Exhibit 10.28
License Agreement for RateXchange
S&DFC #136
SWITCH & DATA FACILITIES CO-LOCATION LICENSE FORM
FOR
RateXchange, Inc.
This Co-location License (the "License") made as of the 1st day of
March, 2000, by and between Switch & Data Facilities Company LLC, a Delaware
limited liability company, having an address at 1715 North Westshore, Suite 525,
Tampa FL 33607 ("S&DFC") and RateXchange, Inc., a Delaware Corporation, having
an address at 185 Berry St., Suite 3515, San Francisco, CA 94107 ("Licensee").
WITNESSETH:
WHEREAS, S&DFC and the landlord(s) (each a "Prime Landlord") listed in
the attached Colocation Schedules have entered into leases (each a "Prime
Lease") covering the leasing of portions of office buildings (each a "Building")
located at the sites listed in the attached Colocation Schedules
WHEREAS, Licensee wishes to operate its computer and/or communications
systems located at the S&DFC premises in the sites listed in the attached
Colocation Schedules, and S&DFC is willing to grant to Licensee an exclusive
license to use a portion of the S&DFC premises for such purposes under the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DFC and
Licensee hereby agree as follows:
1. Use of Space. Licensee shall use a part (such part, the "Space") of each of
the various S&DFC premises (the "Premises") in each Building to accommodate
the number of equipment cabinets or the square footage listed in the
attached Colocation Schedules. S&DFC reserves the right to designate the
exact location of the Space within the respective Premises. S&DFC will
supply power of the type and in the amount designated in Exhibit B. Each
Space shall be used solely for the installation and operation of equipment
as listed from time to time in related Exhibit A (the "Equipment List"), in
connection with Licensee's business, to the extent allowed in the
applicable Prime Lease. Licensee shall provide S&DFC at least 30 days'
prior written notice of Licensee's intent to install additional equipment
in a Space by way of an amended Exhibit A listing the equipment to be
installed (the "Installation Notice"). The amended Exhibit A shall become
part of this License upon the expiration of such 30 day period unless S&DFC
notifies Licensee in writing within 5 business days of receipt of the
Installation Notice that the installation would violate the applicable
Prime Lease. Any such notice by S&DFC shall include excerpts of the portion
of Prime Lease that such installation is purported to violate to afford
Licensee the opportunity to modify the installation so that it will comply
with the Prime Lease. Licensee covenants and agrees that Licensee shall not
use any Space for any other purposes whatsoever unless otherwise
specifically authorized in writing by S&DFC. Licensee's use of the Space is
to be conducted
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in accordance with all security procedures adopted by S&DFC. It is
expressly agreed that the License granted hereunder is an exclusive license
to use each Space. S&DFC may, at its option, elect by notice to Licensee to
substitute for a Space other space in the same Building designated by
S&DFC, provided that the substitute space contain approximately equal area
and have substantially similar configuration. All expenses for such move
will be borne entirely by S&DFC. This License is and at all times shall be
subject and subordinate to the Prime Leases.
2. Prohibited Uses. Licensee shall not at any time use or allow any person to
use any Space or do or permit anything to be done or kept in or about a
Space that: (a) violates any certificate of occupancy in force for the
applicable Building, provided that S&DFC has previously provided Licensee
with a copy of such certificate; (b) causes or is likely to cause damage to
a Building, a Space, or any equipment, facilities or other systems therein;
(c) constitutes a violation of any legal requirement; (d) violates a
requirement or condition of the standard fire insurance policy issued for
office or data processing buildings in the cities listed in the attached
Colocation Schedules or, in the absolute judgment of S&DFC constitutes an
extra-hazardous condition; (e) constitutes a nuisance, annoyance or
inconvenience to other lessees, licensees or occupants of a Building or any
portion of the Premises or interferes with or disrupts the use or occupancy
of any area of the Building or any portion of the Premises by other
lessees, licensees or occupants of such Building or Premises; (f)
interferes with the computer or telecommunications operations of a Building
or Premises; (g) constitutes an unlawful, immoral or objectionable
occurrence or condition; or (h) violates any provision of the applicable
Prime Lease.
3. Services Provided. S&DFC shall provide certain support (collectively, the
"Services") for the Licensee's equipment installed in the Space: (1)
installation support including necessary power connections, floor tile
cutouts, installation of ceiling conduit, and equipment and terminal
connections as detailed in the Installation Support Work schedule attached
hereto as Exhibit B and incorporated herein by reference; and (2)
environmental control including an air conditioned environment with
controlled access for operation on shared, no-wall basis, including
adequate UPS backed electricity, generator backed electricity, or building
standard commercial power and computer air conditioning. Any additional
services other than the Services thus defined and the fees to be paid for
such additional services are subject to written amendment of this License
upon mutual agreement between S&DFC and Licensee. Licensee acknowledges
that S&DFC may temporarily interrupt the Services for the reasons of
mandate by law, utility stoppage beyond its control, or inspection and
repair required to operate and maintain the plumbing, mechanical and
electrical systems of the Building. S&DFC shall endeavor to provide prior
written notice to Licensee of such scheduled inspections and repairs.
4. Floor Load. Licensee shall not place a load upon any floor of the Space
that exceeds either the load per square foot which such floor was designed
to carry (100+ lbs. per square foot) or that which is allowed by law. S&DFC
reserves the right to prescribe the weight and position of all equipment.
Licensee shall be responsible for the costs of engineering evaluation and
installation of floor supports, if necessary for batteries and other
equipment exceeding floor
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load specifications.
