EXHIBIT 10.11
MASTER ESTABLISHMENT AND TRANSITION AGREEMENT
BETWEEN
SAVVIS COMMUNICATIONS CORPORATION
AND
BRIDGE INFORMATION SYSTEMS, INC.
________________, 2000
TABLE OF CONTENTS
ARTICLE I.........................................................................................................1
1.1 "Acquired Network Facilities"..............................................................................2
1.2 "Adverse Consequences".....................................................................................2
1.3 "Assumed Liabilities"......................................................................................2
1.4 "Buyer Subsidiaries".......................................................................................2
1.5 "Code".....................................................................................................2
1.6 "Contracts"................................................................................................2
1.7 "Employee Benefit Plan"....................................................................................2
1.8 "ERISA"....................................................................................................3
1.9 "Impermissible Security Interest"..........................................................................3
1.10 "International Network Assets"............................................................................3
1.11 "IP Network"..............................................................................................3
1.12 "Lien"....................................................................................................3
1.13 "Local Transfer Agreements"...............................................................................3
1.14 "Retained Liabilities"....................................................................................3
1.15 "Seller Subsidiaries".....................................................................................4
1.16 "US Network Assets".......................................................................................4
1.17 "WARN Act"................................................................................................4
1.18 "Terms"...................................................................................................4
ARTICLE II........................................................................................................7
2.1 Purchase and Sale of Purchased Assets; Effective Time......................................................7
2.2 Assumption of Liabilities..................................................................................7
2.3 Purchase Price.............................................................................................7
2.4 The Closing................................................................................................8
2.5 Deliveries at the Closing..................................................................................8
2.6 Purchase Price Allocation and Adjustment...................................................................9
ARTICLE III.......................................................................................................9
3.1 Organization of Seller.....................................................................................9
3.2 Authorization of Transaction...............................................................................9
3.3 Noncontravention..........................................................................................10
3.4 Brokers'Fees..............................................................................................10
3.5 Purchased Assets; Assumed Liabilities.....................................................................10
3.6 Contracts.................................................................................................11
3.7 Employees.................................................................................................11
3.8 Disclaimer of Other Representations and Warranties........................................................11
ARTICLE IV.......................................................................................................12
4.1 Organization of the Buyer.................................................................................12
4.2 Authorization of Transaction..............................................................................12
4.3 Noncontravention..........................................................................................12
4.4 Brokers'Fees..............................................................................................13
ARTICLE V........................................................................................................13
5.1 Notices and Consents......................................................................................13
5.2 Call Right................................................................................................13
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5.3 Exercise of Call Right....................................................................................14
5.4 Seller's Obligation with Respect to Call Assets...........................................................14
5.5 Buyer's Obligations with Respect to Call Assets...........................................................15
5.6 Termination of Call Right.................................................................................16
5.7 Employee Services.........................................................................................16
5.8 Offers of Employment......................................................................................16
5.9 Employee Benefits.........................................................................................16
5.10 Access to Employee Information...........................................................................17
5.11 WARN Act Indemnification.................................................................................17
5.12 Workers'Compensation Claims..............................................................................17
5.13 Employee Benefit Plans...................................................................................18
5.14 Further Assurances.......................................................................................18
ARTICLE VI.......................................................................................................18
6.1 Survival of Representations and Warranties................................................................18
6.2 Indemnification Provisions for Benefit of the Buyer.......................................................18
6.3 Indemnification Provisions for Benefit of Seller..........................................................19
6.4 Matters Involving Third Parties...........................................................................19
6.5 Call Right Remedies.......................................................................................20
6.6 Exclusive Remedy..........................................................................................20
ARTICLE VII......................................................................................................20
7.1 No Third-party Beneficiaries..............................................................................20
7.2 Entire Agreement..........................................................................................20
7.3 Succession and Assignment.................................................................................21
7.4 Counterparts..............................................................................................21
7.5 Headings..................................................................................................21
7.6 Notices...................................................................................................21
7.6 Governing Law.............................................................................................22
7.7 Arbitration...............................................................................................22
7.8 Amendments and Waivers....................................................................................23
7.9 Severability..............................................................................................23
7.10 Expenses.................................................................................................23
7.11 Construction.............................................................................................23
7.12 Incorporation of Exhibits and Schedules..................................................................23
7.13 Bulk Transfer Laws.......................................................................................23
EXHIBIT A........................................................................................................25
EXHIBIT B........................................................................................................26
EXHIBIT C........................................................................................................54
EXHIBIT D........................................................................................................55
EXHIBIT E........................................................................................................56
EXHIBIT F........................................................................................................59
EXHIBIT G........................................................................................................72
EXHIBIT H........................................................................................................73
EXHIBIT J........................................................................................................81
EXHIBIT K........................................................................................................84
EXHIBIT L.......................................................................................................115
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SCHEDULE 1.3....................................................................................................186
SCHEDULE 1.10...................................................................................................187
SCHEDULE 1.16...................................................................................................188
SCHEDULE 2.3....................................................................................................189
SCHEDULE 3.3....................................................................................................190
SCHEDULE 3.5(A).................................................................................................191
SCHEDULE 3.6....................................................................................................192
SCHEDULE 3.7....................................................................................................193
SCHEDULE 5.1....................................................................................................194
SCHEDULE 5.2(A).................................................................................................195
SCHEDULE 5.2(B).................................................................................................196
SCHEDULE 5.5....................................................................................................197
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1. MASTER ESTABLISHMENT AND TRANSITION AGREEMENT
This Master Establishment and Transition Agreement
("Agreement"), made this ____ day of __________, 2000, by and between SAVVIS
Communications Corporation, a Delaware corporation ("Buyer"), and Bridge
Information Systems, Inc., a Missouri corporation ("Seller"). Buyer and Seller
are referred to collectively herein as the "parties."
RECITALS
WHEREAS, Seller is engaged in the business of collecting and
distributing various financial, news and other data;
WHEREAS, Buyer is engaged in the business of providing
Internet protocol backbone and other data transport services;
WHEREAS, Seller and its subsidiaries own certain assets
relating to the provision of Internet protocol backbone and other data transport
services, such assets consisting of (i) all of the equity interest (the
"Interest") in Seller's wholly-owned subsidiary, Global Network Assets, LLC, a
Delaware limited liability company (the "LLC"), and (ii) the International
Network Assets (defined below);
WHEREAS, Seller does not own outright but instead leases a
substantial portion of the US based assets comprising its Internet protocol
backbone ("Leased Assets"); and
WHEREAS, Seller and certain of its subsidiaries desire to
sell, and Buyer and certain of its subsidiaries desire to purchase, (i) the
Interest, (ii) the International Network Assets and (iii) the Call Assets
(collectively, such acquired assets are referred to herein as the "Purchased
Assets"; provided, however, that Call Assets first shall be added to the
Purchased Assets as they are acquired by Buyer and certain of its subsidiaries
under a Call Asset Transfer Agreement).
NOW, THEREFORE, in consideration of the premises and the
mutual promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the parties agree as follows.
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined terms shall include
the plural as well as the singular. Unless otherwise stated, the words "herein",
"hereunder" and other similar words refer to this Agreement as a whole and not
to a particular Section or other subdivision. The words "included" and
"including" shall not be construed as terms of limitation. The following terms
shall have the meanings set forth below:
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1.1 "Acquired Network Facilities" means the US Network Assets,
the International Network Assets and the Call Assets; provided, however that the
Call Assets are included only to the extent acquired by Buyer and Buyer's
subsidiaries pursuant to this Agreement and the Call Asset Transfer Agreements.
1.2 "Adverse Consequences" means all actions, suits,
proceedings, hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues, penalties,
fines, costs, reasonable amounts paid in settlement, liabilities, obligations,
taxes, liens, losses, expenses, and fees, including court costs and reasonable
attorneys' fees and expenses.
1.3 "Assumed Liabilities" means all liabilities and
obligations of Seller and the Seller Subsidiaries (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due) fulfilling both of the following requirements:
(a) which are directly associated with (i) the Purchased
Assets, (ii) the use of the IP Network, (iii) the Contracts, or (iv) those
matters set forth on Schedule 1.3 attached hereto; and
(b) which are not Retained Liabilities.
1.4 "Buyer Subsidiaries" means the direct and indirect
subsidiaries of the Buyer which will be involved in the operation or ownership
of the Acquired Network Facilities, including those subsidiaries purchasing (i)
certain of the International Network Assets pursuant to the Local Transfer
Agreements and (ii) certain of the Call Assets pursuant to the Call Asset
Transfer Agreements.
1.5 "Code" means the Internal Revenue Code of 1986, as
amended.
1.6 "Contracts" means any and all contracts, agreements,
arrangements, leases, understandings, purchase orders, and offers, written or
oral, of the Seller and the Seller Subsidiaries relating to the provision of the
IP Network and related data transport services, together with certain agreements
being entered into by Buyer or Buyer Subsidiaries on or around the Closing Date
in substitution for certain contracts of Seller or Seller Subsidiaries,
including without limitation the agreements set forth on Schedule 3.6 attached
hereto; provided, however, such obligations and other agreements concerning Call
Jurisdictions or with respect to the Satellite Rights shall first become
"Contracts" upon exercise of the respective Call Right.
1.7 "Employee Benefit Plan" means all "employee benefit plans"
as such term is defined in Section 3(3) of ERISA and all stock option,
restricted stock, stock appreciation or other equity plans and all bonus,
severance, change in control, retention, deferred compensation or other
compensatory plans maintained or contributed to by the Seller in which any
Employee participates, in addition to all documents describing Seller's
employment policies and procedures.
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1.8 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
1.9 "Impermissible Security Interest" means any Lien, other
than (a) mechanic's, materialmen's, and similar liens, (b) liens for taxes not
yet due and payable or for taxes that the taxpayer is contesting in good faith
through appropriate proceedings, (c) purchase money liens and liens securing
rental payments under capital lease arrangements, and (d) other liens arising in
the ordinary course of business and not incurred in connection with the
borrowing of money.
1.10 "International Network Assets" means the IP Network
assets, with the exception of the Call Assets, that are located outside the
United States as set forth on Schedule 1.10 attached hereto and all rights of
the Seller and the Seller Subsidiaries under Contracts relating thereto.
1.11 "IP Network" means the switches, routers, circuit
contracts, satellite facilities and other assets specifically described on
Schedule 1.11 to the extent used by the Seller and its subsidiaries primarily in
providing telecommunications utilizing the Internet protocol between Seller and
its subsidiaries, and their suppliers and customers.
1.12 "Lien" means any lien, security interest, mortgage,
option, lease, tenancy, occupancy, covenant, condition, easement, agreement,
pledge, hypothecation, charge, claim, restriction, or other encumbrance of every
kind and nature.
1.13 "Local Transfer Agreements" means the various transfer
agreements, including local contracts of assignment and assumption ("Local
Contracts of Assignment"), local asset transfer agreements ("Local Asset
Transfer Agreements") and the stock purchase agreement in Japan ("Japanese Stock
Purchase Agreement") executed by the direct and indirect subsidiaries of the
Seller and of the Buyer involved in this transaction to effectuate the transfer
of the International Network Assets. Each such agreement shall be substantially
in the form of Exhibit E, Exhibit F, Exhibit A to the foregoing Exhibit F, or
Exhibit L attached hereto and incorporated herein by reference.
1.14 "Retained Liabilities" means liabilities which result
from or arise out of the ownership or operation of the IP Network prior to the
Effective Time, including liabilities which exist with respect to (i)
obligations under the Contracts, other than an obligation to make payment, which
are required to be fulfilled by Seller wholly prior to Closing, or (ii)
obligations to make payment, to the extent such payment is for services rendered
under the Contracts prior to Closing. Provided, further, that the liabilities
resulting from or arising out of the ownership or operation of the IP Network in
the Call Jurisdictions shall be included in the definition of the Retained
Liabilities until the Call Right is exercised, and such liabilities shall remain
the responsibility of the Seller and/or the appropriate Seller Subsidiaries to
the extent they result from or arise out of the ownership or operation of the IP
Network in such countries prior to the effective date under each respective Call
Asset Transfer Agreement.
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1.15 "Seller Subsidiaries" means the LLC, until the Interest
is acquired hereunder by Buyer, and all other direct and indirect subsidiaries
of the Seller involved in the operation or ownership of the IP Network,
including those subsidiaries selling the International Network Assets pursuant
to the Local Transfer Agreements and those subsidiaries selling certain of the
Call Assets at the time of any subsequent Call Right exercise and related
transfers effected by the "Call Asset Transfer Agreements" in the form attached
as Exhibit J, as well as certain other subsidiaries entering into other Local
Operative Agreements, but does not include Buyer or any entity directly or
indirectly owned by Buyer.
1.16 "US Network Assets" means the assets owned by the LLC and
the Leased Assets, all as set forth on Schedule 1.16 attached hereto and all
rights of the Seller and the Seller Subsidiaries under Contracts relating
thereto.
1.17 "WARN Act" means the Workers Adjustment and Retraining
Notification Act of 1988, as amended.
1.18 "Terms". The following terms shall have the meanings set
forth in the below referenced sections of this Agreement:
"Arbitration Costs" Section 7.7(f)
"Arbitration Demand" Section 7.7(b)
"Arbitrators" Section 7.7(c)
"Bridge Plan" Section 5.9(a)
"Buyer" Preface
"Call Asset Transfer Agreements" Section 1.15
"Call Assets" Section 5.2
"Call Jurisdictions" Section 5.2(a)
"Call Right" Section 5.2
"Closing" Section 2.4
"Closing Date" Section 2.4
"Dispute Notice" Section 7.7(b)
"Employees" Section 3.7
"Employment Date" Section 5.8(a)
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"Expiration Date" Section 5.2
"Effective Time" Section 2.1
"Global Operative Agreements" Section 2.5(a)
"Indemnified Party" Section 6.4
"Indemnifying Party" Section 6.4
"Interest" Recitals
"Japanese Stock Purchase Agreement" Section 1.13
"Leased Assets" Recitals
"LLC" Recitals
"Local Asset Transfer Agreements" Section 1.13
"Local Network Services Agreement" Section 2.5(b)
"Local Contracts of Assignment" Section 1.13
"Local Operative Agreements" Section 2.5(b)
"Note" Section 2.3
"Original Asset Value" Section 2.6(a)
"Public Offering Proceeds" Section 2.3
"Purchase Price" Section 2.3
"Purchased Assets" Recitals
"Revised Asset Value" Section 2.6(b)
"Rules" Section 7.7(a)
"Satellite Rights" Section 5.2(b)
"Savvis Plan" Section 5.9(a)
"Seller" Preface
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"Short-Term Call Assets" Section 5.5
"Sublease" Section 2.5
"Third Party Claim" Section 6.4
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ARTICLE II
PURCHASE & SALE
2.1 Purchase and Sale of Purchased Assets; Effective Time. On
and subject to the terms and conditions of this Agreement, the Buyer hereby
purchases from Seller (or shall cause the Buyer Subsidiaries to purchase from
the appropriate Seller Subsidiaries), and Seller hereby sells, transfers,
conveys, and delivers to the Buyer (or shall cause the Seller Subsidiaries to
sell, transfer, convey and deliver to the appropriate Buyer Subsidiaries), all
of the Purchased Assets at the Closing for the consideration specified in
Section 2.3 hereof. The Closing shall be effective as of the close of business
on _____________________________, 2000 ("Effective Time"); provided, however,
that the "Effective Time" with respect to any Call Assets shall be as provided
in the respective Call Asset Transfer Agreement.
2.2 Assumption of Liabilities.
(a) On and subject to the terms and conditions of this
Agreement, the Buyer hereby assumes and becomes responsible for (or shall cause
the Buyer Subsidiaries to assume and become responsible for) all of the Assumed
Liabilities.
