event STC experiences an
interruption of power services for any cause within ETI's control, which
results in the loss of fifty percent (50%) of STC's service for a period of
three (3) hours or more, or if ETI fails to promptly commence or diligently
pursue restoration of any interrupted power services, STC shall have the
right to terminate this Agreement upon ten (10) days notice to ETI. In the
event STC experiences an interruption of back-up power which is the direct
result of ETI's Landlord's gross negligence or willful misconduct, ETI
shall pay STC's proportionate share (based upon the ratio of the rentable
area of the Premises to the rentable area of the Leased Premises) of any
damages collected by ETI from its Landlord for such interruption of back-up
power. In the event STC experiences an interruption of HVAC services (in
season) for any cause within ETI's control, which lasts for more than one
(1) day, the Occupancy Fee shall be abated from the second such day until
the date on which such HVAC services are restored, and if such HVAC
services are not restored within fifteen (15) days, STC shall have the
right to terminate this Agreement upon ten (10) days notice to ETI.
10. DEFAULT
a. Either party shall be in default if it fails to timely perform its
material obligations under this Agreement or any other Agreement with the
other, or becomes the subject of any voluntary proceedings under any
bankruptcy or insolvency laws, or becomes the subject of any involuntary
proceedings under any bankruptcy or insolvency laws which are not dismissed
or withdrawn within sixty (60) days after the filing thereof. Upon such
default by a party (other than a service interruption as described in
Paragraph 9 hereof), the other party shall provide written notice to the
defaulting party within ten (10) days of such default, allowing thirty (30)
days for the default to be cured. If the default is not cured within that
thirty (30) days, the non-defaulting party may, upon ten (10) days notice
to the other, terminate this Agreement, and pursue all other available
remedies at law and in equity, all of which shall be cumulative.
b. If this Agreement or any addendum is terminated by ETI during the Term
as a result of STC's material default or is terminated or repudiated by STC
in the absence of a material default hereunder by ETI (in either case, an
"STC Termination"), in addition to any other damages or remedies to which
ETI is entitled, STC shall be liable to ETI for liquidated damages (due to
the difficulty in projecting and establishing actual damages) for the
terminated Services, as provided for below:
i. If an STC Termination occurs within twelve (12) months from the
Commencement Date, then, STC shall pay to ETI fifty (50%) percent
of the monthly Occupancy Fees for the remainder of the Term.
ii. If an STC Termination occurs after twelve (12) months but prior
to twenty-four (24) months from the Commencement Date, then, STC
shall pay to ETI forty (40%) percent of the monthly Occupancy
Fees for the remainder of the Term.
iii. If an STC Termination occurs after twenty-four (24) months but
prior to thirty-six (36) months from the Commencement Date, then,
STC shall pay to ETI thirty (30%) percent of the monthly
Occupancy Fees for the remainder of the Term.
iv. If an STC Termination occurs after thirty-six (36) months but
prior to forty-eight (48) months from the Commencement Date, then
STC shall pay to ETI twenty (20%) percent of the monthly
Occupancy Fees for the remainder of the Term.
v. If an STC Termination occurs after forty-eight (48) months from
the Commencement Date, then, STC shall not be required to pay any
liquidated damages to ETI.
c. Subsequent to termination of Services for cause and prior to any
reinstatement of ETI's Services to STC, the parties shall agree upon
the amount of any reconnect charges, increase in service rates and/or
security deposit required hereunder; it being understood, however,
that in the event of a termination by ETI for cause, ETI may sell the
Services to others.
d. In the event that the Term of this Agreement, as such Term is extended
by STC, would end on a date which is after the expiration of the
initial term of the Lease, then ETI shall cause the term of the Lease
to be extended such that the term of the Lease shall expire after the
date that the Term of this Agreement, as such Term is extended by STC,
is scheduled to end.
e. Upon termination or expiration of the Term of this Agreement, STC
agrees to remove Equipment and other property which has been installed
by STC or STC's agents. In the event such Equipment or property has
not been removed within ninety (90) days following the effective
termination or expiration date, ETI shall have the right to remove,
relocate, or otherwise store such Equipment or property at STC's
expense.
