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Exhibit 10(t)
COLLOCATION AGREEMENT
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This Collocation Agreement (the "Agreement") is made as of the 28th day
of August, 1997 by and between TCG, a New York General Partnership having an
office and place of business at 2720 East Camelback, Phoenix, Arizona, ("TCG"),
and Sandbox Entertainment, a Delaware Corporation having an office and place of
business at 2231 East Camelback, Phoenix, Arizona ("Customer").
WHEREAS, by Lease dated __________________, (the "Lease") by and
between Xxxx America, as Landlord (the "Landlord") and TCG, TCG is leasing from
the Landlord certain premises in 0000 Xxxx Xxxxxxxxx xx xxx Xxxx xx Xxxxxxx,
Xxxxxx of Maricopa, and the State of Arizona (the "Premises"); and
WHEREAS, Customer and TCG desire to enter into an agreement so that
Customer may place certain equipment in a portion of the Premises (the "Space");
and
WHEREAS, Customer is familiar with the applicable provisions of the
Lease;
NOW, THEREFORE, in consideration of the mutual covenants herein, it is
agreed as follows:
1. SPACE.
(a) This Collocation Agreement consists of this Agreement together with
Exhibits A, B, C and D, which are attached hereto and incorporated herein by
reference.
(b) TCG agrees to allow Customer to place certain equipment (the
"Equipment") as defined in Exhibit A, attached hereto and made a part hereof, in
the Space subject and subordinate to the terms and provisions of the Lease and
to Paragraph 17 hereof. Such equipment shall be approved by TCG prior to
installation int he Space and shall not exceed the Standard Dimensions
identified on Exhibit A. The equipment to be placed in the Space shall be
limited to no more than requested or reserved.
(c) Upon sixty (60) days' prior written notice or, in the event of an
emergency, or at such time as may be reasonable, TCG may require Customer to
relocate the Equipment within the Premises; provided, however, the site of
relocation shall afford comparable environmental conditions for the Equipment
and comparable accessibility to the Equipment. All costs of relocating the
Equipment shall be borne by Customer; provided, however, Customer shall not be
required to pay for the cost of improving the Space to which the Equipment may
be relocated.
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2. TERM.
(a) The date on which the Customer's license to occupy the Space
commences and the term of the Customer's license to occupy the Space are set
forth in the Collocate Schedule(s) (the "Initial Term") and is subject to
earlier termination as may be provided herein and/or in the Lease.
(b) Subject to the conditions specified in Paragraphs (c) and (d)
below, Customer shall have the option, upon ninety (90) days' prior written
notice to TCG, to renew its license to occupy the Space for the period of time
(the "Renewal Periods") and on the terms and conditions which are set forth in
this Agreement and the Collocate Schedule relevant thereto. The Initial Term and
any Renewal Period(s) are sometimes collectively referred to as the "Term."
(c) Customer's option to renew its license to occupy the Space shall be
contingent on the election by TCG to continue to lease the Premises in which the
Space is located for the duration of the Renewal Period(s) and such election to
be exercised at the sole discretion of TCG.
(d) Following the expiration of the Initial Term or any Renewal Periods
stated in the Collocate Schedule(s), or failure of the parties to enter into any
Renewal Periods, Customer's license shall continue in effect on a month-to-month
basis upon the same terms and conditions specified herein. Thereafter, to
terminate the license a party shall give the other party thirty (30) days' prior
written notice.
(e) Notwithstanding the foregoing, TCG reserves the right in its sole
discretion to terminate this Agreement upon ten (10) days written notice to
Customer.
3. CONSIDERATION. Customer agrees to pay TCG at the address first stated above,
the amount described on Exhibit B, the Collocate Schedule, attached hereto and
incorporated herein.
This amount is payable on the first day of each month.
4. CONDITION OF PREMISES. Customer hereby accepts the Space in an "as is"
condition at the commencement of the term of this Agreement, and acknowledges
that TCG has no obligation to make alterations, improvements or additions,
decorations or changes within the Premises, Space or any part thereof.
5. ASSIGNMENT. Customer agrees that it will not be any way assign or encumber
this Agreement and that it will not permit the space to be used by others
without written consent of TCG.
6. TERMINATION OR EXPIRATION. Customer shall leave the Space in good condition
(except for normal wear and tear) as it was in the beginning of the term of this
Agreement, and shall remove any property which it is obligated or permitted to
remove pursuant to the terms of the Lease on or before the termination or
expiration thereof.
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7. SERVICES.
(a) Network Traffic: TCG shall serve as the Customer's supplier for all
telecommunications services (private line, switched access) originating from or
terminating in the Space.