(b) To the extent that Seller or any of the Seller
Subsidiaries makes payment on any Assumed Liabilities which are comprised of
undisputed liabilities for payment of services received under the Contracts,
then Buyer or a Buyer Subsidiary shall reimburse Seller for such payment
promptly upon receipt of an appropriate invoice from Seller. Likewise, to the
extent that Buyer or any of the Buyer Subsidiaries makes payment on any Retained
Liabilities which are comprised of undisputed liabilities under the Contracts
for payment of services received under the Contracts, then Seller or a Seller
Subsidiary shall reimburse Buyer for such payment promptly upon receipt of an
appropriate invoice from Buyer.
2.3 Purchase Price. The Buyer agrees to pay to the Seller $
________, which shall be an amount equal to $150,000,000 less the net book value
of all the Call Assets and less the net present value of the sublease payments
to be made by Buyer related to the Leased Assets, both of which amounts will be
determined by the parties at Closing (the "Purchase Price"). The Purchase Price
allocable to the Interest shall be paid partially with cash and partially with a
promissory note (the "Note") substantially in the form attached hereto as
Exhibit I. The cash portion of the Purchase Price is intended to be paid from
the net proceeds of the initial public offering by Buyer of its shares, after
payment of all costs and expenses of such offering including fees and expenses
of legal counsel, investment bankers, accountants and other professionals
directly engaged in connection with such public offering, which public offering
is being made simultaneously with the Closing ("Public Offering Proceeds"). The
cash portion of the Purchase Price shall be equal to an amount determined
according to the following formula: One Hundred Million Dollars ($100,000,000)
of the first Three Hundred Million Dollars ($300,000,000) of Public Offering
Proceeds and 50% of the remaining Public Offering Proceeds in excess of Three
Hundred Million ($300,000,000), up to the full payment of the Purchase Price in
cash. The principal amount of the Note shall be the Purchase Price less this
cash payment. The Purchase Price allocable to the International Network Assets
shall be allocated first from this cash amount.
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The cash portion of the Purchase Price shall be paid by the legal entities set
forth on Schedule 2.3, or as otherwise agreed by the parties.
2.4 The Closing. The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Xxxxx Xxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, commencing at 10:00 a.m.
local time on such date as the Parties may agree ("Closing Date").
2.5 Deliveries at the Closing. The Parties shall make the
following deliveries at Closing:
(a) The Seller shall execute and deliver to Buyer and the
Buyer shall cause Savvis Communications Corporation, a Missouri corporation and
Buyer's wholly-owned subsidiary, to execute and deliver to Seller each of the
following agreements: (i) the Network Services Agreement substantially in the
form of Exhibit A attached hereto, (ii) the Administrative Services Agreement
substantially in the form of Exhibit B attached hereto, (iii) the Technical
Services Agreement substantially in the form of Exhibit C attached hereto and
(iv) the Xxxx of Sale substantially in the form of Exhibit D attached hereto
(collectively, the agreements listed in (a)(i) through (a)(iv) are sometimes
referred to herein as the "Global Operative Agreements").
(b) The Seller shall cause the appropriate Seller Subsidiaries
to execute and deliver, and Buyer shall cause the appropriate Buyer Subsidiaries
to execute and deliver each of the following agreements: (i) the Local Contracts
of Assignment substantially in the form of Exhibit E attached hereto, (ii) the
Local Asset Transfer Agreements substantially in the form of Exhibit F attached
hereto, (iii) the Local Network Services Agreements substantially in the form of
Exhibit G attached hereto ("Local Network Services Agreement"), (iv) the
Equipment Collocation Permits substantially in the form of Exhibit H attached
hereto, (v) the Local Administrative Services Agreements attached as Exhibit A
to the Administrative Services Agreement, which is Exhibit B to this Agreement,
(vi) the sublease for the Leased Assets (the "Sublease") substantially in the
form of Exhibit K attached hereto, (vii) the Japanese Stock Purchase Agreement
substantially in the form of Exhibit L attached hereto, and (viii) the Telerate
Network Services Agreement substantially in the form of Exhibit B to the Network
Services Agreement, which is Exhibit A to this Agreement (collectively, the
agreements listed in (b)(i) through (b)(viii) are sometimes referred to herein
as the "Local Operative Agreements").
(c) Seller and the Seller Subsidiaries shall have delivered to
the Buyer satisfactory evidence of consent of Xxxxxxx Xxxxx and the participants
in Seller's lenders group, consent to sublease of the Leased Assets, and such
other consents to assignment of the Contracts (as described in Section 5.1
hereof) and attainment of governmental approvals as Seller and the Seller
Subsidiaries shall have received as of the date hereof. To the extent Seller and
the Seller Subsidiaries shall not have received such consents or governmental
approvals, the rights and obligations of the parties with respect thereto shall
be governed by Section 5.1 hereof.
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(d) The Buyer will deliver to the Seller, or Buyer will cause
the Buyer Subsidiaries to deliver to the Seller Subsidiaries, the Purchase Price
as specified in Section 2.3 above.
2.6 Purchase Price Allocation and Adjustment.
(a) Subject to adjustment as provided in Section 2.6(b), the
Purchase Price shall be allocated among the Purchased Assets as follows: The
Purchase Price allocable to the International Network Assets shall be equal to
the sum of the agreed upon value of such assets, as set forth on Schedule 1.10
("Original Asset Value"). The Purchase Price allocable to the Interest shall be
equal to the difference between the Purchase Price and the Original Value. The
Parties believe that the allocations in this Section 2.6(a) reflect that most of
the fair value of the Purchased Assets is contained in the assets of the LLC
because of the positive cash flows generated by the US Network Assets.
(b) Within fifteen days after the Closing, Seller shall update
Schedule 1.10 and Schedule 1.17 attached hereto to include all US Network Assets
and all International Network Assets owned by Seller and the Seller Subsidiaries
as of the Effective Time. If the sum of the agreed upon value of the
International Network Assets shown on such revised Schedule 1.10 (the "Revised
Asset Value") exceeds the Original Asset Value, then the amount of the Purchase
Price allocable to the International Network Assets pursuant to Section 2.6(a)
above shall be increased, dollar for dollar, by such excess and the amount of
the Purchase Price allocable to the Interest shall be decreased by such excess.
Likewise, if the Revised Asset Value is less than the Original Asset Value, then
the amount of the Purchase Price allocable to the International Network Assets
pursuant to Section 2.6(a) above shall be decreased, dollar for dollar, by such
amount and the amount of the Purchase Price allocable to the Interest shall be
increased by such amount. In either event, Seller shall redistribute the cash
portion of the Purchase Price paid by the Buyer hereunder such that the Seller
Subsidiaries are compensated for the sale of International Network Assets
entirely in cash. In the event sufficient cash is not available in the Purchase
Price for this purpose, then the deficit shall be funded by means of an early
prepayment under the Note.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to the Buyer that the
statements contained in this Article III are correct and complete as of the date
of this Agreement.
3.1 Organization of Seller. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Missouri. Each of the Seller Subsidiaries is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction in which such
entity was organized.
3.2 Authorization of Transaction. Seller has full corporate
power and authority to execute and deliver this Agreement and the Global
Operative Agreements and to perform its obligations hereunder and thereunder.
Each of this Agreement and the Global
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Operative Agreements constitutes the valid and legally binding obligation of the
Seller, enforceable in accordance with its terms and conditions. Each of the
Seller Subsidiaries has full corporate power and authority to execute and
deliver the respective Local Operative Agreements and to perform its obligations
thereunder. The respective Local Operative Agreements constitute the valid and
legally binding obligation of each of the Seller Subsidiaries, enforceable in
accordance with their terms and conditions.
3.3 Noncontravention. Neither the execution and the delivery
of this Agreement and the consummation of the transactions contemplated hereby
by the Seller, nor the execution and delivery of the Global and Local Operative
Agreements and the consummation of the transactions contemplated thereby by the
Seller and by each of the Seller Subsidiaries will:
(a) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Seller or the Seller
Subsidiaries, as the case may be, is subject or any provision of the charter or
bylaws of the Seller or the Seller Subsidiaries, as the case may be,
(b) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Seller or the Seller Subsidiaries, as the case may be, is a party or by
which they are bound or to which any of the Purchased Assets or US Network
Assets are subject; or
(c) require Seller to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any third party,
government or governmental agency.
Provided, however, that the foregoing representation and warranty in this
Section 3.3 shall not apply to the extent:
(y) as set forth on Schedule 3.3, or
(z) as would not result in the imposition of any Impermissible
Security Interest upon any of the International Network Assets or the US Network
Assets, and where any violation, conflict, breach, default, acceleration,
termination, modification, cancellation or failure to give notice would not have
a material adverse effect on the value or use of the International Network
Assets or the US Network Assets, or on the amount of the Assumed Liabilities, or
on the ability of the parties to consummate the transactions contemplated by
this Agreement or the Global Operative Agreements, or the ability of the
parties' affiliates to consummate the transactions contemplated by the Local
Operative Agreements to the extent these are executed and delivered at Closing.
3.4 Brokers' Fees. Seller has no liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could become
liable or obligated.
3.5 Purchased Assets; Assumed Liabilities.
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(a) Except as set forth on Schedule 3.5(a), the International
Network Assets, the US Network Assets and the Call Assets constitute all of the
material assets of the Seller and the Seller Subsidiaries used in the IP
Network.
(b) Each of the respective Seller and Seller Subsidiaries has
good title to, or a valid leasehold interest in, the Purchased Assets and the US
Network Assets, free and clear of all Impermissible Security Interests, and
there exists no restriction on the transfer of such property, other than
Impermissible Security Interests or restrictions which would not, in the
aggregate, have a material adverse affect on the ability of the parties to
consummate the transactions contemplated by this Agreement, the Global Operative
Agreements or the Local Operative Agreements or on the value or use of the
International Network Assets or the US Network Assets.
(c) Other than (i) the Assumed Liabilities incurred by Seller
and Seller Subsidiaries in the ordinary course of business after December 31,
1999, (ii) the Contracts, and (iii) the Assumed Liabilities listed on Schedule
1.3, there are no Assumed Liabilities which are material to the business
comprised of the Acquired Network Facilities, taken as a whole.
3.6 Contracts. Each of the Contracts material to the operation
and use of the US Network Assets and the International Network Assets, taken as
a whole, is set forth on Schedule 3.6 and is a valid and binding obligation of
the parties thereto, enforceable in accordance with their terms and is in full
force and effect. No party to any such contract is in material breach or
violation thereof or default thereunder. Except for matters which would not, in
the aggregate, have a material adverse effect on the value or use of the
International Network Assets or the US Network Assets, or on the amount of the
Assumed Liabilities, taken as a whole, no event has occurred which, through the
passage of time or the giving of notice, or both, would constitute, and neither
the execution of this Agreement nor the consummation of the transactions
contemplated hereby do or will constitute or result in, a breach or violation of
or default under any contract, or would cause the acceleration of any obligation
of any party thereto or the creation of any Impermissible Security Interest upon
any US Network Assets or International Network Assets.
3.7 Employees. Schedule 3.7 sets forth the names of all
employees of the Seller who have been released by Seller or Seller Subsidiaries
for transfer to the Buyer as of January 1, 2000 (the "Employees").
3.8 Disclaimer of Other Representations and Warranties EXCEPT
AS EXPRESSLY SET FORTH IN THIS ARTICLE III, NEITHER THE SELLER NOR ANY OF THE
SELLER SUBSIDIARIES MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT
LAW OR IN EQUITY, IN RESPECT OF ANY OF ITS ASSETS (INCLUDING, WITHOUT
LIMITATION, THE PURCHASED ASSETS), LIABILITIES OR OPERATIONS, INCLUDING, WITHOUT
LIMITATION, WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY
DISCLAIMED. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE EXTENT
SPECIFICALLY SET FORTH IN THIS ARTICLE III, THE BUYER AND EACH BUYER SUBSIDIARY
IS PURCHASING THE PURCHASED ASSETS
11
ON AN "AS-IS, WHERE-IS" BASIS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
NEITHER THE SELLER NOR THE SELLER SUBSIDIARIES MAKES ANY REPRESENTATION OR
WARRANTY REGARDING ANY ASSETS OTHER THAN THE ACQUIRED NETWORK FACILITIES AND THE
INTEREST AND SELLER AND SELLER SUBSIDIARIES EXPRESSLY HEREBY DISCLAIM ANY
REPRESENTATIONS OR WARRANTIES REGARDING THE CALL ASSETS PRIOR TO SUCH ASSETS
BEING ACQUIRED BY BUYER OR BUYER SUBSIDIARIES HEREUNDER OR REGARDING ANY
LIABILITIES OTHER THAN THE ASSUMED LIABILITIES, AND NONE SHALL BE IMPLIED AT LAW
OR IN EQUITY.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller that the
statements contained in this Article IV are correct and complete as of the date
of this Agreement.
4.1 Organization of the Buyer. The Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware. Each of the Buyer Subsidiaries is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction in which such
entity was organized.
4.2 Authorization of Transaction. The Buyer has full corporate
power and authority to execute and deliver this Agreement and the Global
Operative Agreements and to perform its obligations hereunder and thereunder.
Each of this Agreement and the Global Operative Agreements constitutes the valid
and legally binding obligation of the Buyer, enforceable in accordance with its
terms and conditions. Each of the Buyer Subsidiaries has full corporate power
and authority to execute and deliver the respective Local Operative Agreements
and to perform its obligations thereunder. The respective Local Operative
Agreements constitute the valid and legally binding obligation of each of the
Buyer Subsidiaries, enforceable in accordance with their terms and conditions.
4.3 Noncontravention. Except as would not have a material
adverse effect on ability of the parties to consummate the transactions
contemplated by this Agreement or the Global Operative Agreements or the ability
of the parties' affiliates to consummate the transactions contemplated by the
Local Operative Agreements, neither the execution and the delivery of this
Agreement and the consummation of the transactions contemplated hereby by the
Buyer, nor the execution and delivery of the Global and Local Operative
Agreements and the consummation of the transactions contemplated thereby by the
Buyer and by each of the Buyer Subsidiaries will:
(a) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Buyer or the Buyer
Subsidiaries, as the case may be, is subject or any provision of the charter or
bylaws of the Buyer of the Buyer Subsidiaries, as the case may be;
(b) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require
12
any notice under any agreement, contract, lease, license, instrument, or other
arrangement to which the Buyer or the Buyer Subsidiaries, as the case may be, is
a party or by which they are bound; or
(c) require Buyer to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government or
governmental agency.
4.4 Brokers' Fees. The Buyer has no liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Seller could become
liable or obligated.
ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS OF THE PARTIES
5.1 Notices and Consents. Except as set forth on Schedule 5.1
attached hereto, the Seller has given and obtained (or caused the Seller
Subsidiaries to give or obtain) all third-party notices and consents and
governmental approvals necessary to effect the purchase of the Purchased Assets
and the assignment, to the extent a replacement contract has not been executed,
of the Contracts and the assumption of the Assumed Liabilities hereunder. With
respect to any third party notices or consents or governmental approvals that
have not been given or obtained as of the date hereof, Seller covenants and
agrees to use its reasonable best efforts to give or obtain (or cause the Seller
Subsidiaries to give or obtain) the same. The Buyer agrees to fully cooperate
with (and cause the Buyer Subsidiaries to fully cooperate with) the Seller and
the Seller Subsidiaries in such efforts. Until such time as Seller or the Seller
Subsidiaries shall have obtained all necessary third party consents to
assignment by Buyer or the Buyer Subsidiaries of the Contracts and the
assumption by the Buyer or the Buyer Subsidiaries of the Assumed Liabilities,
Seller shall continue (or shall cause the Seller Subsidiaries to continue) to
discharge and perform when due all obligations associated therewith, and Buyer
shall reimburse Seller for any expenses directly attributable thereto.