f. In the event the Premises should become the subject of a taking by
eminent domain by any authority having such power, either party hereto
shall have the right to terminate this Agreement. ETI shall give STC
reasonable advance notice of an eminent domain proceeding and the
removal schedule applicable to the Leased Premises. In the event of
such a taking, STC shall have no claim against ETI for any relocation
expenses, any part of any award that may be made for such taking, the
value of any unexpired term or renewal periods that may result from a
termination by ETI under this provision, or any loss of business from
full or partial interruption or interference due to any termination.
However, nothing contained in this Agreement shall prohibit STC from
seeking any relief or remedy against the condemning authority in the
event of an eminent domain proceeding or condemnation which affects
the Premises
11. TERM OF THIS AGREEMENT
Unless sooner terminated as herein provided, the Term of this Agreement
shall be for a FIVE (5) YEAR period, commencing on the Commencement Date,
and after the expiration of such five (5) year period, this Agreement shall
remain in force until terminated by either party upon one hundred eighty
(180) days written notice. STC may, upon expiration of the Term, extend the
term of this Agreement for another five (5) year period. In the event that
STC elects to extend the term of this Agreement, STC shall pay, on a
prorated basis (by usable square feet), all increases in costs incurred by
ETI from its Landlord as a result of STC's extension of its Agreement.
12. APPROVALS
ETI acknowledges that STC intends to install computer and
telecommunications equipment in the Co-location Center and approves STC's
use of the Premises for this purpose. ETI represents and warrants that all
necessary approvals and occupancy permits have been obtained from building
owners, zoning authorities, tax authorities, and other authorities and
there is no restriction on STC's intended use of the Premises.
13. RIGHT OF SELF-HELP AND ASSIGNMENT OF LEASE
a. On or before the tenth (10th) day of every third month during the Term
of this Agreement, ETI shall provide STC with documentation (such as a
written confirmation from ETI's Landlord or a canceled check) showing that
ETI has paid the rent and all other sums due under the Lease. In addition,
ETI shall promptly provide to STC copies of all notices from Landlord (if
any) alleging nonpayment of rent or other amounts due under the Lease or
any other default by ETI under the Lease.
b. In the event ETI at any time during the term of this Agreement fails to
pay rent, taxes, assessments or to make any other payment or to perform any
act required by the terms of the Lease with Landlord so as to constitute an
event of default under the Lease, STC may (but shall be under no obligation
to) at any time thereafter make such payment for the account and at the
expense of ETI. All sums so paid by STC and all costs and expenses incurred
in connection therewith will constitute a sum payable by ETI to STC upon
billing by STC and ETI agrees to promptly reimburse STC for such payments,
costs and expenses. In the event that ETI fails to promptly reimburse STC
for any such payment, cost or expense, STC shall have the right to deduct
such payment from the amount that is owed by STC to ETI hereunder.
c. In the event that STC makes any payment or performs any act to cure a
default by ETI under the Lease, ETI, in order to secure payment of any
amounts expended by STC to cure ETI's default, may, at its option: (1)
assign the Lease to STC, or (2) assign some or all of ETI's rights to
receive any income from its operation or use of the real property leased to
ETI in the Lease. ETI shall remain entitled to exclusively enjoy all of the
benefits of a tenant so long as STC has not made any payment or performed
any act to cure ETI's default under this Paragraph 13. In the event that
and only for so long as STC makes any payment or performs any act to cure
ETI's default under this Paragraph 13, the cost of which is not reimbursed
by ETI within seven (7) days after ETI's receipt of an invoice therefor
(which invoice shall specifically reference this paragraph of this
agreement by paragraph and page number), ETI hereby authorizes STC to send
a notice to each licensee, user or occupant of real property leased to ETI
in the Lease (a "Licensee") in the name of ETI, advising each such licensee
to thereafter make all payments due to ETI under such licensee's agreement
with ETI to STC, until such time as STC has been repaid in full for its
advances (together with interest at the rate of fifteen percent (15%) per
annum, from the date of STC's advance to the date of repayment). STC shall
remit to ETI all amounts collected from the other licensees in excess of
the amounts due to STC by ETI within five (5) days after ETI's written
demand for repayment.
