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Exhibit 10.6
COLO.COM AND NEXTLINK DEFINITIVE AGREEMENT
This Definitive Agreement ("Agreement") is entered into this 23rd day of
December 1999 (the "Effective Date") by and between NEXTLINK COMMUNICATIONS,
Inc., a Delaware corporation ("NEXTLINK"), and COLO.COM, a California
corporation ("COLO"). NEXTLINK and COLO are referred to herein separately as
"Party" and together as "Parties." The Effective Date of this Agreement is the
same date as the closing date of the COLO Series C preferred stock offering
between COLO and NEXTLINK.
For good and valuable consideration, COLO and NEXTLINK hereby agree as follows:
A. DEFINITIONS.
1. Carrier Termination Equipment Space: means a carrier termination
equipment bay for which NEXTLINK has an Option.
2. Colocation Space: means colocation space from 500 to 1,000 square feet
for which NEXTLINK has an Option.
3. Customary Services: means those services that COLO provides to its own
termination space or to the termination space of its carrier or
non-carrier customers, including power (electricity, N+1 UPS system
deployed in parallel redundant configuration, and generator backup to
100% of customer peak load), conditioning (data grade HVAC, constant
72 degree ambient air temperature, and constant 45% humidity), state
of the art fire suppression system, security and smart hands, and such
other services set forth on the attachment to this Agreement.
4. Neutral Central Office ("NCO"): means real property and improvements
that are used or planned to be used, as the context of the provision
requires, by COLO as a carrier-neutral central office for colocation
and for locating and interconnecting servers, routers, data
communications equipment, telecommunications equipment and other
equipment used by COLO and/or its customers.
5. Network: means the terrestrial telecommunications network of one of
the Parties, as the context of the provision requires or as
contemplated under this Agreement, including facilities leased or
acquired from other carriers.
6. Option: means the option NEXTLINK has under this Agreement to lease
each of the Telecommunication Equipment Spaces described in Section F.
7. Prioritized Option/Partners: means a partner that is strategic to COLO
and provides substantial economic, business and/or marketing benefit
to COLO.
8. Tower Rights: means a annually agreeable amount of wireless
communication tower space satisfactory for NEXTLINK's technical needs
for which NEXTLINK has an Option.
9. Space Agreement: means an agreement for Telecommunications Equipment
Space entered into between the Parties as provided in Section F below,
including the Colocation Space and Carrier Termination Equipment
Space Agreement (Exhibit A):
10. Telecommunications Equipment Space: means the space COLO shall provide
to NEXTLINK in COLO's NCOs as provided in Section F below.
B. TERM.
The term of this Agreement shall be 5 years commencing on the Effective
Date. NEXTLINK shall have the right to renew this Agreement for 2 additional
5-year terms by giving COLO written notice at least 90 days before the
then-current term expires. As used herein, the word "Term" shall mean the
initial term and any renewal terms.
CONFIDENTIAL Page 1 of 12 December 23, 1999
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C. NEXTLINK EQUITY INVESTMENT.
By means of a separate Series C Preferred Stock Purchase Agreement entered
into concurrently herewith, NEXTLINK shall agree to invest $5,000,000 in COLO
in a private placement of equity securities by purchasing approximately 500,000
shares of COLO's Series C Preferred Stock.
D. COLO'S NEUTRAL CENTRAL OFFICES.
1. COLO represents and warrants that, as of the date of this Agreement,
it owns or is authorized to control the NCOs listed as "Current NCOs" on
Attachment 1 and COLO plans to own or obtain authorization to control the NCOs
listed as "Planned NCOs" on Attachment 1. COLO shall notify NEXTLINK promptly
after COLO obtains additional NCOs, including a description of each new NCO. In
addition, each quarter COLO shall provide an electronic copy of an updated
Attachment 1 to NEXTLINK to the e-mail address listed in Section I.12 below.
2. COLO represents and warrants that it shall own or control at least 43
domestic and 13 international operational NCOs by December 31, 2001. In
addition, COLO represents and warrants that it has sufficient Colocation Space
and Carrier Termination Equipment Space in its Current NCOs to allow NEXTLINK to
exercise its Options to such space (with the exception of Colocation Space in
the 8619 Westwood, Vienna, VA NCO) and shall have sufficient Colocation Space
and Carrier Termination Equipment Space available to NEXTLINK as contemplated
under this Agreement at NCOs that become Current NCOs during the term of this
Agreement. COLO further represents and warrants that it has not granted any
priorities or options superior to NEXTLINK's priorities and Options under this
Agreement.
3. COLO represents and warrants that as of the date it notifies NEXTLINK
that an NCO is a Current NCO, COLO has good marketable fee simple title or has
a valid, enforceable leasehold interest or a valid, enforceable license
authorizing COLO to control the NCO and the property upon which the NCO is
located to such an extent as permits COLO to perform fully its obligations
under this Agreement.
E. CONNECTION OF NEXTLINK'S NETWORK TO COLO'S NCOs.
1. COLO shall grant to NEXTLINK a warrant to purchase up to 300,000
shares of COLO's Series C Preferred ("Warrant Shares"), as appropriately
adjusted for any future stock splits, stock combinations or stock dividends or
similar transactions affecting COLO's capital stock, in a separate Warrant
Agreement entered into concurrently herewith (the "Warrant"). The Warrant shall
be subject to the following terms:
a. The Warrant shall have a term of 5 years from the date the
Warrant is issued;
b. For each NCO to which NEXTLINK initiates the process of
interconnecting to its Network on or prior to March 15, 2000, up to a total of
ten (10) NCOs, NEXTLINK shall have the right to exercise its purchase rights
represented by the Warrant with respect to 30,000 Warrant Shares. NEXTLINK
shall be deemed to have initiated the interconnection process for a NCO upon
its delivery to COLO of a copy of the business case prepared by NEXTLINK's
National Sales group for the applicable NEXTLINK local operating subsidiary
with respect to the interconnection of the NCO in question. COLO agrees and
acknowledges that each business case is subject to the approval of, and
revision and modification by, the local operating subsidiary. NEXTLINK in good
faith will exercise commercially reasonable efforts to complete the
interconnection of its Network to each such NCO site within nine (9) months
from the date that the interconnection process is deemed to be initiated
pursuant to this paragraph.
c. The exercise price per share of COLO's Warrant Stock shall be
Ten Dollars ($10.00); and
d. In lieu of exercising the Warrant for cash, NEXTLINK may, at its
option, pay the exercise price on a next exercise or cashless basis.