5.2 Call Right. Seller, for itself and the Seller
Subsidiaries, hereby grants to Buyer and the Buyer Subsidiaries the right to
purchase (the "Call Right") the following assets ("Call Assets"):
(a) in each of the jurisdictions set forth on Schedule 5.2(a)
hereof and such other jurisdictions as Buyer and Seller may, from time to time,
mutually agree (the "Call Jurisdictions"), all of the IP Network assets owned by
the Seller and/or the Seller Subsidiaries in each Call Jurisdiction, including
those assets set forth in Schedule 5.2(a), subject to additions and deletions
subsequent to the Closing permitted under the terms of this Agreement, and all
contract rights associated therewith; provided, for the purpose of
clarification, that telecommunications circuits to destinations in any Call
Jurisdiction, but originating outside of such Call Jurisdiction, shall not be
Call Assets and instead shall be included in the Acquired Network Facilities
transferred hereunder at the initial Closing; and
(b) all the rights and obligations with respect to the
satellite communications agreements and all rights and obligations in specific
countries with respect thereto, as described
13
in Schedule 5.2(b), subject to additions and deletions subsequent to the Closing
permitted under the terms of this Agreement, (the "Satellite Rights").
Unless earlier terminated pursuant to Section 5.6 hereunder, the Call Right
granted hereunder shall expire on the tenth anniversary of the date hereof
("Expiration Date"); provided, however, that if the term of the Network Services
Agreement is extended beyond the Expiration Date, then the Expiration Date shall
be the date upon which the Network Services Agreement, attached as Exhibit A
hereto, is terminated. Upon the exercise of the Call Right in any Call
Jurisdiction or with respect to the Satellite Rights, Buyer shall assume all
liabilities and obligations of the Seller and/or the Seller Subsidiaries related
to the respective Call Assets to the extent that such liabilities arise on or
after the date of exercise.
5.3 Exercise of Call Right. Buyer shall use its reasonable
best efforts, from and after the Closing, to secure the consents, licenses, and
other authorizations, whether from governments or private parties, and to
establish such foreign legal presence and to fulfill such other conditions, as
are necessary in order to permit Buyer to acquire the Call Assets; provided,
however, that this obligation shall not require that Buyer permit third parties
to own a portion of any subsidiaries of Buyer unless Buyer otherwise agrees to
such ownership. Prior to the receipt of all such material consents, licenses,
and authorizations and the establishment of any necessary foreign presence,
Buyer shall not be obligated to exercise the Call Right with respect to any or
all of the Call Jurisdictions or with respect to the Satellite Rights, nor shall
Buyer be obligated to exercise all the Call Rights at one time; rather, Buyer
may exercise the Call Right in each Call Jurisdiction and with respect to the
Satellite Rights separately, from time to time, and at any time prior to the
Expiration Date subject to the immediately following provision. Upon the receipt
of all material consents, licenses and authorizations and the establishment of
any necessary foreign presence in any Call Jurisdiction or with respect to all
the Satellite Rights connected with a particular third-party satellite contract,
Buyer shall be obligated to proceed expeditiously with the exercise of the Call
Right with respect to such Call Jurisdiction or Satellite Rights. The exercise
price of the Call Right, other than with respect to Satellite Rights, in each
Call Jurisdiction shall be $1.00 plus the net book value of the Call Assets in
the applicable Call Jurisdiction(s) on the date of exercise of the Call Right
for such Call Jurisdiction. The exercise of the Call Right with respect to the
Satellite Rights shall only be permitted if made with respect to all Satellite
Rights under a particular global satellite contract as set forth on Schedule
5.2(b), and the exercise price shall be $1 plus the assumption of all
obligations of Seller with respect to such contract. The Call Assets shall be
transferred via a Call Asset Transfer Agreement in substantially the form
attached as Exhibit J hereto. Upon the exercise of a Call Right, a Local Network
Services Agreement for the respective Call Jurisdiction substantially in the
form of Exhibit G attached hereto will be executed by the appropriate Seller
Subsidiaries and Buyer Subsidiaries.
5.4 Seller's Obligation with Respect to Call Assets. Until the
earliest of (a) the Expiration Date, (b) the date upon which no Call Assets
remain subject to the Call Right, or (c) the Call Right is terminated pursuant
to Section 5.6, and subject at all times to the rights and obligations set forth
in the Network Services Agreement executed between the parties as of the same
date as the date of this Agreement:
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(a) Seller shall maintain and operate (or cause the Seller
Subsidiaries to maintain and operate) the Call Assets in the same manner and to
the same extent as Seller and the Seller Subsidiaries, as the case may be, have
maintained such assets to date. Seller shall take (and shall cause the Seller
Subsidiaries to take) any and all actions reasonably necessary to fulfill its
obligations hereunder;
(b) Seller shall not (nor shall it permit the Seller
Subsidiaries to) dispose of, encumber or otherwise transfer any interest in, or
amend, waive or modify any provision of or terminate any Contract relating to,
the Call Assets without the prior written consent of Buyer which consent shall
not be unreasonably withheld; provided, "unreasonable" shall be determined from
the perspective of Buyer and shall include all actions which may have a material
adverse effect if Buyer were to exercise the related Call Right;
(c) Seller shall provide (and shall cause the Seller
Subsidiaries to provide) Buyer with notice of any events that have, or may have,
a material adverse effect on the Call Assets or on Buyer's right or ability to
exercise the Call Right with respect to any of the Call Assets;
(d) If Buyer chooses to exercise any Call Right prior to the
receipt of all consents, licenses and other authorizations or establishment of
the appropriate foreign legal presence, it does so with the assumption of all
risk or other liability arising from such absence of necessary consents, license
or other authorizations or legal presence. Upon exercise of any Call Right,
Seller shall use its reasonable best efforts to obtain any required consent of
any other contracting parties to the assignment or novation of any agreement
pertaining to the applicable Call Assets, and Buyer shall use its reasonable
best efforts to assist Seller in all such endeavors. Unless and until such
consent shall be forthcoming and any relevant agreements shall have been
assigned or novated, Buyer shall at its own cost and expense assume Seller's
obligations under such agreements and Seller shall account to Buyer for all sums
received therefrom. Seller will at Buyer's request and expense give to Buyer all
assistance in the power of Seller to enable Buyer to enforce any of the
agreements so assigned against the other contracting party or parties and,
without prejudice to the generality of the foregoing, will provide all such
relevant books, documents and other information as Buyer may require in relation
thereto; and
(e) Buyer shall have no rights to use the Call Assets prior to
exercise of the Call Rights, except as otherwise consented to by Seller, such
consent not to be unreasonably withheld.
5.5 Buyer's Obligations with Respect to Call Assets. With
respect to those Call Assets in the Call Jurisdictions set forth on Schedule 5.5
("Short-Term Call Assets"), Buyer and Seller expect the exercise of the Call
Right to occur within the calendar year 2000. Regardless if such exercise
actually occurs in 2000, with respect to the Short-Term Call Assets, Buyer or
the Buyer Subsidiaries shall reimburse the Seller or the Seller Subsidiaries for
all costs requiring an expenditure of cash which are directly associated with
the use, maintenance and operation of the Short-Term Call Assets, including, but
not limited to, maintenance of leased lines. Seller shall invoice Buyer monthly
for such costs. Likewise, Seller shall compensate Buyer for the use of the
Short-Term Call Assets pursuant to such Network Services Agreement
15
executed between the parties as of the same date as the date of this Agreement.
Such obligations of Buyer and Seller shall run concurrently and shall continue
until the Expiration Date, unless earlier terminated by mutual agreement of
Buyer and Seller. No similar obligations will exist for Buyer or Seller with
respect to the remaining Call Assets prior to the exercise of the Call Rights
with respect thereto.
5.6 Termination of Call Right. The Call Right shall terminate
automatically on the earlier of the Expiration Date or the date upon which Buyer
has exercised the Call Right in each of the Call Jurisdictions. Prior to the
Expiration Date, at any time and from time to time, the Call Right may be
terminated with respect to any or all of the Call Jurisdictions upon the mutual
agreement of the parties.
5.7 Employee Services. From and after the Closing until such
time as the Employees are transferred to the Buyer pursuant to Section 5.8,
Seller shall make all of the Employees available to Buyer on a full-time basis.
Buyer shall reimburse Seller, on a monthly basis, for all payroll costs directly
associated with such Employees.
5.8 Offers of Employment.
(a) As of December 31, 1999, Buyer has offered employment with
the Buyer to the Employees, and Seller has released from their employment those
Employees who accepted employment with the Buyer to enable them to commence
their employment with the Buyer. Such Employees commenced employment with the
Buyer on January 1, 2000 (the "Employment Date").
(b) Seller shall furnish Buyer with all employee data files
related to the Employees. The Seller makes no representations or warranties
concerning such files, or the contents or sufficiency thereof.
5.9 Employee Benefits.
(a) Employees shall continue to participate in each Employee
Benefit Plan maintained by Seller until such time as Buyer establishes and
maintains a substantially similar Employee Benefit Plan; provided that, as of
the Employment Date, an Employee shall cease to be eligible to participate in
the Bridge Information Systems, Inc. 401(k) Salary Savings Plan ("Bridge Plan")
and shall be eligible to participate in the Savvis Communications Co. 401(k)
Plan ("Savvis Plan"), in accordance with the terms of Section 5.9(b) and subject
to the terms of the Savvis Plan. During the period in which Employees are
participating in Seller's Employee Benefit Plans, Buyer shall reimburse Seller
for any employer-paid amounts under such Employee Benefit Plans.
(b) As soon as practicable after the Employment Date, Seller
shall cause to be transferred from the Bridge Plan to the Savvis Plan all Bridge
Plan assets representing account balances of Employees under the Bridge Plan.
Buyer and Seller shall take all such actions as are necessary to ensure that
such transfer complies with all relevant provisions of Section 411(d)(6) of the
Code and the regulations thereunder. Buyer shall amend the Savvis Plan, to the
extent
16
necessary, to provide that each Employee is credited, for all purposes under the
Savvis Plan and subject to the other provisions of such plan, with all service
completed prior to the Employment Date with Seller.
(c) Buyer shall assume the obligations in connection with
accrued but unused vacation and shall be responsible for vacation pay at and
after the Employment Date with respect to service (whether prior to or after the
Employment Date) of all Employees. Buyer shall afford Employees credit for their
period of employment with Seller for purposes of determining the amount of
vacation to which the Employees are entitled each year and for purposes of
determining all other seniority based benefits.
(d) Buyer and Seller acknowledge and agree that the
transactions contemplated by this Agreement shall not constitute a termination
of employment of any Employee.
(e) No provision of this Agreement, including without
limitation this Section 5.9, shall create any third-party beneficiary rights in
any person or organization, including without limitation employees or former
employees (including any beneficiary or dependent thereof) of Seller, unions or
other representatives of such employees or former employees, or trustees,
administrators, participants, or beneficiaries of any Employee Benefit Plan, and
no provision of this Agreement, including this Section 5.9, shall create such
third-party beneficiary rights in any such person or organization in respect of
any benefits that may be provided, directly or indirectly, under any Employee
Benefit Plan.
(f) Seller and Buyer shall cooperate as may reasonably be
required with respect to each of the filings, calculations, and other actions
necessary to effect the transactions contemplated by this Section 5.9 and in
obtaining any government approvals as may be required hereunder.
5.10 Access to Employee Information. From and after the
Closing, the parties hereto will cooperate with each other in the administration
of any applicable Employee Benefit Plans and programs. To the extent permitted
by law, at the Employment Date or within a reasonable time thereafter, the
Seller will provide the Buyer the necessary employee data or copies thereof,
including personnel and benefit information, maintained with respect to the
Employees by the Seller or by its independent contractors, such as insurance
companies and actuaries.
5.11 WARN Act Indemnification. The Buyer agrees to indemnify
the Seller and its directors, officers, employees, consultants and agents for,
and to hold the Seller and its directors, officers, employees, consultants and
agents harmless from and against, any and all losses arising or resulting, or
alleged to arise or result from the notification or other requirements of the
WARN Act.
5.12 Workers' Compensation Claims. The Seller will be
responsible for any workers' compensation claims by any Employee for injuries
incurred prior to such Employee's Employment Date. The Buyer will be responsible
for any workers' compensation claims for injuries incurred by any Employee on or
after such Employee's Employment Date.
17
5.13 Employee Benefit Plans. Except as expressly provided in
this Article V, the Buyer will not adopt, assume or otherwise become responsible
for, either primarily or as a successor employer, any assets or liabilities of
any Employee Benefit Plans, arrangements, commitments or policies currently
provided by the Seller or by any member of its controlled group of corporations.
In addition, the Buyer will not assume Seller's obligations under Code Section
4980B and ERISA Section 606 relating to individuals who are neither Employees
nor dependents of Employees. Buyer shall be responsible for satisfying
obligations under ERISA Section 606 and Code Section 4980 to provide
continuation coverage to or with respect to any Employees with respect to any
"qualifying event" which occurs on or following the Employment Date.
5.14 Further Assurances. From and after Closing, the parties
shall do such acts and execute such documents and instruments as may be
reasonably required to make effective the transactions contemplated hereby. In
the event that consents, approvals, other authorizations or other acts
contemplated by this Agreement have not been fully effected as of Closing, the
parties will continue after Closing, without further consideration, to use their
reasonable best efforts to carry out such transactions; provided, however, in
the event that certain approvals, consents or other necessary documentation
cannot be secured, then the party having legal responsibility, ownership or
control shall act on behalf of the other party, without further consideration,
to effect the essential intention of the parties with respect to the
transactions contemplated by this Agreement.
ARTICLE VI
REMEDIES FOR BREACHES OF THIS AGREEMENT
6.1 Survival of Representations and Warranties. The
representations and warranties of the Seller contained in Article III of this
Agreement and of the Buyer contained in Article IV of this Agreement shall
survive for a period of one year following the Closing.
6.2 Indemnification Provisions for Benefit of the Buyer.
(a) Subject to the limitations set forth in Section 6.2(c)
below, in the event the Seller or any Seller Subsidiary breaches any of its
representations, warranties, and covenants contained in this Agreement, provided
that the Buyer makes a written claim for indemnification against the Seller with
respect to its representations and warranties within the survival period set
forth in Section 6.1, then the Seller agrees to indemnify the Buyer and the
Buyer Subsidiaries from and against the entirety of any Adverse Consequences the
Buyer and the Buyer Subsidiaries shall suffer through and after the date of the
claim for indemnification (but excluding any Adverse Consequences the Buyer or
the Buyer Subsidiaries shall suffer after the end of any applicable survival
period) caused proximately by the breach.
(b) Subject to the limitations set forth in Section 6.2(c)
below, Seller agrees to indemnify the Buyer and the Buyer Subsidiaries from and
against the entirety of any Adverse Consequences the Buyer and the Buyer
Subsidiaries shall suffer caused proximately by any
18
liability of the Seller or any Seller Subsidiary which is a Retained Liability
(including any liability of the Seller or any Seller Subsidiary that becomes a
liability of the Buyer or any Buyer Subsidiary under any bulk transfer law of
any jurisdiction, under any common law doctrine of de facto merger or successor
liability, or otherwise by operation of law).
(c) Notwithstanding anything to the contrary, (i) Seller shall
not have any liability under this Article VI in respect of any individual claim
(or group of related claims) unless such claim or group of related claims
exceeds $25,000, (ii) Seller shall not have any liability under this Article VI
except and only to the extent the aggregate of permitted claims exceeds a
deductible amount of $1,500,000, and (iii) Seller's aggregate liability under
this Article VI shall not exceed $150,000,000; provided, however, that the
foregoing limitations shall not apply to Seller's obligations under Section
2.2(b) and Section 6.2(d).
(d) Without limitation, Seller agrees to indemnify the Buyer
and the Buyer Subsidiaries from and against the entirety of any Adverse
Consequences the Buyer and the Buyer Subsidiaries shall suffer caused
proximately by any liability or obligation of the Seller or any Seller
Subsidiary which relates to data, information, or other content which has been,
or should have been, delivered by the Seller or any Seller Subsidiaries to Buyer
or any Buyer Subsidiaries for transmission over the IP Network.