14. INDEMNIFICATION
a. STC shall indemnify ETI against all losses, claims damages, expenses and
liabilities (including reasonable attorneys' fees and court costs) arising
out of or relating to (I) personal injury or property damage (including any
damage to the facilities or equipment of ETI, any connecting carrier, or
any other third party), caused by any act, error or omission of, or any
condition created by, STC or its employees, agents, equipment or other
property; or (II) any breach of any representation, warranty or covenant
made by STC herein except as otherwise stated in this agreement.
b. ETI shall indemnify STC against all losses, claims damages, expenses and
liabilities (including reasonable attorneys' fees and court costs) arising
out of or relating to (I) personal injury or property damage (including any
damage to the facilities or equipment of STC, any connecting carrier, or
any other third party), caused by any act, error or omission of, or any
condition created by, ETI or its employees, agents, equipment or other
property; or (II) any breach of any representation, warranty or covenant
made by ETI herein except as otherwise stated in this agreement.
15. NOTICES AND OTHER COMMUNICATIONS
a. Unless written notice of a change is given to STC, payments to ETI shall
be sent via wire transfer, or other immediate credit method, as follows:
i. Extranet Telecommunications, Inc.
ii. CITIBANK, N.A.
iii. ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
v. ABA Routing Number: 0210-00089
vi. Account Number: ▇▇▇▇▇▇▇▇
b. Documentation and coordination regarding exchange of technical
information relating to interface circuitry and local interconnects shall
be sent to:
i. Manager of Telecom & Network Systems
ii. Extranet Telecommunications, Inc.
iii. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
iv. ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
v. Fax 212.206 2550
c. Telephone notification of need for assistance for resolution or
coordination of service problems shall be reported to the ETI at
▇▇▇-▇▇▇-▇▇▇▇.
d. All other notices to ETI relating to this Agreement shall be in writing
and personally delivered, telecopied and sent by certified mail, return
receipt requested, or overnight courier service to:
i. Extranet Telecommunications, Inc.
ii. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
iii. ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ ▇.▇.▇.
iv. Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
v. Fax ▇▇▇.▇▇▇.▇▇▇▇
e. Unless written notice of a change is given by STC to ETI, all notices
and other communications to STC shall be in writing and personally
delivered or sent by certified mail, return receipt requested, or overnight
delivery service, to STC's address as set forth on the face of this
Agreement, or telecopied to STC's facsimile number at 301.365.8969, with
copies personally delivered or sent by certified mail, return receipt
requested, or overnight delivery service to STC's address as set forth on
the face of this Agreement.
f. Written notices shall be deemed to be effective when delivered by
telecopier, with written confirmation of receipt, or upon receipt or
refusal, when delivered in person, overnight delivery service, or certified
mail, unless otherwise stipulated herein.
16. FUTURE OPPORTUNITIES
STC and ETI may elect to combine areas of expertise and customer base to
establish specific joint venture opportunities.
17. INSURANCE
a. STC agrees to maintain, at STC's expense, during the entire time this
Agreement is in effect for the Premises (i) Comprehensive General Liability
Insurance in an amount not less than Two Million Dollars ($2,000,000.00)
per occurrence for bodily injury or property damage, (ii) Employer's
Liability in an amount not less than One Million Dollars ($1,000,000.00)
per occurrence, (iii) Worker's Compensation in an amount not less than that
prescribed by statutory limits, and (iv) adequate insurance coverage to
protect STC owned Equipment and property installed within the Premises.
Under no circumstances shall ETI provide insurance coverage for any STC
owned Equipment or property installed within the ETI Co-location Center.