CONFIDENTIAL Page 2 of 12 December 23, 1999
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2. NEXTLINK in good faith will exercise commercially reasonable efforts
to interconnect its Network to ten (10) NCO sites, within two (2) years from the
date of this Agreement, in addition to the ten (10) NCOs to which it initiates
the interconnection process, pursuant to paragraph 1 of this section. NEXTLINK
may choose NCO sites that are listed on Attachment 1 or NCOs established
subsequent to the date of this Agreement. COLO will regularly apprise NEXTLINK
of newly leased NCO sites and the status of planned NCO sites. For each NCO
that NEXTLINK designates for interconnection, the Parties shall mutually agree
upon the demarcation point, and COLO shall provide NEXTLINK with reasonable
access for NEXTLINK to bring its facilities into the NCO for interconnection and
to repair, replace and maintain those facilities.
3. COLO shall use its reasonable efforts to acquire or obtain
authorization to control any NCOs in locations selected by NEXTLINK under this
Section E that are not Current NCOs as listed on Attachment 1. COLO shall
notify NEXTLINK in writing when COLO has acquired or obtained authorization to
control an NCO that NEXTLINK has selected, with copies of the documents
evidencing such acquisition or authorization. When NEXTLINK receives notice
from COLO that COLO has obtained or been authorized to control an NCO that
NEXTLINK has requested for interconnection, NEXTLINK shall connect its network
to that NCO within 9 months after the date it received such notice.
F. COLO'S PROVISION OF TELECOMMUNICATIONS EQUIPMENT SPACE
1. Options. In each of COLO's NCOs (except in the 8619 Westwood, Vienna,
VA NCO as to Colocation Space only), NEXTLINK and its affiliates shall have an
Option on the each of the following:
a. Colocation Space. NEXTLINK may, at its option, take down
Colocation Space in increments of 100 square feet;
b. Carrier Termination Equipment Space. COLO shall provide, at its
sole cost and expense, 4 adjacent, full-height equipment racks in each Carrier
Termination Equipment Space; and
c. Wireless Communication Tower Space. COLO shall use its
reasonable efforts to obtain Wireless Communication Tower Space for NEXTLINK's
technical requirements at all NCOs, provided that NEXTLINK has given COLO
reasonable advance notice of its wireless communication tower requirements
(i.e., technical and space requirements) to COLO. NEXTLINK may, but shall not
be obligated to, assist COLO in its efforts to obtain those roof rights.
2. Exercise of Options.
a. Available Space. COLO shall give NEXTLINK written notice for
each NCO whenever COLO reaches 70% occupancy and/or receives a bona fide
offer(s) for 70% of the colocation space in a given site. In that written
notice, COLO shall request that NEXTLINK declare within 30 days from the date
of the request whether it intends to exercise its right to up to 1000 square
feet of Telecommunications Equipment Space. COLO also shall give NEXTLINK
written notice for each NCO of the availability of any Tower Rights in that NCO
and, subsequently, upon reaching 70% occupancy and/or the receipt of a bona
fide offer(s) for 70% of the Tower Rights available at an NCO. If NEXTLINK
fails to respond within the 30-day period, NEXTLINK shall be deemed to have
waived the Option and COLO shall be free to offer the Equipment and Tower Space
to other interested Parties. NEXTLINK's right to last available space under
this Section F.2a shall expire three years after execution of this Agreement.
b. Last Available Space. COLO shall give NEXTLINK written notice
for each NCO whenever COLO shall have received a written request from a carrier
seeking to occupy the last Carrier Termination Space (POP Room) in such NCO.
COLO shall request that NEXTLINK declare within 30 days from the date of the
request whether it intends to exercise its rights to the last Carrier
Termination Space. If NEXTLINK fails to respond within the 30-day period,
NEXTLINK shall be deemed to have waived the Option and COLO shall be free to
offer Carrier Termination space to other interested Parties. NEXTLINK's right
to last available space under Section F.2.b shall run for the term of this
Agreement.
c. Notice of Exercise of Option. NEXTLINK may exercise any Option
by giving COLO written notice specifying the NCO and the type and size of the
space, provided, however, that the size and configuration of any Tower Rights
shall be mutually agreed to by the Parties.
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d. Space Agreements. For each space for which NEXTLINK exercises an
Option, the Parties shall enter into the appropriate Space Agreement, as
follows, within 10 days of the date NEXTLINK exercises its option. The
Colocation Space Agreement and Carrier Termination Equipment Space Agreement is
attached hereto as Exhibit A; and the Tower Rights Agreement is attached hereto
as Exhibit B (each a "Space Agreement").
3. Customary Services. COLO shall provide all its Customary Services to
Carrier Termination Equipment Space for which NEXTLINK exercises its Option, at
no additional charge. Other Telecommunications Equipment Space will be provided
with Customary Services at the rates provided in Attachment 2.
4. Payment for Telecommunications Equipment Space.
a. Rental Rate. The rental rate for the Telecommunications Equipment
Space shall be the rates listed in Attachment 2; provided, however, that if COLO
offers or gives a lower rate to a Prioritized Option/Partner, those lower rates
shall apply to the Telecommunications Equipment Rate. Within 5 days after
NEXTLINK exercises an Option, COLO shall provide NEXTLINK with a list of the
rates it has given in the previous 12 months and the rates it is then-currently
offering to its Prioritized Option/Partners. NEXTLINK shall have 10 days to
notify COLO, either (i) affirming the rental rate (either the rate listed in
Attachment 2 or the rate provided to other customers as stated by COLO) or (ii)
disputing the rental rate proposed by COLO for the Telecommunications Equipment
Space. If NEXTLINK disputes the rental rate provided by COLO, NEXTLINK shall pay
the lowest rate proposed by COLO pending resolution of the dispute of COLO
provides a better rate to itself or another customer during the terms of a Space
Agreement between the Parties, NEXTLINK shall be entitled to that same rate as
of the date that better rate is granted.
b. Obligations to Pay Rent. NEXTLINK's obligation to pay rent to COLO
shall begin: (i) for Colocation Space, the date that is 45 days after the date
that NEXTLINK exercises its option to the space, provided that the Parties have
timely entered into a Colocation Space Agreement; (ii) for Carrier Termination
Equipment Space and Wireless Communication Tower Space, the date that is 30
days after NEXTLINK exercises its option to the space, provided that the
Parties have timely entered into the applicable Space Agreement.