6.3 Indemnification Provisions for Benefit of Seller.
(a) In the event the Buyer or any Buyer Subsidiary breaches
any of its representations, warranties, and covenants contained in this
Agreement, provided that the Seller makes a written claim for indemnification
against the Buyer within the survival period with respect to its representations
and warranties, then the Buyer agrees to indemnify the Seller and the Seller
Subsidiaries from and against the entirety of any Adverse Consequences the
Seller and the Seller Subsidiaries shall suffer through and after the date of
the claim for indemnification (but excluding any Adverse Consequences the Seller
and the Seller Subsidiaries shall suffer after the end of any applicable
survival period) caused proximately by the breach.
(b) Buyer agrees to indemnify the Seller and the Seller
Subsidiaries from and against the entirety of any Adverse Consequences the
Seller and the Seller Subsidiaries shall suffer caused proximately by any
liability of the Buyer or any Buyer Subsidiary which is an Assumed Liability.
6.4 Matters Involving Third Parties.
(a) If any third party shall notify any party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim") which
may give rise to a claim for indemnification against the other party (the
"Indemnifying Party") under this Article VI, then the Indemnified Party shall
promptly (and in any event, if the matter concerns a legal proceeding, within 15
business days after receiving notice of the Third Party Claim, and with respect
to any other matter, within 30 business days) notify the Indemnifying Party
thereof in writing.
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(b) The Indemnifying Party will have the right at any time to
assume and thereafter conduct the defense of the Third Party Claim with counsel
of its choice reasonably satisfactory to the Indemnified Party; provided,
however, that
(i) if the Third Party Claim falls within the scope
of the indemnification set forth in Section 6.2(d), then the
Indemnified Party shall have the right to refuse to accept such
assumption of defense by Indemnifying Party unless and until such time
as the Indemnifying Party shall provide to the Indemnified Party such
assurances of payment and performance of such indemnification
obligation as shall be reasonably satisfactory to the Indemnified
Party; and
(ii) the Indemnifying Party will not consent to the
entry of any judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably) unless the judgment or proposed
settlement involves only the payment of money damages and does not
impose an injunction or other equitable relief upon the Indemnified
Party.
(c) Unless and until the Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 6.4(b) above, however,
the Indemnified Party may defend against the Third Party Claim in any manner it
reasonably may deem appropriate, including, without limitation, consent to the
entry of any judgment or enter into any settlement with respect to the Third
Party Claim.
6.5 Call Right Remedies. The parties agree that the Call
Assets and the Call Right are unique interests and that, in the event of
Seller's breach of its obligations with respect to the Call Assets, monetary
damages will not fully compensate Buyer. Therefore, the parties agree that Buyer
shall have the remedies which are available to it for Seller's breach or
violation of any of the provisions of this Agreement relating to the Call
Assets, including, but not limited to, the equitable remedies for specific
performance and injunctive relief.
6.6 Exclusive Remedy. The Buyer and the Seller acknowledge and
agree that, subject to the other remedies granted to the Buyer in Section 6.5
hereof, the foregoing indemnification provisions in this Article VI shall be the
exclusive remedy of the Buyer and the Seller with respect to the transactions
contemplated by this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 No Third-party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the parties and their
respective successors and permitted assigns.
7.2 Entire Agreement This Agreement (including the documents
referred to herein) constitutes the entire agreement between the parties and
supersedes any prior
20
understandings, agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
7.3 Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be unreasonably withheld;
provided, however, Seller and Seller Subsidiaries shall have the right to grant
a security interest or mortgage with respect to, or make any assignment for
security purposes or pledge of, Seller's and Seller Subsidiaries' rights under
this Agreement and any of the Global Operative Agreements and the Local
Operative Agreements, to the extent required by the senior lending group of
Seller as a condition to granting the consent to the transaction contemplated
hereby.
7.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
7.5 Headings. The Section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
7.6 Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President and General Counsel
If to the Buyer: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General Counsel
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have
21
been duly given unless and until it actually is received by the intended
recipient. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
7.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of Missouri without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Missouri or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Missouri.
7.7 Arbitration.
(a) The parties hereby agree to submit all disputes to rules
of arbitration of the American Arbitration Association and the Missouri Uniform
Arbitration Act (the "Rules") under the following provisions, which shall be
final and binding upon the parties, their successors and assigns, and that the
following provisions constitute a binding arbitration clause under applicable
law. Either party may serve process or notice on the other in any arbitration or
litigation in accordance with the notice provisions hereof. The parties agree
not to disclose any information regarding any dispute or the conduct of any
arbitration hereunder, including the existence of such dispute or such
arbitration, to any person or entity other than such employees or
representatives of such party as have a need to know.
(b) Either party may commence proceedings hereunder by
delivery of written notice providing a reasonable description of the dispute to
the other, including a reference to this provision (the "Dispute Notice").
Either party may initiate arbitration of a dispute by delivery of a demand
therefor (the "Arbitration Demand") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice but at any time
thereafter. The arbitration shall be conducted in St. Louis, Missouri.
(c) The arbitration shall be conducted by three arbitrators
(the "Arbitrators"), one of whom shall be selected by Seller, one by Buyer, and
the third by agreement of the other two not later than 10 days after appointment
of the first two, or, failing such agreement, appointed pursuant to the Rules.
If an Arbitrator becomes unable to serve, a successor shall be selected or
appointed in the same manner in which the predecessor Arbitrator was appointed.
(d) The arbitration shall be conducted pursuant to such
procedures as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the foregoing, each party
shall have the right to inspect the books and records of the other party that
are reasonably related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all documents which such
party intends to present in such hearing and the names and addresses of all
witnesses whose testimony such party intends to present in such hearing.
(e) All hearings shall be conducted on an expedited schedule,
and all proceedings shall be confidential. Either party may at its expense make
a stenographic record thereof.
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(f) The Arbitrators shall complete all hearings not later than
90 calendar days after the Arbitrators' selection or appointment, and shall make
a final award not later than 30 calendar days thereafter. The Arbitrators shall
apportion all costs and expenses of the Arbitration, including the Arbitrators'
fees and expenses of experts ("Arbitration Costs") between the prevailing and
non-prevailing parties as the Arbitrators deem fair and reasonable. In
circumstances where a Dispute has been asserted or defended against on grounds
that the Arbitrators deem manifestly unreasonable, the Arbitrators may assess
all Arbitration Costs against the non-prevailing party and may include in the
award the prevailing party's attorneys' fees and expenses in connection with any
and all proceedings under this Section 7.7.
(g) Either party may assert appropriate statutes of limitation
as a defense in arbitration; provided, that upon delivery of a Dispute Notice
any such statute shall be tolled pending resolution hereunder.
7.8 Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
the Buyer and the Seller. No waiver by any party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
7.9 Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
7.10 Expenses. Each of the Seller and the Buyer will bear its
own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
7.11 Construction. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
7.12 Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
7.13 Bulk Transfer Laws. The Buyer acknowledges that the
Seller does not believe that the provisions of any bulk transfer laws of any
jurisdiction are applicable to this transaction and will not comply with any
such laws in connection with the transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SAVVIS COMMUNICATIONS CORPORATION
By: __________________________
Name: ________________________
Title: _________________________
BRIDGE INFORMATION SYSTEMS, INC.
By: __________________________
Name: ________________________
Title: _________________________
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EXHIBIT A
NETWORK SERVICES AGREEMENT
[This Exhibit A has been filed as a separate document]
25
EXHIBIT B
ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT (the "AGREEMENT") is effective
as of ______________, 2000 (the "EFFECTIVE DATE"), between SAVVIS Communications
Corporation, a Missouri corporation ("SAVVIS"), and Bridge Information Systems,
Inc., a Missouri corporation ("BRIDGE").
RECITALS
A. Bridge is engaged in the business of collecting and distributing
various financial, news and other data.
B. SAVVIS is engaged in the business of providing Internet backbone and
other data transport services.
C. SAVVIS and certain of its subsidiaries have acquired from Bridge and
certain of its subsidiaries certain assets relating to the provision of Internet
backbone and other data transport services, and may in the future acquire
additional such assets from Bridge and certain of its subsidiaries, all pursuant
to a Master Establishment and Transition Agreement between SAVVIS' corporate
parent, SAVVIS Communications Corporation, a Delaware Corporation, and Bridge,
of even date herewith (the "MASTER ESTABLISHMENT AND TRANSITION AGREEMENT").
D. It is an obligation of the parties under the Master Establishment
and Transition Agreement to cause this Administrative Services Agreement to be
entered into between SAVVIS and Bridge, pursuant to which Bridge shall provide
administrative services to SAVVIS relating to the assets acquired by SAVVIS
pursuant to the Master Establishment and Transition Agreement.
E. Together with this Agreement, the parties hereto are entering into a
Network Services Agreement of even date herewith (the "NETWORK SERVICES
AGREEMENT") providing for the provision of certain services to Bridge by SAVVIS
and a Technical Services Agreement of even date herewith (the "TECHNICAL
SERVICES AGREEMENT"), providing for the provision of certain services to SAVVIS
by Bridge. Certain SAVVIS Subsidiaries and certain Bridge Subsidiaries are
entering into, and may in the future enter into, Local Transfer Agreements (the
"LOCAL TRANSFER AGREEMENTS"), Local Network Services Agreements (the "LOCAL
NETWORK SERVICES AGREEMENTS"), Equipment Collocation Permits (the "EQUIPMENT
COLLOCATION PERMITS"), and Local Administrative Services Agreements (the "LOCAL
ADMINISTRATIVE SERVICES AGREEMENTS").
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
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1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Administrative Services
Agreement by and between SAVVIS and Bridge, including all
addenda to this Agreement entered into in the manner set forth
herein (each an "ADDENDUM" and collectively the "ADDENDA").
This Agreement shall be interpreted wherever possible to avoid
conflicts between the Sections hereof and the Attachments,
provided that if such a conflict shall arise, the Attachments
shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an
Addendum to this Agreement, either party may initiate the
process of determining such matter by submitting a proposed
outline or contents of such Addendum to the other party. Each
party shall appoint a primary contact and a secondary contact
for the completion of such Addendum, who shall be the contact
points for every issue concerning such Addendum and who shall
be informed of the progress of the project. The names of the
contacts will be exchanged in writing by the parties. Using the
contacts, the parties shall work together in good faith with
such diligence as shall be commercially reasonable under the
circumstances to complete such Addendum, provided, however,
that neither party shall be obligated to enter into such an
Addendum. Upon the completion of such Addendum, it shall be set
forth in a written document and executed by the parties and
shall become a part of this Agreement and shall be deemed to be
incorporated herein by reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" shall mean a period of 12 months beginning on
the Effective Date and each subsequent anniversary thereof.
"BRIDGE" means Bridge Information Systems, Inc., a Delaware
corporation.
"BRIDGE SUBSIDIARIES" has the meaning assigned to the term
"Seller Subsidiaries" in the Master Establishment and Transfer
Agreement.
"CONFIDENTIAL INFORMATION" means all information concerning the
business of Bridge, SAVVIS or any third party doing business
with either of them that may be obtained from any source (i) by
Bridge by virtue of its performance under this Agreement or
(ii) by SAVVIS by virtue of its use of the Services. Such
information shall also include the terms of this Agreement (and
negotiations and
27
proposals from one party to the other related directly
thereto), network designs and design recommendations, tools
and programs, pricing, methods, processes, financial data,
software, research, development, strategic plans or related
information. All such information disclosed prior to the
execution of this Agreement shall also be considered
Confidential Information for purposes of this Agreement.
Confidential Information shall not include information that:
(a) is already rightfully known to the receiving
party at the time it is obtained by such
party, free from any obligation to keep such
information confidential; or
(b) is or becomes publicly known through no
wrongful act of the receiving party; or
(c) is rightfully received by the receiving
party from a third party without restriction
and without breach of this Agreement.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
"INITIAL TERM" shall mean a period of three consecutive
Agreement Years beginning on the Effective Date.
"SAVVIS" means SAVVIS Communications Corporation, a Missouri
corporation.
"SAVVIS SUBSIDIARIES" has the meaning assigned to the term
"Buyer Subsidiaries" in the Master Establishment and Transfer
Agreement.
"SERVICES" means the services provided by Bridge to SAVVIS
hereunder.
2. THE SERVICES
2.1. Bridge agrees to provide to SAVVIS some or all of the
administrative services listed on Schedule 2.1 hereto which
shall be referred to in this Agreement collectively as the
"SERVICES" and individually as a "SERVICE."
2.2. From time to time during the term of this Agreement, SAVVIS may
terminate one or more Services being provided by Bridge
hereunder by giving Bridge written notice at least 30 days
prior to the effective date of such termination, with no
liability to Bridge other than for charges (less any applicable
credits) for such Service provided prior to the effective date
of such termination. Any other changes to the Services shall be
provided for in an Addendum mutually agreed upon by the parties
in the manner set forth in Section 1.2 hereof.
2.3. SAVVIS grants to Bridge a general power of attorney to act on
behalf of SAVVIS in all matters relating to performance of the
Services.
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2.4. In addition to the Services provided under this Agreement, it
is expected that additional administrative services will be
provided under the separate Local Administrative Services
Agreements between certain SAVVIS Subsidiaries and certain
Bridge Subsidiaries, substantially in the form of Exhibit A
attached hereto. Services provided under each such Local
Administrative Services Agreement shall be billed locally, in
local currency.
3. RATES AND CHARGES
SAVVIS shall pay Bridge for the Services at rates to be mutually agreed
by the parties; provided, however, that such rates shall be based on
the cost to Bridge of providing the Services to SAVVIS, except to the
extent contrary to local law.
4. INVOICES
4.1. The amounts due to Bridge from SAVVIS for the Services shall be
billed monthly in arrears. All items on invoices not the
subject of a bona fide dispute shall be payable by SAVVIS in
United States currency within 30 days from the date of receipt
of the invoice. All amounts not in dispute are subject to
interest charges of 1-1/2 percent that will accrue daily on all
amounts not paid within 30 days of the date of receipt of the
invoice.
4.2. SAVVIS shall pay any sales, use, value added, federal excise,
utility, gross receipts, state and local surcharges, and
similar taxes, charges or levies lawfully levied by a duly
constituted taxing authority against or upon the Services. In
the alternative, SAVVIS shall provide Bridge with a certificate
evidencing SAVVIS' exemption from payment of or liability for
such taxes. As part of the Services, Bridge will administer the
payment of SAVVIS' payroll taxes. SAVVIS will reimburse Bridge
for such payroll taxes as invoiced under this Agreement. All
other taxes, charges or levies related to the Services,
including any income, franchise, privilege, or occupation taxes
of Bridge shall be paid by Bridge. Except as otherwise
specifically addressed in this Agreement or Addenda hereto,
each party shall pay its own taxes.
4.3. Bona fide disputes concerning invoices shall be referred to the
parties' respective Contract Managers for resolution. Any
amount to which SAVVIS is entitled as a result of the
resolution of a billing dispute shall be credited promptly to
SAVVIS' account. Any amount to which Bridge is entitled as a
result of the resolution of a billing dispute shall be paid
promptly to Bridge.
5. TERM AND EXTENSIONS
5.1. The initial term of this Agreement shall be three years,
commencing on the Effective Date, and shall continue in full
force and effect unless terminated in accord with the
provisions hereof.
5.2. The term of this Agreement shall automatically extend for
consecutive one-year periods unless either party gives the
other party advance written notice of such party's intent not
to extend not less than 60 days before the scheduled expiration
of the then current term.
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6. TERMINATION BY BRIDGE
Bridge shall have the right to terminate this Agreement if:
(a) SAVVIS has failed to pay any invoice that is not the
subject of a bona fide dispute within 30 days of the
date on which such payment is due and Bridge has
provided SAVVIS with written notice thereof, provided
that SAVVIS shall have 10 days from the time it
receives such notice from Bridge of nonpayment to
cure any such default;
(b) Bridge provides 10 days written notice of its intent
to terminate in the event that SAVVIS has failed to
perform or comply with or has violated any material
representation, warranty, term, condition or
obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within
60 days after receiving notice thereof from Bridge;
or
(c) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, admits in writing its inability
to pay debts when due.