Prior to taking occupancy of the Premises, STC shall furnish ETI with
certificates of insurance which evidence the minimum levels of insurance
set forth herein and which name ETI as an additional insured.
b. ETI agrees to maintain, at ETI's expense, during the entire time this
Agreement is in effect (i) Comprehensive General Liability Insurance in an
amount not less than Two Million Dollars ($2,000,000.00) per occurrence for
bodily injury or property damage, (ii) Employer's Liability in an amount
not less than Five Hundred Thousand Dollars ($500,000.00) per occurrence,
and (iii) Worker's Compensation in an amount not less than that prescribed
by statutory limits. ETI shall furnish STC with certificates of insurance
which evidence the minimum levels of insurance set forth herein.
18. COMPLIANCE WITH LAWS
Each party shall comply with all federal, state and local laws with respect
to the Services and this Agreement.
19. MISCELLANEOUS
a. This Agreement may not be assigned by either party in whole or in part
without the prior written consent of the other party, which consent shall
not be unreasonably withheld, except that STC and ETI shall have the right
to assign this Agreement to an affiliate or division, provided that ETI or
STC exercise management control over and/or own a controlling interest in
such affiliate or division.
b. This Agreement shall become effective when accepted by an authorized
officer of STC and ETI. The negotiation of any check representing a payment
or security deposit under this Agreement or any addendum shall not in
itself constitute an acceptance thereof.
c. The terms and provisions of this Agreement may only be waived, modified
or changed by an amendment in writing signed by both parties hereto. No
failure by either party to insist upon the other's performance of any
obligation hereunder shall constitute a waiver of the obligation and the
parties may require compliance with any such obligation at any time.
d. If any provision of this Agreement shall be determined to be invalid or
unenforceable, the remainder of the Agreement shall continue in full force
and effect.
e. This Agreement shall be governed in all respects by the internal laws of
the State of New York. The parties hereby solely subject themselves to the
jurisdiction of the State of New York, for the resolution of any dispute
arising hereunder and agree that venue in any suit filed in those courts
shall be proper.
f. ETI shall not use or disclose, or allow its representatives, agents or
employees to use or disclose any information concerning the rates or terms
upon which services are provided hereunder by STC.
g. This Agreement may be executed in two or more counterparts, each of
which shall be an original, and all of which, taken together, shall
constitute one and the same Agreement.
i. Both ETI and STC each represent and warrant to the other that the
person executing this Agreement (or any amendments and changes) on its
behalf is its duly authorized representative.
ii. This Agreement and any documents attached hereto constitute the
entire Agreement between the parties and supersede all prior
agreements, whether written or oral, with respect to the specific
services being provided hereunder. In case of any conflict between
this Agreement and the terms of any documents attached hereto, the
terms of the documents attached shall control insofar as the services
covered thereby are concerned.
20. BUILD-OUT
a. On or before the date that occurs sixty (60) days after the date that
the Contingency is fully satisfied, ETI shall perform the Construction
Work. ETI shall perform the Construction Work in a good and workmanlike
manner, in accordance with the plans and specifications approved by STC,
and in accordance with all applicable governmental laws, statutes, codes,
and regulations. Upon ETI's completion of the Construction Work, ETI and
STC shall jointly inspect the Construction Work and shall prepare a punch
list of items of the Construction Work that need to be completed or
corrected. ETI agrees to fully correct or complete the items that are set
forth on the punch list within thirty (30) days after the date that such
punch list is prepared.
b. STC shall be given access to the Premises commencing thirty (30) days
before the Commencement Date, for the purpose of installing fixtures and
equipment therein. STC shall coordinate such installations with ETI's
contractors. STC shall indemnify ETI against any and all damages sustained
in connection with the installation of such fixtures and equipment, unless
such damage is caused by the negligence or willful misconduct of ETI, its
agents, employees or contractors.