5. Equipment Installation and Removal. Licensee shall provide the equipment
installation work. Prior to the expiration of this License, Licensee, at
its expense, shall remove from each Space, all of Licensee's property, and
Licensee shall repair any damage to each Space or the Building resulting
from the installation or removal of Licensee's property.
6. Term. The initial term of this License (the "Term") is thirty (30) months
commencing March 13, 2000 (the "Commencement Date"). After the Commencement
Date, S&DFC shall execute a Memorandum of License Commencement, which shall
specify the calendar dates of the Commencement Date and the expiration date
(the "Expiration Date") of the Term. The failure by S&DFC or Licensee to
execute a Memorandum of License Commencement shall not affect the setting
of the Commencement Date. Unless one party notifies the other of its intent
to terminate the License at least six (6) months prior the end of the Term,
the License shall continue for consecutive one-year terms upon which
continuance termination of the License by either party shall require at
least six (6) month's prior written notice.
7. Additional Space. S&DFC acknowledges that Licensee anticipates that its
need for space shall grow at each Premises. Licensee, during the Term and
each additional monthly lease term thereafter (if any) agrees (i) to
reserve as long as is commercially reasonable additional contiguous space
of the same square footage as each Space (each an "Expansion Space"), and
(ii) not to rent any Expansion Space unless and until (a) another potential
lessee has offered to lease such Expansion Space, (b) S&DFC has notified
Licensee of such other potential lessee's interest and offered the
Expansion Space to Licensee, and (c) Licensee has declined such Expansion
Space.
8. License Fees. As consideration for the License Licensee shall pay to S&DFC
fees (the "License Fees,") as detailed in Exhibit D. All recurring Licensee
Fees and one-time fees are due and payable 20 days after receipt of
invoice. In addition to any fees specified herein, Licensee shall also be
responsible for the payment of sales and/or use taxes, if any, imposed by
any governmental authority or agency in connection with the license granted
here or services performed hereunder. Any additional services, including
additional equipment operation to be performed by S&DFC for Licensee which
are not covered by this License and the consideration to be paid by
Licensee for such additional services shall be subject to the mutual
agreement of S&DFC and Licensee and shall be set forth in writing. In the
event that Licensee fails to pay the License Fees set forth in this Section
7 within ten days (10) after such payment is due, then Licensee shall pay
S&DFC a late charge equal to 5% of such past due payment as an agreed
liquidated amount as compensation for S&DFC's additional administrative
expense relating to such late payment.
9. Power. Licensee shall pay S&DFC charges for electrical power as detailed in
Exhibit C. Payments shall be made in accordance with Paragraph 7 above.
10. Security Deposit. Collection and retention of any security deposit of any
kind is waived for each and every Space licensed hereby.
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11. Insurance. During the Term, S&DFC shall maintain All Risk casualty
insurance, covering each S&DFC Premises in each Building insuring such
Premises in the amount of its full replacement value. During the Term,
Licensee shall maintain, at its expense, All Risk casualty insurance
covering Licensee's property in the amount of its replacement value. During
the Term, S&DFC shall maintain public liability insurance covering the
S&DFC Premises in each Building insuring against all hazards and risks
customarily insured against by persons operating data communications
buildings. Licensee, at its expense, shall maintain, at all times during
the Term, comprehensive general liability insurance, written on an
occurrence basis with blanket contractual liability coverage, with respect
to use of the Space and operation of business therein, with combined
single-limit coverage of not less than Five Hundred Thousand Dollars
($500,000). S&DFC may increase the policy amount to be maintained by
Licensee under this Section 10 as S&DFC reasonably deems necessary in order
to maintain adequate liability coverage. The certificate of insurance for a
Space shall be delivered to S&DFC prior to installation of equipment in
such Space. The certificates of insurance shall show that the insurance is
prepaid, and in full force and effect. Insurance coverage for a Space shall
not be canceled, non-renewed or decreased during the Term without at least
thirty (30) days prior written notice to S&DFC. The maintenance of
insurance by Licensee shall in no way limit or affect the extent of
Licensee's liability.
12. Indemnity. Licensee shall indemnify and hold harmless S&DFC against all
claims, suits, expenses losses, liabilities or damages resulting from any
breach by Licensee of any material provision of this License or from any
negligence, gross negligence or willful misconduct of Licensee. S&DFC
shall, subject of Section 12 below, indemnify and hold harmless Licensee
against all claims, suits, expenses, losses, liabilities or damages
directly resulting from a material breach by S&DFC of any material
provision of this License due to gross negligence or willful misconduct of
S&DFC.
13. Limitation of Liability. Notwithstanding Section 11 above, in no event
shall S&DFC be liable for (i) lost profits, lost information or any damages
to Licensee or any of Licensee's customers' business or property caused by
any error in judgment of, or any action taken or omitted by, S&DFC, or any
interruption of the Services, unless such error, action, omission or
interruption constitutes or results from gross negligence or willful
misconduct of S & DFC; or special, consequential or punitive damages as a
result of its performance or nonperformance of this License. S&DFC shall
not be liable for any claims, suits, expenses, losses, liabilities or
damages caused by Licensee's failure to perform its responsibilities under
this License or by failure of S&DFC to fulfill its obligations under this
License due to causes beyond its control, including, but not limited to;
defects in computer and/or communications systems provided by Licensee,
acts of God, interruption of power or other utilities, interruption of
transportation or communication services, acts of civil or military
authority, national emergencies, or strike. Licensee shall not be liable
for its failure to perform its non-monetary obligations hereunder due to
causes beyond its control, including but not limited to, defective
telecommunication systems or equipment provided by Licensee, acts of God,
interruption of power or other utilities, interruption of transportation or
communication services, acts of civil or military authority, national
emergencies or strike. In the event S&DFC is found to be liable for claims,
suits, expenses, losses, liabilities or
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damages pursuant to this Section 12, S&DFC's liability per wrongful action
or inaction of S&DFC shall be the least of (a) the provable amount of
actual damages directly incurred from such action or inaction, or (b) in
the case of services interruption, the amount of the monthly fees paid by
Licensee to S&DFC prorated by the number of days in which the Services are
interrupted, or (c) the amount of the monthly fees paid by Licensee to
S&DFC. In no event shall S&DFC's liability be greater than the monthly fees
it receives.
