AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 20, 1999
REGISTRATION NO. 333- 90881
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SAVVIS COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 6719 43-1809960
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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SAVVIS Communications Corporation
12007 Sunrise Valley Drive
Reston, VA 20191
(877) 728-8474
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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Steven M. Gallant, Esq.
Vice President, General Counsel and Secretary
SAVVIS Communications Corporation
12007 Sunrise Valley Drive
Reston, VA 20191
(877) 728-8474
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Christine M. Pallares, Esq. Andrew R. Schleider, Esq.
Hogan & Hartson L.L.P. Jeanne M. Campanelli, Esq.
885 Third Avenue Shearman & Sterling
New York, NY 10022 599 Lexington Avenue
(212) 409-9800 New York, NY 10022
(212) 848-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. |_|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all fees and expenses, other than the
underwriting discounts and commissions, payable by the Registrant in connection
with the sale of the common stock being registered. All amounts shown are
estimates except for the SEC registration fee and the NASD filing fee.
Amount
------
SEC registration fee........................................ $ 20,850
NASD filing fee............................................. 8,000
Nasdaq National Market listing fee.......................... *
Blue sky fees and expenses.................................. *
Accounting fees and expenses................................ *
Legal fees and expenses..................................... *
Printing and engraving expenses............................. *
Transfer agent fees and expenses............................ *
Miscellaneous expenses...................................... *
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Total................................................. $ *
========
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The Delaware General
Corporation Law provides, however, that such person must have acted in good
faith and in a manner such person reasonably believed to be in (or not opposed
to) the best interests of the corporation and, in the case of a criminal action,
such person must have had no reasonable cause to believe his or her conduct was
unlawful. In addition, the Delaware General Corporation Law does not permit
indemnification in an action or suit by or in the right of the corporation,
where such person has been adjudged liable to the corporation, unless, and only
to the extent that, a court determines that such person fairly and reasonably is
entitled to indemnity for costs the court deems proper in light of liability
adjudication. Indemnity is mandatory to the extent a claim, issue or matter has
been successfully defended.
The Registrant's certificate of incorporation contains provisions that
provide that no director of the Registrant shall be liable for breach of
fiduciary duty as a director, except for (1) any breach of the directors' duty
of loyalty to the Registrant or its stockholders;
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(2) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of the law; (3) liability under Section 174 of the
Delaware General Corporation Law; or (4) any transaction from which the director
derived an improper personal benefit. The indemnification provided under the
Registrant's certificate of incorporation includes the right to be paid expenses
in advance of any proceeding for which indemnification may be had, provided that
the director or officer undertakes to repay such amount if it is determined that
the director or officer is not entitled to indemnification.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since the Registrant's formation on March 3, 1998, it has issued and
sold the securities described below in the following unregistered transactions:
(1) On March 4, 1998, in connection with its formation, the
Registrant issued 1,606,682 shares of its common stock in
exchange for all of the outstanding common stock of SAVVIS
Communications Corporation, a Missouri corporation ("SCC"), in
connection with the reorganization of SCC and SAVVIS
Communications Enterprises, L.L.C., a Missouri limited liability
company (the "LLC").
(2) Between March and July 1998, in a series of related transactions,
the Registrant sold to First Union Capital Partners, Inc., BCI
Growth IV, L.P. and R-H Capital Partners, L.P. a total of
18,226,228 shares of its Series C Redeemable Preferred Stock for
$18,226,228; to J.P. Morgan Investment Corporation and Sixty Wall
Street SBIC Fund, L.P. a total of 8,000,000 shares of its Series
C Redeemable Preferred Stock for $8,000,000; and to the holders
of convertible promissory notes of SCC and the LLC a total of
3,773,772 shares of its Series C Redeemable Preferred Stock in
exchange for all the outstanding notes. The Registrant issued to
these investors warrants to purchase up to a total of 10,334,327
shares of its common stock, at an exercise price of $.01 per
share.
(3) On March 4, 1998, the Registrant issued 502,410 shares of its
Series A Convertible Preferred Stock in exchange for all of the
outstanding shares of SCC's Series A Convertible Preferred Stock.
In addition, the Registrant issued warrants to purchase up to
15,000 shares of its Series A Convertible Preferred Stock at an
exercise price of $10.64 per share in exchange for warrants to
purchase an equal amount of shares of SCC's Series A Convertible
Preferred Stock, and warrants to purchase up to 349,228 shares of
its common stock at an exercise price of $4.13 per share in
exchange for warrants to purchase an equal amount of shares of
SCC's common stock.
(4) On March 4, 1998, the Registrant issued 5,649,241 shares of its
Series B Convertible Preferred Stock in exchange for an equal
amount of Class B shares of the LLC.
(5) On March 4, 1998, the Registrant issued 728,575 shares of its
common stock in exchange for the outstanding securities of
Interconnected Associates, Inc.
(6) Between May 1998 and March 1999, the Registrant issued options to
purchase a total of 1,560,968 shares of its common stock to a
total of 177
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employees, at exercise prices ranging from $.40 to $1.10 per
share. These options were granted under the Registrant's 1998
Stock Option Plan.
(7) Between July and October 1999, the Registrant granted options to
purchase 3,674,000 shares of the Registrant's common stock to 121
employees of Bridge Information Systems, Inc. at an exercise
price of $.50 per share. In that same period, the Registrant
granted options to purchase up to 2,575,250 shares of its common
stock to 92 of its employees at an exercise price of $.50 per
share. All of these options were granted pursuant to the
Registrant's 1999 Stock Option Plan. On that same date, the
Registrant offered its employees an election to convert options
to purchase 236,882 shares of common stock of Bridge into options
to purchase 236,882 shares of common stock of the Registrant at
an exercise price of $.50 per share.
(8) During 1998 and 1999, Registrant issued 92,565 shares of its
common stock pursuant to the exercise of stock options by its
employees for an aggregate purchase price of $36,100.
The Registrant issued the securities described above in reliance on the
exemptions from registration provided by Section 4(2) of the Securities Act, or
Regulation D promulgated under Section 4(2) of the Securities Act, or, with
respect to issuances to employees, or employees of Bridge, Rule 701 promulgated
under Section 3(b) of the Securities Act, as transactions by an issuer not
involving a public offering or transactions pursuant to compensatory benefit
plans and contracts relating to compensation as provided under Rule 701. The
recipients of securities in these transactions represented their intentions to
acquire these securities for investment only and not with a view to or for sale
in connection with any distribution of the securities. In addition, appropriate
legends were affixed to the instruments representing the securities issued in
these transactions. All recipients had adequate access, through their
relationships with the Registrant, to information about the Registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Number Exhibit Description
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1.1* Form of Underwriting Agreement
3.1** Amended and Restated Certificate of Incorporation of the Registrant
3.2** Amended and Restated Bylaws of the Registrant
4.1* Form of Common Stock Certificate
5.1* Opinion of Hogan & Hartson L.L.P. as to the validity of the shares being offered
10.1** 1999 Stock Option Plan
10.2* Form of Incentive Stock Option Agreement under the 1999 Stock Option Plan
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10.3* Form of Incentive Stock Option Agreement under the 1999 Stock Option Plan
10.4* Form of Non-Qualified Stock Option Agreement under the 1999 Stock Option
Plan
10.5* Amended and Restated Agreement and Plan of Merger, dated March 9, 1999, among the Registrant, SAVVIS Acquisition Corp.
and Bridge Information Systems, Inc.
10.6* Employment Agreement, dated December 4, 1998, between the Registrant and Clyde A. Heintzelman
10.7* Letter Agreement, dated November 12, 1999, between the Registrant and Clyde A. Heintzelman
10.8* Letter Agreement, dated June 14, 1999, between the Registrant and David J. Frear
10.9* Letter Agreement, dated September 30, 1999, between the Registrant and James D. Mori
10.10* Form of Master Establishment and Transition Agreement between the Registrant and Bridge Information Systems, Inc.
10.11* Form of Administrative Services Agreement between SAVVIS Communications Corporation and Bridge Information Systems,
Inc.
10.12* Form of Equipment Colocation Permit between the Registrant and Bridge Information Systems, Inc.
10.13+ Form of Network Services Agreement between SAVVIS Communications Corporation and Bridge Information Systems, Inc.
10.14+ Form of Technical Services Agreement between SAVVIS Communications Corporation and Bridge Information Systems, Inc.
10.15* Form of Promissory Note made by the Registrant and payable to the order of Bridge Information Systems, Inc.
11.1* Statement regarding computation of net income per share
21.1** Subsidiaries of the Registrant
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of Ernst & Young LLP
23.3* Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
24.1** Power of attorney (included in the signature page to this registration statement)
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27.1* Financial Data Schedule
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* To be filed by amendment
** Previously filed
+ Request for Confidential Treatment
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ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the Underwriting Agreement,
certificates in such denominations and registered in such names as may be
required by the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. If a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Amendment No. 2 to this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of St. Louis, State of Missouri, on December 20, 1999.
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Robert McCormick
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Robert McCormick
Acting President and Chief Executive
Officer and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 2 to this Registration Statement has been signed by the following
persons, in the capacities indicated below, on the dates indicated.
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Signature Title Date
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/s/ Robert McCormick Acting President and Chief December 20, 1999
- ----------------------------- Executive Officer and Chairman of
Robert McCormick the Board (principal executive
officer)
/s/ David J. Frear* Executive Vice President, Chief December 20, 1999
- ------------------------------- Financial Officer and Director
David J. Frear (principal financial officer and
principal accounting officer)
/s/ Clyde A. Heintzelman* Director December 20, 1999
- ------------------------------
Clyde A. Heintzelman
/s/ Thomas McInerney* Director December 20, 1999
- ------------------------------
Thomas McInerney
/s/ Patrick Welsh* Director December 20, 1999
- ------------------------------
Patrick Welsh
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/s/ Thomas M. Wendel* Director December 20, 1999
- -----------------------------
Thomas M. Wendel
*By: /s/ Robert McCormick Director December 20, 1999
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Robert McCormick
Attorney-in-Fact and
Agent
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EXHIBIT INDEX
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Number Exhibit Description
1.1* Form of Underwriting Agreement
3.1** Amended and Restated Certificate of Incorporation of the Registrant
3.2** Amended and Restated Bylaws of the Registrant
4.1* Form of Common Stock Certificate
5.1* Opinion of Hogan & Hartson L.L.P. as to the validity of the shares being offered
10.1** 1999 Stock Option Plan
10.2* Form of Incentive Stock Option Agreement under the 1999 Stock Option Plan
10.3* Form of Incentive Stock Option Agreement under the 1999 Stock Option Plan
10.4* Form of Non-Qualified Stock Option Agreement under the 1999 Stock Option
Plan
10.5* Amended and Restated Agreement and Plan of Merger, dated March 9, 1999, among the Registrant, SAVVIS Acquisition Corp.
and Bridge Information Systems, Inc.
10.6* Employment Agreement, dated December 4, 1998, between the Registrant and Clyde A. Heintzelman
10.7* Letter Agreement, dated November 12, 1999, between the Registrant and Clyde A. Heintzelman
10.8* Letter Agreement, dated June 14, 1999, between the Registrant and David J. Frear
10.9* Letter Agreement, dated September 30, 1999, between the Registrant and James D. Mori
10.10* Form of Master Establishment and Transition Agreement between the Registrant and Bridge Information Systems, Inc.
10.11* Form of Administrative Services Agreement between SAVVIS Communications Corporation and Bridge Information Systems,
Inc.
10.12* Form of Equipment Colocation Permit between the Registrant and Bridge Information Systems, Inc.
10.13+ Form of Network Services Agreement between SAVVIS Communications Corporation and Bridge Information Systems, Inc.
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10.14+ Form of Technical Services Agreement between SAVVIS Communications Corporation and Bridge Information Systems, Inc.
10.15* Form of Promissory Note made by the Registrant and payable to the order of Bridge Information Systems, Inc.
11.1* Statement regarding computation of net income per share
21.1** Subsidiaries of the Registrant
23.1* Consent of Deloitte & Touche LLP
23.2* Consent of Ernst & Young LLP
23.3* Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
24.1** Power of attorney (included in the signature page to this registration statement)
27.1* Financial Data Schedule
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* To be filed by amendment
** Previously filed
+ Request for Confidential Treatment
EXHIBIT 10.13
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THE SCHEDULES TO THIS
AGREEMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
NETWORK SERVICES AGREEMENT
This NETWORK SERVICES AGREEMENT (the "AGREEMENT") is effective as of
12:01 A.M. January 1, 2000 (the "EFFECTIVE DATE"), between SAVVIS Communications
Corporation, a Missouri corporation ("SAVVIS"), and Bridge Information Systems,
Inc., a Missouri corporation ("BRIDGE").
RECITALS
A. Bridge is engaged in the business of collecting and distributing various
financial, news and other data.
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services.
C. SAVVIS and certain of its subsidiaries have acquired from Bridge and
certain of its subsidiaries certain assets relating to the provision of Internet
Protocol backbone and other data transport services, and may in the future
acquire additional such assets from Bridge and certain of its subsidiaries, all
pursuant to a Master Establishment and Transition Agreement between SAVVIS'
corporate parent, SAVVIS Communications Corporation, a Delaware corporation, and
Bridge, of even date herewith (the .
D. It is an obligation of the parties under the Master Establishment and
Transition Agreement to cause this Network Services Agreement to be entered into
between SAVVIS and Bridge, pursuant to which SAVVIS shall provide Internet
Protocol backbone and other data transport services to Bridge.
E. Together with this Agreement, the parties hereto are entering into a
Technical Services Agreement of even date herewith (the "TECHNICAL SERVICES
AGREEMENT") and an Administrative Services Agreement of even date herewith (the
"ADMINISTRATIVE SERVICES AGREEMENT"), providing for the provision of certain
services to SAVVIS by Bridge. Certain subsidiaries of SAVVIS and certain
subsidiaries of Bridge are entering into, and may in the future enter into,
Local Transfer Agreements, Local Network Services Agreements (the "LOCAL
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NETWORK SERVICES AGREEMENTS"), Equipment Collocation Permits (the "EQUIPMENT
COLLOCATION PERMITS"), and Local Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Network Services Agreement by and
between SAVVIS and Bridge, including all addenda to this Agreement
entered into in the manner set forth herein (each an "ADDENDUM" and
collectively the "ADDENDA"). This Agreement shall be interpreted
wherever possible to avoid conflicts between the Sections hereof and
the Attachments, provided that if such a conflict shall arise, the
Attachments shall control.
1.2. Whenever it is provided in this Agreement for a matter to be mutually
agreed upon by the parties and set forth in an Addendum to this
Agreement, either party may initiate the process of determining such
matter by submitting a proposed outline or contents of such Addendum
to the other party. Each party shall appoint a primary contact and a
secondary contact for the completion of such Addendum, who shall be
the contact points for everyissue concerning such Addendum and who
shall be informed of the progress of the project. The names of the
contacts will be exchanged in writing by the parties. Using the
contacts, the parties shall work together in good faith with such
diligence as shall be commercially reasonable under the circumstances
to complete such Addendum, provided, however, that neither party shall
be obligated to enter into such an Addendum. Upon the completion of
such Addendum, it shall be set forth in a written document and
executed by the parties and shall become a part of this Agreement and
shall be deemed to be incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and phrases listed below
shall have the meanings given below, and all defined terms shall
include the plural as well as the singular. Unless otherwise stated,
the words "herein", "hereunder" and other similar words refer to this
Agreement as a whole and not to a particular Section or other
subdivision. The words "included" and "including" shall not be
construed as terms of limitation. Additional definitions are provided
in Schedule 3.1 of this Agreement. Capitalized terms not otherwise
defined have the meanings assigned to such terms in the Master
Establishment and Transition Agreement.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts of
SAVVIS for the provision of Internet Protocol backbone and other data
transport services other than the Acquired Network Facilities.
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"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
"AMERICAS" means North America, Central America and South America,
including the Caribbean, but excluding the United States.
"ASIA" means Australia, China, Hong Kong, India, Indonesia, Japan,
Korea, Macau, Malaysia, New Zealand, Philippines, Singapore, Taiwan,
and Thailand.
"BRIDGE" means Bridge Information Systems, Inc., a Missouri
corporation, and its successors and assigns.
"BRIDGE SUBSIDIARIES" has the meaning assigned to the term "Seller
Subsidiaries" in the Master Establishment and Transition Agreement.
"CONFIDENTIAL INFORMATION" means all information concerning the
business of Bridge, SAVVIS or any third party doing business with
either of them that may be obtained from any source (i) by SAVVIS by
virtue of its performance under this Agreement or (ii) by Bridge by
virtue of its use of the Networks. Such information shall also include
the terms of this Agreement (and negotiations and proposals from one
party to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
processes, financial data, software, research, development, strategic
plans or related information. All such information disclosed prior to
the execution of this Agreement shall also be considered Confidential
Information for purposes of this Agreement. Confidential Information
shall not include information that:
(a) is already rightfully known to the receiving party at the
time it is obtained by such party, free from any obligation
to keep such information confidential; or
(b) is or becomes publicly known through no wrongful act of the
receiving party; or
(c) is rightfully received by the receiving party from a third
party without restriction and without breach of this
Agreement.
"DISTRIBUTOR COUNTRY" means any country in which the products and
services of Bridge and Bridge Subsidiaries are provided through
third-party distributors.
"EFFECTIVE DATE" means the date set forth in the Preamble of this
Agreement.
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"EUROPE" means Austria, Belgium, Denmark, Finland, France, Germany,
Greece, Hungary, Ireland, Italy, Luxembourg, Netherlands, Norway,
Poland, Spain, Sweden, Switzerland, Turkey and the United Kingdom.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such term in
Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement Years
beginning on the Effective Date.
"INSTALLATION SITE" means any facility of Bridge or a Bridge
Subsidiary or of vendors or customers of Bridge or a Bridge Subsidiary
at which one or more of the Networks is installed.
"MARKET HOURS" means, with respect to any Installation Site, the
period of time beginning two hours before the time at which trading
opens on the principal securities exchange or automated quotation
system designated by Bridge in writing from time to time as being used
by the purchasers and sellers of securities at such Installation Site,
and ending two hours after the time at which such trading ceases to be
conducted.
"MINIMUM ANNUAL COMMITMENT" has the meaning assigned to such term in
Schedule 3.1 of this Agreement.
"NETWORK" and "NETWORKS" have the meaning assigned to such terms in
Section 2.1 of this Agreement.
"REPLACED ROUTERS" has the meaning assigned to such term in Section
2.7 of this Agreement.
"QUALITY OF SERVICE STANDARDS" means the standards for the performance
of the Networks contained in Schedule 2.2 hereto or an Addendum to
this Agreement.
"SAVVIS" means SAVVIS Communications Corporation, a Missouri
corporation, and its successors and assigns.
"SAVVIS BACKBONE" means those facilities that are owned by, or leased
to, SAVVIS providing telecommunications utilizing the Internet
Protocol.
"SAVVIS PARENT" means SAVVIS Communications Corporation, a Delaware
corporation.
