EXHIBIT 10.9
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT AND HAVE BEEN FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSION.
ARENA NAMING RIGHTS AGREEMENT
THIS NAMING RIGHTS AGREEMENT ("Agreement) is entered into as of the
17th day of August, 2000, by and among KIEL CENTER PARTNERS, L.P. a Missouri
limited partnership ("KCP") with offices at 0000 Xxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation
("Savvis") with offices at 000 Xxxxxx Xxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, and
BRIDGE INFORMATION SYSTEMS, INC., a Missouri corporation ("Bridge") with offices
at 000 Xxxxxx Xxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000. SAVVIS COMMUNICATIONS
CORPORATION, a Missouri corporation, is the owner of certain intellectual
property covered by this Agreement and is signing this Agreement to acknowledge
certain obligations with respect to such intellectual property hereunder.
RECITALS
A. KCP owns and operates the Arena (as defined below). The Arena is
currently the venue for home games played by the St. Louis Blues and other
sports and entertainment events. Savvis is a publicly-traded company, which as
of the date of this Agreement specializes in providing business-to-business
Internet service, global data networking services and co-location/hosting
provider services.
B. Savvis desires to license from KCP the naming rights to the Arena,
as well as other ancillary benefits related thereto. KCP desires to license to
Savvis certain naming rights to the Arena, and provide other ancillary benefits
related thereto, subject to the terms and conditions set forth herein and
subject to certain rights to require Bridge to assume all rights, duties and
obligations of Savvis, as provided herein.
NOW, THEREFORE, in consideration of the mutual promises,
duties and obligations set forth herein, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions.
a. "Arena" refers to the arena currently known as Kiel Center,
including those areas immediately surrounding the Arena which are owned by or
under the control of KCP, but specifically excludes the Kiel Opera House.
b. "Arena Advertising Inventory" refers collectively to the Naming
Rights Holder Advertising, Naming Rights Holder Amenities and Naming Rights
Inventory as more particularly detailed in Exhibit A, together with all
substitutions, additions and enhancements thereto which may subsequently be
agreed to by the parties.
c. "Arena Event" refers to a sporting activity, exhibition or game,
musical concert, theater event, convention, trade show, charitable event,
political event, religious gathering and any such other event which takes place
in or at the Arena and which is open to the general public.
d. "Arena Graphic Logo" refers to the trademark incorporating the Arena
Xxxx and an artist's graphic design, which is to be created pursuant to Section
9 and which is subject to modification pursuant to Section 8 hereof.
e. "Arena Xxxx" refers to the "words only" trademark comprising all or
a portion of one or more Naming Rights Holder House Marks and which is to be
created pursuant to Section 9 and which is subject to modification pursuant to
Section 8 hereof. As of the Naming Rights Effective Date, the Arena Xxxx shall
consist only of the words "Savvis Center".
f. "Bridge Business" means the business of being a (i) provider of
financial information and/or financial news services, (ii) provider of web
design, web hosting and network services, and/or (iii) provider of brokerage and
electronic trading services.
g. "Bridge Direct Competitor" means any person or entity which operates
primarily as a (a) provider of financial information and/or financial news
services; or (b) provider of web design, web hosting and network services; or
(c) provider of brokerage and electronic trading services.
h. "KCP Control" means that (i) KCP, (ii) Xxxx Xxxxxx, (iii) Xxxxx
Xxxxxx, (iv) EPL, LLC, (v) EPL II, LLC (Paige Sports) , (vi) EPL III, LLC, (vii)
EPL IV, LLC, and/ or (viii) any other entity in which a controlling interest is
owned by one or any combination of the persons or entities in the foregoing
clauses (i) - (vii), directly or indirectly controls a matter, entity, decision
and/ or action.
i. "Major Dispute" means any dispute between the parties involving (i)
the failure by Naming Rights Holder to pay any portion of the Naming Fee on or
before the date due and to cure such deficiency within the applicable grace
period; (ii) any assertion by Naming Rights Holder that it is not receiving
adequate Arena Advertising Inventory benefits pursuant to this Agreement by
virtue of the fact that neither an NHL nor an NBA franchise plays its home games
in the Arena; (iii) failure of KCP to provide the signage substantially as set
forth in Sections 1 and 2 of Exhibit A, subject to the limitations set forth
herein; or (iv) a default claimed pursuant to Section 15(c)(ii), 15(c)(iii),
15(c)(iv) or 15(c)(v).
j. "Minor Dispute" means any dispute between the parties which is not a
Major Dispute.
k. "Naming Fees" has the meaning set forth in Section 6 hereof.
l. "Naming Rights" means the exclusive right and license during the
Term to name the Arena.
m. "Naming Rights Effective Date" means August 31, 2000.
n. "Naming Rights Holder" means the party which, pursuant to this
Agreement, has the right to exercise the Naming Rights. As of the Naming Rights
Effective Date (as defined herein) Savvis shall be considered the Naming Rights
Holder, subject at all times to the provisions of Section 8 hereof.
o. "Naming Rights Holder Advertising" means any and all advertising,
promotions and/or sponsorships which are or are intended to advertise, promote
or otherwise publicize the name and/or identity and/or business of the Naming
Rights Holder as set forth on Exhibit A, together with all substitutions,
additions and enhancements thereto which may subsequently be agreed to by the
parties.
p. "Naming Rights Holder Amenities" means all benefits and/or amenities
provided or to be approved for the use and/ or benefit of the Naming Rights
Holder other than the Naming Rights Holder Advertising and the Naming Rights
Holder Inventory as set forth on Exhibit A, together with all substitutions,
additions and enhancements thereto which may subsequently be agreed to by the
parties.
q. "Naming Rights Holder Business" means the business of being a (i)
business-to-business Internet service provider;(ii) a global data networking
provider and/or (iii) a co-location/hosting provider, subject, however, to the
provisions of Sections 5 and 8 hereof.
r. "Naming Rights Holder House Marks" means the trademarks of the
Naming Rights Holder specifically identified in Exhibit B, subject to the
provisions of Sections 8 and 9.
s. "Naming Rights Inventory" means any and all manner of advertising,
promotions and/or sponsorships as set forth in Exhibit A hereto, together with
all substitutions, additions and enhancements thereto which may subsequently be
agreed to by the parties, which are or are intended to incorporate or otherwise
utilize the Arena Graphic Logo and/or the Arena Xxxx.
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t. "NBA" refers to the National Basketball Association, or its
successor league.
u. "NHL" refers to the National Hockey League, or its successor league.
v. "St. Louis Blues" refers to the St. Louis Blues NHL club or its
successor.
w. "Savvis Direct Competitor" means (i) any person or entity which
operates primarily as a (a) business-to-business Internet service provider, or
(b) global data networking provider, or (c) co-location/hosting provider; or
(ii) any person or entity, at least 50.1% of whose business, as determined based
on gross revenues if such gross revenues are publicly and readily available at
no cost to Naming Rights Holder or, if not so available, then as determined by
such other commercially reasonable methods, consists of providing
business-to-business Internet service, global data networking services, or
co-location/hosting services, or any combination thereof; or (iii) Reuters,
Bloomberg or Thomson Companies (including ILX whether or not one of or
affiliated with the Thomson Companies); provided, however, that none of the
following shall be considered to be a Savvis Direct Competitor: (A) providers of
telecommunications equipment and services, such as AT&T, Sprint, MCI, Lucent,
Nortel, Qwest, etc., provided that any sponsorship or other arrangements with
providers of telecommunications equipment or services shall be specific to
local, long distance or wireless telephone service and/or equipment (i.e. AT&T
could not advertise as "AT&T" on a dasher board, but could advertise as "AT&T
Wireless"); (B) residential and consumer Internet service providers, such as
America Online, Earthlink, etc.; (C) providers of Internet search engines or
other Internet searching tools, such as Yahoo, Alta Vista, etc.; (D) Dow Xxxxx
Companies; and (E) web site design companies. A list of Savvis Direct
Competitors as of the Naming Rights Effective Date is set forth in Exhibit C.
x. "Term" means the period from the Naming Rights Effective Date
through and including July 31, 2020 (the "Term"), unless earlier terminated
pursuant to the terms of this Agreement.
2. Grant of Rights. Subject to the contingency set forth in Section 26.i
below, KCP hereby grants the following rights to Naming Rights Holder:
a. Naming Rights. During the Term of this Agreement, KCP hereby
licenses the Naming Rights to Naming Rights Holder. As of the Naming Rights
Effective Date, the Arena shall be known as the "Savvis Center" and all
references in this Agreement to the Arena shall then refer to "Savvis Center,"
subject to the provisions of Section 8 hereof. Subject to the provisions of
Section 8 hereof, KCP shall use commercially reasonable efforts during the Term
to (i) cause any and all announcements relating to the Arena or an Arena Event
in print or broadcast media advertising for the Arena or an Arena Event to refer
to the Arena as "Savvis Center"; (ii) identify the Arena as "Savvis Center" in
all official documents, press releases, and Naming Rights Inventory; (iii) cause
others (including, without limitation, news media, sports teams, service
providers, advertisers promotors and sponsors) to identify the Arena as "Savvis
Center" (provided that any failure of such parties to refer to the Arena as the
Savvis Center shall not be considered a breach of this Agreement); and (iv) use
the Arena Graphic Logo and Arena Xxxx consistent with the provisions of this
Agreement. KCP shall use commercially reasonable efforts to include in all
contracts (including leases and use agreements) involving the use of the Arena
for any Arena Event open to the public or for the provision of services in
connection with an Arena Event open to the public, which is entered into after
the Naming Rights Effective Date, a requirement to refer to and identify the
Arena as "Savvis Center" in all promotional, advertising and other material
disseminated to the public by or on their behalf.