c. Prepaid Carrier Termination Space. NEXTLINK hereby receives a
credit entitling it to free rent for 40 Carrier Termination Equipment Spaces at
NCOs selected by NEXTLINK. The rent credit for each space shall apply for 24
months from the date that NEXTLINK first occupies that space ("Rent Credit
Period"). Within 25 days before the end of the Rent Credit Period, COLO shall
provide NEXTLINK with a list of the rates it has given in the previous 12
months and the rates it is then-currently offering to its Prioritized
Option/Partners for Carrier Termination Equipment Spaces. NEXTLINK shall notify
COLO within 10 days whether NEXTLINK wishes to terminate a Carrier Termination
Equipment Space Agreement after the Rent Credit Period, in which case the
applicable Space Agreement shall terminate effective as of the end of the Rent
Credit Period. If NEXTLINK does not terminate the Carrier Termination Equipment
Space Agreement, Section F.4.a shall apply to finalize the rental rate.
G. RESELLER PRIVILEGES.
Upon mutual agreement of the Parties, NEXTLINK shall have the right to
resell COLO's services under COLO's standard reseller agreement, and under the
then-best reseller discounts and/or commissions offered or given by COLO to any
of its other customers.
H. PREFERRED PROVIDER.
In the event that COLO decides to interconnect and internetwork its NCOs
or to resell transport and carrier services, COLO will make NEXTLINK its
preferred provider for the required transport if NEXTLINK satisfies COLO's
technical and operational requirements and offers reasonable installation
intervals and market pricing. NEXTLINK shall provide such transport arrangements
to COLO pursuant to its then generally applicable terms and conditions for such
services.
I. MISCELLANEOUS.
1. Confidentiality. Both Parties shall use reasonable and good faith
efforts to maintain, except as required by law, the confidentiality of this
Agreement (including all Attachments and Exhibits), the transactions proposed
in this Agreement, and confidential information shared with each other under
this Agreement. Any communications about the transactions contemplated herein
other than to key management employees, shall be jointly coordinated between
the Parties.
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2. Limitation of Liability. Neither Party shall be liable to the other
Party, or to the other Party for any liability to a third party as provided in
Section I.3, for any indirect, consequential, special, incidental, reliance, or
punitive damages of any kind or nature whatsoever (including but not limited to
any lost profits, lost revenues, lost savings, or harm to business) arising out
of this Agreement, regardless of the foreseeability thereof.
3. Indemnification.
a. COLO shall indemnify, defend and hold harmless NEXTLINK and
its subsidiaries, affiliates, employees, directors, officers, and agents from
and against all claims, demands, actions, causes of actions, damages,
liabilities, losses, and expenses (including reasonable attorney's fees)
incurred as a result of (i) claims for libel, slander, infringement of
copyright or unauthorized use of trademark, trade name or service mark arising
out of the transactions contemplated herein; (ii) claims for patent
infringement arising from combining or connection of facilities to NEXTLINK's
Network; and (iii) claims for damage to property and/or personal injuries
(including death) arising out of COLO's negligence or willful act or omission.
b. NEXTLINK shall indemnify, defend and hold harmless COLO and
its subsidiaries, affiliates, employees, directors, officers, and agents from
and against all claims, demands, actions, causes of actions, damages,
liabilities, losses, and expenses (including reasonable attorney's fees)
incurred as a result of (i) claims for libel, slander, infringement of
copyright or unauthorized use of trademark, trade name or service mark arising
out of the transactions contemplated herein; (ii) claims for patent
infringement arising from combining or connection of facilities to COLO's
Network; and (iii) claims for damage to property and/or personal injuries
(including death) arising out of NEXTLINK's negligence or willful act or
omission.
c. The warranties set forth in this Agreement constitute the
only warranties with respect to this Agreement. SUCH WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE OR USE.
4. Organizational Representations and Warranties. NEXTLINK represents
and warrants to COLO that it is an entity, duly organized, validly existing and
in good standing under the laws of its origin, with all requisite power to
enter into and perform its obligations under this Agreement in accordance with
its terms. COLO represents and warrants that it is an entity, duly organized,
validly existing and in good standing under the laws of its origin, with all
requisite power to enter into and perform its obligations under this Agreement
in accordance with its terms.
5. Assignment. This Agreement may not be assigned by either Party
without the prior written consent of the other Party, which shall not be
unreasonably withheld.
6. Amendment. This Agreement shall be amended only by written
agreement signed by authorized representatives of both Parties.
7. Governing Law Venue. This Agreement shall be interpreted according
to the laws of the state of Delaware, without regard to choice of law
principles. Except as otherwise provided in Section I.9 below, venue shall be
in the state of California.
8. Attorney Fees. In any claims under this Agreement, each side shall
bear its own costs and attorneys fees.
9. Dispute Resolution. In the event of a monetary dispute between COLO
and NEXTLINK concerning a principal amount in controversy of less than $50,000
(specifically excluding all nonmonetary claims or disputes) arising out of the
Agreement, COLO and NEXTLINK shall attempt to resolve such dispute through
negotiations for thirty (30) days. If
CONFIDENTIAL Page 5 of 12 December 23, 1999
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event that any Party shall fail to so appoint an arbitrator, the arbitrator
appointed by the other Party shall be the sole arbitrator. If two arbitrators
shall be so appointed, such two arbitrators shall, within ten (10) additional
days of the appointment of the last appointed arbitrator, select a third
arbitrator with the same qualifications. If the two arbitrators are unable to
agree concerning the third arbitrator, such matter shall be submitted to the
presiding judge of a court of competent jurisdiction in the circuit, district,
county (or other comparable geographic designation) in which the Building is
located and the selection of the third arbitrator by such presiding judge shall
be binding upon COLO and NEXTLINK. Within thirty (30) days of the selection of
the third arbitrator (or, if applicable, the sole arbitrator) or within such
longer, but reasonable period of time permitted by a majority of arbitrators
(or the sole arbitrator, if applicable), each Party shall make a written
submission to the arbitrator(s), including the Party's position concerning the
dispute and proposed resolution thereof, and, within twenty (20) days of
receipt of such submissions, the arbitrator(s) shall select the proposed
resolution that is most appropriate, taking into account the terms and
provisions of the Agreement, applicable law, and other relevant facts and
circumstances. The decision of any two arbitrators (if three arbitrators shall
have been selected) shall be binding on COLO and NEXTLINK; if only one
arbitrator shall have been selected, the decision of the sole arbitrator shall
be binding on COLO and NEXTLINK. The compensation of the arbitrator(s) shall be
borne equally by COLO and NEXTLINK. The Parties shall reasonably cooperate to
exchange documents or information necessary in order to prepare the submissions
required hereunder; provided, however, that the COLO and NEXTLINK acknowledge
and agree that a principal purpose of such arbitration is to avoid, if
possible, and to minimize the costs of, document and information exchange. In
the event of any dispute concerning the exchange of documentation or
information necessary in order to prepare the required submissions, such dispute
shall be submitted to the arbitrator(s) and the decision of a majority of the
arbitrators shall be conclusive on COLO and NEXTLINK.