"SAVVIS SUBSIDIARIES" has the meaning assigned to the term "Buyer
Subsidiaries" in the Master Establishment and Transition Agreement.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
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"TELERATE" means Telerate Holdings, Inc., a Delaware corporation.
"TELERATE NETWORK SERVICES AGREEMENT" means the network services
agreement pursuant to which SAVVIS shall provide Internet Protocol
backbone and other data transport services to Telerate.
"TRANSITION PERIOD" has the meaning assigned to such term in Section
6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network Facilities to provide (or to
cause the SAVVIS Subsidiaries to provide) to Bridge and the Bridge
Subsidiaries the following managed packet-data transport networks,
including the operation, management and maintenance thereof:
(a) a global office-automation network, providing connectivity
between the offices of Bridge (the "OA NETWORK"),
(b) a global data collection network (the "COLLECTION NETWORK") and
(c) a global data distribution network (the "DISTRIBUTION NETWORK"),
which shall be referred to in this Agreement collectively as the
"NETWORKS" and individually as a "NETWORK."
2.2. Each Network shall be operated, managed and maintained by SAVVIS
according to the Quality of Service Standards set forth in Schedule
2.2 hereof, except to the extent that SAVVIS is unable to meet such
Quality of Service Standards with respect to any Installation Site as
a result of (i) a failure of the Acquired Network Facilities to
operate in accordance with the Quality of Service Standards on the
Effective Date or (ii) an act or omission of Bridge or a Bridge
Subsidiary or a vendor or customer of Bridge or a Bridge Subsidiary
or (iii) equipment or software used by Bridge and not provided by
SAVVIS. SAVVIS may, but shall not be obligated to, use facilities of
SAVVIS other than the Acquired Network Facilities to provide all or
any part of any Network. SAVVIS shall be responsible for monitoring
the performance of the Networks and shall provide Bridge with monthly
reports of such performance. If the Quality of Service Standards are
not met with respect to a particular Installation Site in any month,
Bridge shall be entitled to receive, upon written request by Bridge,
a credit in the amount set forth on Schedule 2.2 attached hereto,
which amount shall be deemed to be one month's charges applicable to
such Installation Site under this Agreement with respect to such
month. Not more than one credit of one month's charges shall be given
for a particular Installation Site for a particular month. The
Quality of Service Standards shall not apply to the provision of
Local Access Facilities in countries in which the
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products and services of Bridge and Bridge Subsidiaries are provided
through third-party distributors.
2.3. SAVVIS agrees that, for the term of this Agreement, the network
operations centers for the Networks shall be managed by Bridge under
the Technical Services Agreement; provided, however, that SAVVIS shall
not be restricted from building, managing and operating one or more
network operations for such portions of the SAVVIS Backbone or other
operations of SAVVIS that are not used to provide the Networks to
Bridge.
2.4. [Intentionally omitted.]
2.5. In providing Additional Network Facilities, SAVVIS agrees to use its
best efforts to expedite the provisioning of the circuits for such
Additional Network Facilities in those instances in which SAVVIS is
responsible for provisioning such circuits, and to use its best
efforts to avoid single points of failure in the engineering design of
such Additional Network Facilities, consistent with the level of
redundancy specified in the applicable Addendum.
2.6. Throughout the term of this Agreement, SAVVIS shall use its reasonable
best efforts to continue to meet the requests of Bridge to enhance the
total capacity, geographic extension and performance quality of the
Networks, and to maintain its research and development effort at a
level appropriate to sustain the ability of Bridge to compete on the
basis of the quality of the Networks.
2.7. The parties acknowledge that SAVVIS intends to replace certain
existing routers among the Acquired Network Facilities (the "REPLACED
ROUTERS") with new equipment promptly after the Effective Date. It is
the intention of the parties that the Replaced Routers will be
re-deployed at Installation Sites at which one or more 56 Kbps ports
or 64 Kbps ports will be provided by SAVVIS using Additional Network
Facilities as set forth in Section 3.1 hereof. SAVVIS agrees to manage
the use of its inventory of routers in order to re-deploy the maximum
number of Replaced Routers as is commercially reasonable. So long as
Replaced Routers are available for re-deployment during the 18 months
following the Effective Date, SAVVIS agrees not to make any bulk
purchases of additional routers without the prior written consent of
Bridge, which will not be unreasonably withheld. Upon the expiration
of 18 months following the Effective Date, the parties shall determine
the number of Replaced Routers that the parties mutually agree are
likely to be so re-deployed within the succeeding 12 months. All
Replaced Routers that are not reasonably likely to be so re-deployed
within such 12-month period shall be purchased from SAVVIS by Bridge
at a price per Replaced Router equal to the average net book value as
of the Effective Date of all routers included in the Acquired Network
Facilities.
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3. RATES AND CHARGES
3.1. Bridge shall pay SAVVIS for the Networks using the Acquired Network
Facilities and Additional Network Facilities according to the rates
and charges set forth in Schedule 3.1 hereof.
3.2. The parties recognize that certain savings might be obtained by
consolidating the multiple Local Access Facilities that are provided
at such building locations on the Effective Date. In the event that
SAVVIS consolidates the multiple Local Access Facilities at one or
more of such building locations and obtains cost savings as a result
thereof, the parties will mutually agree within 30 days following such
consolidation on the manner in which such savings shall be shared
between SAVVIS and Bridge. Any reduction pursuant to this Section
shall not affect the Minimum Annual Commitment.
3.3. For any Installation Site to which SAVVIS is providing services both
under this Agreement and the Telerate Network Services Agreement, the
rates and charges applicable to such Installation Site under this
Agreement shall be one-half of the rates and charges that would
otherwise be applicable to such Installation Site under this
Agreement.
4. STRATEGIC ADVISORY COMMITTEE
4.1. Within 30 days after the Effective Date, SAVVIS and Bridge shall each
appoint three senior executives to the "STRATEGIC ADVISORY COMMITTEE,"
and one outside consultant shall be jointly appointed by both parties.
Any fees and expenses of such outside consultant incurred in
connection with service on the Strategic Advisory Committee shall be
shared equally by SAVVIS and Bridge. Each party shall have the right
to change any or all of its representatives on the Strategic Advisory
Committee upon written notice to the other party. A quorum of the
Strategic Advisory Committee shall consist of four members, provided
that at least two members appointed by each party are present. The
Chair of the Strategic Advisory Committee shall be designated by
Bridge from among the seven members of the Committee.
4.2. The mission of the Strategic Advisory Committee shall be to review the
performance of the Networks, to serve as forum for the consideration
and discussion of issues raised by either SAVVIS or Bridge with
respect to the Networks, and to discuss issues related to the future
development of the data transport and Internet Protocol backbone
operations of SAVVIS in the context of the relationship of SAVVIS and
Bridge.
4.3. The Strategic Advisory Committee shall meet with reasonable frequency,
at the call of the Chair.
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4.4. The Strategic Advisory Committee shall have reasonable access to the
Chief Executive Officer and the Board of Directors of SAVVIS to raise
areas of concern to the Committee under this Agreement.
4.5. SAVVIS agrees to use its reasonable best efforts to comply with the
recommendations of the Strategic Advisory Committee regarding
performance issues arising under this Agreement.
5. INVOICES
5.1. The amounts due to SAVVIS from Bridge for the installation, operation,
management and maintenance of the Networks shall be billed monthly in
advance. All items on invoices not the subject of a bona fide dispute
shall be payable by Bridge in United States currency within 30 days
from the date of receipt of the invoice. All amounts not in dispute
are subject to interest charges of 1-1/2 percent that will accrue
daily on all amounts not paid within 30 days of the date of receipt of
the invoice.
5.2. At any time and from time to time, Bridge may, by written notice to
SAVVIS, have one or more Installation Sites removed from the Networks.
Each monthly invoice from SAVVIS to Bridge shall reflect a reduction
in the amount charged to Bridge for the Networks resulting from any
such removal of Installation Sites. In the case of any Installation
Site removed from the Acquired Network Facilities, such reduction
shall be the sum of:
(a) the actual cost of the Local Access Facilities connecting the
Acquired Network Facilities to such Installation Site, effective
as of such time as SAVVIS is no longer required to pay such
costs, and
(b) the amounts set forth on Schedule 5.2 attached hereto, which are
deemed to be one month's charges applicable to such Installation
Site under this Agreement with respect to such month during the
first Agreement Year, according to connection speed at such
Installation Site, effective as of such time as such Installation
Site is disconnected from the Networks.
5.3. Bridge shall pay any sales, use, federal excise, utility, gross
receipts, state and local surcharges, value added and similar taxes,
charges or levies lawfully levied by a duly constituted taxing
authority against or upon the Networks. In the alternative, Bridge
shall provide SAVVIS with a certificate evidencing Bridge's exemption
from payment of or liability for such taxes. All other taxes, charges
or levies, including any ad valorem, income, franchise, privilege or
occupation taxes of SAVVIS shall be paid by SAVVIS.
5.4. Bona fide disputes concerning invoices shall be referred to the
parties' respective representatives who are authorized to resolve such
matters. Any amount to which Bridge is entitled as a result of the
resolution of a billing dispute shall be credited
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promptly to Bridge's account. Any amount to which SAVVIS is entitled
as a result of the resolution of a billing dispute shall be paid
promptly to SAVVIS.
5.5. Against the amounts owed by Bridge to SAVVIS under this Agreement,
Bridge shall have the right to offset any amounts owed by SAVVIS to
Bridge under this Agreement, the Technical Services Agreement, or
otherwise, including without limitation any amounts paid by Bridge on
behalf of SAVVIS under guarantees by Bridge of obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date and shall continue
in full force and effect for the Initial Term unless terminated or
extended in accordance with the provisions hereof.
6.2. The term of this Agreement may be extended by Bridge for one
additional five-year period by giving SAVVIS written notice not less
than one year before the scheduled expiration of the Initial Term.
6.3. Upon the termination of this Agreement in accordance with its
scheduled expiration or by Bridge pursuant to Section 7, SAVVIS will
continue to provide the Networks in accordance with the terms and
conditions herein (excluding the Minimum Annual Commitment) for a
period of up to five years after the effective date of termination
(the "TRANSITION PERIOD"). During the Transition Period, Bridge shall
pay SAVVIS for the use of the Networks at the rates in effect at the
effective date of termination. If Bridge has not completely
transitioned from its use of the Networks after the Transition Period,
SAVVIS will provide the Networks at SAVVIS' then current list rates.
SAVVIS and its successor will cooperate with Bridge until Bridge has
completely migrated to another provider.
7. TERMINATION BY BRIDGE
7.1. An "EVENT OF DEFAULT BY SAVVIS" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or comply with
or has violated any material representation, warranty, term,
condition or obligation of SAVVIS under this Agreement, and
SAVVIS has failed to cure such failure or violation within 60
days after receiving notice thereof from Bridge; or
(b) SAVVIS becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation proceeding,
makes an assignment for the benefit of creditors, or admits in
writing its inability to pay debts when due; or
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(c) an Event of Default by SAVVIS occurs under the Telerate Network
Services Agreement.
7.2. Bridge shall have the right to terminate this Agreement, with no
liability to SAVVIS other than for charges (less any applicable
credits) for the Networks provided prior to such termination, if:
(a) Bridge provides written notice to SAVVIS, at any time after the
ninth anniversary of the Effective Date, of Bridge's intent to
terminate, such termination to be effective not less than one
year following the date of such notice; or
(b) Bridge provides 10 days written notice of its intent to terminate
in the event that an Event of Default by SAVVIS occurs.
7.3. For purposes of Section 7.1(a), if the Quality of Service Standards
are not met with respect to a particular Installation Site in any
month, SAVVIS shall be deemed to have cured such failure within 60
days if the Quality of Service Standards are met with respect to such
Installation Site in the following month.
8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this Agreement if:
(a) Bridge has failed to pay any invoice that is not the subject of a
bona fide dispute within 60 days of the date on which such
payment is due and SAVVIS has provided Bridge with written notice
thereof, provided that Bridge shall have a further 30 days from
the time it receives such notice from SAVVIS of nonpayment to
cure any such default;
(b) SAVVIS provides 10 days written notice of its intent to terminate
in the event that Bridge has failed to perform or comply with or
has violated any material representation, warranty, term,
condition or obligation of Bridge under this Agreement, and
Bridge has failed to cure such failure or violation within 60
days after receiving notice thereof from SAVVIS;
(c) Bridge becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation proceeding,
makes an assignment for the benefit of creditors, or admits in
writing its inability to pay debts when due; or
(d) SAVVIS becomes entitled to terminate the Telerate Network
Services Agreement pursuant to the terms thereof.
8.2. Notwithstanding the provisions of Section 8.1(b) above, SAVVIS shall
not have the right to terminate this Agreement under Section 8.1(b)
solely for a failure by
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Bridge to perform or comply with, a violation by Bridge of, the
obligations of Bridge under Section 15 (Confidentiality) of this
Agreement, without prejudice, however, to such rights as SAVVIS may
have pursuant to such Section and to such rights and remedies to which
SAVVIS may be entitled, at law or in equity, as the result of an
actual or threatened breach by Bridge of such Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to establish
that such Additional Network Facilities perform in accordance with
mutually agreed upon acceptance criteria ("ACCEPTANCE CRITERIA") set
forth in the applicable Addendum entered into pursuant to Section 2.4,
and shall promptly inform Bridge of such test results. If test results
show that the Additional Network Facilities are performing in
accordance with the Acceptance Criteria, Bridge shall be deemed to
accept the Additional Network Facilities at the Installation Site
immediately.
9.2. If SAVVIS' tests establish that newly installed Additional Network
Facilities at the Installation Site do not perform in accordance with
the mutually agreed upon Acceptance Criteria, then SAVVIS shall
immediately and diligently exert its best efforts to bring the
Additional Network Facilities at such Installation Site into
compliance. SAVVIS shall not bill Bridge for the Additional Network
Facilities at such Installation Site until the test results show that
the Additional Network Facilities are performing in accordance with
the Acceptance Criteria.
9.3. Upon repair or restoration of any part of the Networks, SAVVIS shall
conduct appropriate tests to establish that the Networks perform in
accordance with mutually agreed upon Acceptance Criteria and shall
promptly inform Bridge of such test results.
10. RIGHTS AND OBLIGATIONS OF BRIDGE
10.1.SITE PREPARATION. For the installation of Additional Network
Facilities, Bridge shall, at its own expense, provide all necessary
preparations of each Installation Site in accordance with the
requirements to be mutually agreed upon by the parties and set forth
in an Addendum hereto, including inside wiring, demarcation extension
and rack mount accessories. Bridge shall ensure that Bridge-provided
equipment is on-site by the scheduled installation date. If SAVVIS is
required to reschedule the installation of Bridge-provided equipment
because it is not on-site by the scheduled installation date, Bridge
shall pay SAVVIS to redispatch installation personnel.
10.2. PROPER USE OF NETWORKS.
10.2.1. Bridge shall use any equipment provided by SAVVIS in
connection with the Networks in accordance with its
documentation, which documentation
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shall be provided by SAVVIS at no additional charge. Unless
otherwise provided herein, upon the termination of this
Agreement Bridge shall surrender to SAVVIS the equipment
provided by SAVVIS, in good working order, ordinary wear and
tear excepted.
10.2.2. Bridge shall be liable for damages to the Networks caused by
the negligence or willful acts or omissions of Bridge's
officers, employees, agents or contractors, for loss through
theft or vandalism of the Networks at the Installation Site,
and for damages to the Networks caused by the use of
equipment or supplies not provided hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Bridge shall neither permit nor assist others to use the
Networks for any purpose other than that for which they are
intended, nor fail to maintain a suitable environment
specified by SAVVIS in the applicable schedule, nor alter,
tamper with, adjust or repair the Networks. Any such
alteration, tampering, adjustment or repair by Bridge shall
relieve SAVVIS from any liability or obligation hereunder
(including any warranty or indemnity obligation) relating to
the affected Network, and Bridge shall be liable to SAVVIS
for any documented direct costs incurred by SAVVIS as a
result of such actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Bridge shall neither permit nor
assist others to abuse or fraudulently use the Networks, or to use the
Networks for any unauthorized or illegal purposes, including:
(a) obtaining or attempting to obtain service by any fraudulent means
or device to avoid payment; or
(b) accessing, altering or destroying any information of another
party by any fraudulent means or device, or attempting to do so;
or
(c) using the Networks so as to interfere with the use of the SAVVIS
network by other SAVVIS customers or authorized users or in
violation of law or in support of any unlawful act; or
(d) using the Networks for voice communications over a private
network in jurisdictions where such use is not allowed.
Notwithstanding the provisions of Section 8, upon the breach of this
Section 10.3 by Bridge, SAVVIS shall have the right to terminate this
Agreement immediately upon written notice to Bridge.
10.4. COVENANT NOT TO COMPETE.
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10.4.1. As an inducement to SAVVIS to enter into this Agreement,
which Bridge acknowledges is of benefit to it, and in
consideration of the promises and representations of SAVVIS
under this Agreement, Bridge covenants and agrees that
during the term of this Agreement and for a period of five
years thereafter, neither Bridge nor any of its successors
or assigns will, directly or indirectly, engage in, or have
any interest in any other person, firm, corporation or other
entity engaged in, any business activities anywhere in the
world competitive with or similar or related to the
packet-data transport network services provided by SAVVIS
under this Agreement; provided, however, that (i) Bridge and
the Bridge Subsidiaries shall be free to continue to use the
Call Assets and the satellite networks currently used by
Bridge, until such Call Assets or satellite networks have
been acquired by SAVVIS or the SAVVIS Subsidiaries pursuant
to the Master Establishment and Transition Agreement, and
(ii) Bridge shall be free to make passive investments in
securities of companies that provide network services in
competition with SAVVIS which, in the case of any such
security, does not constitute more than ten percent (10%) of
the total outstanding amount of such security.
10.4.2. If any court or tribunal of competent jurisdiction shall
refuse to enforce one or more of the covenants in this
Section 10.4 because the time limit applicable thereto is
deemed unreasonable, it is expressly understood and agreed
that such covenant or covenants shall not be void but that
for the purpose of such proceedings such time limitation
shall be deemed to be reduced to the extent necessary to
permit the enforcement of such covenant or covenants.
10.4.3. If any court or tribunal of competent jurisdiction shall
refuse to enforce any or all of the covenants in this
Section 10.4 because, taken together, they are more
extensive (whether as to geographic area, scope of business
or otherwise) than is deemed to be reasonable, it is
expressly understood and agreed between the parties hereto
that such covenant or covenants shall not be void but that
for the purpose of such proceedings the restrictions
contained therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced to the
extent necessary to permit the enforcement of such covenant
or covenants.
10.4.4. Bridge specifically acknowledges and agrees that the
foregoing covenants are commercially reasonable and
reasonably necessary to protect the interests of SAVVIS
hereunder. Bridge hereby acknowledges that SAVVIS and its
successors and assigns will suffer irreparable and
continuing harm to the extent that any of the foregoing
covenants is breached and that legal remedies would be
inadequate in the event of any such breach.