b. Arena Advertising Inventory. During the Term of this Agreement, KCP
hereby grants to Naming Rights Holder the exclusive right and license to have
the Arena Xxxx or the Arena Graphic Logo prominently displayed on all Naming
Rights Inventory and to enjoy the Naming Rights Holder Advertising rights and
benefits. KCP agrees to use commercially reasonable efforts to effect all
changes necessary to cause the Arena Xxxx and/or the Arena Graphic Logo, as the
case may be, to be displayed on the Naming Rights Inventory as soon as
practicable. Provided that Savvis and KCP are able to agree on the design for
the Arena Graphic Logo by August 23, 2000, KCP agrees to effect all changes
prior to the first home game of the St. Louis Blues for the 2000-01 NHL regular
season (the "First Home Game"), with the exception of those items listed in
Exhibit A, Sections 1.b, 1.c, 1.e, 4.b, 4.c, 4.e, 4.f, 0.x, 0.x, 0.x, 0.x, 0.x,
9.e, 9.f, 9.g and 12, which will be completed at some time after the First Home
Game (subject to the limitations on the items set forth in Section 12 of Exhibit
A). KCP shall not permit any person or entity to have a sign or display in the
Arena or on the property of the Arena which is larger than signage or a display
in the same category and type of signage/display utilized for the Arena Xxxx,
Arena Graphic Logo and/or the Naming Rights Holder House
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Marks. In the event KCP proposes to grant or permit another person or entity the
use of advertising, promotional or sponsorship media of a type which is not
included in the Arena Advertising Inventory and which media is not of a type
then being utilized by such person or entity or any other person or entity
relative to the Arena or an Arena Event, then KCP agrees to discuss with Naming
Rights Holder whether such media may be included in the Arena Advertising
Inventory for the benefit of the Naming Rights Holder in a manner comparable,
but no smaller, less frequent, or less visible to that which KCP proposes to
offer to a third party, provided that (i) Naming Rights Holder shall pay for
additional inventory at the same rate at which such other person or entity is
paying for comparable inventory, and (ii) Naming Rights Holder acknowledges that
certain types of advertising benefits may be of such a nature that they cannot
become part of the Arena Advertising Inventory (i.e. logos on seats where there
is room for only one advertiser), and KCP shall not be required to offer such
inventory to Naming Rights Holder pursuant to this Agreement.
c. Advertising Exclusivity. Subject to the restrictions and limitations
set forth in Section 3 and 4 below and the provisions on the possible change in
the business of the Naming Rights Holder set forth in Section 5, KCP hereby
grants "advertising exclusivity" to Naming Rights Holder during the Term. For
purposes of this Agreement, "advertising exclusivity" means that no Savvis
Direct Competitor (or Bridge Direct Competitor if Bridge is the Naming Rights
Holder) shall be permitted, in connection with the Arena, its operations, or any
Arena Event, to advertise itself in media of any type under KCP Control
(including without limitation, program advertising in sports team or other
programs and/or any of the media identified in Exhibit A hereto) or to promote,
sponsor (or co-sponsor) or be advertised or promoted in any manner or in any
media of any type under KCP Control (including, without limitation, program
advertising in sports team or other programs and/or any of the media identified
in Exhibit A hereto).
i. Exclusivity of Advertising for Teams Which Play in the
Arena. The parties acknowledge that this Agreement does not grant exclusive
advertising rights for those teams or leagues which may play one or more games
in the Arena during the Term (except as otherwise provided herein in connection
with the St. Louis Blues and in connection with any NBA franchise, subject,
however, to the provisions of Section 6.c of this Agreement with respect to an
NBA franchise). KCP agrees that, with respect to any team under KCP Control, KCP
shall give Naming Rights Holder the first option to negotiate, and shall
negotiate in good faith with Naming Rights Holder, to provide Naming Rights
Holder with advertising exclusivity within the appropriate category of goods and
services (e.g., Naming Rights Holder Business for the Naming Rights Holder in
effect as the time), for such team or league during the Term. The parties agree
that such exclusivity will require the payment of an additional fee, which KCP
agrees shall be commercially reasonable and shall correspond with the applicable
market for exclusive advertising rights for the corresponding team.
d. New Teams or Leagues. As described above, in the event that an NBA
franchise agrees to play its home games in the Arena, then KCP shall cause the
Arena Advertising Inventory to include substantially those items described in
Exhibit D. Naming Rights Holder acknowledges and agrees that, in the event that
any team or league other than the St. Louis Blues or an NBA Franchise agrees to
play its home games in the Arena, Naming Rights Holder shall not be entitled to
any specific advertising benefits related to such team or league, except that
KCP agrees to cause such team or league (i) to recognize and abide by Naming
Rights Holder's Advertising Exclusivity as described herein, and (ii) to refer
to the Arena as the "Savvis Center" in all promotions for that team or league
which include references to the Arena.
3. Limitations on Rights in Favor of Naming Rights Holder.
a. Non-Application of Advertising Exclusivity. The advertising
exclusivity granted under this Agreement shall not apply to (i) advertising
rights granted separately by the NHL or NBA in connection with their
league-mandated national broadcast arrangements (or any other NHL or
NBA-mandated advertising); and (ii) shall not preclude KCP or its principals,
employees or agents from contracting to host bona fide events at the Arena for
which a Savvis Direct Competitor has contracted for sponsorship rights. By way
of example, if a Savvis Direct Competitor sponsors a national tour, KCP shall
not be prohibited from contracting with that promoter to host such tour in the
Arena even if this involves a Savvis Direct Competitor advertising and promoting
itself in the Arena and in the marketplace.
b. Likeness. Naming Rights Holder acknowledges and agrees that the
rights granted pursuant to this Agreement do not include: (i) the right to use
the names, likenesses, voices or images of any NHL players or coaches (including
without limitation St. Louis Blues players or coaches) or NBA players or coaches
on or in connection with the promotion or advertising of Naming Rights Holder or
its services; (ii) except for the player appearances specified in
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Exhibit A, the right to require players or coaches from any NHL team (including
without limitation the St. Louis Blues) or any NBA franchise which may play its
games in the Arena to appear on behalf of or endorse Naming Rights Holder or its
services; or (iii) the right to use any property owned or controlled by the NHL,
the National Hockey League Players Association, any National Hockey League
coaches association, the NBA, the NBA Players Association, any NBA coaches
association which may at any time be formed.
c. NHL Rights. Notwithstanding any other provision of this Agreement to
the contrary, this Agreement shall in all respects be subject to and subordinate
to: (i) the NHL Constitution; (ii) the NHL By-Laws; (iii) all other rules,
regulations and policies of the NHL and the resolutions of its Board of
Governors; (iv) any Collective Bargaining Agreement between the NHL and/or its
member clubs and other parties; (v) all consent decrees and settlement
agreements entered into, between or among the NHL and its member clubs or the
NHL, NHL member clubs and/or other persons in the furtherance of NHL business or
interests or as otherwise authorized directly or indirectly by the NHL Board of
Governors, the NHL Commissioner, or the NHL Constitution; (vi) any national
network agreements between the NHL and third parties; and (vii) any national
corporate marketing, licensing, sponsorship or similar agreements between the
NHL (or NHL affiliates) and third parties, all as the same may now exist or
hereafter be amended or enacted or as they may be interpreted by the
Commissioner.
Notwithstanding any other provision herein to the contrary, Naming
Rights Holder agrees that KCP and the St. Louis Blues may allow or authorize any
League Sponsor (as defined below) to engage in advertising and promotional
activities in the St. Louis market (including, without limitation, in the
Arena), or otherwise provide benefits to such League Sponsor, if such League
Sponsor is entitled to engage in such activities or receive such benefits
pursuant to any sponsorship or promotional licensing arrangement now or
hereafter entered into between such League Sponsor and the NHL or any of its
affiliates (including, without limitation, NHL Enterprises, L.P. and NHL
Enterprises Canada, L.P.). "League Sponsor" means any person or entity which
currently is, or at any time becomes, a sponsor or promotional licensee of or
with respect to any NHL event or program now or hereafter in existence. By way
of illustration only and without limiting the generality of the foregoing,
League Sponsors may place advertising and promotional materials (including
displays) in the Arena, or conduct sweepstakes or in-store promotions in the St.
Louis market in connection with a League event, such as the NHL All-Star Game,
or in support of a League program, such as NHL All-Star Fan Balloting, NHL
Freeze Play or NHL Breakout. Naming Rights Holder acknowledges and agrees that
KCP is not obligated to compensate Naming Rights Holder via credits, make-goods
or any other means for any preemptions made pursuant to this Section.
Naming Rights Holder acknowledges and agrees that, in the event an NBA
franchise decides to play its home games in the Arena, then this Agreement shall
be modified to incorporate a comparable provision regarding NBA rights, rules
and regulations.
4. Restrictions and Limitations on Rights on Exploitation of Arena
Advertising Inventory; Restrictions on Exclusivity.
a. Permitted Restrictions. Naming Rights Holder agrees that KCP shall
not be in default under this Agreement if Naming Rights Holder is prohibited or
otherwise prevented from receiving the benefit of and/or rights to certain
aspects of the Arena Advertising Inventory or if one or more Savvis Direct
Competitors is able to promote their goods or services under limited
circumstances in connection with one or more Arena Events in a manner which
would otherwise be in violation of the advertising exclusivity as a result, in
either case, of rules, regulations, restrictions, limitations, agreements, laws,
ordinances or requirements to the extent that either (i) the existence or the
adoption of such rules, regulations, restrictions, limitations, agreements,
laws, ordinances or requirements was not the result of the acts or omissions of
KCP or its affiliates, partners, members, shareholders, directors or principals;
(ii) the avoidance of implementation or the application of rules, regulations,
restrictions, limitations, laws, ordinances, agreements or requirements
satisfying the requirements of (i) above is beyond the "commercially reasonable
control" of KCP and/or its affiliates, partners, members, shareholders,
directors or principals; or (iii) the existence or adoption of such rules,
regulations, restrictions, limitations, agreements, laws, ordinances or
requirements resulted from the affirmative actions of KCP or its affiliates,
partners, members, shareholders, directors or principals, but such affirmative
actions were not within the commercially reasonable control of KCP or its
affiliates, partners, members, shareholders, directors or principals, to avoid
taking (rules, regulations, restrictions, limitations, agreements and/or
requirements that satisfy (i) or (ii) above are individually a "Permitted
Restriction" and are collectively "Permitted Restrictions"). For purpose of this
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Agreement, the term "commercially reasonable control" shall mean the level of
control exercised in the normal course of business by a similar party in a
similar situation. Without limiting the scope of what may constitute Permitted
Restrictions, the rights and benefits granted by KCP to Naming Rights Holder are
subject to each of the following to the extent such matter is a Permitted
Restriction:
i. League, Conference, Governing Body, etc. Rules. Rules and
regulations restricting the Arena Advertising Inventory benefits
imposed by (i) leagues (i.e. NBA, NHL) or conferences (i.e. NCAA, CUSA)
whose teams participate in Arena Events, or (ii) such other governing
bodies (i.e. U.S. Figure Skating Association) for certain events (i.e.
ice shows). KCP agrees that Naming Rights Holder shall receive the
benefit of any NBA, NHL, NCAA or other rule or regulation changes
during or prior to the Term of this Agreement to the extent such
changes either eliminate, alleviate, reduce or diminish Permitted
Restrictions.
ii. National or Regional Television or Radio Limitations.