7. CONTRACT MANAGERS
7.1. CONTRACT MANAGER. SAVVIS shall assign a representative to serve
as Bridge's point-of-contact for all matters concerning its
performance under this Agreement.
7.2. CONTRACT MANAGER. Bridge shall assign a representative to serve
as SAVVIS' point-of-contact for all matters concerning its
performance under this Agreement.
8. RIGHTS AND OBLIGATIONS OF BRIDGE
8.1. PROVISION OF THE SERVICES. Bridge shall provide the Services at
Bridge facilities.
8.2. INSURANCE.
8.2.1. At all times during the term of this Agreement, Bridge
shall maintain for itself, its officers, employees,
agents and representatives insurance as shall be
mutually agreed upon by the parties and set forth in an
Addendum to this Agreement in the manner set forth
herein.
8.2.2. Bridge shall furnish to SAVVIS, upon written request,
certificates of insurance or other appropriate
documentation (including evidence of renewal of
insurance) evidencing the insurance coverage referenced
above, naming SAVVIS as an additional insured. Such
certificates or other documentation shall include a
proviso whereby 15 days prior written notice shall be
provided to SAVVIS prior to coverage cancellation or
other material alteration by either Bridge or the
applicable insurer. Such cancellation or material
alteration shall not relieve Bridge of its continuing
obligation to maintain insurance coverage in accordance
with this Section.
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8.2.3. In lieu of all or part of the insurance coverage
specified in this Section, Bridge may self-insure with
respect to any insurance coverage, except where
expressly prohibited by law.
8.3. REPRESENTATIONS AND WARRANTIES.
8.3.1. Bridge hereby warrants that the Services will be
provided in accordance with good business management
practices and that it will use the same care in
rendering the Services to SAVVIS as Bridge uses in
rendering such services to itself.
8.3.2. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITH RESPECT
TO ANY GOODS PROVIDED INCIDENT TO THE SERVICES, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
9. LIMITATIONS OF LIABILITY
9.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of the
form of action whether in contract, indemnity, warranty, strict
liability or tort, including negligence of any kind with respect
to the Services or other conduct under this Agreement.
9.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional misconduct,
or (b) injury or death, or damage to tangible real or tangible
personal property or the environment, when proximately caused by
SAVVIS' or Bridge's negligence or that of their respective
agents, subcontractors or employees.
10. PROPRIETARY RIGHTS; LICENSE
10.1. Bridge hereby grants to SAVVIS a non-exclusive and
non-transferable license to use all programming and software
necessary for SAVVIS to use the Services. Such license is granted
for the term of this Agreement for the sole purpose of enabling
SAVVIS to use the Services.
10.2. All title and property rights (including intellectual property
rights) to Services (including associated programming and
software) are and shall remain with Bridge. SAVVIS shall not
attempt to examine, copy, alter, reverse engineer, decompile,
disassemble, tamper with or otherwise misuse such Services,
programming and software.
11. CONFIDENTIALITY
11.1. During the term of this Agreement and for a period of five years
from the date of its expiration or termination (including all
extensions thereof), each party agrees to maintain in strict
confidence all Confidential
31
Information. Neither party shall, without prior written consent
of the other party, use the other party's Confidential
Information for any purpose other than for the performance of
its duties and obligations, and the exercise of its rights,
under this Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the other
party's Confidential Information as it uses to protect its own
Confidential Information, but in any event not less than a
reasonable degree of care.
11.2. Notwithstanding Section 12.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or (c)
other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in need
of access to such information for purposes specifically related
to either party's responsibilities under this Agreement,
provided that any disclosure of Confidential Information under
clause (c) shall be made only upon prior written approval of the
other party and subject to the appropriate assurances that the
recipient of such information shall hold it in strict
confidence.
11.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the other
party with written certification of such destruction.
11.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines, in
its sole discretion, to grant the requested waiver, it will do
so in writing over the signature of an employee authorized to
grant such request.
11.5. Bridge and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of which
may be difficult to determine, thus potentially making any
remedy at law or in damages inadequate. Each party, therefore,
agrees that the other party shall have the right to apply to any
court of competent jurisdiction for an order restraining any
breach or threatened breach of this Section and for any other
appropriate relief. This right shall be in addition to any other
remedy available in law or equity.
11.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another party's
Confidential Information shall notify the other party in advance
of any such disclosure and, absent the other party's consent to
such disclosure, use its reasonable best efforts to resist, and
to assist the other party in resisting, such disclosure. A party
providing another
32
party's Confidential Information to a court or other
governmental authority shall use its reasonable best efforts to
obtain a protective order or comparable assurance that the
Confidential Information so provided will be held in confidence
and not further disclosed to any other person, absent the
owner's prior consent.
11.7. The provisions of Section 12.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary in
connection with the performance or enforcement of this Agreement
or any of the obligations hereof; provided, however, that if the
receiving party would otherwise be required to refer to or
describe any aspect of this Agreement in any of the preceding
circumstances, the receiving party shall use its reasonable
efforts to take such steps as are available under such
circumstances (such as by providing a summary or synopsis) to
avoid disclosure of the financial terms and conditions of this
Agreement. Notwithstanding any provisions of this Agreement to
the contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed to
maintain the confidentiality of such disclosure and not to use
such disclosure for any purpose other such due diligence review.
12. INDEMNIFICATIONS
12.1. SAVVIS shall indemnify, defend, and hold Bridge (including any
of its directors, officers, employees, agents or assigns)
harmless from any claims, actions or suits to the extent that
such claim or action arises from Bridge's provision to SAVVIS of
the Services and to the extent that such claim, action or suit
does not arise from the gross negligence or intentional
misconduct of Bridge. SAVVIS may settle, or otherwise manage at
its own cost and expense any such claims, actions or suits.
Bridge shall notify SAVVIS promptly in writing of any such
claim, action or suit and shall cooperate with SAVVIS in a
reasonable way to facilitate the settlement or defense thereof.
12.2. Bridge shall indemnify, defend, and hold SAVVIS (including any
of its directors, officers, employees, agents or assigns)
harmless from any claims, actions or suits to the extent that
such claim or action arises from Bridge's gross negligence or
intentional misconduct in the provision to SAVVIS of the
Services, unless such claim, action or suit also arises from the
gross negligence or intentional misconduct of SAVVIS. Bridge may
settle, or otherwise manage at its own cost and expense any such
claims, actions or suits. SAVVIS shall notify Bridge promptly in
writing of any such claim, action or suit and shall cooperate
with Bridge in a reasonable way to facilitate the settlement or
defense thereof.
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13. DISPUTES
13.1. Resolution of any and all disputes arising from or in connection
with this Agreement, whether based on contract, tort, statute or
otherwise, including disputes over arbitrability and disputes in
connection with claims by third persons ("DISPUTES") shall be
exclusively governed by and settled in accordance with the
provisions of this Section 14. The foregoing shall not preclude
recourse to judicial proceedings to obtain injunctive, emergency
or other equitable relief to enforce the provisions of this
Agreement, including specific performance, and to decide such
issues as are required to be resolved in determining whether to
grant such relief. Resolution of Disputes with respect to claims
by third persons shall be deferred until any judicial
proceedings with respect thereto are concluded.
13.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon the
parties, their successors and assigns, and that the following
provisions constitute a binding arbitration clause under
applicable law. Either party may serve process or notice on the
other in any arbitration or litigation in accordance with the
notice provisions hereof. The parties agree not to disclose any
information regarding any Dispute or the conduct of any
arbitration hereunder, including the existence of such Dispute
or such arbitration, to any person or entity other than such
employees or representatives of such party as have a need to
know.
13.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the Dispute
to the other, including a reference to this provision (the
"DISPUTE NOTICE"). Either party may initiate arbitration of a
Dispute by delivery of a demand therefor (the "ARBITRATION
DEMAND") to the other party not sooner than 60 calendar days
after the date of delivery of the Dispute Notice but at any time
thereafter. The arbitration shall be conducted in St. Louis,
Missouri.
13.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Bridge, one by
SAVVIS, and the third by agreement of the other two not later
than 10 days after appointment of the first two, or, failing
such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
13.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the foregoing,
each party shall have the right to inspect the books and records
of the other party that are reasonably related to the Dispute,
and each party shall provide to the other, reasonably in advance
of any hearing, copies of all documents which such party intends
to present in such hearing and the names and addresses of all
witnesses whose testimony such party intends to present in such
hearing.
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13.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
13.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees and
expenses of experts ("ARBITRATION COSTS") between the prevailing
and non-prevailing parties as the Arbitrators deem fair and
reasonable. In circumstances where a Dispute has been asserted
or defended against on grounds that the Arbitrators deem
manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees and
expenses in connection with any and all proceedings under this
Section 14.
13.8. Either party may assert appropriate statutes of limitation as a
defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
13.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and Bridge shall not
discontinue, disconnect or in any other fashion cease to provide
all or any substantial portion of the Services to SAVVIS unless
otherwise directed by SAVVIS. This Section shall not apply where
SAVVIS is in default under this Agreement.
14. FORCE MAJEURE
14.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or other
causes to the extent that such failure and the consequences
thereof are reasonably beyond the control and without the fault
or negligence of the party claiming excuse. Each party shall,
with the cooperation of the other party, use reasonable efforts
to mitigate the extent of any failure to perform and the adverse
consequences thereof.
14.2. If Bridge cannot promptly provide a suitable temporary Bridge
alternative to a Service subject to an interruption in
connection with the existence or a force majeure condition,
SAVVIS may, at its option and at its own cost, contract with one
or more third parties for any or all affected Services for the
shortest commercially available period likely to cover the
reasonably expected duration of the Interruption, and may
suspend Bridge's provision of such Services for such period.
Bridge shall not charge SAVVIS for any Services thus suspended
during the period of suspension. Bridge shall resume provision
of the suspended Services upon the later of the termination or
expiration of SAVVIS' legally binding commitments under
contracts with third parties for alternative services or the
cessation or remedy of the force majeure condition.
35
14.3. In the event that a force majeure condition shall continue for
more than 60 days, SAVVIS may cancel the affected Services
with no further liability to Bridge other than for Services
received by SAVVIS prior to the occurrence of the force
majeure condition.
15. GENERAL PROVISIONS
15.1. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer
any rights or remedies upon any person or entity other than the
parties and their respective successors and permitted assigns.
15.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between the
parties and supersedes any prior understandings, agreements, or
representations by or between the parties, written or oral, to
the extent they related in any way to the subject matter hereof.
15.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties named herein and their
respective successors and permitted assigns. No party may assign
either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the
other party, which consent shall not be unreasonably withheld.
15.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all
of which together will constitute one and the same instrument.
15.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
15.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it is
sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set
forth below:
If to Bridge: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President and
General Counsel
36
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered
by giving the other party notice in the manner herein set
forth.
15.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri without giving effect to any choice or conflict of law
provision or rule (whether of the State of Missouri or any
other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Missouri.
15.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Bridge. No waiver by any party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent
such occurrence.
15.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
15.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with
this Agreement and the transactions contemplated hereby.
15.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
37
15.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Administrative
Services Agreement to be executed as of the date first above written.
SAVVIS COMMUNICATIONS CORPORATION
By
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BRIDGE INFORMATION SYSTEMS, INC.
By
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
38
SCHEDULE 2.1 TO ADMINISTRATIVE SERVICE AGREEMENT
ADMINISTRATIVE SERVICES TO BE
PROVIDED BY BRIDGE TO SAVVIS
Service to be provided
Facility rental & operation
Equipment maintenance
Risk management services
Tax planning administration
Tax compliance
Treasury management
Financial planning
Human resource services
Payroll administration
Accounting, bookkeeping,
financial statement preparation
Procurement
PC support
LAN and WAN support
IT planning, installation and
support
Travel expenses (directly on
behalf of SAVVIS)
39
EXHIBIT A TO ADMINISTRATIVE SERVICES AGREEMENT
FORM OF LOCAL ADMINISTRATIVE SERVICES AGREEMENT
This LOCAL ADMINISTRATIVE SERVICES AGREEMENT (the "AGREEMENT") is
effective as of ______________, 2000 (the "EFFECTIVE DATE"), between [local
SAVVIS entity], a company organized under the laws of [country] ("SAVVIS"), and
[local Bridge/Telerate entity], a company organized under the laws of [country]
("PROVIDER").
RECITALS
A. Provider is engaged in the business of collecting and distributing
various financial, news and other data in [country] (the "JURISDICTION").
B. SAVVIS is engaged in the business of providing Internet backbone and
other data transport services in the Jurisdiction.
C. SAVVIS Parent and Bridge Parent have entered into an Administrative
Services Agreement, of even date herewith (the "ADMINISTRATIVE SERVICES
AGREEMENT") for the provision and receipt of similar services on a world-wide
basis at the parent level as are being provided and received by the parties to
this Agreement within the Jurisdiction.
D. Together with this Agreement, the SAVVIS is entering into certain
other agreements with Provider, or Affiliates of Provider, related to their
operations in the Jurisdiction, including Local Transfer Agreements, Equipment
Collocation Permits, and Local Network Services Agreements.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants contained herein and of other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. CONTRACT DOCUMENTS AND DEFINITIONS
1.1. This Agreement shall consist of this Local Administrative
Services Agreement by and between SAVVIS and Provider,
including all addenda to this Agreement entered into in the
manner set forth herein (each an "ADDENDUM" and collectively
the "ADDENDA"). This Agreement shall be interpreted wherever
possible to avoid conflicts between the Sections hereof and the
Attachments, provided that if such a conflict shall arise, the
Attachments shall control.
1.2. Whenever it is provided in this Agreement for a matter to be
mutually agreed upon by the parties and set forth in an
Addendum to this Agreement, either party may initiate the
process of determining such matter by submitting a proposed
outline or contents of such Addendum to the other party. Each
party shall appoint a primary contact and a secondary contact
for the completion of such Addendum, who shall be the contact
points for every issue concerning such Addendum and
40
who shall be informed of the progress of the project. The
names of the contacts will be exchanged in writing by the
parties. Using the contacts, the parties shall work together
in good faith with such diligence as shall be commercially
reasonable under the circumstances to complete such Addendum,
provided, however, that neither party shall be obligated to
enter into such an Addendum. Upon the completion of such
Addendum, it shall be set forth in a written document and
executed by the parties and shall become a part of this
Agreement and shall be deemed to be incorporated herein by
reference.
1.3. Whenever used in this Agreement, the words and phrases listed
below shall have the meanings given below, and all defined
terms shall include the plural as well as the singular. Unless
otherwise stated, the words "herein", "hereunder" and other
similar words refer to this Agreement as a whole and not to a
particular Section or other subdivision. The words "included"
and "including" shall not be construed as terms of limitation.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"AGREEMENT YEAR" shall mean a period of 12 months beginning on
the Effective Date and each subsequent anniversary thereof.
"BRIDGE PARENT" means Bridge Information Systems, Inc., a
Delaware corporation.
"CONFIDENTIAL INFORMATION" means all information concerning
the business of Provider, SAVVIS or any third party doing
business with either of them that may be obtained from any
source (i) by Provider by virtue of its performance under this
Agreement or (ii) by SAVVIS by virtue of its use of the
Services. Such information shall also include the terms of
this Agreement (and negotiations and proposals from one party
to the other related directly thereto), network designs and
design recommendations, tools and programs, pricing, methods,
processes, financial data, software, research, development,
strategic plans or related information. All such information
disclosed prior to the execution of this Agreement shall also
be considered Confidential Information for purposes of this
Agreement. Confidential Information shall not include
information that:
(a) is already rightfully known to the receiving
party at the time it is obtained by such
party, free from any obligation to keep such
information confidential; or
(b) is or becomes publicly known through no
wrongful act of the receiving party; or
(c) is rightfully received by the receiving
party from a third party without restriction
and without breach of this Agreement.
"EFFECTIVE DATE" means the date set forth in the Preamble of
this Agreement.
41
"INITIAL TERM" has the meaning set forth in Section 5.1 below.