10. No Waiver. The failure of a Party to insist on compliance with any of
the terms and conditions of this Agreement shall not be considered the waiver
of any other term or condition of this Agreement.
11. Entire Agreement. This Agreement sets forth the entire understanding
of the Parties and supersedes any and all prior agreements, arrangements or
understanding relating to the subject matter hereof.
12. Notices. Except as otherwise expressly provided herein, notices under
this Agreement shall be in writing and delivered by personal delivery,
overnight delivery service, or by certified mail, return receipt requested, to
the persons whose names and addresses appear below. Such notice shall be
effective on the date of receipt or refusal thereof by the receiving Party.
COLO: NEXTLINK
COLO.COM NEXTLINK Communications Inc.
2000 Sierra Point Parkway 14811 N. Kirkland Blvd., Suite 100
Brisbane, CA 94005 Scottsdale, AZ 85254
Attn: General Counsel Attn: Vice President, National Sales
with a copy to:
NEXTLINK Communications, Inc.
14811 Farm Credit Drive
McLean, VA 22102
Attn: General Counsel
13. Attachments and Exhibits. The following attachments and exhibits are
incorporated in this Agreement.
Attachment 1 - COLO's Neutral Central Offices
Attachment 2 - Prioritized Option/Partners Rental Rates
Exhibit A - Colocation and Carrier Termination Equipment Space Agreement
Exhibit B - Tower Rights Agreement
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day and year first written above.
CONFIDENTIAL Page 6 of 12 December 23, 1999
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NEXTLINK Communications, Inc. COLO.COM
By: /s/ [Signature Illegible] By: /s/ [Signature Illegible]
------------------------- --------------------------
Title: Asst. Sec. Title: S.U.P. Operations/Admin
---------------------- ------------------------
Date: 2/23/99 Date: 12-23-95
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CONFIDENTIAL Page 7 of 12 December 23, 1999
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ATTACHMENT 1
COLO's Neutral Central Offices [Insert Lists as previously provided in Due
Diligence to Hank Koerner]
Current NCOs:
1. Los Angeles (Garland Bldg. 1200 W. 7th Street, Los Angeles CA 90017)
2. Washington DC (8619 Westwood Center Drive, Vienna, VA 22182)
3. Chicago (725 Wells, Chicago, IL 60607)
4. San Francisco (1400 65th Street, Emeryville, CA 94608)
5. Milwaukee (Wells Bldg. 324, E. Wisconsin, Milwaukee, WI 53202)
Planned NCOs:
1. Dallas (Infomart, 1950 Stemmons Freeway, Dallas, TX 75207)
2. Chicago (800 Jorie Blvd., Oak Brook, IL 60523)
3. San Francisco (650 Townsend, San Francisco, CA 94103)
4. Fort Worth (Burnett Plaza - 801 Cherry Street, Fort Worth, TX 76102)
5. New York (395 Hudson Street, New York, NY 10014)
6. Las Vegas (7185 Pollock Drive, Las Vegas, NV 89119)
Page 8 of 12
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ATTACHMENT 2
PRIORITIZED OPTION/PARTNERS RENTAL RATES
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TYPE OF SPACE LOCATION RENTAL RATE PER MONTH
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Prepaid Carrier Termination $700/rack
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Colocation 40% discount off following rates:
$1,400 full rack
$1,100 half rack
8x7 cage $4,600
10x10 cage $8,000
$55 per sq. ft. of bulk space
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- ---------------------------------------------------------------------------------------
Carrier Termination Equp't Bays $700/rack
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Wireless Communications Tower 40% discount of standard fees
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Cross Connects 65% off standard cross-connect fees
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CONFIDENTIAL Page 9 of 12 December 23, 1999
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CUSTOMARY SERVICES
1. Ample clean, reliable, redundant, battery backed AC and DC power, and
management services of same.
2. Ample reliable, redundant heating, cooling, air filtering and other
customary environmental conditioning, and management services of same.
3. Ample reliable, redundant, multi-level security systems and services,
including but not limited to 24 x 7 camera surveillance, biometric
scanners, secure pass key locking systems, and 24 x 7 on premises security
personnel, and management services of same.
4. Ample clean space in the form of partial and whole racks, caged space, and
bulk space designed appropriately for telecommunications and server
collocation, and management services of same.
5. Ample reliable, redundant, modem cabling plant including but not limited to
Car 5 UTP, COAX, and fiber optic cables and associated cross connect
services designed appropriately for handling POTS to OC-192 to gigabit
ethernet, and management services of same.
6. "Smart hands" services in the form of trained telecommunications and
networking engineers who can provide remote services that include but are
not limited to equipment unpacking, racking, connecting, initial boot up,
diagnostic, troubleshooting, configuration and testing services, and
management of same.
CONFIDENTIAL Page 10 of 12 December 23, 1999
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EXHIBIT A
Colocation and Carrier Termination Equipment Space Agreement
CONFIDENTIAL Page 11 of 12 December 23, 1999
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EXHIBIT A
COLO.COM Terms and Conditions for Delivery of Service. These terms and
conditions are applicable to the COLO.COM ("COLO") Service Order Form ("Order
Form") and are incorporated in each Order Form.