Rules and regulations imposed on KCP by a national or regional
television network or radio station with the right to broadcast one or
more of the Arena Events.
iii. Local Television or Radio. Limitations imposed by local
television or radio broadcasters (not under KCP Control) with the right
to broadcast one or more of the Arena Events on local television or
radio.
iv. Blackout Rights. Blackout rights or other prevention of
public display required by a league, conference or other governing
body, or which are otherwise required by an owner, promoter or agent of
an Arena Event, provided that KCP shall use reasonable commercially
efforts to avoid such rights and requirements.
v. Arena Events Not Under Control of KCP. Restrictions or
limitations imposed by owner, promoter or producer of Arena Events not
under KCP Control, provided that KCP shall use commercially reasonable
efforts to avoid such restrictions or limitations.
vi. City Ordinances, Government Approval, etc. Applicable
governmental laws, ordinances, agreements, rules or regulations.
vii. Arena Advertising Inventory Under the Discretion of KCP.
KCP may, in its reasonable business judgment, choose to alter or
eliminate those Naming Rights Inventory benefits which involve an
advertising or promotional campaign by KCP or one of its affiliates
(i.e. Sections 5, 6 and 7 as listed in Exhibit A), provided that KCP
will undertake an advertising or promotional campaign which is
reasonably comparable to that described in Sections 5, 6 and 7 of
Exhibit A.
b. Costs to Implement Permitted Restrictions. In the event that Naming
Rights Holder is required to make direct expenditures to comply with the
Permitted Restrictions (for example, to bring its web site or the web site of
the St. Louis Blues into compliance with the Permitted Restrictions), KCP shall
reimburse Naming Rights Holder for such direct expenditures, provided that KCP
shall not be required to reimburse Naming Rights Holder for any lost profits or
other indirect costs or expenditures, and provided that prior to the
implementation of any web site to be established, hosted and maintained by
Savvis pursuant to Section 8 of Exhibit A, Savvis shall first submit the plan
pursuant to which Savvis will establish and host such web site and KCP shall
advise Savvis as to whether such plan or any portions thereof are inconsistent
or not permitted under any then-existing Permitted Restrictions.
c. Consultation on Permitted Restrictions. If requested by Naming
Rights Holder, KCP agrees to consult with Naming Rights Holder annually with
respect to the Permitted Restrictions.
5. Changes in Business of Naming Rights Holder; Changes in Savvis Direct
Competitors.
a. Naming Right Holder Business Changes. At the option of the Naming
Rights Holder, at any one time during the period 45-60 days prior to an
anniversary of the Naming Rights Effective Date, Naming Rights Holder may notify
KCP of proposed changes to
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the Naming Rights Holder Business and corresponding proposed changes to the
Savvis Direct Competitors to be effective as of the immediately forthcoming
anniversary, along with all information reasonably requested by KCP to evaluate
such proposed changes. Within 30 days after such notice and receipt of such
information, KCP shall advise Naming Rights Holders as to the extent to which
such proposed changes would be acceptable and the modifications, if any, to the
Naming Fees and the extent of any other fees and charges payable by Naming
Rights Holder as a condition to the effectiveness of such changes. Naming Rights
Holder shall have 15 days after notice of such proposal to notify KCP that
Naming Rights Holder has accepted or rejected such proposal. Failure by Naming
Rights Holder to accept or reject such proposal shall be deemed a rejection of
it for the forthcoming year only (Naming Rights Holder shall not be deemed to
have waived any right to reissue such proposal or any portions of it in
subsequent years). If Naming Rights Holder timely accepts such proposal from
KCP, the parties shall take those actions necessary to effect such proposal, and
the proposed changes shall become effective beginning on the forthcoming
anniversary.
b. Notice of Savvis Direct Competitors. KCP and Naming Rights Holder
acknowledge and agree that the marketplace in which Naming Rights Holder
operates is continually changing, and certain entities which Naming Rights
Holder agrees are not currently Savvis Direct Competitors could become Savvis
Direct Competitors in the future. At the option of the Naming Rights Holder, at
any one time during the period 45-60 days prior to an anniversary of the Naming
Rights Effective Date, Naming Rights Holder may notify KCP of persons and/or
entities who Naming Rights Holder has a reasonable basis to believe is/are
Savvis Direct Competitors (the "Direct Competitor Notice"). KCP shall have 30
days after receipt of such Direct Competitor Notice to notify the Naming Rights
Holder that all or any such persons or entities are or are not Savvis Direct
Competitors, as the case may be, with reasons stated therefor (an "Objection
Notice"). Failure by KCP to send an Objection Notice in a timely manner shall be
deemed an approval of all parties listed in the Direct Competitor Notice as
Savvis Direct Competitors. If KCP accepts the designation of one or more
persons/entities as Savvis Direct Competitors, then those persons/entities shall
be considered Savvis Direct Competitors effective as of the forthcoming
anniversary date of the Naming Rights Effective Date. For those
person(s)/entity(ies) rejected by KCP, Naming Rights Holder shall have the
option to protest KCP's determination pursuant to the Dispute Resolution
Procedure for Minor Disputes set forth in Section 21, provided that Naming
Rights Holder shall have the burden of proof to demonstrate that a person/entity
is a Savvis Direct Competitor. In the event that KCP has an existing contract
with a newly-determined Savvis Direct Competitor in the ordinary course of
business which would impact Naming Rights Holder's advertising exclusivity
hereunder, KCP shall have the right to complete the initial term of such
contract without defaulting under this Agreement.
c. Changes in Businesses of Existing KCP Sponsors. Provided that the
Southwestern Xxxx Agreement is terminated in accordance with Section 26.i, KCP
warrants that, as of the Naming Rights Effective Date, none of its existing
agreements involving sponsorship rights interfere with the grant of exclusivity
made to Naming Rights Holder as specified in Section 2.c. Subject to the
limitation set forth below in this Section 5.c, KCP agrees that, with respect to
sponsorships or other agreements involving sponsorship rights which are entered
into after the Naming Rights Effective Date, in the event that a sponsor of KCP
either changes the nature of its business or acquires another entity such that
the sponsor becomes a Savvis Direct Competitor, and Naming Rights Holder and KCP
agree that the sponsor is a Savvis Direct Competitor pursuant to the process set
forth in Section 5.b, KCP agrees to terminate the sponsorship agreement with
that sponsor effective fifteen (15) days after receipt of notice from Naming
Rights Holder that a sponsor is a Savvis Direct Competitor, or fifteen (15) days
after the completion of any process to determine whether a sponsor is a Savvis
Direct Competitor, whichever is later. This provision shall not apply to, and
KCP shall not be required to terminate, agreements involving sponsorship rights
which are in effect as of the Naming Rights Effective Date during the existing
term of such agreements, the existing term being the term in effect as of the
Naming Rights Effective Date, provided that KCP agrees that the requirement for
termination set forth in this Section 5.c shall apply in any future renewals or
extensions of said existing sponsorship agreements.
6. Naming Fees.
a. Fees. In consideration of the benefits provided pursuant to this
Agreement, Naming Rights Holder agrees to pay to KCP the following Naming Fees
(consisting of the items under both Section 6.a.i and 6.a.ii below):
i. Provided that this Agreement is not terminated pursuant to
Section 26.i, upon receipt by Savvis of notice from KCP that the SWB
Agreement has been terminated, Savvis shall issue to KCP an aggregate
of 750,000 shares of common stock in Savvis, $.01 par value. On such
date, Savvis shall deliver certificates representing such
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common stock in such names and such designations as shall be requested
by KCP in writing not less than three business days prior to such
delivery.
ii. For the fiscal period of [**], Savvis agrees to pay to
KCP the sum of [**]. For each one year period thereafter, with each
period beginning August 1 and continuing through July 31 (the "Fiscal
Period"), Naming Rights Holder agrees to pay to KCP an amount equal to
105% of the amount paid during the previous Fiscal Period. Subject to
the potential increase set forth in Section 6.c, the Naming Fees due
shall be as follows:
Fiscal Period Amount Due
------------- ----------
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
[ ** ] [**];
b. Timing of Payments. For each Fiscal Period beginning with the period
of [ ** ], Naming Rights Holder shall pay an amount equal to one-fourth of the
amount due for that Fiscal Period on or before each of August 1, November 1,
February 1 and May 1;
c. Addition of NBA Franchise. Naming Rights Holder agrees that, in the
event that an NBA franchise agrees to play its home games in the Arena, then KCP
shall cause the Arena Advertising Inventory to include substantially those items
described in Exhibit D. The Naming Fees due for the year in which such home
games commence to be played shall increase by the escalating "NBA Sum," which
shall be calculated as described below, unless an NBA franchise agrees to begin
playing its games in the Arena in the middle of the NBA season, in which case
the pro-rata portion of the NBA Sum shall be due for that year. The NBA Sum
shall be the sum of [**] for the first year covered by this Agreement (Naming
Rights Effective Date through July 31, 2001) and shall increase by the sum of
five percent (5%) cumulative for each year thereafter. By way of example, if an
NBA franchise decides to play its home games in the Arena beginning in the fifth
year of this Agreement (August 1, 2004 through July 31, 2005), then the Naming
Fees for that year shall increase by the sum of [**]. Naming Rights Holder
acknowledges and agrees that if an NBA franchise begins to play its home games
in the Arena prior to August 1, 2006, then the corresponding NBA Sum shall be
due for that Fiscal Period and all subsequent Fiscal Periods, in addition to the
stock transfer provided for in Section 6.a. Naming Rights Holder further
acknowledges and agrees that if an NBA franchise begins to play its home games
in the Arena on or after July 1, 2006, then the NBA Sum due for that Fiscal
Period and all subsequent Fiscal Periods shall be in addition to the Naming Fees
due under Section 6.a. The additional payments shall be made in equal
installments on the dates other payments are due as provided in Section 6.b. In
the event that the St. Louis NBA franchise or the St. Louis Blues play their
home games in a location other than the Arena (excluding exhibitions or one-time
appearances in other locations), then the Naming Fees shall decrease by the
then-current annual NBA Sum. In the event that both the St. Louis NBA franchise
and the St. Louis Blues play their home games in a location other than the
Arena, the Naming Rights Holder shall have those termination rights set forth in
Section 15.
d. Amounts Are in Addition to Current Sponsorship Fees. Naming Rights
Holder agrees that the amounts due hereunder are in addition to any and all
sponsorship and suite fees which may be due from Naming Rights
[**] CONFIDENTIAL TREATMENT REQUESTED
7
Holder or Bridge under separate sponsorship and/or suite agreements in effect as
of Naming Rights Effective Date.
e. Production Expenses. KCP agrees that all expenses related to the
initial modification of the Arena and/or Arena Advertising Inventory and to the
printing, manufacturing and installation of the Arena Advertising Inventory to
reflect the change in the name of the Arena as provided for in this Agreement
shall be paid by KCP unless otherwise noted in Exhibit A. Naming Rights Holder
agrees that any expenses related to any other modification of the Arena
Advertising Inventory, whether required as a result of the application of
Section 8 or otherwise, shall be the sole responsibility of Naming Rights
Holder.