21. ADDITIONAL SPACE
The parties agree that if ETI intends to sublease, license or make
available portions of the Leased Premises (the "Open Space") other than the
Premises to other parties that are not related to or affiliated with either
party hereto, (i) ETI shall not sublease, license or make available for use
any Open Space (or grant any party any rights with respect to such space)
that is located adjacent to the Premises (the "Adjacent Space") without
first offering in writing (the "Offer"), for an exclusive fifteen (15) day
period, to sublease, license or make available for use such space to STC;
and (ii) ETI shall, in good faith, attempt to sublease, license or make
available for use the Open Space that is located within the Leased Premises
that does not constitute the Adjacent Space prior to entering into any
agreement to sublease, license or make available for use the Adjacent
Space. In the event that STC desires to accept an Offer then, within
fifteen (15) days after its receipt of the Offer, STC shall deliver a
notice of acceptance to ETI. In the event STC delivers such notice of
acceptance to ETI, then ETI shall license the Adjacent Space to STC, and
STC shall license the Adjacent Space from ETI, upon the same terms and
conditions that it licenses the Premises, except that: (i) the Occupancy
Fee with respect to the Adjacent Space shall be the same amount per
rentable square foot that STC is paying ETI with respect to the Premises,
except as otherwise provided in Paragraph 15(b) of the Co-location Schedule
attached hereto, (ii) the term of the license with respect to the Adjacent
Space shall be coterminous with the term of this Agreement with respect to
the Premises, (iii) STC's obligation to pay the Occupancy Fee with respect
to the Adjacent Space shall commence upon the date that ETI completes the
build-out of the Adjacent Space for STC and obtains any necessary occupancy
permit therefor and STC is lawfully permitted to occupy the Adjacent Space.
The scope of the build-out of the Adjacent Premises and the cost of
performing the same shall be subject to the parties mutual agreement which
shall be negotiated in good faith and at the then market price.
IN WITNESS WHEREOF, the undersigned hereby acknowledge that they have read
and fully understand the foregoing Agreement and, further, that they agree to
each of the terms and conditions contained herein.
Accepted and Agreed by:
STARTEC INC.
By: /S/ PRINT: RAM MAKUNDA
DATE: 9/2/97 TITLE: CFO
Accepted and Agreed by:
Extranet Telecommunications, Inc.
By: /s/ PRINT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DATE: 28 AUGUST 1997 TITLE: CEO
CO-LOCATION SCHEDULE
CO-LOCATION AND FACILITIES MANAGEMENT SERVICE AGREEMENT
CLIENT: STARTEC INC. (STC)
1. Address Of Co-location Center:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Space Allocation:
2110 sq. ft. Rentable Square Feet, 1560 sq. ft. Usable
Square Feet.
3. Initial Term:
Five (5) Years
4. Renewal Terms:
Additional Five (5) years
5. Requested Commencement Date:
Within ninety (90) days from the date of this Agreement.
6. Monthly Occupancy Fee:
Seven-thousand and thirty-four dollars and no cents ($7034.00) for the
period beginning upon the date of commencement to and including month
twenty-four of the term and seven-thousand five-hundred and sixty dollars
and no cents ($7560.00) the period beginning in month twenty-five of the
term to and including month sixty of the term. (includes the back-up
generator power and HVAC requirements described on Schedule 1 attached
hereto).
7. Additional Occupancy Fees:
Payable at the times and in the amounts as agreed by STC and ETI when
additional services are requested by STC from ETI.
8. Security Deposit:
Seven thousand five hundred and sixty dollars ($7560.00) which shall be
held by ETI until and applied as a payment by STC of the last month of the
term of this Agreement.
9. Electric Power Charges:
The Premises will be separately sub-metered for electricity at STC's
expense. ETI's charges for the actual electricity consumption shown on such
sub-meter, at the rates charged by the local electric company, will be
payable within fifteen (15) days after STC's receipt of an invoice
therefor.
10. Non-Recurring Build-out Fees:
Four-hundred and ninety-six thousand dollars no cents ($494,000.00).