14. Confidentiality. Each party, for itself, its agents, employees and
representatives agrees that it will not divulge any confidential or
proprietary information which it receives from the other party, except as
may be required in the performance of the Services or the implementation of
the project with respect to which the Services are rendered; provided,
however, that no liability shall arise hereunder as a result of the
dissemination of any information which (i) was in the possession or control
of one party prior to the date of disclosure to that party by the other
party hereunder, or (ii) was in the public domain or enters the public
domain through no improper act by the party to which such information was
disclosed or any of that party's agents or employees, or (iii) was
rightfully given to a party by a source independent of the other party, and
provided further, that each party shall be permitted to disclose any
information to the extent required by applicable law or governmental
authorities.
15. Binding Agreement; Assignment. This License shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that Licensee shall not be permitted to assign this License
or any interest herein without the prior written consent of S&DFC, which
consent shall not be unreasonably withheld. Licensee shall not pledge,
mortgage or encumber this License or any interest herein and shall not
(without the prior written consent of S&DFC) assign this License or any
interest herein or permit any other person or entity to occupy any Space.
Licensee shall reimburse S&DFC on demand for any reasonable costs that may
be incurred by S&DFC in connection with any proposed assignment.
Notwithstanding any assignment, Licensee will remain fully liable for the
payment of fees and for the performance of all the other obligations of
Licensee contained in this License. The consent by S&DFC to any assignment
shall not relieve Licensee of the obligation to obtain the consent of S&DPC
to any future assignment.
16. Cooperation of Licensee. Licensee shall fully cooperate with S&DFC in
connection with S&DFC's performance of the Services. Licensee shall, with
reasonable promptness, provide all information reasonably required by S&DFC
for its performance of the services, and shall make designated
representatives available for regular consultation at such times and places
as S&DFC shall reasonably request.
17. No Agency Relationship Implied. It is acknowledged and agreed by Licensee
that S&DFC performs the Services hereunder solely as an independent
contractor and that no joint venture, partnership, employment, agency or
other relationship is intended, accomplished or embodied in this License.
S&DFC shall have the sole and exclusive right to supervise, manage, control
and direct its performance of this License.
18. Default. In the event Licensee fails to pay monthly or other fees within
fifteen (15) days of S&DFC's written notice to Licensee of its failure to
pay when due and demand for the
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immediate payment thereof, S&DFC may at its sole discretion take any or all
of the following actions: i) prohibit Licensee's access to the Space; ii)
turn off electricity; iii) restrict vendor access to work on Licensee's
equipment and/or circuits or iv) terminate this License. In the event
Licensee fails to perform or comply with any other provision of this
License within ten (10) days of S&DFC's written notice to Licensee of its
failure to so perform or comply, S&DFC may terminate this License.
Additionally, in the event of Licensee's default under this License and
failure to cure such default within the time periods specified, Prime
Landlord may also terminate this License. Licensee shall in any event
remain fully liable for damages as provided by law and or all costs and
expenses incurred by S&DFC on account of such default, including reasonable
attorneys' fees. Licensee's obligation to pay all fees and charges that
have been accrued shall survive any termination of this License.
19. Termination of License. If (a) S&DFC exercises its right to terminate the
License pursuant to Section 17 above, or (b) Prime Landlord terminates this
License pursuant to Section 17 above, or (c) the Term of the License shall
expire, then in each such case, Licensee shall promptly quit and peacefully
surrender the Space to S&DFC, and S&DFC may recover the Space, by summary
proceedings or any action or proceeding, and remove all occupants and
property from the Space. In the event the License should terminate due the
a Prime Landlord's termination of the Prime Lease before the end of the
Term, Licensee shall be forgiven any unpaid portion of the Cumulative
License Fee (as defined in Exhibit D) in excess of the license fees due for
the period of actual occupancy in such Space. If the Space is not promptly
surrendered upon the expiration or earlier termination of the License,
Licensee hereby indemnifies S&DFC against loss, cost, expense, damage,
claim or liability, including reasonable attorneys fees, resulting from
delay by Licensee in so surrendering the space. Licensee's obligations
under this Section 18 shall survive the expiration or early termination of
the License.
20. Notices. All notices, reports, requests or other communications given
pursuant to this License shall be made in writing, shall be delivered by
hand delivery, overnight courier service or fax, shall be deemed to have
been duly given when delivered, and shall be addressed as follows:
To Licensee: To S&DFC:
RateXchange, Inc. Switch and Data Facilities, Co.