7. Renewal - Right of First Negotiation. Provided that this Agreement has
not otherwise been terminated, KCP agrees, beginning on the date three (3) years
prior to the expiration of this Agreement, to negotiate exclusively and in good
faith for a period of eighteen (18) months with Naming Rights Holder regarding
an extension or renewal of this Agreement (the "Exclusive Negotiating Period").
Naming Rights Holder agrees that, in the event no agreement is reached to renew
or extend this Agreement during the Exclusive Negotiating Period, KCP shall be
free to negotiate with other parties regarding the terms set forth in this
Agreement upon the expiration of the Exclusive Negotiating Period.
8. Name Changes; Bridge's Duty to Assume Obligations of Naming Rights
Holder.
a. Change in Control of Savvis. In the event that a single entity,
person or group (the "Acquiror") acquires or otherwise owns more than fifty
percent (50%) of the voting shares of Savvis on a non-diluted basis and elects
to change the name of Savvis, then Acquiror may request a name change (the
"Proposed Name Change"), provided that the Proposed Name Change must be a name
related to the actual or proposed corporate name or identity of the Acquiror,
and provided that there is no Event of Default by Naming Rights Holder or
Acquiror on the date on which the Proposed Name Change is submitted by Acquiror.
KCP may, within sixty days after receipt of notice that Acquiror has requested
the Proposed Name Change, either accept or reject such Proposed Name Change in
KCP's sole discretion. If the Proposed Name Change is accepted by KCP, then
Acquiror shall become the Naming Rights Holder and shall pay all expenses and
costs incurred by KCP in modifying the Arena Advertising Inventory, Arena
Graphic Logo and Arena Xxxx and any other reasonable actual expenses and costs
incurred by KCP to effect such renaming.
i. Assumption by Bridge in Case of Rejection. If KCP rejects
the Proposed Name Change, then Bridge shall replace Savvis as the
Naming Rights Holder and shall become and be deemed the Naming Rights
Holder, and Bridge shall be deemed to have assumed all rights and
obligations applicable to the Naming Rights Holder under this Agreement
and may rename the Arena, at Bridge's sole expense, in a manner
consistent with its own Naming Rights Holder House Marks; provided,
however, that if KCP determines that if Bridge's financial condition is
such that it is not highly probable that Bridge will be able to perform
all of its duties and obligations hereunder throughout the Term
(hereinafter referred to as an "Acceptable Party"), KCP may disapprove
of the assumption by Bridge. In the event that Bridge disputes KCP's
determination that Bridge is not an Acceptable Party, then Bridge may
elect to resolve that dispute pursuant to the Minor Dispute Resolution
procedure set forth in Section 2(a) of this Agreement.
ii. Disapproval of Bridge. In the event that an arbitrator
determines that Bridge is not an Acceptable Party, or in the event that
Bridge does not dispute KCP's determination that Bridge is not an
Acceptable Party, then the duties and obligations of the Naming Rights
Holder shall revert back to Savvis and/or Acquiror, as constituted
after the Change in Control, and Savvis and Acquiror shall also be
responsible for any and all payments due and owing by Savvis and/or
Naming Rights Holder at the time of the Change in Control. The parties
agree that, in the event that Bridge is not accepted as the Naming
Rights Holder pursuant to this Section 8.b(ii), then the Arena shall
continue to be named the Savvis Center.
iii. Approval or Acceptance of Bridge. In the event KCP
accepts Bridge's assumption of this Agreement pursuant to Section
8.a.i, or if Bridge is determined to be acceptable pursuant to the
Minor Dispute Resolution process, and provided that Bridge satisfies
all outstanding obligations of the Naming Rights Holder as of the date
of assumption, then KCP agrees that Savvis and Acquiror shall, as of
the date of assumption, no longer be liable for any duties or
obligations set forth in this Agreement.
8
iv. Bridge Direct Competitor. In the event that Bridge becomes
the Naming Rights Holder pursuant to this Section 8, KCP agrees that
the term "Bridge Direct Competitor" shall be substituted for the term
"Savvis Direct Competitor" and "Bridge Business" shall be substituted
for "Naming Rights Holder Business" throughout this Agreement, and
Bridge shall be entitled to the benefits afforded thereby, provided,
however, that KCP shall be entitled to fulfill any and all contractual
obligations pursuant to agreements entered into with Bridge Direct
Competitors prior to the date on which Bridge becomes the Naming Rights
Holder. Bridge further agrees that it shall not be entitled to seek an
amendment to the definitions of Bridge Business and Bridge Direct
Competitor, nor shall it be entitled to seek any additions to the list
of Bridge Direct Competitors until the first allowed change of such
items, as specified in Section 5.a and 5.b, immediately after the date
of assumption of this Agreement by Bridge.
b. Limit of One Name Change. The parties hereto acknowledge and agree
that a total of only one name change shall be allowed during the Term.
9. Arena Xxxx and Arena Graphics Logo.
a. Development of Arena Xxxx and Arena Graphic Logo. The parties agree
that KCP shall develop, at KCP's expense, the Arena Xxxx and the Arena Graphic
Logo, provided that the final design of the Arena Xxxx and Arena Graphic Logo
shall be subject to the approval of Naming Rights Holder, which approval shall
not be unreasonably withheld, delayed or conditioned. Naming Rights Holder
agrees that KCP shall own all right, title and interest, including without
limitation the copyright, in and to the Arena Xxxx and the Arena Graphic Logo,
subject to Naming Rights Holder's ownership of all intellectual property rights
in and to the Naming Rights Holder House Marks. KCP shall license or acquire
from the creator of the Arena Graphic Logo's "artist's design" sufficient
rights, including but not limited to rights in any copyright, to permit
unrestricted use of the Arena Graphic Logo trademark.
b. License to Use Naming Rights Holder House Marks. The Missouri
Corporation (as defined in Section 17.a) hereby grants to KCP a non-exclusive,
royalty-free license to use Naming Rights Holder House Marks during the Term of
this Agreement for the purpose of (i) using the Naming Rights Holder House Marks
to advertise the Arena and Arena Events subject to the conditions herein and
(ii) for the purpose of allowing KCP to create, use, and own the Arena Xxxx and
Arena Graphic Logo. Naming Rights Holder shall have prior approval rights with
respect to any form of advertising of the Naming Rights Holder House Marks
(excluding advertising containing Arena Xxxx or Arena Graphic Logo), provided
that (1) such approval will not be unreasonably withheld or delayed, (2) the
parties shall reasonably agree upon a mutually convenient process for such
approvals to be requested and obtained, and (3) KCP shall not be obligated to
resubmit a request for approval for proposed advertising similar to that which
has already been approved. KCP agrees that it will cause to appear on or within
all advertising, promotional or display material bearing the Naming Rights
Holder House Marks, below and to the right of said marks or logos, the
identification "(R) or "TM" or "SM" as will be designated by Naming Rights
Holder. Each of Naming Rights Holder and the Missouri Corporation, if
applicable, agrees that it will not, during the Term of this Agreement, attack
the title or any rights of KCP in and to the Arena Xxxx or Arena Graphic or
attack the validity of the license granted under this Section 9(b). KCP hereby
agrees that its every use of Naming Rights Holder House Marks shall inure to the
benefit of Naming Rights Holder and that KCP shall not at any time acquire any
rights in Naming Rights Holder House Marks by virtue of any use KCP may make of
them. The non-exclusive license to use the Naming Rights Holder House Marks
shall not prevent Naming Rights Holder or, if applicable, the Missouri
Corporation, from using the Naming Rights Holder House Marks in any manner
whatsoever.
c. License to Use Arena Xxxx and Arena Graphic Logo. KCP hereby grants
Naming Rights Holder a non-exclusive, royalty-free license during the Term of
this Agreement to use the Arena Xxxx and the Arena Graphic Logo in conjunction
with the Naming Rights Inventory, the Naming Rights Holder Amenities and Naming
Rights Holder's promotions and advertising. KCP shall have prior approval rights
with respect to any form of advertising of the Arena Xxxx or the Arena Graphic
Logo, provided that (1) such approval will not be unreasonably withheld, delayed
or conditioned, (2) the parties shall reasonably agree upon a mutually
convenient process for such approvals to be requested and obtained, and (3)
Naming Rights Holder shall not be obligated to resubmit a request for approval
for proposed advertising similar to that which has already been approved. Naming
Rights Holder agrees that it will cause to appear on or within all advertising,
promotional or display material bearing the Arena Xxxx or the Arena Graphic
Logo, below and to the right of said Arena Xxxx or Arena Graphic Logos, the
identification "(R)" or "TM" or "SM" as
9
will be designated by KCP. KCP agrees that it will not, during the Term of this
Agreement or thereafter, attack the title or any rights of Naming Rights Holder
in and to Naming Rights Holder House Marks or attack the validity of the license
granted under this Section 9(c). Naming Rights Holder hereby agrees that its
every use of such Arena Xxxx or Arena Graphic Logo shall inure to the benefit of
KCP and that Naming Rights Holder shall not, during the Term of this Agreement,
acquire any ownership rights in the Arena Xxxx or the Arena Graphic Logo by
virtue of any use Naming Rights Holder may make of them.