1. LICENSE. COLO hereby grants and Customer hereby accepts a limited license
("License") to colocate computer and communications equipment ("Equipment")
or Carrier Termination Equipment ("Termination Equipment") in a portion of
the Supplier controlled space ("Space") located at the premise(s)
("Premise" or "Premises") listed on the Order Form. COLO reserves the right
to relocate, change or otherwise substitute the exact location of the
Space, at any time during the Term of the License, provided that the
substitute space is substantially similar to the original Space allotted
and within the same geographic location and that COLO pays all reasonable
costs of relocation and assets in the relocation. Provided that, if COLO
moves the Carrier Equipment Termination Bay, it shall do so for all
customers, including Customer.
Customer hereby acknowledges and agrees that it has not been granted any
real property interest in the Space or any of the Premises and that
Customer has no rights as a tenant under any real property or
landlord/tenant laws, regulations or ordinances.
Access and Services Provided
Where and as available to COLO, COLO will provide Customer, and its
contractors or agents, with twenty-four hours a day, seven day a week
access to the Space for installation, maintenance, repair, replacement or
operation of the Equipment or Termination Equipment. For Termination
Equipment, COLO shall provide 4 adjacent full height equipment racks in the
primary Space it makes available to carriers for termination of their
facilities. COLO will provide electrical power, heating, air conditioning
and other environmental services and arrangements necessary to use of the
Equipment in the Space. COLO shall permit Customer to cross connect to
other facilities or Equipment of Customer or to other Customers in the
Space and shall make available necessary facilities and access for such
cross connections or related arrangements or shall itself provide cross
connections and related services. COLO shall also make available access,
Space and other facilities or arrangements necessary for Customer to
connect its network to the Equipment or Termination Equipment, including
from and to the building demarcation point.
2. USE OF SPACE. Customer agrees to use the Space solely for the
installation, maintenance, operation, and removal of Equipment or
Termination Equipment. Nothing herein shall transfer ownership of the
Equipment or Termination Equipment to COLO and the Equipment or
Termination Equipment will remain the property of the Customer.
3. CUSTOMER USE. Customer shall abide by any posted or otherwise communicated
policies and procedures relating to COLO's facilities that are reasonable
and customary in the industry.
4. COLO. COLO will have the right to terminate Customer's License on sixty
(60) days' notice if COLO loses rights to the Premises for reasons outside
COLO's control. Provided that, COLO thereafter will make reasonable
alternative space available and assist in any necessary transition to
alternative Space.
5. SERVICES & FEES. The Order Form lists the basic services and prices
thereof ("Services") as of the order date. COLO may increase the amount
Customer pays for Services pursuant to the Definitive Agreement.
6. PAYMENT. Customer shall pay COLO when due for all Services ordered or
used, including all applicable taxes, surcharges, and other government
imposed fees. All Services shall be invoiced on a monthly basis and are
due on or before the date appearing on the monthly billing statement. Any
invoice not paid by the due date shall be deemed delinquent and is subject
to interest charges accruing at a rate
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EXHIBIT A
of 1.5% per month, Customer shall be liable for all costs of collection of
any delinquency, including any and all collection agency fees, reasonable
attorneys' fees, and court costs.
7. PAYMENT DISPUTE. Should Customer dispute any bill or any portion thereof,
Customer shall pay the undisputed amount of the outstanding bill by the
due date and send COLO a written explanation outlining the basis for the
dispute. COLO shall investigate any disputed bill and within a reasonable
time notify Customer of the outcome of such investigation. Any dispute
that cannot be resolved by agreement shall be resolved by arbitration as
provided in Section 16.
8. TERM. The term and Customer's obligation to pay COLO for the use of the
Space shall be as provided in the Definitive Agreement or the Order Form.
9. CONFIDENTIALITY. Each Party, for itself, its agents, employees and
representatives agrees that it will not divulge any confidential or
proprietary information that it receives from the other Party. The terms
and conditions of this contract, but not the fact this agreement has been
entered shall be considered confidential or proprietary information under
this paragraph. Neither Party will use the other's name in marketing
materials without prior written consent. Customer hereby grants COLO a
limited license to use any of its trade names and / or trademarks or
servicemarks in any news release, marketing materials, or on COLO's web
site announcing the agreement provided that COLO obtains Customer's prior
written approval in each instance. All goodwill associated with Customer's
trade names, trademarks or servicemarks will inure solely to Customer.
10. INSURANCE. At all times during the term of the Order Form, and at each
party's expense, COLO and Customer, and any contractors or other third
parties representing Customer, shall maintain All Risk Property and
casualty insurance and comprehensive general liability insurance
(collectively "Policy"), insuring against all hazards and risks
customarily insured against by persons colocating Equipment in buildings.
The Policy should be written on a per-occurrence basis with blanket
contractual liability coverage, with respect to use of the Space and
operation of business therein, with a combined single-limit coverage of not
less than One Million Dollars ($1,000,000) and an aggregate umbrella
coverage of not less than an additional One Million Dollars ($1,000,000).
A per occurrence limit of ($2,000,000) will be acceptable as well. At all
times during the term of the Order Form, COLO requires Customer to name
COLO and if requested by COLO in writing the landlord(s) for each Premise
as or additional insured on the Policy. All policies shall provide that
Customer's insures' waive all rights of subrogation against COLO.
COLO and Customer shall maintain property insurance including EDP perils
written on a "Special Form" basis at full replacement cost value. The
definition of property will include data and media.
Customer shall promptly deliver to COLO certificates of insurance issued
by the insurance company or its authorized agent for the Policy. The
Policy shall provide that it cannot be cancelled or modified unless COLO
is given 30 days prior written notice of such cancellation or
modification. Customer shall require any contractor, subcontractor,
sublicensee entering the Space on its behalf to procure and maintain the
same types, amounts and coverage extensions as required of Customer.
Customer shall procure and maintain workers' compensation insurance
complying with the law of the applicable state or states, whether or not
such coverage is required by law, and employer's liability insurance with
limits of no less than One Million Dollars ($1,000,000). Customer shall
place the Policies required herein with a carrier with an AM Best rating
of A- VIII or better. The insurance requirements set forth herein are
independent of COLO's and Customer's indemnification and other obligations
under and shall not be construed or interpreted in any way to restrict,
limit,
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Exhibit A
or modify COLO's or Customer's indemnification and other obligations, or
to limit COLO's or Customer's liability.
11. SERVICES PERFORMED. At times Customer may direct COLO to perform services
that are part of COLO's service packages, installation packages, regular
maintenance activities via service requests or under COLO's hourly service
rates. These services typically will be associated with
maintenance/installation type activities. COLO or where applicable, COLO's
contractors, subcontractors etc. will not be responsible for any damage to
Customer's equipment during such directed activities; provided COLO or
COLO's contractors and subcontractors follow Customer's directions.