185 Berry Street, Suite 3515 1715 North Westshore Drive, Suite 525
San Francisco, CA 94107 Tampa, FL 33607
Attn: Chief Operating Officer Attn: George Pollock
Fax: (415) 371-9801 Fax: (813) 281-0340
Or to such other location as to which S&DFC or Licensee shall notify the
other via certified mail, return receipt requested.
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20. Governing Law. The rights and obligations of the parties under this License
shall be governed by and construed and enforced in accordance with the laws
of the State of New York without giving effect to conflicts of laws
provisions.
21. Entire Agreement. The License constitutes the entire agreement between
S&DFC and Licensee with respect to the use of the Space and the Services,
and may be modified only by a written instrument signed by a duly
authorized officer on behalf of each party. No representation or statement
not contained in this License shall be binding upon S&DFC as a warranty or
otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this License to be
duly executed by their respective authorized signatories as of the day and
year first above written.
LICENSEE: RateXchange, Inc.,
a Delaware corporation
By /s/ D. H. Sledge
----------------
Name: D. H. Sledge
------------
Title: Chairman/CEO
-------------
S&DFC: Switch & Data Facilities Company LLC,
a Delaware limited liability company
By /s/ Stephen B. Kelly
--------------------
Name: Stephen B. Kelly
----------------
Title: Manager
-------
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SCHEDULE OF ATTACHMENTS
Exhibit A-1 Equipment List - New York, New York
Exhibit A-2 Equipment List - Vienna, Virginia
Exhibit A-3 Equipment List - Miami, Florida,
Exhibit A-4 Equipment List -- San Jose, California
Exhibit A-5 Equipment List -- Atlanta, Georgia
Exhibit A-6 Equipment List -- Seattle, Washington
Exhibit A-7 Equipment List -- Los Angeles, California
Exhibit B Installation Support Work
Exhibit C Support Services and Miscellaneous Charges
Exhibit D Roll-Out Schedule and Total Contract Value
Colocation Schedule I -- New York City
New York City Exhibit I -- Space Diagram
Colocation Schedule II-- Vienna
Vienna Exhibit I -- Space Diagram
Colocation Schedule III -- Miami
Miami Exhibit I -- Space Diagram
Colocation Schedule IV -- San Jose
San Jose Exhibit I -- Space Diagram
Colocation Schedule V -- Atlanta
Atlanta Exhibit I -- Space Diagram
Colocation Schedule VI -- Seattle
Seattle Exhibit I -- Space Diagram
Colocation Schedule VII-- Los Angeles
Los Angeles Exhibit I -- Space Diagram
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S&DFC#136
EXHIBIT A-1
EQUIPMENT LIST
NEW YORK, NEW YORK
S&DFC Site #032-001-136
(To Be Provided by Licensee)
Licensee's Name: RateXchange, Inc.
By (signature): ______________________ Date: ______________
Name: ____________________________
Title: ____________________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
City/Site Cabinet ID Equipment ID Power (Kva) Heat (BTU) Size (HxWxD) Weight
(pounds)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT A-2
EQUIPMENT LIST
VIENNA, VIRGINIA
S&DFC Site #046-001-136
(To Be Provided by Licensee)
Licensee's Name: RateXchange, Inc.
By (signature):______________________ Date: ______________
Name: ____________________________
Title: ____________________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
City/Site Cabinet ID Equipment ID Power (Kva) Heat (BTU) Size (HxWxD) Weight
(pounds)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT A-3
EQUIPMENT LIST
MIAMI, FLORIDA
S&DFC Site #009-001-136
(To Be Provided by Licensee)
Licensee's Name: RateXchange, Inc.
By (signature):______________________ Date: ______________
Name: ____________________________
Title: ____________________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
City/Site Cabinet ID Equipment ID Power (Kva) Heat (BTU) Size (HxWxD) Weight
(pounds)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT A-4
EQUIPMENT LIST
SAN JOSE, CALIFORNIA
S&DFC Site #005-002-136
(To Be Provided by Licensee)
Licensee's Name: RateXchange, Inc.
By (signature):______________________ Date: ______________
Name: ____________________________
Title: ____________________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
City/Site Cabinet ID Equipment ID Power (Kva) Heat (BTU) Size (HxWxD) Weight
(pounds)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT A-5
EQUIPMENT LIST
ATLANTA, GEORGIA
S&DFC Site #010-001-136
(To Be Provided by Licensee)
Licensee's Name: RateXchange, Inc.
By (signature):______________________ Date: ______________
Name: ____________________________
Title: ____________________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
City/Site Cabinet ID Equipment ID Power (Kva) Heat (BTU) Size (HxWxD) Weight
(pounds)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT A-6
EQUIPMENT LIST
SEATTLE, WASHINGTON
S&DFC Site #047-001-136
(To Be Provided by Licensee)
Licensee's Name: RateXchange, Inc.
By (signature):______________________ Date: ______________
Name: ____________________________
Title: ____________________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
City/Site Cabinet ID Equipment ID Power (Kva) Heat (BTU) Size (HxWxD) Weight
(pounds)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT A-7
EQUIPMENT LIST
LOS ANGELES, CALIFORNIA
S&DFC Site #005-001-136
(To Be Provided by Licensee)
Licensee's Name: RateXchange, Inc.
By (signature):______________________ Date: ______________
Name: ____________________________
Title: ____________________________
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------
City/Site Cabinet ID Equipment ID Power (Kva) Heat (BTU) Size (HxWxD) Weight
(pounds)
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
----------------------------------------------------------------------------------------------------------------------
</TABLE>
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EXHIBIT B
INSTALLATION SUPPORT WORK
S&DFC will provide the following Installation Services:
1. Site Preparation-- S&DFC shall:
1.1.construct cages to enclose Licensee's Spaces as designated in the
attached Colocation Schedules.