11. Installation Charge:
None
12. Dispatch Labor Charges:
The following charges apply to work done on STC's behalf on STC equipment
located in the Premises ("Dispatch Labor Charges").
a. Normal ETI business hours one hour per week (accrued) included (Mon. -
Fri. 8:00 a.m. to 6:00 p.m. except ETI holidays) at no charge to STC
under this Agreement. Additional hours will be billed to STC at the
rate of $95.00 per hour with a one hour minimum.
b. Off Hour Support shall be billed at a rate of $125.00 per hour with a
two (2) hour minimum (All other times and ETI holidays).
c. Technical Labor Charges apply only if STC requests and authorizes
dispatch of ETI personnel to perform work on STC's behalf. ETI
reserves the right to accept or reject any such requests. ETI dispatch
of personnel to work on STC's equipment is also premised on STC
furnishing written instructions to ETI prior to commencement of any
work.
13. Support Services:
Optional on-site technical support will be provided according to the
following schedule:
Operations & Management Support $2000.00
for a 40 Hours per Month Subscription.
Time & Materials Support $ 95.00
per hour for each additional hour
provided hereunder.
14. Intra building Conduit and Cable Service Fees:
a. The fees described in this Paragraph 14a. shall be payable directly to
ETI.
One-time conduit space allocation charge: $25,000.00
One-time conduit provision charge: $ 3,500.00
Monthly recurring charge: $ 350.00
b. The charges described in Paragraph 14a. do not include any costs
associated with the installation of the intra-building conduit and
cable. Prior to the full installation of the conduit, STC shall pay to
ETI the ten percent (10%) fee that is payable to ETI pursuant to the
provisions of Paragraph 7(c) of the Agreement.
15. ETI provided carrier and customer interconnection monthly charges:
DS1 (On-net only) $ 225.00
DS3 (within ▇▇▇ ▇▇▇ ▇▇▇▇▇▇) $2,000.00
DS3 (From ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ to anywhere in 60 ▇▇▇▇▇▇) $2,200 00
No installation or mux charges apply. No minimum or term commitments.
16. ETI provided intra-building carrier and customer interconnection:
Service Type Monthly Charges
DS1 $ 80.00
DS3 $1,200.00
17. Additional Space within the ETI Co-Location Center:
a. Rack Space as defined in this Agreement will be
provided by ETI to STC according to the following
schedule:
Number of Racks/ Monthly Charge One-time Charge
1-3 Racks or Cabinets $450.00 $1200.00
4-9 Racks or Cabinets $400.00 $1000.00
10+ $350.00 $ 800.00
b. Additional measured square footage will be provided to STC according
to the same terms, conditions and rates as established in this
Agreement plus any increases imposed on ETI by its Landlord.
Accepted and Agreed by:
STARTEC INC.
By: /s/ PRINT: RAM ▇▇▇▇▇▇▇
DATE: 9/2/97 TITLE: CEO
Accepted and Agreed by:
Extranet Telecommunications, Inc.
By: /S/ PRINT: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DATE: 28 AUGUST 1997 TITLE: CEO
SCHEDULE 1
CO-LOCATION AND FACILITIES MANAGEMENT SERVICE AGREEMENT
CLIENT: STARTEC INC. (STC)
Description of the Premises to be provided to STC by ETI:
1. General Conditions:
a. The Premises shall be approximately two-thousand one hundred and ten
(2110) rentable square feet in size with a loss factor of twenty-six
percent (26%) for a total usable space of approximately one-thousand
five hundred and sixty (1560) square feet.
b. The Premises shall be equipped with a separate entrance for the sole
use of STC. ETI shall install full interior walls to secure the STC
Premises within the Leased Premises.
c. ETI reserves the right to equip the Premises with an open ceiling plan
and overhead hung lighting or a dropped ceiling with recessed
lighting.
d. A twelve (12") inch raised floor will be installed throughout the
facility.
e. ETI shall secure the Premises from the remainder of the Leased
Premises by means of a key or card access entry system.
f. ETI shall install, within the Premises, a maximum of one (1) duplex
convenience AC outlet and one (1) duplex voice (RJ11) and data (RJ45)
outlet for every one-hundred square feet of usable space as part of
this Agreement.