(b) Services: TCG shall provide to customer:
i. One (1) 7' x 23" x 24" relay rack or footprint of
equivalent size.
ii. Access to 110 V AC power outlet for test equipment.
iii. Transmission cabling to the collocation Space
(non-terminated) -- TCG will wire to a common DSX cross connect. This will serve
as the demarcation point between the TCG network and the customer's network. TCG
will be responsible for providing this DSX equipment. Customer will be required
to wire from the demarcation point to its Equipment. All installation must meet
TCG installation Standards.
iv. Grounding for relay racks.
v. Labor required to anchor relay rack to floor.
vi. Labor required to run power feeds to relay rack
(non-terminated); and
vii. Environmental conditions of approximately 70 degrees
(___) and a 50% humidity level.
(c) Electricity: TCG shall supply Customer with two (2), ten (10) amp
power feeds (one for main; one for standby) at the rate of $6.00 per amp per
month. Power requirements in excess shall be ordered in ten (10) amp increments
and charged to Customer at the rate of $6.00 per amp per month. Customer shall
pay any electric or other utility charges attributable to the Equipment and
related use of the Space as described on Exhibit B. Upon thirty (30) days' prior
written notice, the monthly rate may be adjusted by TCG from time to time to
reflect increases in the rate charged for electricity by the utility provider.
Unless otherwise provided for in Exhibit B, if Customer requires 120 VAC power
for their Equipment, TCG will provide the -48 VDC power feeds as indicated above
and it will be the Customer's responsibility to invert.
8. DEFAULT. In the event of Customer's breach of any term or condition under any
new Agreement or any other agreement(s) between TCG and Customer, TCG shall have
the right in its sole discretion to immediately terminate upon notice this
Agreement and/or any of the other
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agreements between the parties in addition to any and all other remedies
afforded to TCG under the law or equity.
9. INDEMNIFICATION. Customer covenants and agrees to indemnify and hold TCG
harmless from and against any and all suits, actions, claims, damages, charges
and expenses, including reasonable attorney fees, for damages or injuries to the
Space or premises, and/or for any personal injury or loss of life occurring or
claimed to have occurred in, upon, or about the Space or Premises as a result of
Customer's negligence or willful misconduct in operating its equipment or use of
the Space, unless arising from the negligence or willful misconduct of TCG. TCG
shall not be liable to Customer for any damage or losses due to the failure or
malfunction of any Equipment or facilities located in the Space.
10. LIMITATIONS OF LIABILITY.
(a) Liability for Damages to Property. TCG shall not be liable for any
damages whatsoever to Customer's property resulting from the installation,
maintenance, repair or removal of equipment and associated wiring unless the
damage is caused by TCG's willful misconduct or gross negligence.
(b) Liability for Equipment not Provided by TCG. TCG shall not be
liable for any damages whatsoever associated with facilities, or equipment which
they do not furnish or for any act or omission of Customer or any other entity
furnishing facilities or equipment.
(c) Liability for Force Majeure Events. TCG shall not be liable for any
failure of performance due to causes beyond its control, including but not
limited to: acts of God, fire, flood or other catastrophes; any law, order
regulation, direction, action or request of the United States Government, or of
any other government, including state and local governments having or claiming
jurisdiction over TCG or of any department, agency, commission, bureau,
corporation, or other instrumentality of any federal, state, or local
government, or of any civil or military authority; national emergencies;
unavailability of materials or rights-of-way; insurrections; riots; wars; or
strikes, lock-outs, work stoppages, labor difficulties, or utilities/power
outages.
(d) No Special Damages. In no event shall TCG be liable for special,
consequential, lost profit, exemplary, or punitive damages as a result of its
performance or nonperformance of this Agreement.
11. CASUALTY OR EMINENT DOMAIN. In the event of any taking by eminent domain or
damage by fire or other casualty to the Premises and/or Space, Customer shall
acquiesce and be bound by any action taken by or agreement entered into between
TCG and Landlord with respect thereto.
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12. NO BROKER. Customer represents that it has not dealt with any broker in
connection with this Agreement and that Customer shall hold TCG harmless from
and against any and all claims for brokerage commissions in connection
therewith.
13. ENTIRE AGREEMENT. All prior agreements and understandings of the parties are
merged within this Agreement, which alone fully and completely sets forth the
understanding of the parties with respect to the subject matter of this
Agreement. This Agreement shall not be modified without the prior written
consent of the parties.
14. NOTICES. Any and all notices or communications which either party may desire
or be required to give to the other shall be in writing and shall be sent to the
other party by certified or registered mail at the address first written above,
except that notices from Customer to TCG shall also be addressed to the
attention of General Counsel, Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX
00000.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Arizona.