Upon the termination of this Agreement or expiration of the Term, KCP
agrees to cease any and all uses of the Naming Rights Holder House Marks, and
all parties agree to cease any and all uses of the Arena Xxxx and the Arena
Graphic Logo, provided that KCP shall have the right to distribute any materials
in its inventory bearing one or more of the Naming Rights Holder House Marks,
the Arena Xxxx or the Arena Graphic Logo for a period of six months from the
date of termination of this Agreement or expiration of the Term. In the event
that a substitution of the Naming Rights Holder occurs during the Term of this
Agreement, the Naming Rights Holder House Marks of the substituted Naming Rights
Holder shall be licensed according to the provisions of this Section 9 and the
license to use the Naming Rights Holder House Marks of the Missouri Corporation
and/or the former Naming Rights Holder shall terminate, subject to KCP's right
to distribute materials in its inventory for a period of six months from the
effective date of such substitution.
d. Proper Use of Arena Xxxx and Arena Graphic Logo. Naming Rights
Holder recognizes that KCP and the St. Louis Blues will establish a great deal
of goodwill through their reputation and the representation of the Arena Xxxx
and/or Arena Graphic Logo. Therefore, Naming Rights Holder shall not use,
commercially exploit, permit the use of or permit the commercial exploitation of
Arena Xxxx and/or Arena Graphic Logo in negative advertising, nor in any manner
that is contrary to public morals or which has been found to be deceptive or
misleading, or which reflects unfavorably on the good name, goodwill, reputation
or image of KCP or the St. Louis Blues.
e. Proper Use of Naming Rights Holder' Name, Logo and Marks. KCP
recognizes the great value of the reputation and goodwill associated with the
Naming Rights Holder House Marks. Therefore, KCP shall not use, commercially
exploit, permit the use of or permit the commercial exploitation of the Arena
Xxxx and/or Arena Graphic Logo or Naming Rights Holder House Marks in negative
advertising, nor in any manner that is contrary to public morals or which has
been found to be deceptive or misleading or which reflects unfavorably on the
good name, goodwill, reputation or image of Naming Rights Holder.
KCP acknowledges the importance of maintaining the high, uniform
standards of quality in the products and services sold under the Naming Rights
Holder House Marks and the interest Naming Rights Holder has in equally high,
uniform standards of quality in the products and services sold under the Arena
Xxxx and the Arena Graphic Logo. Therefore, KCP agrees to maintain and follow
standards of quality which are comparable within the industry with respect to
the type, nature or quality of the products or services sold under the Arena
Xxxx and the Arena Graphic Logo and products or services advertised under the
Naming Rights Holder House Marks. For the Arena Xxxx and the Arena Graphic Logo,
KCP shall require its licensees to maintain and follow standards of quality as
may be set by KCP from time to time, but in no circumstance shall the standards
of quality be less than the standards which are comparable within the industry.
f. Protection of Arena Xxxx and Arena Graphic Logo. Naming Rights
Holder shall notify KCP immediately in writing of any infringements of the Arena
Graphic Logo or Arena Xxxx which may come to Naming Rights Holder's attention.
KCP shall have the sole right to determine, in good faith and in consultation
with legal counsel, whether or not an infringement has occurred. If KCP
determines that an infringement has occurred, KCP agrees, at its expense, to use
commercially reasonable efforts to cause the infringer to cease and desist from
the infringing actions, which efforts may include litigation. Each of Naming
Rights Holder and, if applicable, the Missouri Corporation, agrees to cooperate
fully with KCP in the event such enforcement actions are necessary. Each of
Naming Rights Holder and, if applicable, the Missouri Corporation, retains the
right, at its sole expense, to take any such action as necessary to protect the
applicable Naming Rights Holder House Marks from infringement and other unlawful
use, including any infringement that may be alleged in the field of goods and
services that are now, and in the future, customarily provided at or related to
the Arena or Arena Events.
10. Warranties and Representations.
10
a. By KCP. KCP warrants and represents to Naming Rights Holder the
following as of the date this Agreement is entered into:
i. The execution, delivery and performance of this Agreement
have been authorized by all necessary corporate action and that it has
requisite right, power and authority to enter into and perform this
Agreement and to grant the rights and licenses granted to Naming Rights
Holder pursuant to this Agreement. KCP agrees to deliver to Savvis,
upon execution of this Agreement, certified copies of all corporate
resolutions authorizing the execution, delivery and performance of this
Agreement;
ii. KCP is a Missouri limited liability company duly organized
under the laws of the State of Missouri and is in good standing in the
State of Missouri;
iii. Subject to the consents required in Section 10.a.i above,
no consent of any other person or entity is required for execution by
KCP of this Agreement and/or performance under this Agreement;
iv. Neither KCP nor the St. Louis Blues nor any affiliate of
either of them has granted any rights pertaining to the subject matter
of this Agreement to any party in a manner which would cause KCP to be
in default under any such agreement or which prevents KCP from granting
the rights and licenses to Naming Rights Holder under this Agreement;
v. There is no litigation pending nor is any litigation
threatened against KCP relative to any of the matters which are the
subject of this Agreement;
vi. KCP is the owner of the Arena and has a valid and existing
ground lease pursuant to that certain Amended and Restated Sublease
Agreement dated as of November 24, 1992, by and between KCP and Kiel
Center Redevelopment Corporation (a copy of which has been delivered to
Savvis) (the "Lease"), which Lease is in full force and effect as of
the Naming Rights Effective Date and the term of which is scheduled to
run throughout the Term of this Agreement, provided that the Lease is
not otherwise terminated or otherwise cancelled;
vii. To the best of KCP's knowledge, there is no existing rule
of the NHL, NBA or any league currently utilizing the Arena, nor are
there any provisions in existing sponsorship contracts of KCP, which
would prevent the Naming Rights Holder from enjoying substantially all
of the benefits listed in Exhibit;
viii. Subject to the pending termination of the SWB Agreement
as described in Section 26.i, neither KCP nor the St. Louis Blues nor
any affiliate of either of them has granted any rights to any person or
entity that are or could be inconsistent with or are or could be in
conflict with the terms and conditions of this Agreement and/or the
rights and benefits granted to Naming Rights Holder hereunder;
ix. This Agreement is made with KCP in reliance upon KCP's
representations to Savvis, which by its execution hereof KCP hereby
confirms, that Savvis Common Stock issued pursuant to Section 6.a.i
(all such securities are referred to as the "Securities" for purposes
of this Section 10) to be received by KCP will be acquired for
investment for its own account, not as a nominee or agent, and not with
a view to the sale or distribution of any part thereof, and that KCP
has no present intention of selling, granting participation in, or
otherwise distributing the same. By executing this Agreement, KCP
further represents that it does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer, or grant
participations to such person or to any third person, with respect to
any of the Securities;
x. KCP understands that the Securities are not registered
under the Securities Act of 1933, as amended (the "1933 Act,") on the
ground that the sale provided for in this Agreement and the issuance of
Securities hereunder should be exempt from registration under the 1933
Act and that Savvis' reliance on such exemption is predicated on KCP's
representations set forth herein;
xi. KCP represents that it is an "accredited investor" within
the meaning of Rule 501 under the 1933 Act and that it is experienced
in evaluating and investing in companies such as Savvis, is able to
fend for itself in the transactions contemplated by this Agreement, has
such knowledge and experience in financial and
11
business matters as to be capable of evaluating the merits and risks of
his investment and has the ability to bear the economic risks of its
investment. KCP further represents that it has had access, during the
course of the transaction and prior to its purchase of the Securities,
to the information filed by Savvis with the Securities and Exchange
Commission and that it has had, during the course of the transaction
and prior to its execution hereof, the opportunity to ask questions of,
and to receive answers from, Savvis concerning the terms and conditions
of the offering of the Securities and to obtain additional information
necessary to verify the accuracy of any information furnished to it or
to which it has had access. KCP acknowledges that it has had the
opportunity to obtain additional information as desired in order to
evaluate the merits and risks inherent in purchasing and holding the
Securities;
xii. KCP understands that the Securities may not be sold,
transferred or otherwise disposed of without registration under the
1933 Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the Securities or an
available exemption from registration under the 1933 Act, the
Securities must be held indefinitely. In particular, KCP is aware that
the Securities may not be sold pursuant to Rule 144 promulgated under
the 1933 Act unless all of the conditions of that Rule are met. KCP
represents that, in the absence of an effective registration statement
covering the Securities, KCP will sell, transfer or otherwise dispose
of the Securities only in a manner consistent with their
representations set forth herein and then only in accordance with the
provisions of Section (xiii) hereof;
xiii. KCP agrees that in no event will it make a transfer or
disposition of any of the Securities (other than pursuant to an
effective registration statement under the 1933 Act), unless and until
(i) KCP shall have notified Savvis of the proposed disposition and
shall have furnished Savvis with a statement of the circumstances
surrounding the disposition and assurance that the proposed disposition
is in compliance with all applicable laws and (ii) if reasonably
requested by Savvis, at the expense of KCP or the transferee, she shall
have furnished to Savvis an opinion of counsel, reasonably satisfactory
to Savvis, to the effect that such transfer may be made without
registration under the 1933 Act;
xiv. Legends; Stop Transfer
a. All certificates for the Securities may bear the following or a
substantially similar legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, HYPOTHECATED OR OTHERWISE ASSIGNED EXCEPT PURSUANT TO (i) A
REGISTRATION STATEMENT RELATING TO THE SECURITIES WHICH IS EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, (ii) RULE 144 UNDER SUCH ACT, OR (iii) AN OPINION OF
COUNSEL OR OTHER EVIDENCE SATISFACTORY TO SAVVIS, THAT ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT IS AVAILABLE.