2. Electrical Resources:
a. ETI shall provision, maintain and manage an expandable negative 48VDC
power plant (the "DC Plant") sufficient to supply STC with their
stated -48VDC power resource requirement of six-hundred (600) amps
with one (1) hour back-up battery support. The DC Plant shall, as a
minimum, be capable of intelligent paralleling or proportional load
sharing, and shall be equipped with an automatic equalize function for
managed subsequent battery recharge in the event of a commercial power
failure. The DC Plant shall also be equipped with and support remote
extendable alarming capabilities. The DC Plant shall at all times be
connected to the building emergency generator plant. The six-hundred
(600) amps of -48VDC power resources supplied by ETI to STC shall
terminate on a main distribution panel with the -48VDC power resources
allocated as follows:
i. 2 x 200 amp fusing (Bkrs)
ii. 2 x 50 amp fusing (Bkrs)
iii. 3 x 20 amp fusing (Bkrs)
iv. 4 x 10 amp fusing (Bkrs)
b. ETI shall provision, maintain and manage an expandable inverted DC-AC
power plant (the "Inverted Plant") with a maximum of one (1) hour
battery support. The Inverted Plant shall be sufficient to supply STC
with their stated inverted power requirements of (40) AMPS @ 110VAC.
The Inverted Plant shall, as a minimum, be capable of intelligent
paralleling or proportional load sharing, and shall be equipped with
an automatic equalize function for managed subsequent battery recharge
in the event of a power failure as well as extendable alarming
capabilities. The Inverted Plant shall at all times be connected to
the building emergency generator plant. The forty (40) AMPS @ 110VAC
inverted power resources supplied by ETI to STC shall terminate on a
main distribution panel and shall be allocated as follows:
i. 2 x 20 amp fusing (Bkrs)
c. ETI shall provision and maintain AC commercial power resources (the
"AC Plant") sufficient to supply STC with a rated output of seventy
(70) AMPS @ 110VAC of non-battery, non-generator supported commercial
power for general office use which shall be allocated as follows:
i. 3 X 20 amp fusing (Bkrs)
ii. 1 x 10 amp fusing (Bkrs)
d. ETI shall furnish, install, manage and maintain a 750MCM ground window
which STC shall access at an ETI provided ground bar system. The ETI
provided ground bar system shall support an impedance of less than one
(1) ohm, clear of noise and voltage transients and shall electrically
isolate the power plant from the intregrated grounding at the ground
window.
3. Air Conditioning (hvac) Resources:
a. ETI shall furnish, install, manage and maintain sufficient air
conditioning resources to meet the STC stated heat load of
approximately 180,000 BTU/hr. ETI shall at all times during the term
of this Agreement maintain a required operating temperature of 65-75
degrees with humidity between 30% & 55%.
b. ETI may, in its sole discretion, provision the cooling resources as
provided in Paragraph 3a via free blow units, overhead ducts and or
under-floor hvac systems in order to permit the free flow of the
shared cooling system resources.
4. Fire Protection System:
a. ETI shall, as part of this Agreement, furnish and install an FM-200
type fire protection system within the Premises. The FM-200 fire
protection system shall be provisioned in a manner such that the
Premises will not be effected in the event of a system discharge in
another space within the Leased Premises. The existing landlord
provided building sprinkler system will be decommissioned and removed
from service.
b. ETI shall furnish, install maintain and manage interior smoke, water,
fire and entry detection equipment to monitor the Premises and Leased
Premises.
5. Alarm Notification System:
a. ETI shall furnish, install, maintain and manage a remote alarm
notification system within the Premises which shall be connected to
the Utility Systems to provide STC with full alarm notification
capability over the Utility Systems.