12. INDEMNITY. To the fullest extent permitted by law, each Party shall, at
that Party's expense, indemnify, defend and hold the other Party, its
shareholders, officers, directors, agents, and employees harmless from and
against all Claims, as defined below, from any cause arising out of or
relating (directly or indirectly) to this Agreement, except claims arising
out of or relating to the willful or intentional misconduct or negligence
of the other Party. For purposes of this Agreement, "Claims" means any and
all claims, causes of action (whether based on tort or contract or
principles, law or equity, or otherwise), charges, assessments, fines, and
penalties of any kind (including consultant and export expenses, court
costs, and reasonable attorneys' fees). This indemnification extends to
and includes Claims for: (i) injury to any persons (including death at any
time resulting from that injury); (ii) loss of, injury or damage to, or
destruction of real or personal property (including all loss of use
resulting from that loss, injury, damage, or destruction of the Space or
Premises); and (iii) all direct economic losses. The indemnification may
not be construed or interpreted as in any way restricting, limiting, or
modifying COLO's or Customer's insurance or other obligations under the
Order Form and is independent of COLO's and Customer's insurance
obligations. The provisions of this paragraph shall survive the expiration
or earlier termination of the Order Form until all Claims involving any of
the Indemnified matters are fully, finally, and absolutely barred by the
applicable statutes of limitation.
13. DISCLAIMER OF WARRANTY. COLO represents that it has full rights and legal
authority to grant the rights herein and that COLO is not aware of and
will correct any latent defects. Otherwise, Customer accepts the Space and
services on an 'as is' basis at its own risk. Unless specifically stated
herein, COLO makes no warranties, express or implied, as to the Space,
Premises, or services. COLO specifically disclaims any and all express or
implied warranties, including without limitation any warranties of
merchantability or fitness for a particular purpose.
14. DEFAULT. In the event that Customer fails to perform any material
obligation under the Order Form which has not been cured within thirty
(30) days of receiving a written notice of default, COLO shall have the
right to immediately terminate the License; provided however that in the
event that any action or non-action threatens or causes harm to any Space
or Premises, COLO shall have the right to immediately request cessation of
the action or that Customer take immediate curative action.
15. TERMINATION. Upon expiration or earlier termination of the License; (1)
COLO will cease providing Services under the Order Form, or any applicable
License; (2) any and all payment obligations of Customer then existing
under this Order Form will become due and payable immediately; (3)
Customer shall quit and peacefully surrender that portion of the
applicable Space it uses to COLO and remove all Equipment or Termination
Equipment from all affected Space, at its expense; (4) Customer, at its
expense, shall repair, replace, or compensate COLO for any damage to the
Space or Premises resulting from the removal of the Equipment or
Termination Equipment within thirty (30) days of receiving notice of any
such damage; (5) within forty-five (45) days after the expiration or
earlier termination date of the Order Form or the appropriate License, if
Customer has not removed the Equipment or Termination Equipment from the
appropriate Premise(s) and COLO has provided ten (10)
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EXHIBIT A
days written notice thereof to Customer, Customer shall be deemed to have
abandoned its claim of ownership to the Equipment or Termination Equipment
and to have conveyed all of its right, title, and interest to the
Equipment or Termination Equipment to COLO without set-off or any other
credit of any amount that may be owed to COLO by Customer, and (6) each
party shall return all Confidential Information of the other Party in its
possession and will not make or retain any copies of such Confidential
Information except as required to comply with any applicable legal or
accounting record keeping requirement.
16. ARBITRATION. Any disputes arising in connection with the Order Form or this
License that cannot be amicably settled by direct negotiations will be
submitted to final and binding arbitration in accordance with the
then-prevailing commercial rules of the American Arbitration Association.
The arbitration will be held in San Francisco, California. Unless
otherwise agreed to by the Parties, one (1) arbitrator shall hear the
matter. The arbitrator's decision shall be based upon the Terms and
Conditions, the Definitive Agreement, Order Form and applicable law giving
full force and legal effect to the insurance, indemnity, disclaimer, and
limitation of liability provisions. Any court with competent jurisdiction
may enter judgment upon the award rendered by the arbitrator.
Notwithstanding the foregoing, nothing contained herein shall prohibit
either Party from initiating judicial proceedings for the limited purpose
of seeking an unlawful detention order or seeking other provisional or
equitable remedies. Any such judicial proceedings shall be heard by the
state or federal court located in the county where the applicable Space,
Premise, or Equipment is located. In all other respects this Section shall
govern resolution of any controversy or claim arising in connection with
the Order Form.
17. FORCE MAJEURE. Notwithstanding anything to the contrary contained herein,
neither party shall be liable for any loss or damage, or deemed to be in
breach of the Order Form due to a failure to perform, wholly or in part,
if such nonperformance is due to causes beyond that Party's control,
including acts of God, fire, explosion, earthquake, hurricane, tornado,
wind, flood, storm or other natural occurrences; vandalism; third party
theft; computer, voice mail, e-mail, or other telecommunications system
failure; any law, order, regulation, direction, action or lawful demand of
any Federal, state, local or foreign governments having jurisdiction or of
any department, agency, commission, court, bureau, corporation or other
instrumentality of any one or more such governments, or of any civil or
military authority; national emergency; insurrection; riot; war; strike,
lockout, work stoppage or other such labor difficulty.
18. ASSIGNMENT. The Order Form shall not be assigned or delegated without
first obtaining the prior written consent of the other Party, which
consent shall not be unreasonably withheld. Any purported assignment or
delegation without the required consent shall be null and void and of no
legal force or effect.
19. GOVERNING LAW. The Order Form shall be governed by and interpreted in
accordance with the laws of the State of California. In the event of a
dispute or litigation regarding the Order Form, the prevailing party shall
be entitled to receive reasonable attorneys fees and costs.
20. NO WAIVER. The failure of either Party at any time to enforce any right or
remedy available to it under the Order Form with respect to any breach or
failure shall not be construed to be a waiver of such right or remedy with
respect to any other breach of failure.