b. By Savvis. Savvis represents and warrants the following to KCP as of
the date this Agreement is entered into:
i. That the execution, delivery and performance of this
Agreement have been authorized by all necessary corporate action and
that it has requisite right, power and authority to perform this
Agreement and to fulfill its duties and obligations to KCP pursuant to
this Agreement. Savvis agrees to deliver to KCP, upon execution of this
Agreement, certified copies of all corporate resolutions authorizing
the execution, delivery and performance of this Agreement;
ii. Savvis is a Delaware corporation duly organized under the
laws of the State of Delaware and is in good standing in the State of
Delaware;
iii. No consent of any other person or entity is required for
execution by Savvis of this Agreement and/or performance under this
Agreement;
12
iv. Neither Savvis nor any of its affiliates have granted any
rights pertaining to the subject matter of this Agreement to any party
in a manner which would cause Savvis to be in default under any such
agreement or which prevents Savvis from honoring its duties and
obligations under this Agreement;
v. Neither Savvis nor any of its affiliates is a party or
obligor to any agreement that is or could be inconsistent with or is or
could be in conflict with the terms and conditions of this Agreement or
the duties and obligations due to KCP hereunder;
vi. The Missouri Corporation (as defined in Section 17.a) is
the owner of the entire right, title and interest in and to the Savvis
House Marks it licenses under this Agreement, and that it has the sole
right to grant the license herein;
vii. Savvis's counsel and general counsel shall provide to
KCP, on the Naming Rights Effective Date, a legal opinion substantially
in the form set forth in Exhibit F;
viii. The authorized capital stock of Savvis consists solely
of (i) 250,000,000 shares of Common Stock, $.01 par value per share, of
which 92,961,326 shares (as of August 8, 2000) are issued and
outstanding on the date hereof, and (ii) 50,000,000 shares of Preferred
Stock, par value $.01 per share, of which no shares are issued and
outstanding. Except for 11,070,454 shares of Savvis Common Stock (as of
August 15, 2000) reserved for issuance pursuant to options currently
held by employees of Savvis, there are no outstanding preemptive,
conversion or other rights, options, warrants or agreements granted or
issued by or binding upon Savvis for the purchase or acquisition of any
shares of its capital stock. The Company holds no shares of its capital
stock in its treasury;
ix. As of the time such document was filed, all of the most
recent documents which Savvis was required to file under the Securities
Exchange Act of 1934, including without limitation Form 10-K and Form
10-Qs (the "Disclosure Documents"), all as filed with the Securities
and Exchange Commission ("SEC"): (i) did not contain a misstatement of
a material fact or an omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(ii) complied in all material respects with the requirements of the
1933 Act or the Securities Exchange Act of 1934, as amended, as the
case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such documents. Since the filing of the most
recent Form 10-Q, no other document has been required to be filed by
Savvis with the SEC which has not been filed;
x. Except as disclosed in the Disclosure Documents, there is
no litigation pending or, to the knowledge of Savvis, threatened
against Savvis which would have a material adverse effect on its
properties, assets or business or which would prevent or hinder the
consummation of the transactions contemplated by this Agreement or its
obligations thereunder;
xi. All of the shares of Savvis Common Stock to be issued to
KCP pursuant to the terms of this Agreement, when issued pursuant to
the terms of this Agreement, shall be duly and validly issued, fully
paid and non-assessable, without violation of any preemptive or
dissenters' or similar rights and in full compliance with all
applicable securities laws.
c. By Bridge. Bridge represents and warrants the following to KCP as of
the date this Agreement is entered into:
i. That the execution, delivery and performance of this
Agreement have been authorized by all necessary corporate action and
that it has requisite right, power and authority to perform this
Agreement and to fulfill its duties and obligations to KCP pursuant to
this Agreement;
ii. Bridge is a Missouri corporation duly organized under the
laws of the State of Missouri and is in good standing in the State of
Missouri;
iii. No consent of any other person or entity is required for
execution by Bridge of this Agreement and/or performance under this
Agreement;
13
iv. Neither Bridge nor any of its affiliates has granted any
rights pertaining to the subject matter of this Agreement to any party
in a manner which would cause Bridge to be in default under any such
agreement or which prevents Bridge from honoring its duties and
obligations under this Agreement;
v. There is no litigation pending nor is any litigation
threatened against Bridge relative to any of the matters which are the
subject of this Agreement; and
vi. Neither Bridge nor any of its affiliates has granted any
rights to any person or entity that are or could be inconsistent with
or are or could be in conflict with the terms and conditions of this
Agreement or the duties and obligations due to KCP hereunder.
11. Not a Lease or License of the Arena. This Agreement will not constitute
a lease or license of any part of the Arena; rather, it will represent a
contractual obligation of KCP to provide to Naming Rights Holder certain
advertising benefits.
12. Force Majeure.
a. Fire or Other Damage to Arena. If the Arena is damaged by fire,
earthquake, act of God, the elements or other casualty or is condemned by an
authority exercising the powers of eminent domain or the Arena is transferred in
lieu of the exercise of such power so as to render the Arena unusable for its
intended purpose at any time during the Term, and KCP reasonably determines that
repairs and restoration of the Arena to the size, capacity and permitted use
existing prior to the casualty cannot be completed within one year after the
damage, then KCP shall have the option, but not the obligation, to repair the
damage or loss. In such event, KCP shall notify Naming Rights Holder as to
whether KCP shall effect such repair and restoration within thirty (30) days
after the casualty. If KCP notifies Naming Rights Holder that KCP is electing
not to effect such repairs and restoration, then Naming Rights Holder may elect,
upon notice to KCP given within ninety (90) days after the date on of the event,
that Naming Rights Holder will effect such repair and restoration provided the
terms and conditions respecting such restoration are acceptable to Naming Rights
Holder in its sole discretion, in which event this Agreement shall continue in
full force and effect. If Naming Rights Holder does not elect to make such
repairs and does not, in fact, make such repairs, this Agreement and all
licenses granted hereunder shall terminate as of the date of such fire or other
casualty and all prepaid license fees and other amounts shall be returned to
Naming Rights Holder. If KCP reasonably determines that repairs and restoration
of the Arena to the size, capacity and permitted use existing prior to the
casualty can be completed within one year after the damage, then KCP shall
effect such repairs and restoration and shall complete same within one year from
the event. Naming Rights Holder may terminate this Agreement if such repairs or
restoration is not completed by the end of such year. All prepaid Naming Fees
and other prepaid charges relative to the period from and after termination of
this Agreement promptly shall be reimbursed to Naming Rights Holder. The Term of
this Agreement shall be extended by the period from the date of the event until
such repairs and restoration are complete. In the event this Agreement
terminates pursuant to this Section 12.a., then for a period of two years
following the termination of this Agreement KCP agrees to afford the Naming
Rights Holder at the time of such termination a right of first negotiation with
respect to the Naming Rights and Naming Rights Inventory. KCP agrees to enter
into exclusive negotiations with the Naming Rights Holder at the time of
termination for a period of thirty days prior to entering into negotiations with
any third party regarding the Naming Rights and Naming Rights Inventory. If the
parties are unable to reach an agreement prior to the expiration of the
thirty-day exclusive negotiating period, then KCP shall be free to negotiate
with other parties regarding the Naming Rights and Naming Rights Inventory.
b. Other. Except for those circumstances described in Section 12(a)
hereof, neither party shall be liable or responsible for any failure to perform
its obligations hereunder, which failure is caused or brought about in any
manner beyond the control of such party including but not limited to strike,
lockout, shutdown, act of God or other work stoppage, NBA, NHL or federal,
state, or local government action or inaction (with respect to required
approvals), the breakdown or failure of apparatus, equipment, or machinery
employed in its supply of said services, any temporary stoppage for the repair,
improvement, or enlargement thereof, or any other act or condition beyond its
reasonable control, other than such party's inability to perform payment
obligations. Subject to Section 12(a) hereof, upon any such event, the affected
party's obligations hereunder shall be suspended and the other party shall have
no right to terminate this Agreement or to seek damages, provided the affected
party acts diligently to effect timely performance of its obligations.
14
c. Abatement. In the event the Arena is not usable for a period of at
least 30 days as a result of the events described under Section 12(a) or Section
12(b), the Term shall be extended for that period of time which the Arena was
not usable.
d. Reduction in Naming Fees. If the NHL players strike or the NHL
owners lockout the players so that less than 40 regular season home games are
played by the St. Louis Blues in the Arena during an NHL season, the Naming Fees
due for the Fiscal Period covering that NHL Season shall be reduced by a
percentage calculated using the number of regular season games lost (calculated
by subtracting the number of regular season games played from 40) divided by the
total number of events held during the full Fiscal Period prior to the season in
which the games were lost (by way of example, if a strike occurs in the
2001-2002 Fiscal Period, the denominator shall be based on the number of Arena
Events held during 2000-2001 Fiscal Period). In the event an NHL players' strike
or owners' lockout prior to August 1, 2006, KCP agrees to credit Naming Rights
Holder the corresponding amount as calculated pursuant to this paragraph in the
Fiscal Period of August 1, 2006 - July 31, 2007. In the event that the credit
owed to Naming Rights Holder exceeds the Naming Fees due for that Fiscal Period,
the credit shall be applied in subsequent Fiscal Periods until credited in full.
If an NBA Franchise elects to play its home games in the Arena during the Term,
and if the NBA players strike or if the NBA owners lockout the players so that
less than 41 regular season home games are played by that NBA Franchise in the
Arena during an NBA season, then the NBA Sum due for the Fiscal Period covering
that NBA season shall be reduced by a percentage calculated using the number of
regular season games lost (calculated by subtracting the number of regular
season games played from 41) divided by the total number of events held during
the full year prior to the season in which the games were lost.
13. Use; Upkeep and Maintenance.
a. Maintenance. KCP agrees to cause the Arena to be maintained and
operated in a good, clean, tenantable and sale repair, order and condition in a
manner consistent with that generally applicable at other first-class arenas
constructed substantially concurrently with the construction of the Arena.
b. Compliance. KCP shall manage and operate the Arena in compliance
with (i) all applicable and material federal, state and local laws, rules,
ordinances and regulations (including, without limitation, building and fire
codes); and (ii) any other material agreements or obligations imposed by any
state or governmental authority with respect to the Arena, its operations,
and/or Arena Events.