END OF SCHEDULE
CO-LOCATION AND FACILITIES MANAGEMENT SERVICE AGREEMENT CLIENT:
STARTEC INC. (STC)
EXHIBIT "A"
Premises
1. Depict the Premises:
CO-LOCATION AND FACILITIES MANAGEMENT SERVICE AGREEMENT
CLIENT: STARTEC INC. (STC)
(FLOOR PLAN)
CO-LOCATION AND FACILITIES MANAGEMENT SERVICE AGREEMENT
CLIENT: STARTEC INC. (STC)
EXHIBIT "B"
LANDLORD ACKNOWLEDGMENT
CO-LOCATION AND FACILITIES MANAGEMENT SERVICE AGREEMENT
CLIENT: STARTEC INC. (STC)
EXHIBIT "C"
LANDLORD LETTER FOR TIME WARNER
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc.
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇; N.Y. ▇▇▇▇▇-▇▇▇▇ TEL. (▇▇▇) ▇▇▇-▇▇▇▇
FAX NO. (▇▇▇) ▇▇▇-▇▇▇▇
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August 6, 1997
HAND DELIVER
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
ExtraNet
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Dear ▇▇▇▇▇▇▇:
It is my understanding that you require Time Warner Communications to access
your co-location facility in Room 518. As I mentioned during our telephone
conversation, building management will consider allowing Time Warner to enter
the building to provide services to Room 518.
This authorization is subject to Landlord's acceptance of the manner, plans,
fees, specifications of the overall installation and any other agreement
necessary.
Please provide me with your detailed installation plans including layout and
schematic drawings, so that I may address your request.
Do not hesitate to call if I can be of further assistance.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ COMPANY, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Owner's Representative
EOH:pt
cc: ▇▇▇▇ ▇▇▇▇▇▇
ALL INFORMATION FURNISHED REGARDING PROPERTY FOR SALE, RENTAL OR FINANCING IS
FROM SOURCES DEEMED RELIABLE, BUT NO WARRANTY OR REPRESENTATION IS MADE AS TO
THE ACCURACY THEREOF AND SAME IS SUBMITTED SUBJECT TO ERRORS, OMISSIONS, CHANGE
OF PRICE, RENTAL OR OTHER CONDITIONS. PRIOR SALE LEASE OR FINANCING OR
WITHDRAWAL WITHOUT NOTICE
THE OFFICE OF THE UNDERSIGNED
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
April 1, 1997
ExtraNet Telecormunications, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Lease (the "Lease") dated April l, 1997 by and between P.A.
BUILDING COMPANY (the "Landlord") and EXTRANET
TELECOMMUNICATIONS, INC. (the "Tenant") covering Room 518
(the "Demised Premises") located in the building (the
"Building") known as lll Eighth Avenue, New York, New York.
Gentlemen:
This letter confirms that Tenant is authorized to enter into license
agreements with third parties under which Tenant shall provide co-location
services to said third parties and make the demised premises available for
Tenant to fulfill Tenant's subscribers' co-location requirements subject to the
terms and conditions of the Lease, including, without limitation, Article 41(k),
a copy of which is annexed hereto, and in this regard and subject thereto Tenant
shall be permitted to enter into license agreements with subscribers of Tenant's
co-location facilities solely in order for said subscribers to place
telecommunications equipment (e.g., switch, router, compression equipment,
mixing equipment) within the demised premises and for no other purpose.
Very truly yours,
P.A. BUILDING COMPANY (Landlord)
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company, Inc., Agent
By:_____________________________________
Title
Article 41. Assignment, Subletting, Mortgaging (continued)
(k) Anything to the contrary contained in this Article 41 notwithstanding,
provided Tenant is not then in default beyond any applicable cure
period, Tenant shall be permitted without the prior consent of
Landlord, to issue licenses to subscribers of Tenant's co-location and
facilities management services solely for the purpose of said
subscribers placing telecommunications equipment (e.g., switch,
router, compression equipment, mixing equipment) in the demised
premises and for no other purpose. Tenant shall simultaneously upon
the execution of said licenses furnish Landlord with copies of same.
Nothing to the contrary contained herein shall confer any rights upon
said licensees by Landlord or create any costs or obligations upon
Landlord nor shall any privity exist or be created between said
licensees and Landlord, it being understood that the only relationship
of said licensees shall be solely with Tenant and shall be subject to,
otherwise limited and governed by the terms and conditions of this
Lease.