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11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. Provision of the Networks. SAVVIS shall operate, maintain
and manage the Networks at the Installation Sites using the
Acquired Network Facilities in accordance with the Quality
of Service Standards and other terms of this Agreement,
including all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. SAVVIS hereby warrants that the portion of the
Networks using the Acquired Network Facilities
will operate in accordance with the Quality of
Service Standards upon the Effective Date and
throughout the term of this Agreement. SAVVIS
further warrants that the Networks using any
Additional Network Facilities will operate in
accordance with the Quality of Service Standards
as provided in the applicable Addendum. In the
event that the Networks fail to operate in
accordance with the Quality of Service Standards,
the remedies provided herein or in the applicable
Addendum shall apply.
11.2.2. SAVVIS hereby represents and warrants that the
terms hereof do not conflict in any respect
whatsoever with any SAVVIS tariff on file with the
Federal Communications Commission or other
regulatory body. If, during the term of this
Agreement, SAVVIS shall file a contract specific
tariff governing the Networks or any portion
thereof, such tariff filing shall be consistent in
all respects with the terms of this Agreement, and
SAVVIS shall give Bridge 10 days advance written
notice of making such a tariff filing and of
filing any subsequent modifications thereto.
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
11.3. So long as Bridge is the beneficial owner of 20% of the
outstanding voting securities of SAVVIS, SAVVIS shall not,
without the prior written consent of Bridge, take any action
or otherwise enter into any agreement, arrangement or
understanding, including without limitation the creation or
issuance of any class of stock or other security, or any
agreement with any shareholder of SAVVIS, the effect of
which would be to provide any shareholder of SAVVIS with any
rights or privileges relating to shareholders of SAVVIS that
are not similarly enjoyed by Bridge.
11.4. SAVVIS acknowledges that the occurrence of Event of Default
by SAVVIS could cause irreparable harm to Bridge, the amount
of which may be difficult to determine, thus potentially
making any remedy at law or in damages inadequate. SAVVIS,
therefore, agrees that Bridge shall have the right to apply
to any court of
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competent jurisdiction for injunctive relief upon the
occurrence of an Event of Default by SAVVIS or the
occurrence of an event which, with the passage of time or
the giving of notice, could become an Event of Default by
SAVVIS and for any other appropriate relief. This right
shall be in addition to any other remedy available to Bridge
in law or equity. SAVVIS further agrees that, upon the
occurrence of an Event of Default by SAVVIS, SAVVIS shall
pay to Bridge, as liquidated damages and not as a penalty,
an amount equal to the lesser of (a) the aggregate amounts
paid by Bridge to SAVVIS under this Agreement during the six
months preceding such Event of Default by SAVVIS or (b)
$50,000,000.
12. LIMITATIONS OF LIABILITY
12.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of
the form of action whether in contract, indemnity, warranty,
strict liability or tort, including negligence of any kind
with respect to the Networks or other conduct under this
Agreement.
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or
damage to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Bridge's
negligence or that of their respective agents,
subcontractors or employees. Nothing contained in this
Section shall limit SAVVIS' intellectual property
indemnification obligations under Section 16.1 or Bridge's
indemnification obligations with respect to a breach of
Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not
provided by it under this Agreement, nor shall SAVVIS be
responsible for the transmission or reception of information
by equipment or software not provided by SAVVIS hereunder.
In the event that Bridge uses equipment or software not
provided by SAVVIS hereunder in a manner that impairs
Bridge's use of the Networks, Bridge shall not be excused
from payment for such use and SAVVIS shall not be
responsible for any failure of the Networks to meet the
Quality of Service Standards resulting from the use of such
equipment or software by Bridge. Upon notice from SAVVIS
that the equipment or software not provided by SAVVIS under
this Agreement is causing or is likely to cause hazard,
interference or service obstruction, Bridge shall eliminate
the likelihood of such hazard, interference or service
obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no
additional charge, provide all interface specifications for
the Networks reasonably requested by Bridge. SAVVIS shall,
upon the receipt of appropriate specifications from Bridge,
inform Bridge of the compatibility with the Networks of any
equipment or software that Bridge proposes to use in
connection therewith, the effects, if any, of the use of
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such equipment or software on the quality, operating
characteristics and efficiency of the Networks, and the
effects, if any, of the Networks on the operating
characteristics and efficiency of any such equipment or
software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Bridge a non-exclusive and
non-transferable license to use all programming and software
necessary for Bridge to use the Networks. Such license is
granted for the term of this Agreement for the sole purpose
of enabling Bridge to use the Networks.
14.2. All title and property rights (including intellectual
property rights) to the Networks (including associated
programming and software) are and shall remain with SAVVIS
or the third-party providers thereof to SAVVIS. Bridge shall
not attempt to examine, copy, alter, reverse engineer,
decompile, disassemble, tamper with or otherwise misuse the
Networks, programming and software.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors
or managers of facilities or equipment used by such party)
in need of access to such information for purposes
specifically related to either party's responsibilities
under this Agreement, provided that any disclosure of
Confidential Information under clause (c) shall be made only
upon prior written approval of the other party and subject
to the appropriate assurances that the recipient of such
information shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written
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consent, shall promptly destroy it and provide the other
party with written certification of such destruction.
15.4. Either party may request in writing that the other party
waive all or any portion of the requesting party's
responsibilities relative to the other party's Confidential
Information. Such waiver request shall identify the affected
information and the nature of the proposed waiver. The
recipient of the request shall respond within a reasonable
time and, if it determines, in its sole discretion, to grant
the requested waiver, it will do so in writing over the
signature of an employee authorized to grant such request.
15.5. Bridge and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right
to apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
15.6. A party requested or ordered by a court or other
governmental authority of competent jurisdiction to disclose
another party's Confidential Information shall notify the
other party in advance of any such disclosure and, absent
the other party's consent to such disclosure, use its best
efforts to resist, and to assist the other party in
resisting, such disclosure. A party providing another
party's Confidential Information to a court or other
governmental authority shall use its best efforts to obtain
a protective order or comparable assurance that the
Confidential Information so provided will be held in
confidence and not further disclosed to any other person,
absent the owner's prior consent.
15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably
necessary in connection with the sale of securities or the
performance or enforcement of this Agreement or any of the
obligations hereof; provided, however, that if the receiving
party would otherwise be required to refer to or describe
any aspect of this Agreement in any of the preceding
circumstances, the receiving party shall use its reasonable
efforts to take such steps as are available under such
circumstances (such as by providing a summary or synopsis)
to avoid disclosure of the financial terms and conditions of
this Agreement. Notwithstanding any provisions of this
Agreement to the contrary, either party may disclose the
terms and conditions of this Agreement in the course of a
due diligence review performed in connection with
prospective debt financing or equity investment by, or a
sale to, a third party, so long
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as the persons conducting such due diligence review have
agreed to maintain the confidentiality of such disclosure
and not to use such disclosure for any purpose other such
due diligence review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Bridge or any
of its directors, officers, employees or assigns for actual
or alleged infringement by the Networks of any patent,
copyright, trademark, trade secret or similar proprietary
right of any third party, except to the extent that such
actual or alleged infringement arises from (i) such actual
or alleged infringement by the Acquired Network Facilities
on the Effective Date or (ii) an act or omission of Bridge
or a Bridge Subsidiary or a vendor or customer of Bridge or
a Bridge Subsidiary or (iii) equipment or software used by
Bridge and not provided by SAVVIS. Bridge shall notify
SAVVIS promptly in writing of any such claim or suit and
shall cooperate with SAVVIS in a reasonable way to
facilitate the settlement or defense thereof. SAVVIS further
agrees to indemnify and hold Bridge harmless from and
against any and all liabilities and damages (whether
incurred as the result of a judicial decree or a
settlement), and the costs and expenses associated with any
claim or action of the type identified in this Section
(including reasonable attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Bridge's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Bridge the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of
the actions described in clauses (a) or (b), then Bridge may
terminate the affected portion of such Network, and SAVVIS
shall refund to Bridge any prepaid charges therefor.
16.3. Subject to Section 12, Bridge will defend, indemnify and
hold harmless SAVVIS or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from any
information, data or messages transmitted over the
Networks by Bridge; and
(b) claims for infringement of patents arising from the use
by Bridge of equipment and software, apparatus and
systems not provided hereunder in connection with the
Networks; and
(c) the violation of any representations, warranties and
covenants made by Bridge in this Agreement.
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16.4. Subject to Section 12, SAVVIS will defend, indemnify and
hold harmless Bridge or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for infringement of patents arising from the use
by SAVVIS of equipment and software, apparatus and
systems not provided by SAVVIS hereunder in connection
with the Networks (other than any Acquired Network
Facilities); and
(b) the violation of any representations, warranties and
covenants made by SAVVIS in this Agreement.
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising
from or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes
over arbitrability and disputes in connection with claims by
third persons ("DISPUTES") shall be exclusively governed by
and settled in accordance with the provisions of this
Section 17. The foregoing shall not preclude recourse to
judicial proceedings to obtain injunctive, emergency or
other equitable relief to enforce the provisions of this
Agreement, including specific performance, and to decide
such issues as are required to be resolved in determining
whether to grant such relief. Resolution of Disputes with
respect to claims by third persons shall be deferred until
any judicial proceedings with respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or
notice on the other in any arbitration or litigation in
accordance with the notice provisions hereof. The parties
agree not to disclose any information regarding any Dispute
or the conduct of any arbitration hereunder, including the
existence of such Dispute or such arbitration, to any person
or entity other than such employees or representatives of
such party as have a need to know.
17.3. Either party may commence proceedings hereunder by delivery
of written notice providing a reasonable description of the
Dispute to the other, including a reference to this
provision (the "DISPUTE NOTICE"). Either party may initiate
arbitration of a Dispute by delivery of a demand therefor
(the "ARBITRATION DEMAND") to the other party not sooner
than 60 calendar days after the date of delivery of the
Dispute Notice but at any time thereafter. The arbitration
shall be conducted in St. Louis, Missouri.
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17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Bridge, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If
an Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such
procedures as the parties may agree or, in the absence of or
failing such agreement, pursuant to the Rules.
Notwithstanding the foregoing, each party shall have the
right to inspect the books and records of the other party
that are reasonably related to the Dispute, and each party
shall provide to the other, reasonably in advance of any
hearing, copies of all documents which such party intends to
present in such hearing and the names and addresses of all
witnesses whose testimony such party intends to present in
such hearing.
17.6. All hearings shall be conducted on an expedited schedule,
and all proceedings shall be confidential. Either party may
at its expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than
90 calendar days after the Arbitrators' selection or
appointment, and shall make a final award not later than 30
calendar days thereafter. The Arbitrators shall apportion
all costs and expenses of the Arbitration, including the
Arbitrators' fees and expenses of experts ("ARBITRATION
COSTS") between the prevailing and non-prevailing parties as
the Arbitrators deem fair and reasonable. In circumstances
where a Dispute has been asserted or defended against on
grounds that the Arbitrators deem manifestly unreasonable,
the Arbitrators may assess all Arbitration Costs against the
non-prevailing party and may include in the award the
prevailing party's attorneys' fees and expenses in
connection with any and all proceedings under this Section
17.
17.8. Either party may assert appropriate statutes of limitation
as a defense in arbitration; provided, that upon delivery of
a Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Bridge unless otherwise directed by Bridge. This Section
shall not apply where (a) Bridge is in default under this
Agreement or (b) the dispute or controversy between the
parties relates to harm to the Networks allegedly caused by
Bridge and Bridge does not immediately cease and desist from
the activity giving rise to the dispute or controversy.
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18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for
any failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers
(whether of a party hereto or of others), casualties,
accidents or other causes to the extent that such failure
and the consequences thereof are reasonably beyond the
control and without the fault or negligence of the party
claiming excuse. Each party shall, with the cooperation of
the other party, use reasonable efforts to mitigate the
extent of any failure to perform and the adverse
consequences thereof.
18.2. If SAVVIS cannot promptly provide a suitable temporary
SAVVIS alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Bridge may, at its option and at its own
cost, contract with one or more third parties for the
affected portion of the Network for the shortest
commercially available period likely to cover the reasonably
expected duration of the interruption, and may suspend
SAVVIS' provision of such affected portion for such period.
SAVVIS shall not charge Bridge for the affected portion thus
suspended during the period of suspension. SAVVIS shall
resume provision of the suspended portion of the Network
upon the later of the termination or expiration of Bridge's
legally binding commitments under contracts with third
parties for alternative services or the cessation or remedy
of the force majeure condition.
18.3. In the event that a force majeure condition shall continue
for more than 60 days, Bridge may cancel the affected
portion of the Network with no further liability to SAVVIS
other than for obligations incurred with respect to such
affected portion prior to the occurrence of the force
majeure condition.
18.4. The consequences arising from existence and continuation of
a force majeure condition, including without limitation any
interruption of the Networks and the exercise by Bridge of
its rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or covenants hereunder and shall
not be grounds for the exercise of any remedies under this
Agreement, including without limitation remedies under
Section 2.2 or Section 7, other than those specified in this
Section 18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person or entity
other than the parties and their respective successors and
permitted assigns.
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior
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understandings, agreements, or representations by or between
the parties, written or oral, to the extent they related in
any way to the subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein
and their respective successors and permitted assigns. No
party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior
written approval of the other party, which consent shall not
be unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
19.5. HEADINGS. The Section headings contained in this Agreement
are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then two business days
after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the
intended recipient as set forth below:
If to Bridge: Bridge Information Systems, Inc.
Three World Financial Center
New York, New York 10285
(212) 372-7195 (fax)
Attention: Zachary Snow,
Executive Vice President
and General Counsel
If to SAVVIS: SAVVIS Communications Corporation
717 Office Parkway
St. Louis, Missouri 63141
(314) 468-7550 (fax)
Attention: Steven M. Gallant,
Vice President and
General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at
the address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party
may change the address to which notices, requests, demands,
claims, and other
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communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State
of Missouri without giving effect to any choice or conflict
of law provision or rule (whether of the State of Missouri
or any other jurisdiction) that would cause the application
of the laws of any jurisdiction other than the State of
Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in
writing and signed by SAVVIS and Bridge. No waiver by any
party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any
other situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated
hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
19.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified
in this Agreement are incorporated herein by reference and
made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Network
Services Agreement to be executed as of the date first above written.
SAVVIS COMMUNICATIONS CORPORATION
By
---------------------------
Name:
---------------------------
Title:
---------------------------
BRIDGE INFORMATION SYSTEMS, INC.
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By
---------------------------
Name:
---------------------------
Title:
---------------------------
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SCHEDULE 2.2
QUALITY OF SERVICE STANDARDS
1. FOR THE COLLECTION NETWORK AND DISTRIBUTION NETWORK:
(a) Between any two Installation Sites on the Collection Network
and the Distribution Network that are connected by fully
redundant circuits provided with the Acquired Network
Facilities there shall be not less than 99.99% end-to-end
availability during each one-month period between such
Installation Sites during the Market Hours at such
Installation Sites.
(b) There shall be delivered not less than 99.99% of all data
packets offered to such Network during each one-month period.
(c) The average round-trip latency period for the Collection
Network and the Distribution Network using the Acquired
Network Facilities during each one-month period shall not
exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas, (iii)
Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic regions.
2. FOR THE OA NETWORK:
(a) Between any two Installation Sites on the OA Network that are
connected by circuits provided with the Acquired Network
Facilities there shall be not less than 99.90% end-to-end
availability during each one-month period between such
Installation Sites during the Market Hours at such
Installation Sites.
(b) There shall be delivered not less than 99.90% of all data
packets offered to the OA Network during each one-month
period.
(c) The average round-trip latency period for the OA Network using
the Acquired Network Facilities for each one-month period
shall not exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas, (iii)
Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic regions.
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3. CREDIT AMOUNTS
Amounts to be credited if the Quality of Service Standards are not met
with respect to a particular Installation Site in any month shall be as
follows during the first Agreement Year, according to the connection
speed at such Installation Site:
CONNECTION SPEED MONTHLY CREDIT
T1 *
256 KBS *
128 KBS *
56 KBS *
ISDN *
E1 *
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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SCHEDULE 3.1
PRICING
1. DEFINITIONS.
1.1. "BACKBONE LOCAL ACCESS FACILITIES" means the local access line or
other local communications circuit provided by a local exchange
carrier connecting long-haul circuits to a SAVVIS POP.
1.2. "INITIAL POP THRESHOLD REVENUE" with respect to any metropolitan
area means an amount equal to 2.5 times the sum of:
(a) (i) * if the POP is built by SAVVIS,
(ii)* if the POP is leased to SAVVIS, plus
(b) the actual cost to SAVVIS of extending two redundant
circuits of the SAVVIS long-haul circuits to a SAVVIS POP in
such metropolitan area, plus
(c) the actual cost to SAVVIS for Backbone Local Access
Facilities connecting the two redundant long-haul circuits
to such SAVVIS POP, plus
(d) the actual cost to SAVVIS of obtaining collocation and power
for such SAVVIS POP.
1.3. "INSTALLATION SITE" means any facility of Bridge or a Bridge
Subsidiary or of vendors or customers of Bridge or a Bridge
Subsidiary at which one or more of the Networks is installed.
1.4. "INSTALLATION SITE LOCAL ACCESS FACILITIES" means the local
access line or other local communications circuit provided by a
local exchange carrier connecting an Installation Site to a
SAVVIS POP.
1.5. "LOCAL ACCESS FACILITIES" means the local access line or other
local communications circuit provided by a local exchange
carrier.
1.6. "POP" means point-of-presence.
1.7. "SUBSEQUENT POP THRESHOLD REVENUE" with respect to any
metropolitan area means an amount equal to 2.5 times the sum of:
(a) (i) * if the POP is built by SAVVIS, or
(ii) * if the POP is leased by SAVVIS, plus
(b) the actual cost to SAVVIS of connecting a second switch to
an existing switch in such metropolitan area by means of a
DS3 circuit, plus
(c) the actual cost to SAVVIS of obtaining collocation and power
for such second switch.
1.8. "POP SITE" means any Installation Site that accesses a SAVVIS POP
by means of Local Access Facilities.
1.9. "NON-POP SITE" means any Installation Site other than a POP Site.