"PROVIDER" means [local Bridge/Telerate entity], a company
organized under the laws of [country].
"SAVVIS" means [local SAVVIS entity], a company organized
under the laws of [country].
"SAVVIS PARENT" means SAVVIS Communications Corporation, a
Missouri corporation.
"SERVICES" has the meaning set forth in Section 2.1 below.
2. THE SERVICES
2.1. Provider agrees to provide to SAVVIS some or all of the
administrative services listed on Schedule 2.1 hereto which
shall be referred to in this Agreement collectively as the
"SERVICES" and individually as a "SERVICE."
2.2. From time to time during the term of this Agreement, SAVVIS
may terminate one or more Services being provided by Provider
hereunder by giving Provider written notice at least 30 days
prior to the effective date of such termination, with no
liability to Provider other than for charges (less any
applicable credits) for such Service provided prior to the
effective date of such termination. Any other changes to the
Services shall be provided for in an Addendum mutually agreed
upon by the parties in the manner set forth in Section 1.2
hereof.
2.3. SAVVIS grants to Provider a general power of attorney to act
on behalf of SAVVIS in all matters relating to performance of
the Services.
3. RATES AND CHARGES
SAVVIS shall pay Provider for the Services at rates to be mutually
agreed by the parties; provided, however, that such rates shall be
based on the cost to Provider of providing the Services to SAVVIS,
except to the extent contrary to local law.
4. INVOICES
4.1. The amounts due to Provider from SAVVIS for the Services shall
be billed monthly in arrears. All items on invoices not the
subject of a bona fide dispute shall be payable by SAVVIS in
[country] currency within 30 days from the date of receipt of
the invoice. All amounts not in dispute are subject to
interest charges of 1-1/2 percent that will accrue daily on
all amounts not paid within 30 days of the date of receipt of
the invoice.
4.2. SAVVIS shall pay any sales, use, value added, federal excise,
utility, gross receipts, state and local surcharges, and
similar taxes, charges or levies lawfully levied by a duly
constituted taxing authority against or upon the Services. In
the alternative, SAVVIS shall provide Provider with a
certificate evidencing SAVVIS' exemption from payment of or
liability for such taxes. As part of the Services, Provider
will administer the payment of SAVVIS' payroll taxes.
42
SAVVIS will reimburse Provider for such payroll taxes as
invoiced under this Agreement. All other taxes, charges or
levies related to the Services, including any income,
franchise, privilege, or occupation taxes of Provider shall be
paid by Provider. Except as otherwise specifically addressed
in this Agreement or Addenda hereto, each party shall pay its
own taxes.
4.3. Bona fide disputes concerning invoices shall be referred to
the parties' respective Contract Managers for resolution. Any
amount to which SAVVIS is entitled as a result of the
resolution of a billing dispute shall be credited promptly to
SAVVIS' account. Any amount to which Provider is entitled as a
result of the resolution of a billing dispute shall be paid
promptly to Provider.
5. TERM AND EXTENSIONS
5.1. The Initial Term of this Agreement shall be three years,
commencing on the Effective Date, and shall continue in full
force and effect unless terminated in accord with the
provisions hereof.
5.2. The term of this Agreement shall automatically extend for
consecutive one-year periods unless either party gives the
other party advance written notice of such party's intent not
to extend not less than 60 days before the scheduled
expiration of the then current term.
5.3. The above provisions of this Section 5 notwithstanding, the
term of this Agreement, including the Initial Term and any
extension provided under Section 5.2 shall not extend beyond
the term of the Administrative Services Agreement.
6. TERMINATION BY PROVIDER
6.1. Provider shall have the right to terminate this Agreement if:
(a) SAVVIS has failed to pay any invoice that is not the
subject of a bona fide dispute within 30 days of the
date on which such payment is due and Provider has
provided SAVVIS with written notice thereof, provided
that SAVVIS shall have 10 days from the time it
receives such notice from Provider of nonpayment to
cure any such default;
(b) Provider provides 10 days written notice of its
intent to terminate in the event that SAVVIS has
failed to perform or comply with or has violated any
material representation, warranty, term, condition or
obligation of SAVVIS under this Agreement, and SAVVIS
has failed to cure such failure or violation within
60 days after receiving notice thereof from Provider;
(c) SAVVIS becomes the subject of a voluntary or
involuntary bankruptcy, insolvency, reorganization or
liquidation proceeding, makes an assignment for the
benefit of creditors, admits in writing its inability
to pay debts when due; or
43
(d) SAVVIS Parent defaults under the terms of the
Administrative Service Agreement.
7. CONTRACT MANAGERS
7.1. SAVVIS CONTRACT MANAGER. SAVVIS shall assign a representative
to serve as Provider's point-of-contact for all matters
concerning its performance under this Agreement.
7.2. BRIDGE CONTRACT MANAGER. Provider shall assign a
representative to serve as SAVVIS' point-of-contact for all
matters concerning its performance under this Agreement.
8. RIGHTS AND OBLIGATIONS OF PROVIDER
8.1. PROVISION OF THE SERVICES. Provider shall provide the Services
at its facilities.
8.2. INSURANCE.
8.2.1. At all times during the term of this Agreement,
Provider shall maintain for itself, its officers,
employees, agents and representatives insurance as
shall be mutually agreed upon by the parties and set
forth in an Addendum to this Agreement in the manner
set forth herein.
8.2.2. Provider shall furnish to SAVVIS, upon written request,
certificates of insurance or other appropriate
documentation (including evidence of renewal of
insurance) evidencing the insurance coverage referenced
above, naming SAVVIS as an additional insured. Such
certificates or other documentation shall include a
proviso whereby 15 days prior written notice shall be
provided to SAVVIS prior to coverage cancellation or
other material alteration by either Provider or the
applicable insurer. Such cancellation or material
alteration shall not relieve Provider of its continuing
obligation to maintain insurance coverage in accordance
with this Section.
8.2.3. In lieu of all or part of the insurance coverage
specified in this Section, Provider may self-insure
with respect to any insurance coverage, except where
expressly prohibited by law.
8.3. REPRESENTATIONS AND WARRANTIES.
8.3.1. Provider hereby warrants that the Services will be
provided in accordance with good business management
practices and that it will use the same care in
rendering the Services to SAVVIS as Provider uses in
rendering such services to itself.
8.3.2. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITH RESPECT
TO ANY GOODS PROVIDED INCIDENT TO THE
44
SERVICES, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATIONS OF LIABILITY
9.1. Neither party shall be liable to the other for indirect,
incidental, consequential, exemplary, reliance or special
damages, including damages for lost profits, regardless of the
form of action whether in contract, indemnity, warranty,
strict liability or tort, including negligence of any kind
with respect to the Services or other conduct under this
Agreement.
9.2. Nothing contained in this Section shall limit either party's
liability to the other for (a) willful or intentional
misconduct, or (b) injury or death, or damage to tangible real
or tangible personal property or the environment, when
proximately caused by SAVVIS' or Provider's negligence or that
of their respective agents, subcontractors or employees.
10. PROPRIETARY RIGHTS; LICENSE
10.1. Provider hereby grants to SAVVIS a non-exclusive and
non-transferable license to use all programming and software
necessary for SAVVIS to use the Services. Such license is
granted for the term of this Agreement for the sole purpose of
enabling SAVVIS to use the Services.
10.2. All title and property rights (including intellectual property
rights) to Services (including associated programming and
software) are and shall remain with Provider. SAVVIS shall not
attempt (except as permitted by applicable law) to examine,
copy, alter, reverse engineer, decompile, disassemble, tamper
with or otherwise misuse such Services, programming and
software.
11. CONFIDENTIALITY
11.1. During the term of this Agreement and for a period of five
years from the date of its expiration or termination
(including all extensions thereof), each party agrees to
maintain in strict confidence all Confidential Information.
Neither party shall, without prior written consent of the
other party, use the other party's Confidential Information
for any purpose other than for the performance of its duties
and obligations, and the exercise of its rights, under this
Agreement. Each party shall use, and shall cause all
authorized recipients of the other party's Confidential
Information to use, the same degree of care to protect the
other party's Confidential Information as it uses to protect
its own Confidential Information, but in any event not less
than a reasonable degree of care.
11.2. Notwithstanding Section 11.1, either party may disclose the
Confidential Information of the other party to: (a) its
employees and the employees, directors and officers of its
Affiliates as necessary to implement this Agreement; (b)
employees, agents or representatives of the other party; or
(c) other persons (including counsel, consultants, lessors or
managers of facilities or equipment used by such party) in
need of access to such information for purposes specifically
related to either party's responsibilities under this
Agreement, provided that any
45
disclosure of Confidential Information under clause (c) shall
be made only upon prior written approval of the other party
and subject to the appropriate assurances that the recipient
of such information shall hold it in strict confidence.
11.3. Upon the request of the party having proprietary rights to
Confidential Information, the party in possession of such
information shall promptly return it (including any copies,
extracts and summaries thereof, in whatever form and medium
recorded) to the requesting party or, with the other party's
written consent, shall promptly destroy it and provide the
other party with written certification of such destruction.
11.4. Either party may request in writing that the other party waive
all or any portion of the requesting party's responsibilities
relative to the other party's Confidential Information. Such
waiver request shall identify the affected information and the
nature of the proposed waiver. The recipient of the request
shall respond within a reasonable time and, if it determines,
in its sole discretion, to grant the requested waiver, it will
do so in writing over the signature of an employee authorized
to grant such request.
11.5. Provider and SAVVIS acknowledge that any disclosure or
misappropriation of Confidential Information in violation of
this Agreement could cause irreparable harm, the amount of
which may be difficult to determine, thus potentially making
any remedy at law or in damages inadequate. Each party,
therefore, agrees that the other party shall have the right to
apply to any court of competent jurisdiction for an order
restraining any breach or threatened breach of this Section
and for any other appropriate relief. This right shall be in
addition to any other remedy available in law or equity.
11.6. A party requested or ordered by a court or other governmental
authority of competent jurisdiction to disclose another
party's Confidential Information shall notify the other party
in advance of any such disclosure and, absent the other
party's consent to such disclosure, use its reasonable best
efforts to resist, and to assist the other party in resisting,
such disclosure. A party providing another party's
Confidential Information to a court or other governmental
authority shall use its reasonable best efforts to obtain a
protective order or comparable assurance that the Confidential
Information so provided will be held in confidence and not
further disclosed to any other person, absent the owner's
prior consent.
11.7. The provisions of Section 11.1 above shall not apply to
reasonably necessary disclosures in or in connection with
filings under any securities laws, regulatory filings or
proceedings, financial disclosures which in the good faith
judgment of the disclosing party are required by law,
disclosures required by court or tribunal or competent
jurisdiction, or disclosures that may be reasonably necessary
in connection with the performance or enforcement of this
Agreement or any of the obligations hereof; provided, however,
that if the receiving party would otherwise be required to
refer to or describe any aspect of this Agreement in any of
the preceding circumstances, the receiving party shall use its
reasonable efforts to take
46
such steps as are available under such circumstances (such as
by providing a summary or synopsis) to avoid disclosure of the
financial terms and conditions of this Agreement.
Notwithstanding any provisions of this Agreement to the
contrary, either party may disclose the terms and conditions
of this Agreement in the course of a due diligence review
performed in connection with prospective debt financing or
equity investment by, or a sale to, a third party, so long as
the persons conducting such due diligence review have agreed
to maintain the confidentiality of such disclosure and not to
use such disclosure for any purpose other such due diligence
review.
12. INDEMNIFICATIONS
12.1. SAVVIS shall indemnify, defend, and hold Provider (including
any of its directors, officers, employees, agents or assigns)
harmless from any claims, actions or suits to the extent that
such claim or action arises from Provider's provision to
SAVVIS of the Services and to the extent that such claim,
action or suit does not arise from the gross negligence or
intentional misconduct of Provider. SAVVIS may settle, or
otherwise manage at its own cost and expense any such claims,
actions or suits. Provider shall notify SAVVIS promptly in
writing of any such claim, action or suit and shall cooperate
with SAVVIS in a reasonable way to facilitate the settlement
or defense thereof.
12.2. Provider shall indemnify, defend, and hold SAVVIS (including
any of its directors, officers, employees, agents or assigns)
harmless from any claims, actions or suits to the extent that
such claim or action arises from Provider's gross negligence
or intentional misconduct in the provision to SAVVIS of the
Services, unless such claim, action or suit also arises from
the gross negligence or intentional misconduct of SAVVIS.
Provider may settle, or otherwise manage at its own cost and
expense any such claims, actions or suits. SAVVIS shall notify
Provider promptly in writing of any such claim, action or suit
and shall cooperate with Provider in a reasonable way to
facilitate the settlement or defense thereof.
13. DISPUTES
13.1. Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract,
tort, statute or otherwise, including disputes over
arbitrability and disputes in connection with claims by third
persons ("DISPUTES") shall be exclusively governed by and
settled in accordance with the provisions of this Section 13.
The foregoing shall not preclude recourse to judicial
proceedings to obtain injunctive, emergency or other equitable
relief to enforce the provisions of this Agreement, including
specific performance, and to decide such issues as are
required to be resolved in determining whether to grant such
relief. Resolution of Disputes with respect to claims by third
persons shall be deferred until any judicial proceedings with
respect thereto are concluded.
13.2. The parties hereby agree to submit all Disputes to rules of
arbitration of the American Arbitration Association and the
Missouri Uniform Arbitration Act (the "RULES") under the
following provisions, which shall be final and binding upon
the parties, their successors and assigns, and that the
following provisions constitute a
47
binding arbitration clause under applicable law. Either party
may serve process or notice on the other in any arbitration or
litigation in accordance with the notice provisions hereof.
The parties agree not to disclose any information regarding
any Dispute or the conduct of any arbitration hereunder,
including the existence of such Dispute or such arbitration,
to any person or entity other than such employees or
representatives of such party as have a need to know.
13.3. Either party may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the
Dispute to the other, including a reference to this provision
(the "DISPUTE NOTICE"). Either party may initiate arbitration
of a Dispute by delivery of a demand therefor (the
"ARBITRATION DEMAND") to the other party not sooner than 60
calendar days after the date of delivery of the Dispute Notice
but at any time thereafter. The arbitration shall be conducted
in St. Louis, Missouri.
13.4. The arbitration shall be conducted by three arbitrators (the
"ARBITRATORS"), one of whom shall be selected by Provider, one
by SAVVIS, and the third by agreement of the other two not
later than 10 days after appointment of the first two, or,
failing such agreement, appointed pursuant to the Rules. If an
Arbitrator becomes unable to serve, a successor shall be
selected or appointed in the same manner in which the
predecessor Arbitrator was appointed.
13.5. The arbitration shall be conducted pursuant to such procedures
as the parties may agree or, in the absence of or failing such
agreement, pursuant to the Rules. Notwithstanding the
foregoing, each party shall have the right to inspect the
books and records of the other party that are reasonably
related to the Dispute, and each party shall provide to the
other, reasonably in advance of any hearing, copies of all
documents which such party intends to present in such hearing
and the names and addresses of all witnesses whose testimony
such party intends to present in such hearing.
13.6. All hearings shall be conducted on an expedited schedule, and
all proceedings shall be confidential. Either party may at its
expense make a stenographic record thereof.
13.7. The Arbitrators shall complete all hearings not later than 90
calendar days after the Arbitrators' selection or appointment,
and shall make a final award not later than 30 calendar days
thereafter. The Arbitrators shall apportion all costs and
expenses of the Arbitration, including the Arbitrators' fees
and expenses of experts ("ARBITRATION COSTS") between the
prevailing and non-prevailing parties as the Arbitrators deem
fair and reasonable. In circumstances where a Dispute has been
asserted or defended against on grounds that the Arbitrators
deem manifestly unreasonable, the Arbitrators may assess all
Arbitration Costs against the non-prevailing party and may
include in the award the prevailing party's attorneys' fees
and expenses in connection with any and all proceedings under
this Section 13.