1.2.provide circuit convenience outlets within the vicinity of Licensee's
location.
1.3.supply overhead cable ladders in proximity to Licensee's cage for the
running of communication circuits.
1.4.supply Licensee's cage with five (5) 30 amp DC circuit(s) with A/B
feeds.
2. Equipment
2.1. Licensee is responsible for all equipment installation.
2.2. Licensee will provide cabinets at its own expense.
2.3. Licensee to install cabinets at its own expense.
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EXHIBIT C
SUPPORT SERVICES AND MISCELLANEOUS CHARGES
1. S&DFC will supply technical support using the Hands, Eyes and Ears
approach. This approach will consist of the following:
1.1. Reporting of the visual status of lights, switches and printed
outputs.
1.2. Re-setting of equipment, cycle power, review connectors for physical
integrity.
1.3. Reporting to the Licensee any equipment alarms.
1.4. Swapping of cards and/or plug-ins under Licensee supervision.
1.5. At Licensee's request, S&DFC will provide cabling support.
2. S&DFC will charge on an hourly basis; the actual rate will vary according
to location.
2.1. Minimum charge of 1 hour.
2.1.1. Normal business hours: $60/hr
2.1.2. Nights and weekends: $100/hr
2.2. If the hands, eyes and ears approach does not remedy the problems,
the Licensee may bring in Sub-Contractors to perform additional
support services.
2.2.1. At the Licensee's request, S&DFC may provide a list of
recommended Sub-Contractors for each facility.
2.2.2. Where the Licensee directs S&DFC to bring in an outside vendor
for equipment repair or reconfiguration this expense will be
billed directly to the Licensee by the vendor.
3. Flat Fee Power Charges-- specifications to be provided by Licensee
1. Non-UPS backed power is charged at 70% x $12.00 x per amp of
circuit capacity.
2. UPS backed power is charged at 70% x $18.00 x per amp of circuit
capacity.
3. DC power is charged at 70% x $12.00 x per amp of circuit
capacity.
4. Rate Increases: In the event that power rates charged S&DFIL1
increase more than 10% above current levels, S&DFC reserves the
right to increase the rate proportionately.
4. Cable/Cross Connection Fees
1. Direct Connection Fees
Cable charges are the responsibility of the Licensee and may be
directly negotiated with the carrier concerned. Within each S&DFC
facility, the following cross connection fees apply:
To Carriers: Currently no charge
To other Licensees: $30.00 per month
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EXHIBIT C (con't)
2. Cross-Connect Fees
Within each S&DFC facility, the following cross connection fees
apply:
Install fee per DS1: $25.00
Install fee per DS3: $75.00
Install fee per OCX: $250.00
DS 1 monthly charge: $40.00
DS3 monthly charge: $80.00
OCX monthly charge: $125.00
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S&DFC #136
EXHIBIT D
ROLL-OUT SCHEDULE AND TOTAL CONTRACT VALUE
Licensee will notify S&DFC in writing at least 100 days prior to its intended
date of occupancy in any particular Space for the particular Space in which it
is prepared to install equipment. In the event Licensee desires to (i)
substitute a Space in another S&DFC Premises not originally contemplated by this
Agreement, or (ii) occupy a Space in another S&DFC Premises in addition to those
contemplate by this Agreement, approval by S&DFC to such substitution or
addition shall not be unreasonably withheld. Regardless of city selected,
Licensee agrees to pay S&DFC at least the Cumulative License Fees as follows:
1. License Fees.
1.1. Cumulative License Fee. Licensee will accrue a minimum cumulative
license fee in the amount of Nine Hundred Thirty Six Thousand Dollars
($936,000) as payment in full for the License, in accordance with the
terms set forth in Section 7 of the Agreement and in this Exhibit D.
1.2. Base Fee. Licensee shall accrue a monthly base license fee (the "Base
License Fee") for each calendar month during the Term equal to the
sum of the license fees due for each Space occupied during such
month. For this purpose, the license fee for each Space for any month
shall be the amount equal to the number of square feet occupied
during such month multiplied by the rate-per-square-foot applicable
to such Space, prorated for months of partial occupancy.
1.3. Minimum Intermediate License Fee Payments. Licensee, regardless of
actual occupancy in the various Spaces, shall accrue at least the
following portions of the Cumulative License Fee by the dates (each a
"Milestone Date") indicated below:
1.3.1. By the date 12 months after the date on which Licensee first
installs equipment in a Space (the "Initial Occupancy Date"),
Two Hundred Thirty-Four Dollars ($234,000);
1.3.2. By the date 18 months after the Initial Occupancy Date, an
additional Two Hundred Thirty-Four Dollars ($234,000);
1.3.3. By the last date of the Term, an additional Four Hundred
Sixty-Eight Dollars ($468,000).
1.4. Milestone Date Accruals. In the event that on any Milestone Date the
cumulative license fees accrued by virtue of actual occupancy are
less than the amounts set forth in Sections 1.3.1, 1.3.2, and 1.3.3,
as applicable, the shortfall shall immediately accrue, and be treated
as a prepayment of rent for the subsequent period, if any.