2. FIRST-YEAR PRICE FOR NETWORKS USING ACQUIRED NETWORK FACILITIES
2.1. For the first Agreement Year in the Initial Term of this
Agreement, Bridge and the Bridge Subsidiaries shall pay SAVVIS
and the SAVVIS Subsidiaries for the Networks using the Acquired
Network Facilities plus the Short-Term Call Assets in the
aggregate amount determined as follows, allocated between this
Agreement and the Local Network Services Agreements substantially
in the form attached as Exhibit A hereto:
(a) The sum of:
(i) the actual cost to Bridge of operating the Networks as
of October 31, 1999; plus
(ii) the actual cost to Bridge of the employees transferred
from Bridge to SAVVIS for the operation of the
Networks, determined on the basis of the actual
salaries of such employees plus a benefits loading
factor to be mutually agreed upon;
(b) less the actual cost to Bridge of backbone circuits removed
or replaced subsequent to October 31, 1999;
(c) plus, (i) with respect to the Distribution Network, the
actual cost to SAVVIS as of the Effective Date of backbone
circuits added or substituted or used in part by any party
other than Bridge, subsequent to October 31, 1999,
multiplied by the proportionate megabit usage of such
circuits by Bridge under this Agreement as of the Effective
Date, and further multiplied by 130%; or
(ii) with respect to the Collection Network and the OA
Network, the actual cost to SAVVIS as of the Effective Date
of backbone circuits added or substituted subsequent to
October 31, 1999, multiplied by 130%;
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(d) plus the actual cost to Bridge of the additional Local
Access Facilities associated with backbone circuits added
subsequent to October 31, 1999.
The pricing under the Local Network Services Agreement shall
be as set forth in this Schedule 3.1, according to the
geographic territory applicable to such Local Network
Services Agreement; provided that the pricing for
Installation Sites in Latin America shall be mutually agreed
upon following an analysis to be conducted by the parties of
the costs pertaining to such Installation Sites. Charges
under each such Local Network Services Agreement shall be
billed locally, in local currency.
3. FIRST-YEAR PRICES AT ADDITIONAL POP SITES
3.1. 3.1A. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in the United States, as follows:
(a) * per month for each T1 port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
3.2. 3.1B. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in Europe, as follows:
(a) an amount per month to be determined on an individual case
basis for each T1 port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
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3.3. 3.1C. For the first Agreement Year in the Initial Term of this
Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities in Asia, as follows:
(a) an amount per month to be determined on an individual case
basis for each T1 port, reflecting the cost of equipment,
hardware maintenance and the provision of a diagnostic
dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
3.4. In the event that Bridge wishes to attach any additional servers
to a router having a single T1 port, or any fraction thereof, at
any POP Site, SAVVIS will provide such service at the rate of $*
per month for each such additional server for the first Agreement
Year in the Initial Term of this Agreement.
3.5. Following the first Agreement Year in the Initial Term of this
Agreement, the rates and charges for the Networks using
Additional Network Facilities at any new POP Site shall be
mutually agreed upon by the parties from time to time and set
forth in an Addendum to this Agreement in the manner set forth in
Section 1.2 of this Agreement and Section 7.1 of this Schedule.
If the parties fail to reach agreement on any such Addendum prior
to the expiration of the Addendum then in effect, the rates and
charges shall be determined by binding arbitration as provided
below.
4. 4A. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN THE UNITED
STATES
4.1. 4A.1. 56 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site in
the United States at which one or more 56 Kbps ports are
provided, as follows:
(a) * per month for each 56 Kbps port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
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(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
4.2. 4A.2. 128 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site at
which one or more 128 Kbps ports are provided, as follows:
(a) * per month for each 128 Kbps port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
4.3. 4A.3. 256 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site at
which one or more 256 Kbps ports are provided, as follows:
(a) * per month for each 256 Kbps port, reflecting the cost of
equipment, hardware maintenance, the provision of a
diagnostic dial-up line, and the use of the SAVVIS Backbone,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
4.4. 4A.4 ISDN BACK-UP LINE. In the event that Bridge wishes to use an
ISDN back-up line in lieu of full redundancy at any Non-POP Site
at which one or more 56 Kbps ports or 128 Kbps ports are provided
as Additional Network Facilities, SAVVIS will provide such
service at the following rate for the first Agreement Year in the
Initial Term of this Agreement:
(a) * per month for each ISDN line, reflecting the cost of
equipment and the use of the SAVVIS Backbone, plus
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(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate interface
or other means for connecting such Installation Site to the
SAVVIS POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5. 4B. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN EUROPE
5.1. 4B.1. 64 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site in
Europe at which one or more 64 Kbps ports are provided, as
follows:
(a) * per month (* per month in a Distributor Country) for each
64 Kbps port, reflecting the cost of equipment, hardware
maintenance and the provision of a diagnostic dial-up line,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5.2. 4B.2. 128 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shallpay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site at
which one or more 128 Kbps ports are provided, as follows:
(a) * per month (* per month in a Distributor Country) for each
128 Kbps port, reflecting the cost of equipment, hardware
maintenance and the provision of a diagnostic dial-up line,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
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5.3. 4B.3. 256 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site at
which one or more 256 Kbps ports are provided, as follows:
(a) an amount per month to be determined on an individual case
basis for each 256 Kbps port, reflecting the cost of
equipment, hardware maintenance and the provision of a
diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5.4. 4B.4. E1 SITES. For the first Agreement Year in the Initial Term
of this Agreement, Bridge shall pay SAVVIS for the Networks using
Additional Network Facilities at any new Non-POP Site at which
one or more E1 ports are provided, as follows:
(a) * per month (* per month in a Distributor Country) for each
E1 port, reflecting the cost of equipment, hardware
maintenance and the provision of a diagnostic dial-up line,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
5.5. 4B.5. ISDN BACK-UP LINE. In the event that Bridge wishes to use
an ISDN back-up line in lieu of full redundancy at any Non-POP
Site at which one or more 64 Kbps ports or 128 Kbps ports are
provided as Additional Network Facilities, SAVVIS will provide
such service at the following rate for the first Agreement Year
in the Initial Term of this Agreement:
(a) * per month (* per month in a Distributor Country) for each
ISDN line, reflecting the cost of equipment, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate interface
or other means for connecting such
33
<PAGE>
Installation Site to the SAVVIS POP, including equipment
installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
6. 4C. FIRST-YEAR PRICES FOR ADDITIONAL NON-POP SITES IN ASIA
6.1. 4C.1. 64 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site in
the United States at which one or more 64 Kbps ports are
provided, as follows:
(a) * per month (* per month in a Distributor Country)
for each 64 Kbps port, reflecting the cost of
equipment, hardware maintenance and the provision of
a diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means
for connecting such Installation Site to the SAVVIS
POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such
Installation Site the equipment referred to in clause
(a) and the connection referred to in clause (b).
6.2. 4C.2. 128 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network Facilities at any new Non-POP Site at
which one or more 128 Kbps ports are provided, as follows:
(a) * per month (* per month in a Distributor Country) for each
128 Kbps port, reflecting the cost of equipment, hardware
maintenance and the provision of a diagnostic dial-up line,
plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
6.3. 4C.3. 256 KBPS SITES. For the first Agreement Year in the Initial
Term of this Agreement, Bridge shall pay SAVVIS for the Networks
using Additional Network
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Facilities at any new Non-POP Site at which one or more 256 Kbps
ports are provided, as follows:
(a) an amount per month to be determined on an individual case
basis for each 256 Kbps port, reflecting the cost of
equipment, hardware maintenance and the provision of a
diagnostic dial-up line, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits or other means for
connecting such Installation Site to the SAVVIS POP,
including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
6.4. 4C.4 ISDN BACK-UP LINE. In the event that Bridge wishes to use an
ISDN back-up line in lieu of full redundancy at any Non-POP Site
at which one or more 56 Kbps ports or 128 Kbps ports are provided
as Additional Network Facilities, SAVVIS will provide such
service at the following rate for the first Agreement Year in the
Initial Term of this Agreement:
(a) * per month for each ISDN line, reflecting the cost of
equipment and the use of the SAVVIS Backbone, plus
(b) the actual charges for Installation Site Local Access
Facilities, permanent virtual circuits, basic rate interface
or other means for connecting such Installation Site to the
SAVVIS POP, including equipment installation, plus
(c) the actual cost to SAVVIS of installing at such Installation
Site the equipment referred to in clause (a) and the
connection referred to in clause (b).
7. REDUNDANCY AND BANDWIDTH USAGE
7.1. The amount due to SAVVIS from Bridge for providing the Networks
using Additional Network Facilities at any new Installation Site
having full redundancy will be two times the amount due under
Sections 3.1, 4A, 4B or 4C above with respect to a single port.
7.2. Bandwidth usage of any port provided to Bridge by SAVVIS under
this Agreement, including both the Acquired Network Facilities
and any Additional Network Facilities, shall not exceed 128 Kbps.
In the event that Bridge wishes to obtain Bandwidth usage in
excess of 128 Kbps on any such port, such usage shall be provided
for in an Addendum hereto mutually agreed upon by the parties in
the manner set forth in Section 1.2 of the Agreement.
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<PAGE>
8. CONVERSION TO POP SITES AND INSTALLATION OF SECOND SWITCH
8.1. In the event that the aggregate amount that would be paid by
Bridge to SAVVIS with respect to Non-POP Sites specified by
Bridge in a metropolitan area if such sites were converted to POP
Sites equals or exceeds the Initial POP Threshold Revenue per
month applicable to such metropolitan area, then, upon written
request from Bridge, SAVVIS shall (i) install a switch in a
SAVVIS POP in such metropolitan area capable of being accessed by
means of a connection using only Installation Site Local Access
Facilities, (ii) extend the SAVVIS Backbone to such SAVVIS POP
with two redundant circuits, and (iii) convert such Non-POP Sites
to POP Sites.
8.2. In the event that, following the installation by SAVVIS of a
switch and the conversion of Non-POP Sites to POP Sites pursuant
to Section 6.1 above, the aggregate amount that would be paid by
Bridge to SAVVIS with respect to additional Non-POP Sites in a
specified metropolitan area if such sites were converted to POP
Sites equals or exceeds the Subsequent POP Threshold Revenue per
month applicable to such metropolitan area, then, upon written
request from Bridge, SAVVIS shall (i) install a second switch in
a SAVVIS POP in such metropolitan area capable of being accessed
by means of a connection using only Installation Site Local
Access Facilities, (ii) connect the two switches by means of a
circuit having appropriate transmission capacity, and (iii)
convert such additional Non-POP Sites to POP Sites.
9. DETERMINATION OF RATES AND CHARGES AFTER FIRST AGREEMENT YEAR
9.1. Following the first Agreement Year in the Initial Term of this
Agreement, the rates and charges for the Networks and any
Additional Network Facilities as shall be mutually agreed upon by
the parties from time to time in an Addendum to this Agreement in
the manner set forth in Section 1.2 of this Agreement; provided
that the charge for any backbone circuit in the Distribution
Network that is not used exclusively for the carriage of Bridge
traffic under this Agreement shall be charged to Bridge according
to the actual cost to SAVVIS of such backbone circuit multiplied
by the proportionate megabit usage of such circuits by Bridge
under this Agreement as of the Effective Date, and further
multiplied by *. If the parties fail to reach agreement on any
such Addendum prior to the expiration of the Addendum then in
effect, the rates and charges shall be determined by binding
arbitration, as follows:
9.2. The arbitration shall be conducted by a single arbitrator jointly
selected by the parties, who shall be an attorney experienced and
knowledgeable in the tariffs and pricing of telecommunications
services (the "ARBITRATOR"). If the parties are unable to agree
on the selection of the Arbitrator within 30 days, either party
may apply to the United States District Court for the Eastern
District of Missouri or to the Circuit Court of St. Louis County
for the appointment of the Arbitrator.
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<PAGE>
(b) Within 10 days following the appointment of the Arbitrator,
each party shall submit to the Arbitrator such party's best
and final offer for the rates and charges to be set forth in
such Addendum.
(c) The Arbitrator must select the offer of one party or the
other as being closer to the Arbitrator's own assessment of
what an independent vendor would charge for services similar
in nature and volume to those to be covered by such Addendum
(the "INDEPENDENT VENDOR PRICE").
(d) The decision of the Arbitrator shall be final and binding on
the parties and shall be incorporated in this Agreement as
an Addendum hereto.
(e) Each party shall bear its own costs in conducting the
arbitration, and the non-prevailing party shall pay the fees
and expenses of the Arbitrator.
9.3. At the time any Addendum is entered into with respect to the
rates and charges for any POP Site, the amount charged to Bridge
for the T-1 ports at such Installation Site shall be not more
than the Independent Vendor Price for providing such ports at
such Installation Site, as mutually agreed by the parties or as
determined by the Arbitrator under Section 8.1, reduced by 75% of
the excess, if any, of the Independent Vendor Price for providing
such ports over the actual cost to SAVVIS of providing such ports
at such Installation Site.
10. MINIMUM ANNUAL COMMITMENT
10.1.If the aggregate amounts paid by Bridge to SAVVIS for the
Networks hereunder for any Agreement Year during the Initial Term
of this Agreement, using not only the Acquired Network Facilities
but also any Additional Network Facilities, is less than the
Minimum Annual Commitment (as defined below), then the amount of
such deficiency shall be payable by Bridge to SAVVIS upon the
receipt by Bridge of an invoice therefor, in accordance with
Section 5 of the Agreement.
10.2. The "MINIMUM ANNUAL COMMITMENT" shall mean:
(a) With respect to the first Agreement Year during the Initial
Term, the amount set forth in Section 2.1 of this Schedule
3.1;
(b) With respect to the second Agreement Year during the Initial
Term, 110% of the amount set forth in Section 2.1 of this
Schedule 3.1;
(c) With respect to the third Agreement Year during the Initial
Term, 120% of the amount set forth in Section 2.1 of this
Schedule 3.1;
(d) With respect to the fourth, fifth and sixth Agreement Years
during the Initial Term, an amount equal to 80% of the total
amount paid by Bridge and all Bridge Subsidiaries during
such Agreement Year to SAVVIS, SAVVIS
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Subsidiaries and third parties for Internet Protocol
backbone and other data transport services;
(e) With respect to the seventh, eighth and ninth Agreement
Years during the Initial Term, an amount equal to 60% of the
total amount paid by Bridge and all Bridge Subsidiaries
during such Agreement Year to SAVVIS, SAVVIS Subsidiaries
and third parties for Internet Protocol backbone and other
data transport services.
10.3.With respect to the fourth Agreement Year and each Agreement Year
thereafter, SAVVIS shall have the right, at reasonable times and
on reasonable notice, but not more often than once during any
Agreement Year, to audit the books and records of Bridge and the
Bridge Subsidiaries in order to determine the total amount paid
by Bridge and the Bridge Subsidiaries during an Agreement Year to
SAVVIS, SAVVIS Subsidiaries and third parties for Internet
Protocol backbone and other data transport services. Such audits
may be conducted either by SAVVIS personnel or by outside
auditors retained by SAVVIS for such purpose, subject to the
consent of Bridge to such outside auditors, such consent not to
be unreasonably withheld or delayed. Such audits shall be
conducted at the expense of SAVVIS, including any additional cost
to Bridge in obtaining the cooperation of Bridge's outside
auditors that may be required; provided, that if the actual total
amount paid by Bridge and the Bridge Subsidiaries during an
Agreement Year to SAVVIS, SAVVIS Subsidiaries and third parties
for Internet Protocol backbone and other data transport services
is determined by such audit to be 105% or more of the amount
initially claimed by Bridge with respect to such Agreement Year,
then the cost of such audit shall be borne by Bridge.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
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<PAGE>
SCHEDULE 5.2
INSTALLATION SITE REMOVAL AMOUNTS
Amounts by which each monthly invoice from SAVVIS to Bridge shall be
reduced resulting from the removal of a particular Installation Site
shall be as follows during the first Agreement Year, according to the
connection speed at such Installation Site:
UNITED STATES:
<TABLE>
<CAPTION>
<S> <C> <C>
INSTALLATION SITES INSTALLATION SITES
EXISTING ADDED AFTER
CONNECTION SPEED AS OF OCTOBER 31, 1999 OCTOBER 31, 1999
T1 * *
256 KBS * *
128 KBS * *
56 KBS * *
ISDN * *
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
EUROPE:
INSTALLATION SITES INSTALLATION SITES
AS OF OCTOBER 31, 1999 ADDED AFTER DISTRIBUTOR COUNTRY
CONNECTION SPEED OCTOBER 31, 1999
T1 * * *
256 KBS * * *
128 KBS * * *
64 KBS * * *
ISDN * * *
E1 * * *
</TABLE>
39
<PAGE>
ASIA:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
INSTALLATION SITES INSTALLATION SITES
AS OF OCTOBER 31, 1999 ADDED AFTER DISTRIBUTOR COUNTRY
CONNECTION SPEED OCTOBER 31, 1999
T1 * * *
256 KBS * * *
128 KBS * * *
56 KBS * * *
ISDN * * *
</TABLE>
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
40
<PAGE>
EXHIBIT A
---------
FORM OF LOCAL
NETWORK SERVICES AGREEMENT
This LOCAL NETWORK SERVICES AGREEMENT (the "Agreement") is effective as
of 12:01 A.M. January 1, 2000 (the "Effective Date") between [local SAVVIS
entity], a [limited liability company] incorporated under the laws of [country ]
("SAVVIS") and [local Bridge entity], a [limited liability company] incorporated
under the laws of [country] ("Bridge").
RECITALS
A. Bridge is engaged in the business of collecting and distributing various
financial, news and other data.
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services.
C. Together with this Agreement, the parties hereto are entering into a
Local Transfer Agreements, Equipment Collocation Permits, and Local
Administrative Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual covenants
contained herein and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Local Network Services
Agreement by and between SAVVIS and Bridge, including all addenda
to this Agreement entered into in the manner set forth herein
(each an "ADDENDUM" and collectively the "ADDENDA"). This
Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Attachments,
provided that if such a conflict shall arise, the Attachments
shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an Addendum
to this Agreement, either party may initiate the process of
determining such matter by submitting a proposed outline or
contents of such Addendum to the other party. Each party shall
appoint a primary contact and a secondary contact for the
completion of such Addendum, who shall be the contact points for
every issue concerning such Addendum and who shall be informed of
the progress of the project. The names of the contacts will be
exchanged in writing by the parties. Using the contacts, the
parties shall work together in good faith with such diligence as
shall be commercially reasonable under the circumstances to
complete such Addendum, provided,
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<PAGE>
however, that neither party shall be obligated to enter into such
an Addendum. Upon the completion of such Addendum, it shall be
set forth in a written document and executed by the parties and
shall become a part of this Agreement and shall be deemed to be
incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined terms
shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included" and
"including" shall not be construed as terms of limitation.
Capitalized terms not otherwise defined herein have the meanings
assigned to such terms in the Network Services Agreement.
"ACQUIRED NETWORK FACILITIES" means the assets and contracts for
the provision of Internet Protocol backbone and other data
transport services to the extent acquired by SAVVIS pursuant to
the Local Transfer Agreement between Bridge and SAVVIS.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts of
SAVVIS for the provision of Internet Protocol backbone and other
data transport services other than the Acquired Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" means a period of 12 months beginning on the
Effective Date and each subsequent anniversary thereof.
"BRIDGE" means [local Bridge entity], a [limited liability
company] incorporated under the laws of [country], and its
successors and assigns.
"BRIDGE SUBSIDIARY" means any subsidiary of Bridge.