14. Indemnification and Reimbursement.
a. Indemnification By KCP. KCP hereby agrees to protect, defend and
indemnify Naming Rights Holder and its respective officers, directors,
shareholders, members, partners, agents and employees ("Naming Rights
Indemnitees") harmless from and against (i) any and all claims, demands, causes
of action, suits and judgments by third parties against the Naming Rights
Indemnitees or any of them and (ii) losses, liabilities costs or expenses of any
nature whatsoever, including reasonable attorneys' fees and the costs of
discovery and expert witness fees incurred by Naming Rights Indemnitees or any
of them, as a result of damage, loss or liability suffered by a third party
arising directly or indirectly from or out of any acts or omissions by KCP, its
officers, directors, agents, partners, subcontractors or employees relating to
or arising out of the operation, maintenance and management of the Arena, or
acts, omission or any breach of this Agreement by KCP except to the extent
attributable to the negligence or willful misconduct of Naming Rights Holder or
its respective officers, directors, shareholders, partners, members, agents and
employees.
b. Indemnification By Naming Rights Holder. Naming Rights Holder hereby
agrees to protect, defend and indemnify KCP and its officers, directors,
shareholders, members, partners, agents and employees ("KCP Indemnitees")
harmless from and against (i) any and all claims, demands, causes of action,
suits and judgments by third parties against the KCP Indemnitees or any of them
and (ii) losses, liabilities costs or expenses of any nature whatsoever,
including reasonable attorneys' fees and the costs of discovery and expert
witness fees incurred by KCP Indemnitees or any of them, as a result of damage,
loss or liability suffered by a third party arising directly or indirectly, from
or out of any acts or omissions by Naming Rights Holder, its respective
officers, directors, agents, partners, subcontractors or employees relating to
the breach by Naming Rights Holder of its obligations hereunder or exercise or
utilization by Naming Rights Holder of the rights granted hereunder, except to
the extent attributable to the
15
negligence or willful misconduct of KCP or its officers, directors,
shareholders, partners, members, agents or employees.
15. Termination/Remedies.
a. Failure of Naming Rights Holder to Pay Amounts Due. In the event
Naming Rights Holder fails to pay to KCP when due any sum required by this
Agreement to be paid, and Naming Rights Holder shall fail, for a period of
fifteen (15) days following receipt of written notice from KCP specifying such
default, to cure such default by payment of the amount due plus interest,
compounded daily, at the annual rate of 15% or, if less, the highest rate
permitted by law from the date due, then KCP shall have the right to (i)
terminate this Agreement upon the expiration of the cure period, (ii) remove
immediately the Arena Xxxx and Arena Graphic Logo from the Naming Rights
Inventory, and (iii) assert any and all other remedies which KCP may have
pursuant to law or equity, notwithstanding Naming Rights Holder's option to
avail itself of the Dispute Resolution procedure set forth in Section 21. KCP
acknowledges and agrees that, in order to avoid termination, Naming Rights
Holder may notify KCP that it is paying any amounts due "under protest," and
Naming Rights Holder shall not waive its right to use the Dispute Resolution
procedure in connection with the amounts paid.
b. Failure of NHL or NBA Franchise to Play Home Games in the Arena. In
the event that (i) the St. Louis Blues cease to play home games at the Arena for
any reason other than a player or officials strike or owner lockout, (ii) no
other NHL franchise plays its home games at the Arena, and (iii) no NBA
franchise plays its home games at the Arena, then, subject to KCP's right to use
the Dispute Resolution Process set forth in Section 21, Naming Rights Holder
shall have a period of thirty (30) days, beginning on the date when the last
remaining franchise plays its last home game in the Arena or announces that it
will no longer play its home games in the Arena, whichever is later, in which to
terminate this Agreement. Termination shall be effective upon delivery of notice
of termination. If Naming Rights Holder elects to terminate the Agreement
pursuant to this Section 15.b, neither party shall have further rights or
remedies except for any remedies for a default prior to the date of termination.
c. Default. A party shall be in default hereunder if any of the
following events shall occur (each being an "Event of Default"), provided that
nothing in this Section 15.c shall limit the termination rights set forth in
Sections 15.a, 15.b or 6.c:
i. Such party fails to perform timely any of its other
material obligations hereunder and such default shall continue for a
period of thirty (30) days following receipt of written notice from the
other party specifying such default. If the default specified in such
notice is curable but of a nature such that it cannot be cured through
the exercise of reasonable diligence within the thirty (30) day cure
period, then such thirty (30) day cure period shall be extended to a
period as is reasonable (but in no event more than 180 days subject to
delay due to force majeure) to cure such default, provided the
non-performing party has proceeded at all times and is continuing to
proceed in a diligent and reasonable manner to cure;
ii. Such party becomes insolvent, or takes the benefit of any
present or future insolvency or bankruptcy statue, or makes a general
assignment for the benefit of creditors, or files a voluntary petition
in bankruptcy or a petition or answer seeking an arrangement,
reorganization or readjustment of its indebtedness under the Federal
bankruptcy laws or under any other law or statute of the United States
or of any State thereof, or consents to the appointment of a receiver,
trustee, or liquidator of all or substantially all of its property;
iii. By court order or decree such party is adjudged bankrupt
or an order is made approving a petition filed by any of its creditors
or by any of its stockholders or partners, seeking its reorganization
or the readjustment of its indebtedness under the Federal bankruptcy
laws or under any law or statute of the United States or any state
thereof;
iv. An involuntary petition under any bankruptcy or insolvency
law, or an action under present or future insolvency law or statute, is
filed against such party and is not dismissed or stayed within 60 days
after the filing thereof; or
v. Such party sells, conveys, assigns or otherwise transfers
all or substantially all of its assets.
16
d. Remedies in the Event of a Default. If either party is in default
under Section 15(c) beyond applicable grace or cure periods for an event which
constitutes a Major Dispute, then the other party shall be entitled to terminate
the Agreement or seek specific performance, and in any event may xxx for damages
or exercise any remedy available to it in equity including, without limitation,
injunctive relief. If either party is in default under Section 15(c) beyond
applicable grace or cure periods for an event which constitutes a Minor Dispute,
then the other party shall be entitled only to seek monetary relief. The
Defaulting Party shall remain subject to the indemnification provisions set
forth in Section 14. In any action under this Agreement, neither party shall be
liable or responsible under any circumstances for any consequential or punitive
damages.
e. Surviving Provisions. In the event of a termination of this
Agreement for any reason, the parties agree that all representations and
warranties made under this Agreement and the indemnification provisions set
forth in Section 14 for any claims, demands, causes of action, suits or
judgments by third parties or losses, liabilities, costs or expenses which may
arise on or before the effective date of termination.
16. Entire Agreement. This Agreement together with the Exhibits hereto
constitutes the entire agreement between the parties and shall become a binding
and enforceable Agreement among the parties hereto and their respective
successors (including successors and to transferees of the Arena) and permitted
assigns upon the Naming Rights Effective Date. No prior verbal or written
agreement shall survive the execution of this Agreement. In the event of an
alteration of this Agreement, the alteration shall be in writing and shall be
signed by both parties in order for the same to be binding upon the parties.
17. Assignments.
a. By Naming Rights Holder. Subject to Section 8, this Agreement and
the rights and obligations of Naming Rights Holder hereunder may not be assigned
without the prior written approval of KCP, which approval may be withheld in the
sole discretion of KCP; provided, however, that Savvis may, without the prior
written approval of KCP, assign all or any portion of its rights and obligations
hereunder to Savvis Communications Corporation, a Missouri corporation which is
a wholly-owned subsidiary of Savvis (the "Missouri Corporation"), provided that,
in the event of such an assignment, both Savvis and the Missouri Corporation
shall be liable for all duties and obligations of Savvis/Naming Rights Holder
hereunder.
b. By KCP.
i. Sale of Arena. In the event KCP proposes to sell the Arena
or any interest therein, KCP shall give Naming Rights Holder notice of
the name, address phone and telefax numbers and e-mail address of the
proposed purchaser, and the proposed closing date reasonably prior to
the closing thereof but no less than sixty (60) days' prior to the
closing date. KCP shall provide, as a condition to the consummation of
such sale, that the purchaser shall expressly assume all obligations of
KCP under this Agreement; provided, however, such purchaser shall be
deemed to have acquired the Arena subject to this Agreement and to have
assumed the obligations of KCP hereunder, provided that no prior
approval of Naming Rights Holder or Bridge shall be necessary. All
advertising, sponsorship and promotion arrangements and agreements to
which such purchaser is a party shall be subordinate to this Agreement
and KCP shall ensure that the purchase and sale agreement for the sale
of the Arena or any interest therein shall provide for such
subordination.
ii. To Affiliated Entity. KCP may assign its rights and
obligations under this Agreement or its interest in the restricted
stock transferred to KCP pursuant to Section 6.a to any of (i) EPL,
LLC; (ii) EPL II, LLC (Paige Sports); (iii) EPL III, LLC; (iv) EPL IV,
LLC; (v) Xxxx Xxxxxx; (vi) Xxxxx Xxxxxx; (vii) Xxxxx Xxxxxx; (viii) any
entity 100% owned or controlled by Xxxx Xxxxxx, Xxxxx Xxxxxx or Xxxxx
Xxxxxx; or (ix) any other entity whose ownership is identical to that
of EPL II, LLC/Paige Sports. Such assignment shall be effective upon
giving of notice to the Naming Rights Holder. In no event shall Naming
Rights Holder be deprived of the benefits to be provided herein, and
Naming Rights Holder shall be in all events be entitled to full credit
for the stock delivered under Section 6.c. of this Agreement and all
other Fees prepaid under this Agreement.
17
18. Notices. All notices and other communications hereunder will be in
writing and will be deemed given if delivered personally, telecopied (receipt of
which is confirmed by the person to whom sent) or mailed by registered or
certified mail (return receipt requested) to the parties at the following
addresses (or at such other address for a party as will be specified by like
notice, or to a substitute party at the address(es) for such substitute party as
will be specified by a like notice):
a. If to KCP:
Xxxx Xxxxx
President and Chief Executive Officer
St. Louis Blues/Kiel Center
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxx, President and CEO
Xxxxx X. Xxxxxxxx, COO and General Counsel
Paige Sports Entertainment
000 X. Xxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxx, Esq.
Holme, Xxxxxxx & Xxxx, LLP
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000
b. If to Naming Rights Holder:
Xxxxxx X. XxXxxxxxx
Chairman and CEO
Savvis Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Savvis Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
General Counsel
c. If to Bridge:
Bridge Information Systems, Inc.