21. LIABILITY. Except for the indemnification provided in Section 12, the
liability of COLO for damages arising out of the furnishing of Space or
services or the failure to provide Space or services, including but not
limited to mistakes, omissions, interruptions, delays, tortious conduct,
representations, errors, or other defects, whether by commission or
omission, shall be limited to an amount equal to the fees for the use of
the applicable Space. Except for the indemnification provided in Section
12, the liability of NEXTLINK for damages under or arising
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Exhibit A
from this Agreement shall be limited to an amount equal to the fees for
use of the applicable Space.
22. SURVIVAL. The obligations of confidentiality and indemnification shall
survive the termination of any applicable Order Form.
23. ENTIRE UNDERSTANDING. The Order Form, these Terms and Conditions for
Delivery of Service and the Definitive Agreement constitute the entire
understanding of the parties related to the subject matter hereof. The
Definitive Agreement shall prevail over these Terms and Conditions or the
Order Form and the Terms and Conditions shall prevail over the Order Form.
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EXHIBIT B
TOWER RIGHTS AGREEMENT
CONFIDENTIAL Page 12 of 12 December 23, 1999
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TOWER AGREEMENT
This Tower Agreement ("Agreement") is made as of this _______ day of __________,
20__ ("Effective Date"), between COLO.COM, a California corporation ("COLO"),
and NEXTLINK Communications, Inc. a Delaware corporation ("NEXTLINK").
1. LICENSE. COLO hereby grants and NEXTLINK hereby accepts a limited license to
install, operate and maintain wireless telecommunications equipment and
related equipment ("Equipment") on COLO's antenna tower ("Tower") on the
roof of the building located at _____________________________ ("Building").
NEXTLINK shall also have the right to install all reasonable wiring related
to the Equipment and to connect the same to NEXTLINK's equipment space, its
customers or other carriers in the Building, provided that COLO has access
to and the right to use risers or other functionally similar portions of the
Building. NEXTLINK hereby acknowledges and agrees that it has not been
granted any real property interest in the Tower or any of the Building and
that NEXTLINK has no rights under this Agreement as a tenant under any real
property or landlord/tenant laws, regulations or ordinances. COLO shall make
the full rights hereunder available to NEXTLINK upon the Effective Date.
2. ACCESS. Where and as available to COLO, COLO will provide NEXTLINK, and its
contractors or agents, with twenty-four hours a day, seven day a week access
to the Tower for installation, maintenance, repair, replacement or operation
of the Equipment. COLO will provide electrical power for the Equipment on
the Tower.
3. PERMITS AND COMPLIANCE WITH LAWS. NEXTLINK shall be solely responsible for
obtaining any permits and licenses required to install and operate the
Equipment. COLO agrees to reasonably cooperate with NEXTLINK in executing
any documents or applications required for NEXTLINK to obtain such permits
and licenses needed for NEXTLINK to exercise its rights under this
Agreement. NEXTLINK shall comply with all applicable laws with respect to
its installation and operation of the Equipment.
4. USE OF SPACE. NEXTLINK agrees to use the Tower and related access solely for
the installation, maintenance, operation, and removal of Equipment. Nothing
herein shall transfer ownership of the Equipment to COLO and the Equipment
will remain the property of the NEXTLINK. NEXTLINK shall abide by any posted
or otherwise communicated policies and procedures relating to COLO's Tower
that are reasonable and customary in the industry.
5. LOSS OF COLO'S RIGHTS TO TOWER. COLO will have the right to terminate this
Agreement on sixty (60) days' notice if COLO loses rights to the Tower for
reasons outside COLO's control; provided, however, that COLO thereafter will
assist in any necessary transition to an alternative tower, if reasonable
alternative antenna towers are available.
6. FEE AND PAYMENT. NEXTLINK shall pay COLO $___________ per month (pro rated
for partial months), commencing 20 days after the Effective Date. COLO shall
bill NEXTLINK on a monthly basis, and payment shall be due on or before the
date appearing on the monthly billing statement. Any invoice not paid by the
due date shall be deemed delinquent and is subject to interest charges
accruing at a rate of 1.5% per month. NEXTLINK shall be liable for all costs
of collection of any delinquency, including any and all collection agency
fees, reasonable attorneys' fees, and court costs. NEXTLINK shall pay all
taxes and other fees or charges attributable to the Equipment.
7. TERM. The term of this Agreement shall be ___ years from the Effective Date
(plus any partial calendar month in which the Effective Date falls).
NEXTLINK shall have the option of extending this Agreement, by giving COLO
90 days written notice before the expiration of the then-current term, for
an additional ____ term(s) of ____ years upon the same terms and conditions
as contained herein.
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8. INSURANCE. At all times during the term of the Agreement, and at each
party's expense, COLO and NEXTLINK, and any contractors or other third
parties representing NEXTLINK or COLO, shall maintain All Risk Property
and casualty insurance and comprehensive general liability insurance
(collectively "Policy"), insuring against all hazards and risks
customarily insured against by persons installing Equipment on antenna
towers. The Policy should be written on a per-occurrence basis with
blanket contractual liability coverage, with respect to use of the Tower,
with a combined single-limit coverage of not less than One Million Dollars
($1,000,000) and an aggregate umbrella coverage of not less than an
additional One Million dollars ($1,000,000). At all times during the term
of the Agreement, NEXTLINK shall name COLO and, if requested by COLO in
writing, the landlord(s) for the Building, as additional Insured on the
Policy. COLO and NEXTLINK shall also maintain property insurance including
EDP perils written on a "Special Form" basis at full replacement cost
value. The definition of property will include data and media.
NEXTLINK shall promptly deliver to COLO certificates of insurance issued
by the insurance company or its authorized agent for the Policy. The
Policy shall provide that it cannot be cancelled or modified unless COLO
is given 30 days prior written notice of such cancellation or
modification. NEXTLINK shall require any contractor or subcontractor
working on the Tower on its behalf to procure and maintain the same types,
amounts and coverage extensions as required of NEXTLINK.
NEXTLINK shall procure and maintain workers' compensation insurance
complying with the law of the applicable state or states, whether or not
such coverage is required by law, and employer's liability insurance with
limits of no less than One Million Dollars ($1,000,000). NEXTLINK shall
place the Policies required herein with a carrier with an AM Best rating
of A-VIII or better. The insurance requirements set forth herein are
independent of COLO's and NEXTLINK's indemnification and other obligations
under and shall not be construed or interpreted in any way to restrict,
limit, or modify COLO's or NEXTLINK's indemnification and other
obligations, or to limit COLO's or NEXTLINK's liability under the
Agreement.