"CONFIDENTIAL INFORMATION" means all information concerning the
business of Bridge, SAVVIS or any third party doing business with
either of them that may be obtained from any source (i) by SAVVIS
by virtue of its performance under this Agreement or (ii) by
Bridge by virtue of its use of the Networks. Such information
shall also include the terms of this Agreement (and negotiations
and proposals from one party to the other related directly
thereto), network designs and design recommendations, tools and
programs, pricing, methods, processes, financial data, software,
research, development, strategic plans or related information.
All such information disclosed prior to the execution of this
Agreement shall also be considered Confidential Information for
purposes of this Agreement. Confidential Information shall not
include information that:
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<PAGE>
(a) is already rightfully known to the receiving party at the
time it is obtained by such party, free from any obligation
to keep such information confidential; or
(b) is or becomes publicly known through no wrongful act of the
receiving party; or
(c) is rightfully received by the receiving party from a third
party without restriction and without breach of this
Agreement.
"DISTRIBUTOR COUNTRY" means any country in which the products and
services of Bridge and Bridge Subsidiaries are provided through
third-party distributors.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"EVENT OF DEFAULT BY SAVVIS" has the meaning assigned to such
term in Section 7.1 of this Agreement.
"INITIAL TERM" means a period of ten consecutive Agreement Years
beginning on the Effective Date.
"INSTALLATION SITE" means any facility of Bridge or a Bridge
Subsidiary or of vendors or customers of Bridge or a Bridge
Subsidiary at which one or more of the Networks is installed.
"LOCAL EXCHANGE CARRIER" means the local telecommunications
provider(s) from which SAVVIS leases the lines it makes available
to Bridge.
"Local Telerate Network Services Agreement" means a local network
services agreement pursuant to which SAVVIS shall provide
Internet Protocol backbone and other data transport services to
an Affiliate of Telerate Holdings, Inc., a Delaware corporation.
"MARKET HOURS" means, with respect to any Installation Site, the
period of time beginning two hours before the time at which
trading opens on the principal securities exchange or automated
quotation system designated by Bridge in writing from time to
time as being used by the purchasers and sellers of securities at
such Installation Site, and ending two hours after the time at
which such trading ceases to be conducted.
"NETWORK" and "NETWORKS" have the meaning assigned to such terms
in Section 2.1 of this Agreement.
"NETWORK SERVICES AGREEMENT" means the Network Services Agreement
between SAVVIS Communications Corporation, a Missouri
corporation,
43
<PAGE>
and Bridge Information Systems, Inc., a Missouri corporation,
have effective as of January 1, 2000.
"POP" means point-of-presence.
"REPLACED ROUTERS" has the meaning assigned to such term in
Section 2.7 of this Agreement.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Networks contained in Schedule 2.2 hereto or
an Addendum to this Agreement.
"SAVVIS" means [local SAVVIS entity], a [limited liability
company] incorporated under the laws of [country ], and its
successors and assigns.
"SAVVIS BACKBONE" means those facilities that are owned by, or
leased to, SAVVIS providing telecommunications utilizing the
Internet Protocol.
"SAVVIS SUBSIDIARY" means any subsidiary of SAVVIS.
"SECURITIES EXCHANGE ACT" means the United States Securities
Exchange Act of 1934, as amended.
"TAIL CIRCUIT" means the access line or other communications
circuit from the SAVVIS POP to an Installation Site.
"TRANSITION PERIOD" has the meaning assigned to such term in
Section 6.3 of this Agreement.
2. THE NETWORKS AND QUALITY OF SERVICE STANDARDS
2.1. SAVVIS agrees to use the Acquired Network Facilities to provide
(or to cause the SAVVIS Subsidiaries to provide) to Bridge and
the Bridge Subsidiaries the following managed packet-data
transport networks, including the operation, management and
maintenance thereof:
(a) a global office-automation network, providing connectivity
between the offices of Bridge (the "OA NETWORK"),
(b) a global data collection network (the "COLLECTION NETWORK")
and
(c) a global data distribution network (the "DISTRIBUTION
NETWORK"),
which shall be referred to in this Agreement collectively as the
"NETWORKS" and individually as a "NETWORK."
2.2. Each Network shall be operated, managed and maintained by SAVVIS
according to the Quality of Service Standards set forth in
Schedule 2.2 hereof. SAVVIS
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<PAGE>
may, but shall not be obligated to, use facilities of SAVVIS
other than the Acquired Network Facilities to provide all or any
part of any Network. SAVVIS shall be responsible for monitoring
the performance of the Networks and shall provide Bridge with
monthly reports of such performance. If the Quality of Service
Standards are not met with respect to a particular Installation
Site in any month, Bridge shall be entitled to receive, upon
written request by Bridge, a credit in the amount set forth on
Schedule 2.2 attached hereto, which amount shall be deemed to be
one month's charges applicable to such Installation Site under
this Agreement with respect to such month; provided, however,
that Bridge shall not be entitled to such credit to the extent
that the failure to meet the Quality of Service Standards with
respect to such Installation Site is due to (i) a failure of the
Acquired Network Facilities to operate in accordance with the
Quality of Service Standards on the Effective Date or (ii) an act
or omission of Bridge or a Bridge Subsidiary or a vendor or
customer of Bridge or a Bridge Subsidiary or (iii) equipment or
software used by Bridge and not provided by SAVVIS. Not more than
one credit of one month's charges shall be given for a particular
Installation Site for a particular month. The Quality of Service
Standards shall not apply to the provision of Local Access
Facilities in countries in which the products and services of
Bridge and Bridge Subsidiaries are provided through third-party
distributors.
2.3. [Intentionally omitted.]
2.4. In providing Additional Network Facilities, SAVVIS agrees to use
its best efforts to expedite the provisioning of the circuits for
such Additional Network Facilities in those instances in which
SAVVIS is responsible for provisioning such circuits, and to use
its best efforts to avoid single points of failure in the
engineering design of such Additional Network Facilities,
consistent with the level of redundancy specified in the
applicable Addendum.
2.5. Throughout the term of this Agreement, SAVVIS shall use its
reasonable best efforts to continue to meet the requests of
Bridge to enhance the total capacity, geographic extension and
performance quality of the Networks, and to maintain its research
and development effort at a level appropriate to sustain the
ability of Bridge to compete on the basis of the quality of the
Networks.
3. RATES AND CHARGES
3.1. Bridge shall pay SAVVIS for the Networks using the Acquired
Network Facilities and Additional Network Facilities according to
the rates and charges set forth in Schedule 3.1 of the Network
Services Agreement.
3.2. The parties recognize that certain savings might be obtained by
consolidating the multiple Local Access Facilities that are
provided at such building locations on the Effective Date. In the
event that SAVVIS consolidates the multiple Local Access
Facilities at one or more of such building locations and obtains
cost
45
<PAGE>
savings as a result thereof, the parties will mutually agree
within 30 days following such consolidation on the manner in
which such savings shall be shared between SAVVIS and Bridge.
3.3. For any Installation Site to which SAVVIS is providing services
both under this Agreement and a Local Telerate Network Services
Agreement, the rates and charges applicable to such Installation
Site under this Agreement shall be one-half of the rates and
charges that would otherwise be applicable to such Installation
Site under this Agreement.
4. PROVISION OF TAIL CIRCUITS
4.1. SAVVIS shall use its reasonable efforts to provide a Tail Circuit
to Bridge by contracting with the Local Exchange Carrier for
access to the Tail Circuit and causing the Tail Circuit to be
operated, managed, and maintained as necessary to provide access
thereto to Bridge. SAVVIS does not guarantee or warrant the
performance of the Tail Circuit or the performance by the Local
Exchange Carrier of its obligations under any contract between
SAVVIS and the Local Exchange Carrier, applicable laws and
regulations, or standards of the industry.
4.2. Bridge shall not use the Tail Circuit in any way that might cause
SAVVIS to violate the terms and conditions under which access to
the Tail Circuit is provided by the Local Exchange Carrier,
whether such terms and conditions be contractual, regulatory, or
other.
4.3. Bridge shall be responsible for only that portion of SAVVIS'
costs attributable to Bridge's own access to and use of the Tail
Circuit. In the event that SAVVIS provides access to any third
party or parties, Bridge and SAVVIS will follow the procedure set
forth in Section 1.2 above in order to establish a mutually
agreed upon method or formula for determining the amount to be
charged to Bridge, generally based on a pro rata allocation of
SAVVIS' total costs among all its customers and other relevant
considerations and/or fair and reasonable adjustments in light of
the circumstances at that time.
5. INVOICES
5.1. The amounts due to SAVVIS from Bridge for the installation,
operation, management and maintenance of the Networks shall be
billed monthly in advance. All items on invoices not the subject
of a bona fide dispute shall be payable by Bridge in [local
currency] within 30 days from the date of receipt of the invoice.
All amounts not in dispute are subject to interest charges of
1-1/2 percent that will accrue daily on all amounts not paid
within 30 days of the date of receipt of the invoice.
5.2. At any time and from time to time, Bridge may, by written notice
to SAVVIS, have one or more Installation Sites removed from the
Networks. Each monthly
46
<PAGE>
invoice from SAVVIS to Bridge shall reflect a reduction in the
amount charged to Bridge for the Networks resulting from any such
removal of Installation Sites. In the case of any Installation
Site removed from the Acquired Network Facilities, such reduction
shall be the sum of:
(a) the actual cost of the Local Access Facilities connecting
the Acquired Network Facilities to such Installation Site,
effective as of such time as SAVVIS is no longer required to
pay such costs, and
(b) the amounts set forth on Schedule 5.2 of the Network
Services Agreement, which are deemed to be one month's
charges applicable to such Installation Site under this
Agreement with respect to such month during the first
Agreement Year, according to the geographic location and
connection speed at such Installation Site, effective as of
such time as such Installation Site is disconnected from the
Networks.
5.3. Bridge shall pay any sales, use, federal excise, utility, gross
receipts, state and local surcharges, value added and similar
taxes, charges or levies lawfully levied by a duly constituted
taxing authority against or upon the Networks. In the
alternative, Bridge shall provide SAVVIS with a certificate
evidencing Bridge's exemption from payment of or liability for
such taxes. All other taxes, charges or levies, including any ad
valorem, income, franchise, privilege or occupation taxes of
SAVVIS shall be paid by SAVVIS.
5.4. Bona fide disputes concerning invoices shall be referred to the
parties' respective representatives who are authorized to resolve
such matters. Any amount to which Bridge is entitled as a result
of the resolution of a billing dispute shall be credited promptly
to Bridge's account. Any amount to which SAVVIS is entitled as a
result of the resolution of a billing dispute shall be paid
promptly to SAVVIS.
5.5. Against the amounts owed by Bridge to SAVVIS under this
Agreement, Bridge shall have the right to offset any amounts owed
by SAVVIS to Bridge under this Agreement, or otherwise, including
without limitation any amounts paid by Bridge on behalf of SAVVIS
under guarantees by Bridge of obligations of SAVVIS.
6. TERM AND EXTENSIONS
6.1. This Agreement shall commence on the Effective Date and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions hereof.
6.2. The term of this Agreement may be extended by Bridge for one
additional five-year period by giving SAVVIS written notice not
less than one year before the scheduled expiration of the Initial
Term.
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<PAGE>
6.3. Upon the termination of this Agreement in accordance with its
scheduled expiration or by Bridge pursuant to Section 7, SAVVIS
will continue to provide the Networks in accordance with the
terms and conditions herein (excluding the Minimum Annual
Commitment) for a period of up to five years after the effective
date of termination (the "TRANSITION PERIOD"). During the
Transition Period, Bridge shall pay SAVVIS for the use of the
Networks at the rates in effect at the effective date of
termination. If Bridge has not completely transitioned from its
use of the Networks after the Transition Period, SAVVIS will
provide the Networks at SAVVIS' then current list rates. SAVVIS
and its successor will cooperate with Bridge until Bridge has
completely migrated to another provider.
7. TERMINATION BY BRIDGE
7.1. An "Event of Default by SAVVIS" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or comply
with or has violated any material representation, warranty,
term, condition or obligation of SAVVIS under this
Agreement, and SAVVIS has failed to cure such failure or
violation within 60 days after receiving notice thereof from
Bridge; or
(b) SAVVIS becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation
proceeding, makes an assignment for the benefit of
creditors, or admits in writing its inability to pay debts
when due; or
(c) an Event of Default by SAVVIS occurs under the Local
Telerate Network Services Agreement.
7.2. Bridge shall have the right to terminate this Agreement, with no
liability to SAVVIS other than for charges (less any applicable
credits) for the Networks provided prior to such termination, if:
(a) Bridge provides written notice to SAVVIS, at any time after
the ninth anniversary of the Effective Date, of Bridge's
intent to terminate, such termination to be effective not
less than one year following the date of such notice; or
(b) Bridge provides 10 days written notice of its intent to
terminate in the event that an Event of Default by SAVVIS
occurs.
7.3. For purposes of Section 7.1(a), if the Quality of Service
Standards are not met with respect to a particular Installation
Site in any month, SAVVIS shall be deemed to have cured such
failure within 60 days if the Quality of Service Standards are
met with respect to such Installation Site in the following
month.
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8. TERMINATION BY SAVVIS
8.1. SAVVIS shall have the right to terminate this Agreement if:
(a) Bridge has failed to pay any invoice that is not the subject
of a bona fide dispute within 60 days of the date on which
such payment is due and SAVVIS has provided Bridge with
written notice thereof, provided that Bridge shall have a
further 30 days from the time it receives such notice from
SAVVIS of nonpayment to cure any such default;
(b) SAVVIS provides 10 days written notice of its intent to
terminate in the event that Bridge has failed to perform or
comply with or has violated any material representation,
warranty, term, condition or obligation of Bridge under this
Agreement, and Bridge has failed to cure such failure or
violation within 60 days after receiving notice thereof from
SAVVIS; or
(c) Bridge becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation
proceeding, makes an assignment for the benefit of
creditors, or admits in writing its inability to pay debts
when due; or
(d) SAVVIS becomes entitled to terminate the Local Telerate
Network Services Agreement.
8.2. Notwithstanding the provisions of Section 8.1(b) above, SAVVIS
shall not have the right to terminate this Agreement under
Section 8.1(b) solely for a failure by Bridge to perform or
comply with, a violation by Bridge of, the obligations of Bridge
under Section 15 (Confidentiality) of this Agreement, without
prejudice, however, to such rights as SAVVIS may have pursuant to
such Section and to such rights and remedies to which SAVVIS may
be entitled, at law or in equity, as the result of an actual or
threatened breach by Bridge of such Section.
9. ACCEPTANCE OF ADDITIONAL NETWORK FACILITIES
9.1. Upon the installation of Additional Network Facilities at any
Installation Site, SAVVIS shall conduct appropriate tests to
establish that such Additional Network Facilities perform in
accordance with mutually agreed upon acceptance criteria
("ACCEPTANCE CRITERIA") set forth in the applicable Addendum
entered into pursuant to Section 2.3, and shall promptly inform
Bridge of such test results. If test results show that the
Additional Network Facilities are performing in accordance with
the Acceptance Criteria, Bridge shall be deemed to accept the
Additional Network Facilities at the Installation Site
immediately.
9.2. If SAVVIS' tests establish that newly installed Additional
Network Facilities at the Installation Site do not perform in
accordance with the mutually agreed upon Acceptance Criteria,
then SAVVIS shall immediately and diligently exert its best
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efforts to bring the Additional Network Facilities at such
Installation Site into compliance. SAVVIS shall not bill Bridge
for the Additional Network Facilities at such Installation Site
until the test results show that the Additional Network
Facilities are performing in accordance with the Acceptance
Criteria.
9.3. Upon repair or restoration of any part of the Networks, SAVVIS
shall conduct appropriate tests to establish that the Networks
perform in accordance with mutually agreed upon Acceptance
Criteria and shall promptly inform Bridge of such test results.
10. RIGHTS AND OBLIGATIONS OF BRIDGE
10.1. SITE PREPARATION. For the installation of Additional Network
Facilities, Bridge shall, at its own expense, provide all
necessary preparations of each Installation Site in
accordance with the requirements to be mutually agreed upon
by the parties and set forth in an Addendum hereto,
including inside wiring, demarcation extension and rack
mount accessories. Bridge shall ensure that Bridge-provided
equipment is on-site by the scheduled installation date. If
SAVVIS is required to reschedule the installation of
Bridge-provided equipment because it is not on-site by the
scheduled installation date, Bridge shall pay SAVVIS to
redispatch installation personnel.
10.2. Proper Use of Networks.
10.2.1. Bridge shall use any equipment provided by SAVVIS in
connection with the Networks in accordance with its
documentation, which documentation shall be provided by
SAVVIS at no additional charge. Unless otherwise provided
herein, upon the termination of this Agreement Bridge shall
surrender to SAVVIS the equipment provided by SAVVIS, in
good working order, ordinary wear and tear excepted.
10.2.2. Bridge shall be liable for damages to the Networks caused by
the negligence or willful acts or omissions of Bridge's
officers, employees, agents or contractors, for loss through
theft or vandalism of the Networks at the Installation Site,
and for damages to the Networks caused by the use of
equipment or supplies not provided hereunder or not
otherwise authorized by SAVVIS.
10.2.3. Bridge shall neither permit nor assist others to use the
Networks for any purpose other than that for which they are
intended, nor fail to maintain a suitable environment
specified by SAVVIS in the applicable schedule, nor alter,
tamper with, adjust or repair the Networks. Any such
alteration, tampering, adjustment or repair by Bridge shall
relieve SAVVIS from any liability or obligation hereunder
(including any warranty or indemnity obligation) relating to
the affected Network, and Bridge shall be liable to
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SAVVIS for any documented direct costs incurred by SAVVIS as
a result of such actions.
10.3. ABUSE OR FRAUDULENT USE OF NETWORKS. Bridge shall neither
permit nor assist others to abuse or fraudulently use the
Networks, or to use the Networks for any unauthorized or
illegal purposes, including:
(a) obtaining or attempting to obtain service by any
fraudulent means or device to avoid payment; or
(b) accessing, altering or destroying any information of
another party by any fraudulent means or device, or
attempting to do so; or
(c) using the Networks so as to interfere with the use of
the SAVVIS network by other SAVVIS customers or
authorized users or in violation of law or in support
of any unlawful act; or
(d) using the Networks for voice communications over a
private network in jurisdictions where such use is not
allowed.
Notwithstanding the provisions of Section 8, upon the breach
of this Section 10.3 by Bridge, SAVVIS shall have the right
to terminate this Agreement immediately upon written notice
to Bridge.
10.4. COVENANT NOT TO COMPETE.
10.4.1. As an inducement to SAVVIS to enter into this Agreement,
which Bridge acknowledges is of benefit to it, and in
consideration of the promises and representations of SAVVIS
under this Agreement, Bridge covenants and agrees that
during the term of this Agreement and for a period of five
years thereafter, neither Bridge nor any of its successors
or assigns will, directly or indirectly, engage in, or have
any interest in any other person, firm, corporation or other
entity engaged in, any business activities anywhere in the
world competitive with or similar or related to the
packet-data transport network services provided by SAVVIS
under this Agreement; provided, however, that (i) Bridge and
the Bridge Subsidiaries shall be free to continue to use the
Call Assets and the satellite networks currently used by
Bridge, until such Call Assets or satellite networks have
been acquired by SAVVIS or the SAVVIS Subsidiaries, and (ii)
Bridge shall be free to make passive investments in
securities of companies that provide network services in
competition with SAVVIS which, in the case of any such
security, does not constitute more than ten percent (10%) of
the total outstanding amount of such security.