Attn: CEO
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Bridge Information Systems, Inc.
Attn: General Counsel
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
19. Governing Law: This Agreement will be governed by the laws of the State
of Missouri without reference to principles of conflicts of laws. Where
applicable, this Agreement shall be governed by United States federal trademark
and copyright laws.
18
20. Confidentiality. Each party shall retain in confidence the existence and
terms and conditions of this Agreement. No public disclosure of the existence of
this Agreement or its terms and conditions shall be made unless such disclosure
is approved in advance by KCP and Naming Rights Holder, provided, however, that
either party shall have the right to disclose information about this Agreement
if required by law. Upon the Naming Rights Effective Date, KCP and Savvis
mutually agree that either party or both parties may publicly announce, through
press releases or otherwise, that the parties have agreed to rename the Arena
the Savvis Center; the terms and conditions of this Agreement shall not be made
at such an announcement unless specifically approved in advance by KCP and
Savvis.
21. Dispute Resolution.
a. Minor Dispute. All Minor Disputes (as defined above) shall be
resolved by means of binding arbitration. The parties agree to use reasonable
efforts to hold the arbitration within 10 business days of the declaration of a
Minor Dispute, but in any event agree to seek to proceed to arbitration as
expeditiously as possible. Arbitration shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association.
i. A Minor Dispute shall be deemed "declared" when the party
declaring such dispute gives Notice (as defined hereinafter) to the
other.
ii. Arbitration shall be held in the City of St. Louis. The
arbitrator(s) shall be selected according to the Commerical Arbitration
Rules of the American Arbitration Association, it being understood that
the parties' preference is to utilize arbitrators knowledgeable in
sports business matters.
iii. The parties shall share the arbitrator(s)' fees,
regardless of the outcome of the arbitration.
iv. Except as may be required by law, neither party nor any
arbitrator may disclose the existence, content or results of any
arbitration hereunder without the prior written consent of both
parties.
v. Rule R-36 of the January 1, 1999 Commercial Arbitration
Rules of the American Arbitration Association shall at all times apply to the
provisions of this Agreement.
b. Major Dispute. All Major Disputes (as defined above) shall be
mediated by the parties. In the event the parties are unable to resolve the
dispute or concern amicably within 60 days of Declaration of a Major Dispute,
the parties agree that the matter shall not be subject to arbitration or
mediation, and the appropriate remedy, whether at law or in equity, if any,
shall be through the courts. The parties agree that jurisdiction and venue for
any action to resolve disputes arising under or based upon this Agreement shall
be initiated and exclusively prosecuted in the Circuit Court of City of St.
Louis, Missouri, except where federal jurisdiction is appropriate, in which case
the action shall be initiated exclusively in U.S. District Court in St. Louis,
Missouri.
c. Attorneys' Fees and Expenses. In the event of a dispute between the
parties, the non-prevailing party in any ensuing litigation shall pay the
reasonable attorneys' fees and expenses of the prevailing party (including costs
of discovery and expert witness fees.)
d. Major and Minor Disputes Prior to August 1, 2006. The parties
acknowledge that Naming Rights Holder shall be entitled to the following
remedies in the event that Naming Rights Holder prevails in a Major or Minor
Dispute prior to August 1, 2006 and it is determined that Naming Rights Holder
is entitled to monetary damages or compensation:
i. Major Dispute. In the event that Naming Rights Holder is
awarded monetary damages or compensation in connection with a Major
Dispute prior to August 1, 2006, KCP agrees to pay to Naming Rights
Holder the amount of monetary damages/compensation awarded. In the
event that Naming Rights Holder also elects to terminate this Agreement
in connection with such Major Dispute, KCP agrees to pay to Naming
Rights Holder the sum of $5,500 for each day from the date of
termination through and including July 31, 2006. Naming Rights Holder
acknowledges and agrees that, in connection with any payment to be made
pursuant to this paragraph, (i) KCP shall not be obligated to return
any of the Savvis stock transferred pursuant to Section 6.a; (ii) KCP
may repay the amounts due, if KCP so elects in its sole discretion, by
transferring shares of Savvis Common Stock issued pursuant to this
Agreement to the Naming Rights Holder,
19
in which case KCP shall be credited for the transfer at the closing
price of the Savvis stock on the date of the transfer; and (iii) no
damages shall be due from KCP to the Naming Rights Holder for any lost
profits or lost benefits by virtue of the Agreement being terminated
prior to the expiration date.
ii. Minor Dispute. In the event that Naming Rights Holder is
awarded monetary damages or compensation in connection with a Minor
Dispute prior to August 1, 2006, KCP agrees to credit Naming Rights
Holder the amount of the monetary damages/compensation awarded against
the amounts owed for the Fiscal Period of August 1, 2006 - July 31,
2007, plus interest calculated at eight percent (8%) per annum credited
through the date the damages/compensation are/is credited. In the event
that the credit owed to Naming Rights Holder exceeds the Naming Fees
due for the August 1, 2006 - July 31, 2007 Fiscal Period, the credit
shall be applied in subsequent Fiscal Periods until credited in full.
22. Counterparts. This Agreement may be executed in counterparts, with
signature of each such counterpart being deemed signature to all such
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
23. No Obligation to Sign Any Players. Naming Rights Holder acknowledges
and agrees that neither KCP nor the St. Louis Blues can make any representations
or warranties as to the success or competitive level of the St. Louis Blues or
any other team which may play in the Arena during the Term. Therefore, Naming
Rights Holder agrees that the consideration paid pursuant to this Agreement
shall in no way be based on, or subject to, the performance of the St. Louis
Blues or any other team which may play in the Arena during the Term, nor shall
the consideration be based on, or subject to, the St. Louis Blues or any other
team which may play in the Arena signing or engaging of any player, coach or
general manager, or any other employee or independent contractor.
24. Number of Events. Subject to Naming Rights Holder's rights under
Sections 12.d and 15.b, Naming Rights Holder acknowledges and agrees that KCP
cannot make any representations or warranties as to the specific number or
nature of the Arena Events during the Term, especially as such applies to
touring events and concerts. Therefore, Naming Rights Holder agrees that the
consideration paid pursuant to this Agreement shall in no way be based on, or
subject to, the number and/or nature of the events that may play at the Arena
during the Term.
25. Insurance.
a. By KCP. KCP shall maintain such insurance as is customarily
maintained by owners of comparable facilities. Naming Rights Holder shall be
named as an additional insured on such policies, where appropriate.
b. By Naming Rights Holder. Naming Rights Holder agrees to maintain
insurance as it deems appropriate. KCP shall be named as an additional insured
on such policies, where appropriate.
26. Miscellaneous.
a. The term "herein" or "hereunder" mean and shall be deemed to mean
"in this Agreement" or "under this Agreement," respectively.
b. No action other than a notice by one party to the other specifically
stating that such notice has the effect of waiver, shall constitute a waiver of
any particular breach or default of such other party. No such waiver notice from
either party shall waive the other party's failure to fully comply with any
other term, condition, or provision of this Agreement, irrespective of any
knowledge any KCP or Naming Rights Holder officer, employee, or agent may have
of any breach or default of, or noncompliance with, such other term, condition,
or provision. No waiver of full performance by either party shall be construed,
or operate, as a waiver of any subsequent default of any of the terms, covenants
and conditions of this Agreement. The payment or acceptance of fees or charges
for any period after a default shall not be deemed a waiver of any right or
acceptance of defective performance.
c. All remedies available at law or in equity to either party for
breach of this Agreement are cumulative and may be exercised concurrently or
separately, and the exercise of any one remedy shall not be deemed an election
of such remedy to the exclusion of other remedies.
20
d. If any term or provision of this Agreement, or the application
thereof to any person or circumstances, shall to any extent be invalid or
unenforceable, the same shall be reduced in scope and coverage to the extent
necessary to render the same valid, and, if that is not possible, the remainder
of this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid, and be enforced to the fullest extent permitted by law.
e. KCP shall pay all entertainment taxes, personal property taxes, use
taxes, and any other taxes or impositions on the rights granted to Naming Rights
Holder under this Agreement, provided, however, that nothing in this paragraph
shall relieve Naming Rights Holder, Savvis or Bridge from any obligations to pay
suiteholder taxes which may be due on a suite rental which is the subject of a
separate agreement.
21
f. Naming Rights Holder will execute, and KCP shall cause its future
lenders to execute, a consent and attornment agreement pursuant to which Naming
Rights Holder will consent to the assignment of KCP's rights under this
Agreement to KCP's future lenders subject to the agreement by such future
lenders and their assigns to recognize the rights of Naming Rights Holder
hereunder.
g. This Agreement is intended only for the benefit of the parties
hereto, the St. Louis Blues and any assigns or substitutes as expressly provided
for in this Agreement. No other person or entity is intended to be benefited in
any way by this Agreement, nor shall this Agreement be enforceable by any other
person or entity.
h. KCP will not modify or terminate nor will KCP permit the
modification or termination of the agreement between KCP and the St. Louis Blues
attached attached hereto as Exhibit E.
i. The parties acknowledge that this Agreement and the rights and
obligations set forth herein are contingent upon KCP's termination of its
existing sponsorship agreement with Southwestern Xxxx (the "SWB Agreement"). In
the event that KCP is unable to procure the termination of the SWB Agreement on
or before September 5, 2000, then KCP shall so notify Savvis, and this Agreement
shall immediately be null and void. Failure by KCP to provide such notice of
termination on or before September 5, 2000 shall be deemed a failure to procure
the termination of the SWB Agreement.
j. The paragraph headings in this Agreement are for convenience only
and shall not be used in the interpretation nor considered part of this
Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
KIEL CENTER PARTNERS, L.P.
By: NWL, LLC, General Partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Manager
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Chairman and CEO
For purposes of acknowledging any and all of its rights, obligations and
agreements under the foregoing Agreement:
BRIDGE INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
22
For purposes of acknowledging any and all of its rights, obligations and
agreements under the foregoing Agreement:
SAVVIS COMMUNICATIONS CORPORATION, a
Missouri Corporation
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and General Counsel
23