9. INDEMNITY. To the fullest extent permitted by law, COLO and NEXTLINK shall
each, at his expense, indemnify, defend and hold the other, its
shareholders, officers, directors, agents, and employees harmless from and
against all Claims, as defined below, from any cause arising out of or
relating (directly or indirectly) to this Agreement, except claims arising
out of or relating to the willful or intentional misconduct or negligence
of the other party. For purposes of this Agreement, "Claims" means any and
all claims, causes of action (whether based on tort or contract law
principles, law or equity, or otherwise), charges, assessments, fines, and
penalties of any kind (including consultant and expert expenses, court
costs, and reasonable attorneys' fees). This indemnification extends to
and includes Claims for: (i) injury to any persons (including death at any
time resulting from that injury); (ii) loss of, injury or damage to, or
destruction of real or personal property (including all loss of use
resulting from that loss, injury, damage, or destruction of the Tower or
Premises); and (iii) all direct economic losses. This indemnification may
not be construed or interpreted as in any way restricting, limiting, or
modifying COLO's or NEXTLINK's insurance or other obligations under this
Agreement and is independent of COLO's and NEXTLINK's insurance
obligations. The provisions of this paragraph shall survive the expiration
or earlier termination of this Agreement and all Claims involving any of
the indemnified matters are fully, finally, and absolutely barred by the
applicable statutes of limitation.
10. DISCLAIMER OF WARRANTY. COLO represents that it has full rights and legal
authority to grant the rights herein and that COLO is not aware of and
will promptly correct any latent defects. Otherwise, NEXTLINK accepts the
Tower on an 'as is' basis at its own risk. Unless specifically stated
herein or in the Definitive Agreement between the parties, COLO makes no
warranties, express or implied, as to the Tower or the Building. COLO
specifically disclaims any and all express or implied warranties,
including without limitation any warranties of merchantability or fitness
for a particular purpose.
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11. DEFAULT. In the event that NEXTLINK fails to perform any material
obligation under this Agreement that is not cured within thirty (30) days
of receiving a written notice of default, COLO shall have the right to
immediately terminate the Agreement; provided, however, that in the event
that any action or non-action of NEXTLINK threatens to or causes harm to
the Tower or the Building, COLO shall have the right to immediately request
cessation of the action or that NEXTLINK take immediate curative action.
12. TERMINATION. Upon expiration or earlier termination of the Agreement: (1)
any and all NEXTLINK's payment obligations then accrued under this
Agreement will become due and payable immediately; (2) NEXTLINK shall quit
and peacefully surrender that portion of the Tower it uses to COLO and
remove all Equipment from the Tower, at NEXTLINK's expense; (3) NEXTLINK,
at its expense, shall repair, replace, or compensate COLO for any damage to
the Tower or Building resulting from the removal of the Equipment within 30
days of receiving notice of any such damage; (4) within 45 days after the
expiration or earlier termination date of the Agreement, if NEXTLINK has
not removed the Equipment from the Tower, NEXTLINK shall be deemed to have
abandoned its claim of ownership to the Equipment and to have conveyed all
of its right, title, and interest to the Equipment to COLO without setoff
or any other credit of any amount that may be owed to COLO by NEXTLINK;
provided, however, that COLO shall have given NEXTLINK at least 10 days
prior written notice of the end of the 45 day period and (5) each party
shall return all confidential or proprietary information of the other party
in its possession and will not make or retain any copies of such
confidential information except as required to comply with any applicable
legal or accounting record keeping requirement.
13. DISPUTE RESOLUTION. Any dispute arising between COLO and NEXTLINK under
this Agreement shall be governed by the dispute resolution provision in the
Definitive Agreement between the parties.
14. FORCE MAJEURE. Notwithstanding anything to the contrary contained here,
neither party shall be liable for any loss or damage, or deemed to be in
breach of the Agreement due to a failure to perform, wholly or in part, if
such nonperformance is due to causes beyond that party's control, including
acts of God, fire, explosion, earthquake, hurricane, tornado, wind, flood,
storm or other natural occurrences; vandalism; third party that computer,
voice mail, e-mail, or other telecommunications system failure; any law,
order, regulation, direction, action or lawful demand of any Federal,
state, local or foreign governments having jurisdiction or of any
department, agency, commission, court, bureau, corporation or other
instrumentality of any one or more such governments, or of any civil or
military authority, national emergency; insurrection; riot; war; strike,
lockout, work stoppage or other such labor difficulty.
15. ASSIGNMENT AND AMENDMENT. Assignment and amendment of this Agreement shall
be governed by the assignment and amendment provisions in the Definitive
Amendment between the parties.
16. GOVERNING LAW. The Agreement shall be governed by and interpreted in
accordance with the laws of the State of California. Except as otherwise
provided in Paragraph 13, venue shall be in the state of California. In
the event of a dispute or litigation regarding the Agreement, the
prevailing party shall be entitled to receive reasonable attorney's fees
and costs.
17. LIABILITY. Except for the indemnification provided in Paragraph 9, the
liability of COLO for damages arising out of the furnishing or failure to
furnish the Tower and other obligations under the Agreement, including but
not limited to mistakes, omissions, interruptions, delays, tortious
conduct, representations, errors, or other defects, whether by commission
or omission, shall be limited to an amount equal to the fees for the use
of the Tower. Except for the indemnification provided in Paragraph 9, the
liability of NEXTLINK for damages under or arising from this Agreement
shall be limited to an amount equal to the fees for use of the Tower.
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18. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and may made by personal delivery (including by overnight service),
or by registered or certified mail, postage prepaid, return receipt
requested, as provided below:
COLO:
NEXTLINK:
With a copy to: NEXTLINK Communications, Inc.
500 -- 108th Avenue, Suite 2200
Bellevue, WA 98004
Attn: General Counsel
Either party may, by written notice to the other, specify a different
address for notice purposes. Notices shall be deemed received when delivered
or when delivery is refused.
19. ENTIRE UNDERSTANDING. The Agreement and the Definitive Agreement between the
parties constitute the entire understanding of the parties related to the
subject matter hereof. In the event of an inconsistency, the Definitive
Agreement shall prevail over this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
COLO.COM
By: ____________________________________
Title: _________________________________
Date: __________________________________
NEXTLINK Communications, Inc.
By: ____________________________________
Title: _________________________________
Date: __________________________________
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