48
13.8. Either party may assert appropriate statutes of limitation as
a defense in arbitration; provided, that upon delivery of a
Dispute Notice any such statute shall be tolled pending
resolution hereunder.
13.9. Pending the resolution of any dispute or controversy arising
under this Agreement, the parties shall continue to perform
their respective obligations hereunder, and Provider shall not
discontinue, disconnect or in any other fashion cease to
provide all or any substantial portion of the Services to
SAVVIS unless otherwise directed by SAVVIS. This Section shall
not apply where SAVVIS is in default under this Agreement.
14. FORCE MAJEURE
14.1. In no event shall either party be liable to the other for any
failure to perform hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (whether
of a party hereto or of others), casualties, accidents or
other causes to the extent that such failure and the
consequences thereof are reasonably beyond the control and
without the fault or negligence of the party claiming excuse.
Each party shall, with the cooperation of the other party, use
reasonable efforts to mitigate the extent of any failure to
perform and the adverse consequences thereof.
14.2. If Provider cannot promptly provide a suitable temporary
Provider alternative to a Service subject to an interruption
in connection with the existence or a force majeure condition,
SAVVIS may, at its option and at its own cost, contract with
one or more third parties for any or all affected Services for
the shortest commercially available period likely to cover the
reasonably expected duration of the Interruption, and may
suspend Provider's provision of such Services for such period.
Provider shall not charge SAVVIS for any Services thus
suspended during the period of suspension. Provider shall
resume provision of the suspended Services upon the later of
the termination or expiration of SAVVIS' legally binding
commitments under contracts with third parties for alternative
services or the cessation or remedy of the force majeure
condition.
14.3. In the event that a force majeure condition shall continue for
more than 60 days, SAVVIS may cancel the affected Services
with no further liability to Provider other than for Services
received by SAVVIS prior to the occurrence of the force
majeure condition.
15. GENERAL PROVISIONS
15.1. NO THIRD-PARTY BENEFICIARIES. [This Agreement shall not confer
any rights or remedies upon any person or entity other than
the parties and their respective successors and permitted
assigns.] [Except as expressly provided in this Agreement,
nothing in this Agreement will create or confer any rights or
other benefits on or in favor of any person who is not a party
to this Agreement whether pursuant to the Contracts (Rights of
Third Parties) Act, 1999 or otherwise.]
49
15.2. ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between
the parties and supersedes any prior understandings,
agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the
subject matter hereof.
15.3. SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and
their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other party, which consent shall not be
unreasonably withheld.
15.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
15.5. HEADINGS. The Section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
15.6. NOTICES. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall
be deemed duly given if (and then two business days after) it
is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended
recipient as set forth below:
If to Provider: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President and
General Counsel
If to SAVVIS: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General Counsel
Any party may send any notice, request, demand, claim, or
other communication hereunder to the intended recipient at the
address set forth above using any other means (including
personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication
shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may
change the address to which notices, requests, demands,
claims, and other
50
communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
15.7. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the domestic laws of [England]
[the State of Missouri] without giving effect to any choice or
conflict of law provision or rule (whether of [England] [the
State of Missouri] or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than
[England] [the State of Missouri].
15.8. AMENDMENTS AND WAIVERS. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing
and signed by SAVVIS and Provider. No waiver by any party of
any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder
or affect in any way any rights arising by virtue of any prior
or subsequent such occurrence.
15.9. SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
15.10. EXPENSES. Each party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
15.11. CONSTRUCTION. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context requires otherwise. The word "including" shall mean
including without limitation.
15.12. ADDENDA AND SCHEDULES. The Addenda and Schedules identified in
this Agreement are incorporated herein by reference and made a
part hereof.
51
IN WITNESS WHEREOF, the parties hereto have caused this Administrative
Services Agreement to be executed as of the date first above written.
SAVVIS [local entity]
By
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
[local Bridge/Telerate entity]
By
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
52
SCHEDULE 2.1 TO EXHIBIT A OF ADMINISTRATIVE SERVICE AGREEMENT
ADMINISTRATIVE SERVICES TO BE
PROVIDED BY PROVIDER TO SAVVIS
Service to be provided
Facility rental & operation
Equipment maintenance
Risk management services
Tax planning administration
Tax compliance
Treasury management
Financial planning
Human resource services
Payroll administration
Accounting, bookkeeping,
financial statement preparation
Procurement
PC support
LAN and WAN support
IT planning, installation and
support
Travel expenses (directly on
behalf of SAVVIS)
53
EXHIBIT C
TECHNICAL SERVICES AGREEMENT
[This Exhibit C has been filed as a separate document]
54
EXHIBIT D
FORM OF XXXX OF SALE
[To be provided at Closing]
55
EXHIBIT E
FORM OF LOCAL CONTRACT OF ASSIGNMENT AND ASSUMPTION
CONTRACT OF ASSIGNMENT AND ASSUMPTION
This Contract is entered into as of this ____ day of
_________, 2000 by and between SAVVIS [______________], a [private limited
liability] company organized under the laws of [______________] ("SAVVIS"),
[having a non-registered __________ branch], and [______________], a
[______________] company organized under the laws of [______________]
("Assignor").
WHEREAS, SAVVIS is acquiring certain assets and liabilities
from various companies affiliated with Assignor, such assets and liabilities
comprising and relating to the IP Network that Assignor and its affiliated
companies currently own and operate; and
WHEREAS, Assignor desires to assign to SAVVIS and SAVVIS
desires to assume from Assignor certain contracts and liabilities as more
particularly set forth at Schedule 1 to this Contract (the "Contracts and
Liabilities").
NOW, THEREFORE, for good and valuable consideration, including
the provisions and covenants herein, the receipt and sufficiency of which is
hereby acknowledged, SAVVIS and Assignor agree as follows:
1. Assignor hereby assigns, transfers and delivers to SAVVIS the
Contracts and Liabilities and all of its right, title and interest therein and
delegates all of Assignor's duties and obligations attached to the Contract and
Liabilities.
2. SAVVIS hereby accepts the foregoing assignment and assumes and
agrees to keep, observe, perform, pay and discharge when due the terms,
covenants, conditions and obligations of Assignor related to the Contracts and
Liabilities, and hereby releases Assignor from its obligations thereunder.
3. Notwithstanding the foregoing, if the assignment and transfer of any
of the Contracts and Liabilities would cause a breach thereof and if no required
consent to such assignment and transfer has been obtained from the third parties
involved, then such Contracts and Liabilities shall not be assigned and
transferred, but, instead, Assignor shall continue to hold its interests in such
Contracts and Liabilities in trust for the benefit of SAVVIS, shall receive in
trust and remit as promptly as possible to SAVVIS any money paid thereunder to
Assignor and shall cooperate in any reasonable arrangement or action requested
by SAVVIS to secure for SAVVIS all benefits under such Contracts and
Liabilities.
4. From and after the date of this Contract, Assignor and SAVVIS shall
do such acts and execute such documents and instruments as may be reasonably
required to make effective the transactions contemplated thereby. In the event
acts contemplated by this Agreement have not been fully effected as of the date
of this Contract, SAVVIS and Assignor will continue after the
56
date of this Contract, without further consideration, to use their best efforts
to carry out such transactions.
5. Assignor and SAVVIS hereby agree that to the extent any of the
Contracts and Liabilities are actually assigned to SAVVIS prior to the date of
this Contract, Assignor shall indemnify SAVVIS for any losses due to obligations
that arose under such Contracts and Liabilities prior to the date of this
Contract and to the extent any of the Contracts and Liabilities are not assigned
to SAVVIS until after the date of this Contract, SAVVIS shall indemnify Assignor
for any losses due to obligations that arise under such Contracts and
Liabilities following the date of this Contract.
6. Assignor hereby agrees, from time to time, at the reasonable request
of SAVVIS, to execute and deliver such other instruments of conveyance and
transfer and take such other actions as SAVVIS may reasonably request in order
to more effectively consummate the transactions contemplated by this Contract.
7. This agreement shall be governed by, and construed in accordance
with the laws of [England] [the State of Missouri] without regard to its
conflict of laws principles.
[8. Except as expressly provided in this Agreement, nothing in this
Agreement will create or confer any rights or other benefits on or in favor of
any person who is not a party to this Agreement whether pursuant to the
Contracts (Rights of Third Parties) Act, 1999 or otherwise.]
IN WITNESS WHEREOF, the parties hereto have executed this
Contract as of the date first above written.
SAVVIS [______________]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
[--------------]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
57
SCHEDULE 1 TO LOCAL CONTRACT OF ASSIGNMENT AND ASSUMPTION
CONTRACTS AND LIABILITIES TO BE
ASSIGNED AND ASSUMED
[To be used only where the contracts to be assigned are circuit leases:
The attached contracts and circuits as well as any contracts or
circuits not listed on the attached by for which Assignor has entered
into prior to the date of this Contract which relate to the IP Network
of Bridge Information Systems, the IP Network being those assets that
are used by the Bridge Information Systems group which consists of
providing telecommunications facilities utilizing internet protocols
between the Bridge Information Systems group and the customers of such
group.]
58
EXHIBIT F
FORM OF LOCAL ASSET TRANSFER AGREEMENT
TRANSFER AGREEMENT
This Transfer Agreement ("Agreement") made this __ day of
_______, 2000, by and between Bridge _________________________________, a
corporation organized under the laws of __________________, having its principal
place of business at _________________ ("Seller"), and SAVVIS
____________________ [a ______________ company organized under the laws
of_________________][_____________ branch, the ____________ branch of a
______________ company organized under the laws of _______________] having its
[registered][principal] office at ______________________________ ("SAVVIS")
(Seller and SAVVIS each a "Party" and collectively the "Parties").
WITNESSETH
WHEREAS, pursuant to an agreement of even date herewith
between Bridge Information Systems, Inc. and SAVVIS Communications Corporation
(the "Master Establishment and Transition Agreement") the direct or indirect
parent entity of Seller, Bridge Information Systems Inc. ("BISI"), has agreed to
cause the transfer of certain assets, liabilities, rights and obligations
world-wide to its subsidiary SAVVIS Communications Corporation ("SCC"), which is
the direct or indirect parent of SAVVIS;
WHEREAS, pursuant to the Master Establishment and Transition
Agreement, transfers of assets, liabilities, rights and obligations will be
effected by subsidiaries of BISI and SCC pursuant to individual transfer
services agreements between such entities; and
WHEREAS, SAVVIS and Seller desire to effect a transfer of
certain assets, liabilities, rights and obligations on the terms and conditions
set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and obligations herein set forth and of other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties agree as
follows:
1. DEFINITIONS
1.1 In this Agreement and the Schedules the following expressions
shall have the following meanings namely:
"Agreement" means the agreement between the Parties the terms of
which are set out herein;
"Assets" means the assets of the IP Network set forth in Clause 2.1
as amended pursuant to Clause 2.2;
59
"Closing" has the meaning set forth in Clause 4.1;
"Effective Date" means ______________, 2000;
["Employees" means those employees of Seller listed on the attached
Schedule 4;]
"IP Network" means those assets that are used by Seller which
consists of providing telecommunications facilities utilizing
internet protocols between Seller, suppliers and group companies of
Seller and Seller's customers;
"Liabilities" means all liabilities and obligations of Seller
(whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due)
fulfilling both of the following requirements:
(a) which are directly associated with (i) the Assets,
(ii) the Contracts, (iii) the use of the IP Network
or (iv) those matters set forth on Schedule [5]
attached hereto; and
(b) which result from or arise out of the ownership or
operation of the IP Network prior to the Effective
Date, including liabilities which exist with respect
to (i) obligations under the Contracts, other than an
obligation to make payment, which are required to be
fulfilled by Seller wholly prior to Closing, or (ii)
obligations to make payment, to the extent such
payment is for services rendered under the Contracts
prior to Closing.
"Software" means any and all software and software applications,
including operating software and embedded software, owned or used by
Seller in relation to the maintenance, ownership or operations of the
Assets listed in Clause 2.1.1.
1.2 In this Agreement words importing the singular include the plural
and vice versa and words importing gender include any other gender.
1.3 The headings of Clauses are for ease of reference and shall not
affect the construction of this Agreement.
1.4 References in this Agreement to Clauses or Schedules are
references to clauses of or schedules to this Agreement.
1.5 Any undertaking hereunder not to do any act or thing shall be
deemed to include an undertaking not to permit or suffer the doing of
that act or thing.
1.6 The expression "person" used in this Agreement shall include
(without limitation) any individual, partnership, local authority,
company or unincorporated association.
60
2. SALE & PURCHASE
2.1 Seller shall sell and SAVVIS shall purchase with effect from the
Effective Date the Assets subject in all cases to the Liabilities,
which are the following:
2.1.1 the computer equipment listed in Schedule 1, including
but not limited to the Ascend Cascade Switch 9000s and the
Baynet Routers;
2.1.2 the full benefit of all agreements between Seller and
any other person, firm or corporation (other than SAVVIS) to
which Seller is entitled in connection with the operations
of the IP Network which are in force at the Effective Date
including, without limitation, the contracts listed in
Schedule 2 as well as any maintenance, support, supply or
licensing agreements, if any, relating to the Software;
2.1.3 the right of SAVVIS to represent itself as operating
the IP Network in succession to Seller;
2.1.4 all technical and contractual information relating to
the IP Network;
2.1.5 the Software.
2.2 SAVVIS and Seller shall take all reasonable efforts to jointly
prepare, within fifteen days after the Effective Date, or as soon as
practical thereafter, a revised list of the Assets as set forth in
Schedules 1 and 2. This revised list shall supersede the attached
Schedules 1 and 2 and shall include any assets purchased or acquired
by Seller after October 31, 1999 but before the Effective Date which
comprise part of the IP Network. The parties shall negotiate in good
faith to finalize such revised Schedules and shall provide to each
other any information or records reasonably necessary to finalize
such revised Schedules.
3. CONSIDERATION
3.1 The purchase price for the Assets exclusive of any VAT, stamp
duty, and transfer taxes (the "Consideration") shall be the sum
specified in Schedule 3. To the extent the Assets are revised
pursuant to Clause 2.2, the Consideration set forth in Schedule 3
shall be adjusted based on the net book value on the date of transfer
(in the books of Seller) of the Assets which are added to or removed
from the revised list. The Parties shall take all reasonable efforts
to jointly prepare any such revisions to Schedule 3 within fifteen
days after the Effective Date, or as soon as practical thereafter.
The parties shall negotiate in good faith to finalize such revised
Schedule and shall provide to each other any information or records
reasonably necessary to finalize such Schedule.
3.2 The Consideration shall be due and payable as set forth in
Schedule 3.
61
3.3 The amount set forth in Schedule 3 is exclusive of VAT, and any
and all transfer or other taxes or duties applicable to the
transaction provided for in this Agreement, which SAVVIS hereby
agrees to pay.
4. CLOSING
4.1 Closing of the sale shall take place on the Effective Date when
Seller shall deliver to SAVVIS all physical Assets hereby agreed to
be sold, other than the Assets referred to in Clause 2.2 above. All
physical Assets referred to in Clause 2.2 above shall be delivered to
SAVVIS as soon as practicable following the finalization of any
adjustment to the Assets as set forth in Clause 2.2.
4.2 Property in and title to the Assets referred to in Clause 2.1
shall pass to SAVVIS on the Effective Date. Property in and title to
the Assets referred to in Clause 2.2 shall pass to SAVVIS on the date
that the revised schedules are finalized in accordance with on Clause
2.2 but such transfer shall be effective as of the Effective Date.
4.3 Subject to Clause 6 below, Seller shall on or as soon as
practicable after the Effective Date deliver to SAVVIS all transfers,
assignments and novations relating to the Assets (including the
property) together with the documents of title thereto, necessary to
give effect to this Agreement; provided, however, that any such
transfers shall as between the Parties be deemed to be effective as
of the Effective Date.