Multi-Site License Page 19 of 34 License Form
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License Agreement for RateXchange
S&DFC #136
EXHIBIT D (con't)
1. Standard Install Fees
1.1. Based on S&DFC's standard installation policies, Licensee will pay to
S&DFC the following installation fee per site: ........... $15,600.00
2. Security Deposit
2.1. Waived in all cities
Multi-Site License Page 20 of 34 License Form
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License Agreement for RateXchange
S&DFC #136
COLOCATION SCHEDULE I
NEW YORK, NEW YORK
Site #032-001-136
THIS COLOCATION SCHEDULE shall be attached to and become a part of the
COLOCATION LICENSE dated the 1st of March 2000 ("License") by and between Switch
and Data Facilities Company LLC ("S&DFC") and RateXchange, Inc. ("Licensee").
WHEREAS, Switch & Data NY One, LLC ("S&DNY 1,"), and A.M. Property Holding
Corporation as Agent for 65 Broadway Co., LLC ("Prime Landlord") have entered
into a lease covering the leasing of a portion of the 2nd floor of an office
building located at 65 Broadway, New York, NY 10006 ("Prime Lease").
WHEREAS, Licensee wishes to operate its computer and/or communications systems
located at the S&DNY1 premises in 65 Broadway, New York, NY 10006 ("Premises"),
S&DNY1 hereby grants to Licensee a nonexclusive license to use a portion of the
Premises for such purposes under the terms and conditions contained herein and
in the License.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DNY1 and
Licensee hereby agree as follows:
1. Space. Licensee shall use a part of S&DNY1 Premises (the "Space") to
accommodate Equipment located in the Space(s) designated in New York City
Exhibit I, comprising 200 sq. ft. S&DNY1 will supply power of the type and
in the amount designated in Exhibit B. Space shall be equipped as
designated in Exhibit B.
2. License Fees. Licensee shall pay to S&DNY1 the following fees (License
Fees) for the License granted and the Services provided hereunder by
S&DNY1: (i) commencing on the Commencement Date, License Fees of $8,800.00
per month for the Space as provided above; (ii) upon initiation of
installation, a one time payment of $15,600.00 for Installation Services
as provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as of the
day and year first above written.
RateXchange, Inc. Switch & Data NY One, LLC.
By:________________________________ By Switch & Data Facilities Company LLC,
its general manager
By:____________________________
Name: ____________________________ Name: ________________________
Title: _____________________________ Title: _______________________
Date: _____________________________ Date: ________________________
Multi-Site License Page 21 of 34 License Form
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License Agreement for RateXchange
S&DFC #136
NEW YORK EXHIBIT I
SPACE DIAGRAM
Select one:
[ ] Cabinets within common room
|X| Caged space
[ ] Separately demised space (dry-wall)
Multi-Site License Page 22 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
COLOCATION SCHEDULE II
VIENNA, VIRGINIA
S&DFC Site #046-001-136
THIS COLOCATION SCHEDULE shall be attached to and become a part of the
COLOCATION LICENSE dated the 1st of March 2000 ("License") by and between Switch
and Data Facilities Co. ("S&DFC") and RateXchange, Inc. ("Licensee").
WHEREAS, S&DFC, dba Switch & Data VA One, LLC ("S&DVA1") and Tyco Road Limited
Partnership II c/o Cardinal Management Corp. have entered into a lease covering
the leasing of a portion of the ground floor of an office building located at
8502 Tyco Road, Vienna, VA 22182 ("Prime Lease").
WHEREAS, Licensee wishes to operate its computer and/or communications systems
located at the S&DVA1 premises in 8502 Tyco Road ("Premises"), and S&DVA1 is
willing to grant to Licensee a nonexclusive license to use a portion of the
S&DVA1 Premises for such purposes under the terms and conditions contained
herein and in the License.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DVA1 and
Licensee hereby agree as follows:
1. Space. Licensee shall use a part of S&DVA1 Premises (the "Space") to
accommodate Equipment located in the Space(s) designated in Vienna Exhibit
I, comprising 200 sq. ft. S&DVA1 will supply power of the type and in the
amount designated in Exhibit B. Space shall be equipped as designated in
Exhibit B.
2. License Fees. Licensee shall pay to S&DVA1 the following fees (License
Fees) for the License granted and the Services provided hereunder by
S&DVA1: (i) commencing on the Commencement Date, License Fees of $7,600.00
per month for the Space as provided above; (ii) upon initiation of
installation, a one time payment of $15,600.00 for Installation Services
as provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as of the
day and year first above written.
RateXchange, Inc. Switch & Data VA One, LLC
By: _____________________________ By: Switch & Data Facilities Company LLC,
its general manager
By: ____________________________
Name: ___________________________ Name: __________________________
Title: __________________________ Title: _________________________
Date: ___________________________ Date: __________________________
Multi-Site License Page 23 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
VIENNA, VA EXHIBIT I
SPACE DIAGRAM
Select one:
[ ] Cabinets within common room
|X| Caged space
[ ] Separately demised space (dry-wall)
Multi-Site License Page 24 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
COLOCATION SCHEDULE III
MIAMI, FLORIDA
S&DFC Site #009-001-136
THIS COLOCATION SCHEDULE shall be attached to and become a part of the
COLOCATION LICENSE dated the 1st of March 2000 ("License") by and between Switch
and Data Facilities Co. ("S&DFC") and RateXchange, Inc. ("Licensee").
WHEREAS, S&DFC, dba Switch & Data Facilities FL One, LLC ("S&DFL1") and
Metromall Partners, LTD, a Florida Limited partnership have entered into a lease
covering the leasing of a portion of the 5th floor of an office building located
at 1 NE 1st Street, Miami, FL 33132 ("Prime Lease").