10.4.2. If any court or tribunal of competent jurisdiction shall
refuse to enforce one or more of the covenants in this
Section 10.4 because the time limit
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applicable thereto is deemed unreasonable, it is expressly
understood and agreed that such covenant or covenants shall
not be void but that for the purpose of such proceedings
such time limitation shall be deemed to be reduced to the
extent necessary to permit the enforcement of such covenant
or covenants.
10.4.3. If any court or tribunal of competent jurisdiction shall
refuse to enforce any or all of the covenants in this
Section 10.4 because, taken together, they are more
extensive (whether as to geographic area, scope of business
or otherwise) than is deemed to be reasonable, it is
expressly understood and agreed between the parties hereto
that such covenant or covenants shall not be void but that
for the purpose of such proceedings the restrictions
contained therein (whether as to geographic area, scope of
business or otherwise) shall be deemed to be reduced to the
extent necessary to permit the enforcement of such covenant
or covenants.
10.4.4. Bridge specifically acknowledges and agrees that the
foregoing covenants are commercially reasonable and
reasonably necessary to protect the interests of SAVVIS
hereunder. Bridge hereby acknowledges that SAVVIS and its
successors and assigns will suffer irreparable and
continuing harm to the extent that any of the foregoing
covenants is breached and that legal remedies would be
inadequate in the event of any such breach.
11. RIGHTS AND OBLIGATIONS OF SAVVIS
11.1. PROVISION OF THE NETWORKS. SAVVIS shall operate, maintain
and manage the Networks at the Installation Sites using the
Acquired Network Facilities in accordance with the Quality
of Service Standards and other terms of this Agreement,
including all Addenda hereto.
11.2. REPRESENTATIONS AND WARRANTIES.
11.2.1. SAVVIS hereby warrants that the portion of the Networks
using the Acquired Network Facilities will operate in
accordance with the Quality of Service Standards upon the
Effective Date and throughout the term of this Agreement.
SAVVIS further warrants that the Networks using any
Additional Network Facilities will operate in accordance
with the Quality of Service Standards as provided in the
applicable Addendum. In the event that the Networks fail to
operate in accordance with the Quality of Service Standards,
the remedies provided herein or in the applicable Addendum
shall apply.
11.2.2. SAVVIS hereby represents and warrants that the terms hereof
do not conflict in any respect whatsoever with any SAVVIS
tariff on file with the Federal Communications Commission or
other regulatory body. If, during
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the term of this Agreement, SAVVIS shall file a contract
specific tariff governing the Networks or any portion
thereof, such tariff filing shall be consistent in all
respects with the terms of this Agreement, and SAVVIS shall
give Bridge 10 days advance written notice of making such a
tariff filing and of filing any subsequent modifications
thereto.
11.2.3. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
11.3. SAVVIS acknowledges that the occurrence of Event of Default
by SAVVIS could cause irreparable harm to Bridge, the amount
of which may be difficult to determine, thus potentially
making any remedy at law or in damages inadequate. SAVVIS,
therefore, agrees that Bridge shall have the right to apply
to any court of competent jurisdiction for injunctive relief
upon the occurrence of an Event of Default by SAVVIS or the
occurrence of an event which, with the passage of time or
the giving of notice, could become an Event of Default by
SAVVIS and for any other appropriate relief. This right
shall be in addition to any other remedy available to Bridge
in law or equity. SAVVIS further agrees that, upon the
occurrence of an Event of Default by SAVVIS, SAVVIS shall
pay to Bridge, as liquidated damages and not as a penalty,
an amount equal to the lesser of (a) the aggregate amounts
paid by Bridge to SAVVIS under this Agreement during the six
months preceding such Event of Default by SAVVIS or (b) $50,
000,000.
12. LIMITATIONS OF LIABILITY
12.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of
the form of action whether in contract, indemnity, warranty,
strict liability or tort, including negligence of any kind
with respect to the Networks or other conduct under this
Agreement.
12.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, including fraud, or (b) injury or death, or
damage to tangible real or tangible personal property or the
environment, when proximately caused by SAVVIS' or Bridge's
negligence or that of their respective agents,
subcontractors or employees. Nothing contained in this
Section shall limit SAVVIS' intellectual property
indemnification obligations under Section 16.1 or Bridge's
indemnification obligations with respect to a breach of
Section 10.3.
13. EQUIPMENT AND SOFTWARE NOT PROVIDED BY SAVVIS
13.1. SAVVIS shall not be responsible for the installation,
operation or maintenance of equipment or software not
provided by it under this Agreement, nor shall SAVVIS be
responsible for the transmission or reception of information
by
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equipment or software not provided by SAVVIS hereunder. In
the event that Bridge uses equipment or software not
provided by SAVVIS hereunder in a manner that impairs
Bridge's use of the Networks, Bridge shall not be excused
from payment for such use and SAVVIS shall not be
responsible for any failure of the Networks to meet the
Quality of Service Standards resulting from the use of such
equipment or software by Bridge. Upon notice from SAVVIS
that the equipment or software not provided by SAVVIS under
this Agreement is causing or is likely to cause hazard,
interference or service obstruction, Bridge shall eliminate
the likelihood of such hazard, interference or service
obstruction.
13.2. Notwithstanding the foregoing, SAVVIS shall, at no
additional charge, provide all interface specifications for
the Networks reasonably requested by Bridge. SAVVIS shall,
upon the receipt of appropriate specifications from Bridge,
inform Bridge of the compatibility with the Networks of any
equipment or software that Bridge proposes to use in
connection therewith, the effects, if any, of the use of
such equipment or software on the quality, operating
characteristics and efficiency of the Networks, and the
effects, if any, of the Networks on the operating
characteristics and efficiency of any such equipment or
software.
14. PROPRIETARY RIGHTS; LICENSE
14.1. SAVVIS hereby grants to Bridge a non-exclusive and
non-transferable license to use all programming and software
necessary for Bridge to use the Networks. Such license is
granted for the term of this Agreement for the sole purpose
of enabling Bridge to use the Networks.
14.2. All title and property rights (including intellectual
property rights) to the Networks (including associated
programming and software) are and shall remain with SAVVIS
or the third-party providers thereof to SAVVIS. Bridge shall
not attempt to examine, copy, alter, reverse engineer,
decompile, disassemble, tamper with or otherwise misuse the
Networks, programming and software.
15. CONFIDENTIALITY
15.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
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15.2. Notwithstanding Section 15.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors
or managers of facilities or equipment used by such party)
in need of access to such information for purposes
specifically related to either party's responsibilities
under this Agreement, provided that any disclosure of
Confidential Information under clause (c) shall be made only
upon prior written approval of the other party and subject
to the appropriate assurances that the recipient of such
information shall hold it in strict confidence.
15.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
15.4. Either party may request in writing that the other party
waive all or any portion of the requesting party's
responsibilities relative to the other party's Confidential
Information. Such waiver request shall identify the affected
information and the nature of the proposed waiver. The
recipient of the request shall respond within a reasonable
time and, if it determines, in its sole discretion, to grant
the requested waiver, it will do so in writing over the
signature of an employee authorized to grant such request.
15.5. Bridge and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right
to apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
15.6. A party requested or ordered by a court or other
governmental authority of competent jurisdiction to disclose
another party's Confidential Information shall notify the
other party in advance of any such disclosure and, absent
the other party's consent to such disclosure, use its best
efforts to resist, and to assist the other party in
resisting, such disclosure. A party providing another
party's Confidential Information to a court or other
governmental authority shall use its best efforts to obtain
a protective order or comparable assurance that the
Confidential Information so provided will be held in
confidence and not further disclosed to any other person,
absent the owner's prior consent.
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15.7. The provisions of Section 15.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably
necessary in connection with the sale of securities or the
performance or enforcement of this Agreement or any of the
obligations hereof; provided, however, that if the receiving
party would otherwise be required to refer to or describe
any aspect of this Agreement in any of the preceding
circumstances, the receiving party shall use its reasonable
efforts to take such steps as are available under such
circumstances (such as by providing a summary or synopsis)
to avoid disclosure of the financial terms and conditions of
this Agreement. Notwithstanding any provisions of this
Agreement to the contrary, either party may disclose the
terms and conditions of this Agreement in the course of a
due diligence review performed in connection with
prospective debt financing or equity investment by, or a
sale to, a third party, so long as the persons conducting
such due diligence review have agreed to maintain the
confidentiality of such disclosure and not to use such
disclosure for any purpose other such due diligence review.
16. INDEMNIFICATIONS
16.1. SAVVIS shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against Bridge or any
of its directors, officers, employees or assigns for actual
or alleged infringement by the Networks of any patent,
copyright, trademark, trade secret or similar proprietary
right of any third party, except to the extent that such
actual or alleged infringement arises from (i) such actual
or alleged infringement by the Acquired Network Facilities
on the Effective Date or (ii) an act or omission of Bridge
or a Bridge Subsidiary or a vendor or customer of Bridge or
a Bridge Subsidiary or (iii) equipment or software used by
Bridge and not provided by SAVVIS. Bridge shall notify
SAVVIS promptly in writing of any such claim or suit and
shall cooperate with SAVVIS in a reasonable way to
facilitate the settlement or defense thereof. SAVVIS further
agrees to indemnify and hold Bridge harmless from and
against any and all liabilities and damages (whether
incurred as the result of a judicial decree or a
settlement), and the costs and expenses associated with any
claim or action of the type identified in this Section
(including reasonable attorneys' fees).
16.2. If, as a consequence of a claim or action of the kind
described in Section 16.1, SAVVIS' or Bridge's use of all or
part of any Network is enjoined, SAVVIS shall, at its option
and expense, either: (a) procure for Bridge the right to
continue using the affected Network; (b) modify such Network
so that they are non-infringing, provided that such
modification does not affect the intended use of the Network
as contemplated hereunder. If SAVVIS does not take any of
the actions described in clauses (a) or (b), then Bridge may
terminate the affected portion of such Network, and SAVVIS
shall refund to Bridge any prepaid charges therefor.
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16.3. Subject to Section 12, Bridge will defend, indemnify and
hold harmless SAVVIS or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for libel, slander, invasion of privacy or
infringement of copyright, and invasion and/or
alteration of private records or data arising from any
information, data or messages transmitted over the
Networks by Bridge; and
(b) claims for infringement of patents arising from the use
by Bridge of equipment and software, apparatus and
systems not provided hereunder in connection with the
Networks; and
(c) the violation of any representations, warranties and
covenants made by Bridge in this Agreement.
16.4. Subject to Section 12, SAVVIS will defend, indemnify and
hold harmless Bridge or any of its directors, officers,
employees or assigns from and against all loss, liability,
damage and expense, including reasonable attorneys' fees,
caused by:
(a) claims for infringement of patents arising from the use
by SAVVIS of equipment and software, apparatus and
systems not provided by SAVVIS hereunder in connection
with the Networks (other than any Acquired Network
Facilities); and
(b) the violation of any representations, warranties and
covenants made by SAVVIS in this Agreement.
17. DISPUTES
17.1. Except as expressly provided in Schedule 4.1 of this
Agreement, the resolution of any and all disputes arising
from or in connection with this Agreement, whether based on
contract, tort, statute or otherwise, including disputes
over arbitrability and disputes in connection with claims by
third persons ("DISPUTES") shall be exclusively governed by
and settled in accordance with the provisions of this
Section 17. The foregoing shall not preclude recourse to
judicial proceedings to obtain injunctive, emergency or
other equitable relief to enforce the provisions of this
Agreement, including specific performance, and to decide
such issues as are required to be resolved in determining
whether to grant such relief. Resolution of Disputes with
respect to claims by third persons shall be deferred until
any judicial proceedings with respect thereto are concluded.
17.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a
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binding arbitration clause under applicable law. Either
party may serve process or notice on the other in any
arbitration or litigation in accordance with the notice
provisions hereof. The parties agree not to disclose any
information regarding any Dispute or the conduct of any
arbitration hereunder, including the existence of such
Dispute or such arbitration, to any person or entity other
than such employees or representatives of such party as have
a need to know.
17.3. Either party may commence proceedings hereunder by delivery
of written notice providing a reasonable description of the
Dispute to the other, including a reference to this
provision (the "DISPUTE NOTICE"). Either party may initiate
arbitration of a Dispute by delivery of a demand therefor
(the "ARBITRATION DEMAND") to the other party not sooner
than 60 calendar days after the date of delivery of the
Dispute Notice but at any time thereafter. The arbitration
shall be conducted in St. Louis, Missouri.
17.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Bridge, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If
an Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
17.5. The arbitration shall be conducted pursuant to such
procedures as the parties may agree or, in the absence of or
failing such agreement, pursuant to the Rules.
Notwithstanding the foregoing, each party shall have the
right to inspect the books and records of the other party
that are reasonably related to the Dispute, and each party
shall provide to the other, reasonably in advance of any
hearing, copies of all documents which such party intends to
present in such hearing and the names and addresses of all
witnesses whose testimony such party intends to present in
such hearing.
17.6. All hearings shall be conducted on an expedited schedule,
and all proceedings shall be confidential. Either party may
at its expense make a stenographic record thereof.
17.7. The Arbitrators shall complete all hearings not later than
90 calendar days after the Arbitrators' selection or
appointment, and shall make a final award not later than 30
calendar days thereafter. The Arbitrators shall apportion
all costs and expenses of the Arbitration, including the
Arbitrators' fees and expenses of experts ("ARBITRATION
COSTS") between the prevailing and non-prevailing parties as
the Arbitrators deem fair and reasonable. In circumstances
where a Dispute has been asserted or defended against on
grounds that the Arbitrators deem manifestly unreasonable,
the Arbitrators may assess all Arbitration Costs against the
non-prevailing party and may include in the award the
prevailing party's attorneys' fees and expenses in
connection with any and all proceedings under this Section
17.
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17.8. Either party may assert appropriate statutes of limitation
as a defense in arbitration; provided, that upon delivery of
a Dispute Notice any such statute shall be tolled pending
resolution hereunder.
17.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and SAVVIS shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Networks to
Bridge unless otherwise directed by Bridge. This Section
shall not apply where (a) Bridge is in default under this
Agreement or (b) the dispute or controversy between the
parties relates to harm to the Networks allegedly caused by
Bridge and Bridge does not immediately cease and desist from
the activity giving rise to the dispute or controversy.
18. FORCE MAJEURE
18.1. In no event shall either party be liable to the other for
any failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers
(whether of a party hereto or of others), casualties,
accidents or other causes to the extent that such failure
and the consequences thereof are reasonably beyond the
control and without the fault or negligence of the party
claiming excuse. Each party shall, with the cooperation of
the other party, use reasonable efforts to mitigate the
extent of any failure to perform and the adverse
consequences thereof.
18.2. If SAVVIS cannot promptly provide a suitable temporary
SAVVIS alternative to all or part of a Network subject to an
interruption in connection with the existence of a force
majeure condition, Bridge may, at its option and at its own
cost, contract with one or more third parties for the
affected portion of the Network for the shortest
commercially available period likely to cover the reasonably
expected duration of the interruption, and may suspend
SAVVIS' provision of such affected portion for such period.
SAVVIS shall not charge Bridge for the affected portion thus
suspended during the period of suspension. SAVVIS shall
resume provision of the suspended portion of the Network
upon the later of the termination or expiration of Bridge's
legally binding commitments under contracts with third
parties for alternative services or the cessation or remedy
of the force majeure condition.
18.3. In the event that a force majeure condition shall continue
for more than 60 days, Bridge may cancel the affected
portion of the Network with no further liability to SAVVIS
other than for obligations incurred with respect to such
affected portion prior to the occurrence of the force
majeure condition.
18.4. The consequences arising from existence and continuation of
a force majeure condition, including without limitation any
interruption of the Networks and the exercise by Bridge of
its rights under this Section 18, shall be deemed not to
constitute a breach by either party hereto of any
representations, warranties or
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covenants hereunder and shall not be grounds for the
exercise of any remedies under this Agreement, including
without limitation remedies under Section 2.2 or Section 7,
other than those specified in this Section 18.
19. GENERAL PROVISIONS
19.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person or entity
other than the parties and their respective successors and
permitted assigns.
19.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to
the subject matter hereof.
19.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein
and their respective successors and permitted assigns. No
party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior
written approval of the other party, which consent shall not
be unreasonably withheld.
19.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
19.5. HEADINGS. The Section headings contained in this Agreement
are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
19.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then two business days
after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the
intended recipient as set forth below:
If to Bridge: Bridge Information Systems, Inc.
Three World Financial Center
New York, New York 10285
(212) 372-7195 (fax)
Attention: Zachary Snow,
Executive Vice President and
General Counsel
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If to SAVVIS: SAVVIS Communications Corporation
717 Office Parkway
St. Louis, Missouri 63141
(314) 468-7550 (fax)
Attention: Steven M. Gallant,
Vice President and
General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at
the address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party
may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be
delivered by giving the other party notice in the manner
herein set forth.
19.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State
of Missouri in the United States of America, without giving
effect to any choice or conflict of law provision or rule
(whether of the State of Missouri or any other jurisdiction)
that would cause the application of the laws of any
jurisdiction other than the State of Missouri.
19.8. AMENDMENTS AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in
writing and signed by SAVVIS and Bridge. No waiver by any
party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
19.9. SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any
other situation or in any other jurisdiction.
19.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated
hereby.
19.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder,
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unless the context requires otherwise. The word "including"
shall mean including without limitation.
19.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified
in this Agreement are incorporated herein by reference and
made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Network
Services Agreement to be executed as of the date first above written.
[local SAVVIS entity]
By
------------------------
Name:
------------------------
Title:
------------------------
[local Bridge entity].
By
------------------------
Name:
------------------------
Title:
------------------------
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<PAGE>
SCHEDULE 2.2
QUALITY OF SERVICE STANDARDS
1. FOR THE COLLECTION NETWORK AND DISTRIBUTION NETWORK:
(a) Between any two Installation Sites on the Collection Network and
the Distribution Network that are connected by fully redundant
circuits provided with the Acquired Network Facilities there
shall be not less than 99.99% end-to-end availability during each
one-month period between such Installation Sites during the
Market Hours at such Installation Sites.
(b) There shall be delivered not less than 99.99% of all data packets
offered to such Network during each one-month period.
(c) The average round-trip latency period for the Collection Network
and the Distribution Network using the Acquired Network
Facilities during each one-month period shall not exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas, (iii)
Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic regions.
2. FOR THE OA NETWORK:
(a) Between any two Installation Sites on the OA Network that are
connected by circuits provided with the Acquired Network
Facilities there shall be not less than 99.90% end-to-end
availability during each one-month period between such
Installation Sites during the Market Hours at such Installation
Sites.