16. INSURANCE. Customer covenants and agrees to provide, on or before the date
of the commencement of the terms of this Agreement, and to keep in force and
effect during the terms thereof for the benefit of Customer and TCG, a policy of
comprehensive liability insurance or a certificate evidencing the existence
thereof, conforming to the requirements of the applicable provisions of the
Lease, whichever is greater.
17. ACCESS. Whenever Customer requires access to the Space, Customer shall give
TCG twenty-four (24) hours prior notice by calling TCG at a phone number to be
provided by TCG and requesting TCG to arrange for access to the Space. Customer
shall reimburse TCG for all costs incurred by TCG in arranging access, including
salary costs of the employees of TCG providing access to the Space to Customer
and remaining at the Space during such time as Customer requires access. Access
requirements for the Premises are outlined in Exhibit B.
TCG, at its sole discretion, may grant Customer use of an access card. Customer
shall report the card lost or stolen to TCG as soon as discovered. A lost or
stolen access card is replaceable upon $100 payment to TCG. Sandbox will require
access card.
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IN WITNESS WHEREOF, Customer and TCG have respectively signed this
Agreement as of the day and year first above written.
TCG: Phoenix Customer: Sandbox Entertainment
Sign: /s/ Xxxx XxXxxx Sign:/s/ Xxxx X. Xxxxxx
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Name: Xxxx XxXxxx Name: Xxxx Xxxxxx
Title: VP/GM Title: President
Date: 8/28/97 Date: 8/28/97
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Initials
TCG VP/Ops
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Exhibit A to Collocation Agreement between
Sandbox Entertainment and TCG Phoenix
Customer Equipment Collocation Request Form
Customer: Sandbox Entertainment, a Delaware corporation
Customer Address: 0000 Xxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
TCG Location: 0000 Xxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
Collocation Term: 12 Months
Description of Equipment to be Installed:Equipment list is attached as Exhibit C
Customer 24 Hour Maintenance Number:__________________________________
Estd. start date:_________________ Est. completion date:_____________________
RACK / SPACE REQUIREMENTS POWER & MDF REQUIREMENTS
Number of Racks requested: 4 Is -48 VDC required? |_| YES |X| NO
Does Customer wish to reserve rack space? (TCG provides two 10-amp power feeds per rack
|X| YES |_| NO (1=main; 1=standby) at $6.00 per amp per
Number of Racks reserved: 4 month / Additional amperage charge is $6.00 per amp
Dimensions of Equipment (Standard Dimensions) per month in increments of 10 amps)
Width: 23" (not to exceed 23")* Current: 20 amps
Height: 7' (not to exceed 7')* Does equipment require 120 VAC?
Depth: 24" (not to exceed 24")* |_| YES |_| NO
Weight: 125 lbs. (NTE 125 lbs/ft) [TCG will provide -48 VDC as above.
*Items in excess cost additional. It is the Customer's responsibility to invert]
*Cabinet requires TCG prior approval. Current:________________ amps
Cage Required? |X| YES |_| NO Number of Demarc Positions required: 4
(min: 5 racks / max: 9 racks)
(floor space charges apply)
Installation and materials charges apply to equipment installed by TCG. All
installations must meet TCG Installation Standards.
NOTE: All customer specifications or drawings must be attached to this form.
Customer Sandbox Entertainment TCG Phoenix
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx XxXxxx
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Title: President VP/GM
Dated: 8/28/97 Dated: 8/28/97 ______
Initials
TCG VP/Ops
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Exhibit B to TCG COLLOCATION AGREEMENT
BETWEEN SANDBOX ENTERTAINMENT AND TCG PHOENIX
Collocate Schedule
1. Premises: 2720 East Camelback, Phoenix, Arizona (MAIN NODE)
2. Term: 12 months
Requested Service Date: 8/29/97
Date Collection Term Ends: 8/29/98
3. Renewal Period(s):
4. Occupancy, Service and Build-out Fees
Occupancy Fee: $2,000.00 ($500.00 per rack per month x 4 racks)
Service Fee: $480.00 ($6.00 per amp per month 80 amps)
Build-out Fee: $4,000.00 ($1,000 per rack one-time x 4 racks)
Reservation Fee: N/A ( per rack per month until used)
Floor Space Fee: N/A (100 square feet x CO Band per month)
5. Landlord Information, if applicable:
6. Delineation of Space: See floor plan, attached as Exhibit D.
7. Customer's forecast of capacity for DS1s, DS3s, etc. in year 1, and in
years 3 and 5 if applicable:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________
Customer Sandbox Entertainment TCG Phoenix
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx XxXxxx
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Title: President VP/GM
Dated: 8/28/97 Dated: 8/28/97 _____
Initials
TCG VP/Ops
EXHIBIT C TO COLLOCATION AGREEMENT
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