WHEREAS, Licensee wishes to operate its computer and/or communications systems
located at the S&DFL1 premises in 1 NE 1st Street ("Premises"), and S&DFL1 is
willing to grant to Licensee a nonexclusive license to use a portion of the
S&DFL1 Premises for such purposes under the terms and conditions contained
herein and in the License.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DFL1 and
Licensee hereby agree as follows:
1. Space. Licensee shall use a part of S&DFL1 Premises (the "Space") to
accommodate Equipment located in the Space(s) designated in Miami Exhibit
I, comprising 200 sq. ft. S&DFL1 will supply power of the type and in the
amount designated in Exhibit B. Space shall be equipped as designated in
Exhibit B.
2. License Fees. Licensee shall pay to S&DFL1 the following fees (License
Fees) for the License granted and the Services provided hereunder by
S&DFL1: (i) commencing on the Commencement Date, License Fees of $7,600.00
per month for the Space as provided above; (ii) upon initiation of
installation, a one time payment of $15,600.00 for Installation Services
as provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as of the
day and year first above written.
RateXchange, Inc. Switch & Data Facilities FL One, LLC
By: __________________________ By: Switch & Data Facilities Company LLC,
its general manager
By: _________________________________
Name: ________________________ Name: _______________________________
Title: _______________________ Title: ________________________________
Date: ________________________ Date: ________________________________
Multi-Site License Page 25 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
MIAMI EXHIBIT I
SPACE DIAGRAM
Select one:
[ ] Cabinets within common room
|X| Caged space
[ ] Separately demised space (dry-wall)
Multi-Site License Page 26 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
COLOCATION SCHEDULE IV
SAN JOSE, CALIFORNIA
S&DFC Site #005-002-136
THIS COLOCATION SCHEDULE shall be attached to and become a part of the
COLACATION LICENSE dated the 1st of March 2000 ("License") by and between Switch
and Data Facilities Co. ("S&DFC") and RateXChange, Inc. ("Licensee").
WHEREAS, S&DFC, dba Switch and Data Ca Two, LLC. ("S&DCA2"), and Kosich
Construction Co. LP have entered into a lease (the "Prime Lease") covering the
leasing of a portion of the floor of a building located at 534 Stockton Avenue,
San Jose 95126-2430 (the "San Jose Premises").
WHEREAS, Licensee wished to operate its computer and/or communications systems
located at the San Jose premises at 534 Stockton Avenue ("Premises"), and S&DCA2
is willing to grant to Licensee an exclusive license to use a portion (the
"Space") of the Premises for such purposes under the terms and conditions
contained herein and in the License.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DCA2 and
License hereby agree as follows:
1. Space, Licensee shall use a part (the "Space") of the Premises to
accommodate equipment located in the space(s) designated in San Jose
Exhibit I, comprising 200 sq. ft. S&DCA2 will supply power of the
type and in the amount designated in Exhibit B. Space shall be
equipped as designated in Exhibit B.
2. License Fees. Licensee shall pay to S&DCA2 the following fees
(License Fees) for the License granted and the Services provided
hereunder by S&DCA2: (i) commencing on the Commencement Date, License
Fees of $7,600.00 per month for the Space as provided above; (ii)
upon initiation of installation, a one time payment of $15,600.00 for
Installation Services ad provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as of the
day and year first above written.
RateXChange, Inc.. Switch and Date CA Two, LLC.
By: ________________________ By: Switch & Data Facilities Company LLC its
its general manager
By _____________________________
Name: ______________________ Name: __________________________
Title: _____________________ Title: ___________________________
Date: ______________________ Date: ___________________________
Multi-Site License Page 27 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
SAN JOSE EXHIBIT I
SPACE DIAGRAM
Select one:
[ ] Cabinets within common room
[X] Caged Space
[ ] Separately demised space (dry-wall)
Multi-Site License Page 28 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
COLOCATION SCHEDULE V
ATLANTA, GEORGIA
S&DFC Site #010-001-136
THIS COLOCATION SCHEDULE shall be attached to and become a part of the
COLOCATION LICENSE dated the 1st of March 2000 ("License") by and between Switch
and Data Facilities Co. ("S&DFC") and RateXChange, Inc. ("Licensee").
WHEREAS, S&DFC, dba Switch & Data GA One, LLC. ("S&DGA1"), and Peachtree Kessler
Lofts, LLC dba Telecom Tower have entered into a lease (the "Prime Lease")
covering the leasing of a portion of the 6th floor of a building located at 56
Marietta Street, Atlanta, GA 30303 (the "Atlanta Premises").
WHEREAS, Licensee wishes to operate its computer and/or communications systems
located at the Atlanta premises at 56 Marietta ("Premises"), and S&DGA1 is
willing to grant to Licensee an exclusive license to use a portion (the "Space")
of the Premises for such purposes under the terms and conditions contained
herein and in the License.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DGA1 and
Licensee hereby agree as follows:
3. Space. Licensee shall use a part (the "Space") of the Premises to
accommodate equipment located in the space(s) designated in Atlanta
Exhibit I, comprising 200 sq. ft. S&DGA1 will supply power of the
type and in the amount de4signated in Exhibit B. Space shall be
equipped ad designated in Exhibit B.
4. License Fees. Licensee shall pay to S&DGA1 the following fees
(License Fees) for the License granted and the Services Provided
hereunder by S&DGA1: (i) commencing on the Commencement Date, License
Fees of $7,600.00 per month for the Space as provided above; (ii)
upon initiation of installation, a one time payment of $15,600.00 for
Installation Services ad provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as of the
day and year first above written.