(b) There shall be delivered not less than 99.90% of all data packets
offered to the OA Network during each one-month period.
(c) The average round-trip latency period for the OA Network using
the Acquired Network Facilities for each one-month period shall
not exceed:
(i) 150 milliseconds within each of the following geographic
regions: (i) the United States, (ii) the Americas, (iii)
Europe, and (iv) Asia; and
(ii) 250 millisecond between any two of such geographic regions.
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<PAGE>
3. CREDIT AMOUNTS
Amounts to be credited if the Quality of Service Standards are not met
with respect to a particular Installation Site in any month shall be
as follows during the first Agreement Year, according to the
connection speed at such Installation Site:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
CONNECTION SPEED MONTHLY CREDIT MONTHLY CREDIT MONTHLY CREDIT
[EUROPE] [ASIA] [AMERICAS] DISTRIBUTOR COUNTRY
T1 * * * *
256 KBS * * * *
128 KBS * * * *
64 KBS * * * *
ISDN * * * *
E1 * * * *
</TABLE>
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
64
EXHIBIT 10.14
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THE SCHEDULES
TO THIS AGREEMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
TECHNICAL SERVICES AGREEMENT
This TECHNICAL SERVICES AGREEMENT (the "AGREEMENT") is effective as of
12:01 A.M. January 1, 2000 (the "EFFECTIVE DATE"), between SAVVIS Communications
Corporation, a Missouri corporation ("SAVVIS"), and Bridge Information Systems,
Inc., a Missouri corporation ("BRIDGE").
RECITALS
A. Bridge is engaged in the business of collecting and distributing various
financial, news and
other data.
B. SAVVIS is engaged in the business of providing Internet Protocol
backbone and other data transport services.
C. SAVVIS and certain of its subsidiaries have acquired from Bridge and
certain of its subsidiaries certain assets relating to the provision of Internet
Protocol backbone and other data transport services, and may in the future
acquire additional such assets from Bridge and certain of its subsidiaries, all
pursuant to a Master Establishment and Transition Agreement between SAVVIS'
corporate parent, SAVVIS Communications Corporation, a Delaware corporation, and
Bridge, of even date herewith (the "MASTER ESTABLISHMENT AND TRANSITION
AGREEMENT").
D. It is an obligation of the parties under the Master Establishment and
Transition Agreement to cause this Technical Services Agreement to be entered
into between SAVVIS and Bridge, pursuant to which Bridge shall provide technical
services to SAVVIS relating to the assets acquired by SAVVIS pursuant to the
Master Establishment and Transition Agreement.
E. Together with this Agreement, the parties hereto are entering into a
Network Services Agreement of even date herewith (the "NETWORK SERVICES
AGREEMENT") providing for the provision of certain services to Bridge by SAVVIS
and an Administrative Services Agreement of even date herewith (the
"ADMINISTRATIVE SERVICES AGREEMENT"), providing for the provision of certain
services to SAVVIS by Bridge. Certain subsidiaries of SAVVIS and certain
subsidiaries of Bridge are entering into, and may in the future enter into,
Local Transfer Agreements, Local Network Services Agreements (the "LOCAL NETWORK
SERVICES AGREEMENTS"), Equipment Collocation Permits, and Local Administrative
Services Agreements.
<PAGE>
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Technical Services Agreement
by and between SAVVIS and Bridge, including all addenda to this
Agreement entered into in the manner set forth herein (each an
"ADDENDUM" and collectively the "ADDENDA"). This Agreement shall
be interpreted wherever possible to avoid conflicts between the
Sections hereof and the Addenda, provided that if such a conflict
shall arise, the Addenda shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an Addendum
to this Agreement, either party may initiate the process of
determining such matter by submitting a proposed outline or
contents of such Addendum to the other party. Each party shall
appoint a primary contact and a secondary contact for the
completion of such Addendum, who shall be the contact points for
every issue concerning such Addendum and who shall be informed of
the progress of the project. The names of the contacts will be
exchanged in writing by the parties. Using the contacts, the
parties shall work together in good faith with such diligence as
shall be commercially reasonable under the circumstances to
complete such Addendum, provided, however, that neither party
shall be obligated to enter into such an Addendum. Upon the
completion of such Addendum, it shall be set forth in a written
document and executed by the parties and shall become a part of
this Agreement and shall be deemed to be incorporated herein by
reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined terms
shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included" and
"including" shall not be construed as terms of limitation.
Capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Master Establishment and
Transition Agreement.
"ADDITIONAL NETWORK FACILITIES" means any assets and contracts of
SAVVIS for the provision of Internet Protocol backbone and other
data transport services other than the Acquired Network
Facilities.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" shall mean a period of 12 months beginning on
the Effective Date and each subsequent anniversary thereof.
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<PAGE>
"AMERICAS" means North America, Central America and South
America, including the Caribbean, but excluding the United
States.
"ASIA" means Australia, China, Hong Kong, India, Indonesia,
Japan, Korea, Macau, Malaysia, New Zealand, Philippines,
Singapore, Taiwan, and Thailand.
"BRIDGE" means Bridge Information Systems, Inc., a Missouri
corporation.
"BRIDGE SUBSIDIARIES" has the meaning assigned to the term
"Seller Subsidiaries" in the Master Establishment and Transition
Agreement.
"CONFIDENTIAL INFORMATION" means all information concerning the
business of Bridge, SAVVIS or any third party doing business with
either of them that may be obtained from any source (i) by Bridge
by virtue of its performance under this Agreement or (ii) by
SAVVIS by virtue of its use of the Services. Such information
shall also include the terms of this Agreement (and negotiations
and proposals from one party to the other related directly
thereto), network designs and design recommendations, tools and
programs, pricing, methods, processes, financial data, software,
research, development, strategic plans or related information.
All such information disclosed prior to the execution of this
Agreement shall also be considered Confidential Information for
purposes of this Agreement. Confidential Information shall not
include information that:
(a) is already rightfully known to the receiving party at
the time it is obtained by such party, free from any
obligation to keep such information confidential; or
(b) is or becomes publicly known through no wrongful act of
the receiving party; or
(c) is rightfully received by the receiving party from a
third party without restriction and without breach of
this Agreement.
"EFFECTIVE DATE" means the date set forth in the Preamble of this
Agreement.
"EUROPE" means Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Luxembourg,
Netherlands, Norway, Poland, Spain, Sweden, Switzerland, Turkey
and the United Kingdom.
"INITIAL TERM" shall mean a period of ten consecutive Agreement
Years beginning on the Effective Date.
"LOCAL ACCESS FACILITIES" means the local access line or other
local communications circuit provided by a local exchange carrier
connecting the Acquired Network Facilities or the Additional
Network Facilities to an Installation Site.
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<PAGE>
"NOC" means each Network Operations Center owned by SAVVIS that
is part of the SAVVIS Network, including the NOCs currently in
St. Louis, London and Singapore.
"QUALITY OF SERVICE STANDARDS" means the standards for the
performance of the Services contained in a Schedule or an
Addendum to this Agreement.
"SAVVIS" means SAVVIS Communications Corporation, a Missouri
corporation.
"SAVVIS EQUIPMENT" means all items of equipment owned by SAVVIS
or provided to SAVVIS by others related to the SAVVIS Network.
"SAVVIS NETWORK" means the managed packet-data transport networks
operated by SAVVIS, whether using the Acquired Network Facilities
or using Additional Network Facilities.
"SAVVIS PARENT" means SAVVIS Communications Corporation, a
Delaware corporation.
"SAVVIS SUBSIDIARIES" has the meaning assigned to term "Buyer
Subsidiaries" in the Master Establishment and Transition
Agreement.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended.
"SERVICES" means the and services provided by Bridge to SAVVIS
hereunder.
"SERVICE SITE" means any location at which Bridge provides
Services to SAVVIS. The Service Sites may be changed by mutual
agreement of the parties as set forth from time to time in
Addenda to this Agreement.
2. THE SERVICES
2.1. Bridge agrees to provide to SAVVIS the following services:
(a) help desk support for the operation of the SAVVIS Network,
as described in Schedule 2.1(a) hereto;
(b) installation, maintenance and repair of facilities and
equipment used in the SAVVIS Network (other than the NOC),
as described in Schedule 2.1(b) hereto;
(c) other services related to the SAVVIS Network with respect to
the customers of both SAVVIS and Bridge, including, without
limitation, processing orders for service and provisioning
interconnection to the SAVVIS Network, as described in
Schedule 2.1(c) hereto; and
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<PAGE>
(d) collocation of third-party equipment in SAVVIS facilities,
including, without limitation, management of the facilities
in which such equipment is collocated, installation and
maintenance of hardware, and the provision and management of
computer operations staff, as described in Schedule 2.1(d)
hereto; and
(e) management of the NOCs for the SAVVIS Network, as described
in Schedule 2.1(e) hereto;
which shall be referred to in this Agreement collectively as the
"SERVICES" and individually as a "SERVICE." Each Service shall be
provided according to such Quality of Service Standards set forth
in the applicable Schedule. Bridge shall be responsible for
monitoring the compliance of the Services with the Quality of
Service Standards and shall provide SAVVIS with monthly reports
of such compliance substantially in the form of the "SummEx
Client Services Executive Summary" regularly prepared by Bridge
prior to the Effective Date.
2.2. Any changes to the Services or in the Quality of Service
Standards applicable thereto shall be provided for in an Addendum
hereto mutually agreed upon by the parties in the manner set
forth in Section 1.2 hereof. Unless otherwise mutually agreed by
the parties, each such Addendum shall have a term of three years.
3. RATES AND CHARGES
3.1. For the first Agreement Year in the Initial Term of this
Agreement, SAVVIS shall pay Bridge for the Services according to
the rates and charges set forth in the applicable Schedule.
3.2. For all cases not covered by Section 3.1, Bridge shall charge
SAVVIS the rates and charges for the Services as shall be
provided for in an Addendum hereto mutually agreed upon by the
parties in the manner set forth in Section 1.2 hereof.
4. INVOICES
4.1. The amounts due to Bridge from SAVVIS for the Services shall be
billed monthly in arrears. All items on invoices not the subject
of a bona fide dispute shall be payable by SAVVIS in United
States currency within 30 days from the date of receipt of the
invoice. All amounts not in dispute are subject to interest
charges of 1-1/2 percent that will accrue daily on all amounts
not paid within 30 days of the date of receipt of the invoice.
4.2. SAVVIS shall pay any sales, use, federal excise, utility, gross
receipts, state and local surcharges, and similar taxes, charges
or levies lawfully levied by a duly constituted taxing authority
against or upon the Services. In the alternative, SAVVIS shall
provide Bridge with a certificate evidencing SAVVIS' exemption
from payment of or liability for such taxes. All other taxes,
charges or levies,
5
<PAGE>
including any ad valorem, income, franchise, privilege, value
added or occupation taxes of Bridge shall be paid by Bridge.
4.3. Bona fide disputes concerning invoices shall be referred to the
parties' respective Contract Managers for resolution. Any amount
to which SAVVIS is entitled as a result of the resolution of a
billing dispute shall be credited promptly to SAVVIS' account.
Any amount to which Bridge is entitled as a result of the
resolution of a billing dispute shall be paid promptly to Bridge.
4.4. Against the amounts owed by SAVVIS to Bridge under this
Agreement, SAVVIS shall have the right to offset any amounts owed
by Bridge to SAVVIS under this Agreement, the Network Services
Agreement, or otherwise.
5. TERM AND EXTENSIONS
5.1. This Agreement shall commence on the Effective Date, and shall
continue in full force and effect for the Initial Term unless
terminated or extended in accordance with the provisions hereof.
5.2. The term of this Agreement shall automatically terminate upon the
termination of the Network Services Agreement for any reason, and
shall automatically be extended for such period as the term of
the Network Services Agreement may be extended, including any
Transition Period, as defined in the Network Services Agreement.
6. TERMINATION BY SAVVIS
6.1. SAVVIS shall have the right to terminate this Agreement, with no
liability to Bridge other than for charges (less any applicable
credits) for Services provided prior to such termination, if:
(a) SAVVIS provides 10 days written notice of its intent to
terminate in the event that Bridge has failed to perform or
comply with or has violated any material representation,
warranty, term, condition or obligation of Bridge under this
Agreement, and Bridge has failed to cure such failure or
violation within 60 days after receiving notice thereof from
SAVVIS; or
(b) Bridge becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation
proceeding, makes an assignment for the benefit of
creditors, admits in writing its inability to pay debts when
due.
6.2. In the event that SAVVIS exercises this option, Bridge will
continue to provide the Services in accordance with the terms,
conditions and rates herein for a period of up to 12 months after
the effective date of termination. If the Services have not
completely transitioned from Bridge after 12 months, Bridge will
provide the
6
<PAGE>
Services at Bridge's then current list rates. Bridge and its
successor will cooperate with SAVVIS until the Services
are completely migrated to another provider.
7. TERMINATION BY BRIDGE
Bridge shall have the right to terminate this Agreement if:
(a) SAVVIS has failed to pay any invoice that is not the subject
of a bona fide dispute within 60 days of the date on which
such payment is due and Bridge has provided SAVVIS with
written notice thereof, provided that SAVVIS shall have 30
days from the time it receives such notice from Bridge of
nonpayment to cure any such default; or
(b) SAVVIS becomes the subject of a voluntary or involuntary
bankruptcy, insolvency, reorganization or liquidation
proceeding, makes an assignment for the benefit of
creditors, admits in writing its inability to pay debts when
due.
8. CONTRACT MANAGERS
8.1. CONTRACT MANAGER. SAVVIS shall assign a representative to serve
as Bridge's point-of-contact for all matters concerning its
performance under this Agreement.
8.2. CONTRACT MANAGER. Bridge shall assign a representative to serve
as SAVVIS' point-of-contact for all matters concerning its
performance under this Agreement.
9. RIGHTS AND OBLIGATIONS OF BRIDGE
9.1. PROVISION OF THE SERVICES. Bridge shall provide the Services at
the Service Sites designated by SAVVIS in accordance with the
Quality of Service Standards and other terms of this Agreement.
9.2. ACCESS AND SECURITY. Bridge personnel shall have such access to
SAVVIS' premises as is reasonably necessary to provide the
Services in accordance with this Agreement, provided that Bridge
personnel shall comply at all times with SAVVIS' reasonable
security requirements. SAVVIS shall have the right immediately to
terminate the right of access of any Bridge personnel to any or
all Service Sites should SAVVIS determine in its sole discretion
that such termination is in SAVVIS' best interest, provided that
SAVVIS shall not exercise this right on grounds unrelated to job
performance or in a manner that obliges Bridge to commit an
unlawful act. Unless Bridge knew or should reasonably have known
that particular Bridge personnel would be barred from a Service
Site, the time allowed for any installation, repair, maintenance
or similar action that such personnel were to perform shall be
extended for the period reasonably required by Bridge to deploy
substitute personnel, provided that Bridge shall use its best
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<PAGE>
efforts to deploy such substitute personnel as quickly as
possible. For purposes of this Section, any subcontractor or
other agent of Bridge shall be treated as Bridge personnel.
9.3. PROPER USE OF SAVVIS EQUIPMENT.
9.3.1.Bridge shall use any SAVVIS Equipment in connection with
the Services in accordance with its documentation, which
documentation shall be provided by SAVVIS at no additional
charge.
9.3.2.Bridge shall be liable for damages to the SAVVIS Equipment
caused by the negligence or willful acts or omissions of
Bridge's officers, employees, agents or contractors, and
for damages to SAVVIS Equipment caused by the use of
equipment or supplies not authorized by SAVVIS.
9.3.3.Bridge shall neither permit nor assist others to use the
SAVVIS Equipment for any purpose other than that for which
they are intended, and Bridge shall be liable to SAVVIS for
any direct costs incurred by SAVVIS as a result of such
use.
9.4. INSURANCE.
9.4.1.At all times during the term of this Agreement, Bridge
shall maintain for itself, its officers, employees, agents
and representatives insurance as shall be provided for in
an Addendum mutually agreed upon by the parties in the
manner set forth in Section 1.2 hereof.
9.4.2.Bridge shall furnish to SAVVIS, upon written request,
certificates of insurance or otherappropriate documentation
(including evidence of renewal of insurance) evidencing the
insurance coverage referenced above, naming SAVVIS as an
additional insured. Such certificates or other
documentation shall include a proviso whereby 15 days prior
written notice shall be provided to SAVVIS prior to
coverage cancellation or other material alteration by
either Bridge or the applicable insurer. Such cancellation
or material alteration shall not relieve Bridge of its
continuing obligation to maintain insurance coverage in
accordance with this Section.
9.4.3.In lieu of all or part of the insurance coverage specified
in this Section, Bridge may self-insure with respect to any
insurance coverage, except where expressly prohibited by
law.
9.5. REPRESENTATIONS AND WARRANTIES.
9.5.1.Bridge hereby warrants that the Services will be provided
in accordance with the Quality of Service Standards
throughout the term of this Agreement. In the event that
Bridge fails to provide any of the Services in
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<PAGE>
accordance with the Quality of Service Standards, SAVVIS
shall be entitled to recover from Bridge (i) a refund of all
amounts paid by SAVVIS to Bridge, if any, for the
performance of the specific Service that fails to meet the
applicable Quality of Service Standards, plus (ii) the costs
actually incurred by SAVVIS in order to have such service
provided by a third party, to the extent such costs are in
excess of the amounts that SAVVIS actually paid, or would
have paid, to Bridge for the performance of the specific
Service that fails to meet the applicable Quality of Service
Standards.
9.5.2.THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
10. LIMITATIONS OF LIABILITY
10.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of
the form of action whether in contract, indemnity, warranty,
strict liability or tort, including negligence of any kind
with respect to the Services or other conduct under this
Agreement.
10.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, or (b) injury or death, or damage to tangible
real or tangible personal property or the environment, when
proximately caused by SAVVIS' or Bridge's negligence or that
of their respective agents, subcontractors or employees.
Nothing contained in this Section shall limit Bridge's
intellectual property indemnification obligations under
Section 13.
11. PROPRIETARY RIGHTS; LICENSE
11.1. Bridge hereby grants to SAVVIS a non-exclusive and
non-transferable license to use all hardware, equipment,
programming and software necessary for SAVVIS to use the
Services. Such license is granted for the term of this
Agreement for the sole purpose of enabling SAVVIS to use the
Services.
11.2. All title and property rights (including intellectual
property rights) to Services (including associated
programming and software) are and shall remain with Bridge.
SAVVIS shall not attempt to examine, copy, alter, reverse
engineer, decompile, disassemble, tamper with or otherwise
misuse such Services, programming and software.
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12. CONFIDENTIALITY
12.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
12.2. Notwithstanding Section 12.1, either party may disclose the
Confidential Information of the otherparty to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors
or managers of facilities or equipment used by such party)
in need of access to such information for purposes
specifically related to either party's responsibilities
under this Agreement, provided that any disclosure of
Confidential Information under clause (c) shall be made only
upon prior written approval of the other party and subject
to the appropriate assurances that the recipient of such
information shall hold it in strict confidence.