RateXChange, Inc.. Switch and Date CA Two, LLC.
By: ____________________________ By: Switch & Data Facilities Company LLC its
its general manager
By _____________________________
Name: _________________________ Name: __________________________
Title: __________________________ Title: ___________________________
Date: __________________________ Date: ___________________________
Multi-Site License Page 29 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
ATLANTA EXHIBIT I
SPACE DIAGRAM
Select one:
[ ] Cabinets within common room
[X] Caged Space
[ ] Separately demised space (dry-wall)
Multi-Site License Page 30 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
COLOCATION SCHEDULE VI
SEATTLE, WASHINGTON
S&DFC Site #047-001-136
THIS COLOCATION SCHEDULE shall be attached to and become a part of the
COLOCATION LICENSE dated the 1st of March 2000 ("License") by and between Switch
and Data Facilities Co. ("S&DFC") and RateXChange, Inc. ("Licensee").
WHEREAS, S&DFC, dba Switch and Data WA One, LLC. ("S&DWA1"), and Sixth &
Virginia Properties have entered into a lease (the "Prime Lease") covering the
leasing of a portion of the 13th floor of a building located at The Westin
Building, 2001 Sixth Avenue, Seattle, WA 98121 (the "Seattle Premises").
WHEREAS, Licensee wishes to operate its computer and/or communications systems
located at the Seattle premises at 2001 Sixth Avenue ("Premises, and S&DWA1 is
willing to grant to Licensee an exclusive license to use a portion (the "Space")
of the Premises for such purposes under the terms and conditions contained
herein and in the License.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DWA1 and
Licensee hereby agree as follows:
5. Space. Licensee shall use a part (the "Space") of the Premises to
accommodate equipment located in the space(s) designated in Seattle
Exhibit I, comprising 200 sq. ft. S&DWA1 will supply power of the
type and in the amount designated in Exhibit B. Space shall be
equipped ad designated in Exhibit B.
6. License Fees. Licensee shall pay to S&DWA1 the following fees
(License Fees) for the License granted and the Services provided
hereunder by S&DWA1: (i) commencing on the Commencement Date, License
Fees of $8,800.00 per month for the Space as provided above; (ii)
upon initiation of installation, a one time payment of $15,600.00 for
Installation Services as provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as of the
day and year first above written.
RateXChange, Inc.. Switch and Date CA Two, LLC.
By: ____________________________ By: Switch & Data Facilities Company LLC
its general manager
By _____________________________
Name: _________________________ Name: __________________________
Title: __________________________ Title: ___________________________
Date: __________________________ Date: ___________________________
Multi-Site License Page 31 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
SEATTLE EXHIBIT I
SPACE DIAGRAM
Select one:
[ ] Cabinets within common room
[X] Caged Space
[ ] Separately demised space (dry-wall)
Multi-Site License Page 32 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
COLOCATION SCHEDULE VI
LOS ANGELES, CALIFORNIA
S&DFC Site #005-001-136
THIS COLOCATION SCHEDULE shall be attached to and become a part of the
COLOCATION LICENSE dated the 1st of March 2000 ("License") by and between Switch
and Data Facilities Co. ("S&DFC") and RateXChange, Inc. ("Licensee").
WHEREAS, S&DFC, dba Switch & Data CA One, LLC. ("S&DCA1"), and Wells Fargo Bank
have entered into a lease (the "Prime Lease") covering the leasing of a portion
of the LL1 floor of a building located at 1200 West 7th Street, Los Angeles, CA
90017 (the "Los Angeles Premises").
WHEREAS, Licensee wishes to operate its computer and/or communications systems
located at the Los Angeles premises at 1200 West 7th Street ("Premises"), and
S&DCA1 is willing to grant to Licensee an exclusive license to use a portion
(the "Space") of the Los Angeles Premises for such purposes under the terms and
conditions contained herein and in the License.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained and for other good and valuable consideration, S&DCA1 and
Licensee hereby agree as follows:
7. Space. Licensee shall use a part (the "Space") of the Los Angeles
Premises to accommodate equipment located in the space(s) designated
in Los Angeles Exhibit I, comprising 200 sq. ft. S&DCA1 will supply
powerof the type and in the amount designated in Exhibit B. Space
shall be equipped ad designated in Exhibit B.
8. License Fees. Licensee shall pay to S&DCA1 the following fees
(License Fees) for the License granted and the Services provided
hereunder by S&DCA1: (i) commencing on the Commencement Date, License
Fees of $7,600.00 per month for the Space as provided above; (ii)
upon initiation of installation, a one time payment of $15,600.00 for
Installation Services as provided above.
IN WITNESS WHEREOF, the parties hereto have duly executed this License as of the
day and year first above written.
RateXChange, Inc.. Switch and Date CA Two, LLC.
By: ________________________ By: Switch & Data Facilities Company LLC its
its general manager
By _____________________________
Name: ______________________ Name: __________________________
Title: _____________________ Title: ___________________________
Date: ______________________ Date: ___________________________
Multi-Site License Page 33 of 34 License Form
<PAGE>
License Agreement for RateXchange
S&DFC #136
LOS ANGELES EXHIBIT I
SPACE DIAGRAM
Select one:
[ ] Cabinets within common room
[X] Caged Space
[ ] Separately demised space (dry-wall)
Multi-Site License Page 34 of 34 License Form