12.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
12.4. Either party may request in writing that the other party
waive all or any portion of the requesting party's
responsibilities relative to the other party's Confidential
Information. Such waiver request shall identify the affected
information and the nature of the proposed waiver. The
recipient of the request shall respond within a reasonable
time and, if it determines, in its sole discretion, to grant
the requested waiver, it will do so in writing over the
signature of an employee authorized to grant such request.
12.5. Bridge and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right
to apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any
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<PAGE>
other appropriate relief. This right shall be in addition to
any other remedy available in law or equity.
12.6. A party requested or ordered by a court or other
governmental authority of competent jurisdiction to disclose
another party's Confidential Information shall notify the
other party in advance of any such disclosure and, absent
the other party's consent to such disclosure, use its best
efforts to resist, and to assist the other party in
resisting, such disclosure. A party providing another
party's Confidential Information to a court or other
governmental authority shall use its best efforts to obtain
a protective order or comparable assurance that the
Confidential Information so provided will be held in
confidence and not further disclosed to any other person,
absent the owner's prior consent.
12.7. The provisions of Section 12.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably
necessary in connection with the performance or enforcement
of this Agreement or any of the obligations hereof;
provided, however, that if the receiving party would
otherwise be required to refer to or describe any aspect of
this Agreement in any of the preceding circumstances, the
receiving party shall use its reasonable efforts to take
such steps as are available under such circumstances (such
as by providing a summary or synopsis) to avoid disclosure
of the financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long
as the persons conducting such due diligence review have
agreed to maintain the confidentiality of such disclosure
and not to use such disclosure for any purpose other such
due diligence review.
13. INDEMNIFICATIONS
13.1. Bridge shall defend, settle, or otherwise manage at its own
cost and expense any claim or action against SAVVIS or any
of its directors, officers, employees or assigns for actual
or alleged infringement of any patent, copyright, trademark,
trade secret or similar proprietary right to the extent that
such claim or action arises from Bridge's provision of the
Services. SAVVIS shall notify Bridge promptly in writing of
any such claim or suit and shall cooperate with Bridge in a
reasonable way to facilitate the settlement or defense
thereof. Bridge further agrees to indemnify and hold SAVVIS
harmless from and against any and all liabilities and
damages (whether incurred as the result of a judicial decree
or a settlement), and the costs and expenses associated with
any claim or action of the type identified in this Section
(including reasonable attorneys' fees).
11
<PAGE>
13.2. If, as a consequence of a claim or action of the kind
described in Section 13.1, SAVVIS' or Bridge's use of any
Service or related documentation is enjoined, Bridge shall,
at its option and expense, either: (a) procure for SAVVIS
the right to continue using the affected Services or
documentation; (b) modify such Service or documentation so
that it is non-infringing, provided that such modification
does not affect the intended use of the Service or
documentation as contemplated hereunder; or (c) upon written
notice to SAVVIS, substitute for such Service or
documentation a comparable, non-infringing product or
service or documentation. If Bridge does not take any of the
actions described in clauses (a), (b) and (c), then SAVVIS
may terminate any affected Service pursuant to Section 5,
and Bridge shall refund to SAVVIS any prepaid charges
therefor.
14. DISPUTES
14.1. Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract,
tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by
third persons ("DISPUTES") shall be exclusively governed by
and settled in accordance with the provisions of this
Section 14. The foregoing shall not preclude recourse to
judicial proceedings to obtain injunctive, emergency or
other equitable relief to enforce the provisions of this
Agreement, including specific performance, and to decide
such issues as are required to be resolved in determining
whether to grant such relief. Resolution of Disputes with
respect to claims by third persons shall be deferred until
any judicial proceedings with respect thereto are concluded.
14.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause
under applicable law. Either party may serve process or
notice on the other in any arbitration or litigation in
accordance with the notice provisions hereof. The parties
agree not to disclose any information regarding any Dispute
or the conduct of any arbitration hereunder, including the
existence of such Dispute or such arbitration, to any person
or entity other than such employees or representatives of
such party as have a need to know.
14.3. Either party may commence proceedings hereunder by delivery
of written notice providing a reasonable description of the
Dispute to the other, including a reference to this
provision (the "DISPUTE NOTICE"). Either party may initiate
arbitration of a Dispute by delivery of a demand therefor
(the "ARBITRATION DEMAND") to the other party not sooner
than 60 calendar days after the date of delivery of the
Dispute Notice but at any time thereafter. The arbitration
shall be conducted in St. Louis, Missouri.
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<PAGE>
14.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Bridge, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If
an Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
14.5. The arbitration shall be conducted pursuant to such
procedures as the parties may agree or, in the absence of or
failing such agreement, pursuant to the Rules.
Notwithstanding the foregoing, each party shall have the
right to inspect the books and records of the other party
that are reasonably related to the Dispute, and each party
shall provide to the other, reasonably in advance of any
hearing, copies of all documents which such party intends to
present in such hearing and the names and addresses of all
witnesses whose testimony such party intends to present in
such hearing.
14.6. All hearings shall be conducted on an expedited schedule,
and all proceedings shall be confidential. Either party may
at its expense make a stenographic record thereof.
14.7. The Arbitrators shall complete all hearings not later than
90 calendar days after the Arbitrators' selection or
appointment, and shall make a final award not later than 30
calendar days thereafter. The Arbitrators shall apportion
all costs and expenses of the Arbitration, including the
Arbitrators' fees and expenses of experts ("ARBITRATION
COSTS") between the prevailing and non-prevailing parties as
the Arbitrators deem fair and reasonable. In circumstances
where a Dispute has been asserted or defended against on
grounds that the Arbitrators deem manifestly unreasonable,
the Arbitrators may assess all Arbitration Costs against the
non-prevailing party and may include in the award the
prevailing party's attorneys' fees and expenses in
connection with any and all proceedings under this Section
14.
14.8. Either party may assert appropriate statutes of limitation
as a defense in arbitration; provided, that upon delivery of
a Dispute Notice any such statute shall be tolled pending
resolution hereunder.
14.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and Bridge shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Services to
SAVVIS unless otherwise directed by SAVVIS. This Section
shall not apply where SAVVIS is in default under this
Agreement.
15. FORCE MAJEURE
15.1. In no event shall either party be liable to the other for
any failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers
(whether of a party hereto or of others), casualties,
accidents or other
13
<PAGE>
causes to the extent that such failure and the consequences
thereof are reasonably beyond the control and without the
fault or negligence of the party claiming excuse. Each party
shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
15.2. If Bridge cannot promptly provide a suitable temporary
Bridge alternative to a Service subject to an Interruption
in connection with the existence or a force majeure
condition, SAVVIS may, at its option and at its own cost,
contract with one or more third parties for (or provide for
itself) any or all affected Services for the shortest
commercially available period likely to cover the reasonably
expected duration of the Interruption, and may suspend
Bridge's provision of such Services for such period. Bridge
shall not charge SAVVIS for any Services thus suspended
during the period of suspension. Bridge shall resume
provision of the suspended Services upon the later of the
termination or expiration of SAVVIS' legally binding
commitments under contracts with third parties for
alternative services or the cessation or remedy of the force
majeure condition.
15.3. In the event that a force majeure condition shall continue
for more than 60 days, SAVVIS may cancel the affected
Services with no further liability to Bridge other than for
Services received by SAVVIS prior to the occurrence of the
force majeure condition.
16. GENERAL PROVISIONS
16.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person or entity
other than the parties and their respective successors and
permitted assigns.
16.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to
the subject matter hereof.
16.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein
and their respective successors and permitted assigns. No
party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior
written approval of the other party, which consent shall not
be unreasonably withheld.
16.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
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<PAGE>
16.5. HEADINGS. The Section headings contained in this Agreement
are inserted for convenience only and shall not affect in
any way the meaning or interpretation of this Agreement.
16.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then two business days
after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the
intended recipient as set forth below:
If to Bridge: Bridge Information Systems, Inc.
Three World Financial Center
New York, New York 10285
(212) 372-7195 (fax)
Attention: Zachary Snow,
Executive Vice President
and General Counsel
If to SAVVIS: SAVVIS Communications Corporation
717 Office Parkway
St. Louis, Missouri 63141
(314) 468-7550 (fax)
Attention: Steven M. Gallant,
Vice President and
General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at
the address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party
may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be
delivered by giving the other party notice in the manner
herein set forth.
16.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri without giving effect to any choice or conflict of
law provision or rule (whether of the State of Missouri or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Missouri.
16.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Bridge. No waiver by any party of any
default, misrepresentation, or breach of
15
<PAGE>
warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
16.9. SEVERABILITY. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any
other situation or in any other jurisdiction.
16.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated
hereby.
16.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
16.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified
in this Agreement are incorporated herein by reference and
made a part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Technical
Services Agreement to be executed as of the date first above written.
SAVVIS COMMUNICATIONS CORPORATION
By
------------------------------
Name:
-----------------------------
Title:
---------------------------
BRIDGE INFORMATION SYSTEMS, INC.
By
------------------------------
Name:
----------------------------
Title:
----------------------------
16
<PAGE>
SCHEDULE 2.1(a)
HELP DESK SERVICES
1. Bridge will provide help desk support for 24 hours a day, seven days a
week, to SAVVIS customers using the SAVVIS Network, including customers
using the SAVVIS Dial Service. Help desk support shall include, without
limitation, assistance with establishing network connections and
response to inquiries regarding network performance.
2. The number of phone lines and staff personnel will be such that the
mean wait time per call, determined daily, will not exceed two minutes.
3. Help desk inquiries will be escalated as follows:
<TABLE>
<CAPTION>
ESCALATION TO NEXT LEVEL IN HOW MANY HOURS
--------------------------------------------------------
OUTAGE MTTR LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 LEVEL 6
SEVERITY EXAMPLES (HOURS) TAM MANAGER DIRECTOR VP SVP
<S> <C> <C> <C> <C> <C> <C> <C>
Single site or
I user impaired 8 2 8 12 24 48
Multiple sites
or users impaired
II 6 1 2 4 8 16
Site(s) down or
unable to 30
III communicate 3 minutes 1 2 4 8
</TABLE>
4. Bridge will ensure that help desk staff are trained to be knowledgeable
in all aspects of the operations of the SAVVIS Network.
5. Unless otherwise agreed by Bridge and SAVVIS, Bridge will provide the
following help desk software, and will maintain the most current
version thereof: Summex, Vantive and OP Center.
6. Unless otherwise agreed by Bridge and SAVVIS, Bridge will provide the
following telecommunications equipment and computer hardware for the
help desk: Lucent Difinity G4.
7. Bridge will provide toll-free calling access to the help desk from the
following locations: the Americas, Europe, and Asia.
8. In the event that SAVVIS believes that the performance of a specific
member of Bridge's help desk staff is not satisfactory with respect to
assisting SAVVIS customers, SAVVIS may raise the matter with Bridge,
and Bridge and SAVVIS will work together to resolve the matter,
including the possible removal of such person from providing help desk
services to SAVVIS customers under this Agreement.
17
<PAGE>
9. SAVVIS will compensate Bridge for help desk support at the following
rates:
(a) For calls relating to the SAVVIS dial-in service, * per call;
(b) For calls relating to the SAVVIS DSL service, * per call; and
(c) For calls relating to SAVVIS Internet managed data virtual
permanent networks, * per call.
Call records relating to the products or services provided by Bridge,
whether or not also relating to the performance of the SAVVIS Network
or Dial Service, shall not be billed to SAVVIS by Bridge.
10. The parties will review the response times specified in this Schedule
on an annual basis and revise them as may be required to ensure that
they are consistent with the then current standards in the
telecommunications industry.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
18
<PAGE>
SCHEDULE 2.1(b)
FIELD INSTALLATION AND SUPPORT SERVICES
1. Bridge will, if requested by SAVVIS, provide the installation of
equipment for the operation of the SAVVIS Network and the connection
of customers of Bridge and SAVVIS to the SAVVIS Network.
2. Bridge will, if requested by SAVVIS, provide the installation of
equipment in response to an order for new service from a customer of
Bridge or SAVVIS.
3. Bridge will, if requested by SAVVIS, provide the installation of
equipment relating to the expansion or modification of the backbone of
the SAVVIS Network.
4. Orders for new service from customers of Bridge or SAVVIS will be
received and processed by Bridge in accordance with Addendum 2.1(c).
5. The equipment to be installed that will constitute part of the SAVVIS
Network will be specified by SAVVIS.
6. Bridge will be responsible for configuring and installing certain
network equipment at the Installation Site. SAVVIS will pay for and
own the equipment.
7. Bridge will, if requested by SAVVIS, dispatch field personnel to
install the equipment. Such personnel shall be employees or
contractors of Bridge.
8. In the event that SAVVIS believes that the performance of a specific
member of Bridge's field installation and support staff is not
satisfactory with respect to assisting SAVVIS customers, SAVVIS may
raise the matter with Bridge, and Bridge and SAVVIS will work together
to resolve the matter, including the possible removal of such person
from providing such services to SAVVIS customers under this Agreement.
9. Bridge will, if requested by SAVVIS, provide repair services for the
installed equipment of the SAVVIS Network, including equipment that is
part of the SAVVIS backbone.
10. Bridge will ensure that, on a global basis, mean response time for the
configuration and installation of new equipment, determined monthly,
will not exceed three days (five days, for customer sites outside the
United States) after Bridge has been notified that the customer's site
is ready for such installation.
11. Bridge will provide telephone support 24 hours a day, seven days a
week, for the installation of the SAVVIS network at the customer's
site.
12. Bridge will ensure that, on a global basis, mean response time for the
repair or replacement of equipment on the SAVVIS Network, determined
monthly, will not exceed
19
<PAGE>
12 hours (24 hours, for locations outside the United States) after
Bridge has received a trouble report.
13. Bridge will be compensated by SAVVIS for providing field engineer
support, according to the following hour rate on a global basis:
Field engineer support * per hour (two hours minimum),
with no charge for travel time to
the site
14. Bridge will be compensated by SAVVIS for the installation and repair
of equipment on a time and materials basis, and according to the
following hour rate on a global basis:
(a) Field engineer * per hour (two hours minimum),
with no charge for travel time to
the site
(b) Materials Cost plus *
15. In addition, Bridge will provide system support and programming
services when requested by SAVVIS, at the following rates:
(a) Base fee to maintain the system as of the Effective Date to be
mutually agreed between the parties.
(b) Software development on a per-project, time and materials basis.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE 2.1(B) TO THIS
AGREEMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE
OMISSIONS.
20
<PAGE>
SCHEDULE 2.1(c)
CUSTOMER ORDER PROCESSING SERVICES
1. Bridge will provide the necessary services to receive and process
orders from prospective customers for the products and services
offered by Bridge or by SAVVIS on the SAVVIS Network, but excluding
orders from Bridge for network services under the Network Services
Agreement.
2. Bridge will be responsible for managing all steps required for the
fulfillment of such order, including without limitation:
(a) the configuration and installation of necessary equipment;
(b) scheduling installation and service initiation with the customer;
and
(c) additional services that may be provided under the Administrative
Services Agreement, such as credit authorization, billing
information and the like.
3. SAVVIS will compensate Bridge for customer order processing at the
rate of * per Vantive work order.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
21
<PAGE>
SCHEDULE 2.1(d)
COLLOCATION SERVICES
1. Collocation services provided by Bridge at SAVVIS facilities shall
include, without limitation, facilities management (e.g., power,
heating, air conditioning, lighting and other utilities), the provision
of racks for equipment installation with "smart card" access, project
management for the installation and connection of such equipment,
installation and maintenance of the equipment, and full monitoring and
management of such equipment with Bridge employees.
2. Bridge will construct, purchase, lease, rent or otherwise obtain
physical space necessary for the customers of SAVVIS to collocate their
equipment with the SAVVIS Network equipment, to the extent such space
is not already owned by SAVVIS.
3. SAVVIS will market such space to its customers at rates to be determined by
SAVVIS.
4. Bridge will provide facilities management services for such collocation
facilities, including the provisioning of electric power, light, heat,
ventilation, air conditioning, security, janitorial services, and the
like.
5. For providing such space, Bridge shall be compensated at the following
rates per square foot to be mutually agreed upon following an analysis
to be conducted by the parties of the costs pertaining to such space,
plus the actual cost of providing electrical power to such spaces:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
UNITED STATES
AND CANADA EUROPE ASIA
POP COLLOCATIONS
REGIONAL CUSTOMER
COLLOCATION
ST. LOUIS NOC COLLOCATION
</TABLE>
22
<PAGE>
6. For providing facilities management services, Bridge shall be
compensated at the following rates to be mutually agreed upon
following an analysis to be conducted by the parties of the costs
pertaining to such services:
<TABLE>
<CAPTION>
<S> <C> <C> <C>
UNITED STATES
AND CANADA EUROPE ASIA
POP COLLOCATIONS
REGIONAL CUSTOMER
COLLOCATION
St. Louis NOC collocation
</TABLE>
7. If requested by SAVVIS or by a customer of SAVVIS, Bridge will install
the customer's equipment in the space provided, including racking,
cabling and powering. Bridge will be compensated by SAVVIS for such
work at the rate of * per rack.
8. If requested by SAVVIS or by a customer of SAVVIS, Bridge will perform
scheduled and other required maintenance of such equipment, will
provide monitoring of such equipment 24 hours a day, seven days a
week, and will provide reports and statistics on the operation of such
equipment. Bridge will be compensated by SAVVIS for such work annually
at a rate equal to * of the vendor's list price for such equipment.
9. If requested by SAVVIS or by a customer of SAVVIS to perform
additional project management responsibilities, such as loading
software or configuring equipment, Bridge will perform and be
compensated for such work on an individual case basis.
10. If requested by SAVVIS or by a customer of SAVVIS, Bridge will arrange
for the replacement of existing collocated equipment and will be
compensated in an amount equal to the actual cost charged to Bridge by
the hardware vendor for such work.
23
<PAGE>
SCHEDULE 2.1(e)
NOC MANAGEMENT SERVICES
1. Bridge will provide management of the operations of each of the
following SAVVIS Network Operations Centers ("NOCs"):
St. Louis: 24 hours a day, seven days a week
London: seven days a week, from 7:00 a.m. to 7:00 p.m. local time
Singapore: seven days a week, from 7:00 a.m. to 7:00 p.m. local time
2. The operations personnel staffing each NOC will be employees of SAVVIS
and the supervisory personnel will be employees of Bridge.
3. SAVVIS will compensate Bridge for management of the NOCs at the rate of
* per year.
4. In the event that the performance of a specific member of Bridge's NOC
management is not satisfactory to SAVVIS, SAVVIS may raise the matter
with Bridge, and Bridge and SAVVIS will work together to resolve the
matter, including the possible removal of such person from providing
such services to SAVVIS under this Agreement.
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS SCHEDULE PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. AN ASTERISK DENOTES AN OMISSION.
24