5. THE LIABILITIES
5.1 Subject to the consent where necessary of other contracting
parties (which the Parties hereto shall use their reasonable best
efforts to obtain) SAVVIS shall as from the Effective Date assume,
perform and discharge all Liabilities. If it proves impossible to
obtain any such consent in relation to any of the Liabilities, SAVVIS
will assume, perform and discharge such Liability as agent for and on
behalf of Seller and will indemnify Seller accordingly. Seller will
indemnify SAVVIS for contractual liabilities for goods or services
delivered prior to the Effective Date.
5.2 For purposes of effecting the transfer by Seller to SAVVIS of
certain contractual obligations and the assumption of such
obligations by SAVVIS, the parties have executed as of even date
herewith an Assignment and Assumption Agreement substantially in the
form of EXHIBIT A to this Agreement.
6. THIRD PARTY CONSENTS
6.1 Seller and SAVVIS shall use all reasonable endeavours to obtain
any required consent of any other contracting parties to the
assignment or novation of any agreement referred to in Clause 2.1.2.
Unless and until such consent shall be forthcoming and the relevant
62
agreement shall have been assigned or novated SAVVIS shall at its own
cost and expense assume Seller's obligations under such agreements
and Seller shall account to SAVVIS for all sums paid or received
therefrom.
6.2 Seller will at SAVVIS' request and expense give to SAVVIS all
assistance in the power of Seller to enable SAVVIS to enforce the
agreements referred to in Clause 2.1.2 against the other contracting
party or parties and, without prejudice to the generality of the
foregoing, will provide all such relevant books, documents and other
information as SAVVIS may require in relation thereto.
[7. PERSONNEL
SAVVIS and Seller hereby agree and acknowledge that the Transfer of
Undertakings (Protection of Employment) Regulations applies to this
transaction and, therefore, that the contracts of employment of all
of the Employees of Seller, as set forth at Schedule 4 to this
Agreement, shall not be terminated at Closing but shall continue to
have effect as if originally made between such Employee and SAVVIS in
accordance such Regulations.]
[8. INDEMNIFICATION
Seller will indemnify, defend and hold SAVVIS and its shareholders,
directors, officers, successors, assigns, and agents of each of them,
harmless from and against any and all claims, losses, damages,
liabilities, expenses or costs, plus reasonable attorneys' fees and
expenses, incurred by SAVVIS to the extent resulting from or arising
out of any claim or suit by any Employee of Seller, or by any other
employee of Seller that is not being transferred to SAVVIS, asserting
rights under the Transfer of Undertakings (Protection of Employment)
Regulations 1981 or any other similar law or regulation.]
9. FURTHER ASSURANCE
From and after Closing, the Parties shall do such acts and execute
such documents and instruments as may be reasonably required to make
effective the transactions contemplated hereby. In the event that
consents, approvals, other authorizations or other acts contemplated
by this Agreement have not been fully effected as of Closing, the
parties will continue after Closing, without further consideration,
to use their reasonable best efforts to carry out such transactions;
provided, however, in the event that certain approvals, consents or
other necessary documentation cannot be secured, then the Party
having legal responsibility, ownership or control shall act on behalf
of the other Party, without further consideration, to effect the
essential intention of the Parties with respect to the transactions
contemplated by this Agreement.
10. SURVIVAL OF CERTAIN PROVISIONS
63
To the extent that any provision of this Agreement shall not have
been performed at Closing it shall survive and remain in full force
and effect notwithstanding Closing.
11. GOVERNING LAW AND CHOICE OF FORUM
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of [England][the state of Missouri, United
States of America] and the parties to this Agreement hereby agree
that all matters arising out of or in connection with this Agreement
shall be subject to the exclusive jurisdiction of the courts of
[England][the state of Missouri].
[12. THIRD PARTY BENEFICIARIES
Except as expressly provided in this Agreement, nothing in this
Agreement will create or confer any rights or other benefits on or in
favor of any person who is not a party to this Agreement whether
pursuant to the Contracts (Rights of Third Parties) Act, 1999 or
otherwise.]
AS WITNESS the hands of duly authorized representatives of the parties the day
and year first above written
SIGNED by )
for and on behalf of )
------------------------ )
------------------------ )
SIGNED by )
for and on behalf of )
SAVVIS _____________ )
64
EXHIBIT A TO LOCAL ASSET TRANSFER AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is entered into as of
this ____ day of _________, 1999 by and between SAVVIS , a corporation
("SAVVIS") and _______________ , a corporation ("Assignor").
WHEREAS, SAVVIS and Assignor are parties to that certain Local
Asset Transfer Agreement even date herewith (the "Transfer Agreement"), pursuant
to which SAVVIS has agreed to purchase from Assignor the Assets and Liabilities;
and
WHEREAS, pursuant to Sections 2 and 5 of the Transfer
Agreement, Assignor agreed to assign to SAVVIS, on or prior to the Closing Date,
the Assets and Liabilities;
NOW, THEREFORE, pursuant to the terms and conditions of the
Transfer Agreement, and for good and valuable consideration, including the
provisions and covenants herein, the receipt and sufficiency of which is hereby
acknowledged, SAVVIS and Assignor agree as follows:
1. Assignor hereby assigns, transfers and delivers to SAVVIS the Assets
and the Liabilities and of its right, title and interest therein and delegates
all of Assignor's duties and obligations attached to the Assets and the
Liabilities;
2. SAVVIS hereby accepts the foregoing assignment and assumes and
agrees to keep, observe, perform, pay and discharge when due the terms,
covenants, conditions and obligations of Assignor related to the Liabilities,
and hereby releases Assignor from its obligations thereunder;
3. Notwithstanding the foregoing, if the assignment and transfer of any
of the Assets or Liabilities would cause a breach thereof and if no required
consent to such assignment and transfer has been obtained from the third parties
involved, then such Assets or Liabilities shall not be assigned and transferred,
but, instead, Assignor shall continue to hold its interests in such Assets or
Liabilities in trust for the benefit of SAVVIS, shall receive in trust and remit
as promptly as possible to SAVVIS any money paid thereunder to Assignor and
shall cooperate in any reasonable arrangement or action requested by SAVVIS to
secure for SAVVIS all benefits under such Assets or Liabilities.
4. Assignor hereby agrees, from time to time, at the reasonable request
of SAVVIS, to execute and deliver such other instruments of conveyance and
transfer and take such other actions as SAVVIS may reasonably request in order
to more effectively consummate the transactions contemplated by this Assignment
and Assumption Agreement.
5. Capitalized terms used herein and not defined herein shall have the
meanings ascribed to them in the Transfer Agreement.
65
6. This agreement shall be governed by, and construed in accordance
with, the laws of the state of without regard to its conflict of laws
principles.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment and Assumption Agreement as of the date first above written.
SAVVIS
By:____________________________________
Name:__________________________________
Title:_________________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
66
SCHEDULE 1 TO LOCAL ASSET TRANSFER AGREEMENT
THE COMPUTER EQUIPMENT
[To be provided at Closing]
67
SCHEDULE 2 TO LOCAL ASSET TRANSFER AGREEMENT
THE CONTRACTS
[To be provided at Closing]
68
SCHEDULE 3 TO LOCAL ASSET TRANSFER AGREEMENT
THE CONSIDERATION
ALLOCATION OF CONSIDERATION
Consideration to be allocated as set forth in Schedule 1.
PAYMENT OF CONSIDERATION
The consideration shall paid at Closig to the account of Seller as
follows:
[Details of account]
To the extent any adjustment is to be paid under Section 3 of this
Agreement, such amount shall be due and payable to the above
indicated account, no later than five days after receipt by SAVVIS of
a valid invoice, which may be submitted on or after the Effective
Date.
69
[SCHEDULE 4 TO LOCAL ASSET TRANSFER AGREEMENT
THE EMPLOYEES]
[To be provided at Closing]
70
SCHEDULE 5 TO LOCAL ASSET TRANSFER AGREEMENT
THE LIABILITIES
[To be provided at Closing]
71
EXHIBIT G
FORM OF LOCAL NETWORK SERVICES AGREEMENT
[This Exhibit G is filed as an Exhibit to the
Network Services Agreement which has been filed as a separate document]
72
EXHIBIT H
FORM OF EQUIPMENT COLLOCATION PERMIT
EQUIPMENT COLLOCATION PERMIT
This EQUIPMENT COLLOCATION PERMIT (the "Agreement") is made as
of the ____ day of _________, 2000, by and between [Bridge Subsidiary] (the
"Company") and [Savvis Subsidiary] (the "Customer").
WHEREAS, the Company occupies the premises identified on
Exhibit A attached hereto and incorporated herein by reference (the "Premises"),
which are leased by the Company under the lease described on Exhibit B attached
hereto, including the lease term and renewal options specified therein, and
incorporated herein by reference (the "Lease"); and
WHEREAS, the Customer and the Company desire to enter into an
arrangement permitting the Customer to locate certain of its equipment in
certain portions of the Premises, on and subject to the terms and conditions set
forth herein related to the Customer's collocation of the equipment;
NOW, THEREFORE, for and in consideration of the premises and
the mutual agreements herein, the parties hereby agree as follows:
1. SPACE.
(a) To the extent permitted by this Agreement, the Customer may place certain
telecommunications equipment (the "Equipment") within the Premises during the
Term (hereinafter defined) of this Agreement and may use the Equipment in
accordance with the terms and conditions of this Agreement and in accordance
with applicable laws and code. The precise locations (the "Space") within the
Premises where the Equipment may be placed and used by the Customer shall be as
designated by the Company in written notice(s) to the Customer. The Company
shall maintain exclusive control over the manner and method of the placement and
use of the Equipment within the Space. In connection with the permission
established under this Agreement, the Customer shall have no possessory or
occupancy rights with respect to the Space or control over the Space, but shall
have only permission to place and use the Equipment within the Space, together
with unrestricted access to the Equipment twenty-four hours a day, seven days a
week.
(b) The Customer shall use its reasonable best efforts to abide by applicable
terms and conditions of the Lease and any other agreements or indentures binding
on the Company with respect to the Premises, upon notice from the Company of
such terms and conditions from time to time throughout the Term; and this
Agreement and the rights of the Customer hereunder shall be subject and
subordinate to the terms and conditions of the Lease and other agreements and
indentures in all respects. The Company shall promptly give written notice to
the Customer of any notice of default they may receive pursuant to the Lease. If
the Customer shall not abide by any such terms or conditions, upon 15 days'
written notice to the Customer, the Company may
73
revoke the permission established under this Agreement with respect to the
applicable Space and Premises and the Company may terminate the rights of the
Customer under this Agreement with respect to such Space and Premises.
(c) The Equipment and its method of installation within the Space shall, in each
instance, be approved in writing by the Company in advance. The Customer shall
not place any additional equipment in the Space and shall not move or alter the
location of the Equipment within the Space without having received prior
approval in writing from the Company.
(d) Upon 30 days' prior written notice or, in the event of an emergency, within
such shorter time as may be reasonably determined appropriate by the Company,
the Company may require the Customer to relocate the Equipment within the
Premises and may redesignate the Space for the relocated Equipment; provided,
however, the site of relocation shall be prepared for installation prior to any
required relocation and shall afford substantially comparable environmental
conditions for the Equipment and substantially comparable accessibility to the
Equipment. All costs of relocating the Equipment shall be borne by the Customer,
excluding, however, the cost, if any, of improving the redesignated Space.
(e) Upon written request of the Customer and at the Customer's expense, the
Customer may require that fencing, caging, cabinets or other similar protective
covering for the Equipment be installed if (i) there is sufficient room in the
applicable Space and Premises for such installations, (ii) such installations
will not unreasonably interfere with the Company's use, occupancy or planning,
and will not unreasonably interfere with the Company's equipment or the
equipment of other collocators, and (iii) with respect to any Premises subject
to the Lease or other agreements or indentures, such installations are permitted
under the terms and conditions of the Lease or other agreements or indentures.
(f) If the placement or use of the Equipment in the Space results in any
violation or claim of violation of any of the Lease or other agreements or
indentures, then in the event the Company shall be unable, at a cost acceptable
to the Company, to cure such violation or secure a waiver of such claim of
violation, the Company may undertake to find other suitable space for the
Equipment within the applicable Space and Premises and relocate such Equipment
to other suitable location for the balance of the Term of this Agreement.
2. TERM.
(a) The initial term (the "Initial Term") of the permission established under
this Agreement pertaining to the placement and use of the Equipment within the
Space shall commence on the date hereof and shall continue thereafter until such
time as the applicable Lease expires. If the term of the applicable Lease is
extended, then the Customer shall have the option, upon prior written notice to
the Company, to renew this Agreement for an additional term (the "Renewal
Term"), which Renewal Term shall be conterminous with the term of the applicable
extended term under the Lease, on the terms and conditions otherwise set forth
in this Agreement. The Initial Term and the Renewal Term are sometimes
collectively referred to as the "Term." Notwithstanding anything herein or
elsewhere to the contrary, however, the Term shall be subject to earlier
termination as may be provided herein.
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(b) The option to renew this Agreement with respect to the Premises shall be
contingent on the Company's continued occupation and ownership or leasing of the
Premises and shall be contingent upon the Customer's compliance with the terms
and conditions of this Agreement. In the event the Company shall cease to occupy
any of the Premises or shall default under this Agreement, the option to renew
this Agreement shall expire with respect to the applicable Premises or the
entirety of the Premises, as the case may be.
(c) Following the expiration of the Term, this Agreement shall continue in
effect on a month-to-month basis upon the same terms and conditions otherwise
set forth herein, unless and until terminated by either the Customer or the
Company upon at least 30 days' prior written notice to the other.
(d) Notwithstanding anything herein or elsewhere to the contrary, the Company
reserves the right, in its discretion, to revoke the permission established
under this Agreement with respect to the applicable Space within any Premises
and to terminate the rights of Customer under this Agreement with respect to
such Space and Premises immediately upon written notice in the event that, for
whatever reason, the Company loses its right to occupy the applicable Premises
or its right to permit the collocation of Equipment within such Premises. In the
event the Company elects to exercise its right to terminate the Lease, the
Company shall give the Customer 6 months written notice of its termination of
the Lease and the intended resulting termination of this Agreement.
3. CONSIDERATION. The Customer agrees to pay the Company such amounts as may be
set forth on the Collocate Schedule for the permission established under this
Agreement with respect to the scheduled Space and Premises. Such amounts shall
be payable in equal monthly installments in advance on the first day of each
calendar month during the Term.
4. CONDITION OF THE PREMISES. The Customer approves the Premises in "as is"
condition as of the date of this Agreement, and acknowledges that the Company
has no obligation to make alterations, improvements or additions, decorations or
changes within the Premises or the Space. The Company acknowledges that the
Equipment is personal property of the Customer and not a fixture, and that the
Company shall not have any lienable interest in the Equipment.
5. ASSIGNMENT. The Agreement is personal to the parties, and may not be assigned
by either party without the prior written consent of the other.
6. TERMINATION OR EXPIRATION. At the expiration of the Term (or earlier
termination of this Agreement), the Customer shall remove the Equipment from the
Premises at the Customer's expense, and the Space shall be restored by the
Company, at the Customer's expense (such expense to be defrayed by reimbursing
the Company for the same upon demand) to substantially the same as the condition
as of the date of this Agreement.
7. DEFAULT. If the Customer breaches any term or condition of this Agreement,
the Company, after providing the Customer with notice of such breach, may elect
by written notice
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to the Customer to terminate this Agreement; provided, however that the Customer
shall have 30 days from the time it receives such notice from the Company of a
breach to cure any such default. In addition to such right of termination, the
Company shall have any and all other rights and remedies afforded to the Company
at law or in equity.
8. INDEMNIFICATION.
(a) The Customer covenants and agrees to indemnify and hold the Company harmless
from and against any and all suits, actions, claims, damages, charges and
expenses, including reasonable attorney fees, for damages or injuries to the
Space or the Premises occurring or claimed to have occurred in, upon, or about
the Space or the Premises as a result of the Customer's conduct or omission in
placing, operating or removing the Equipment or using the Equipment within the
Space, unless arising from the negligence or willful misconduct of the Company.
(b) The Company covenants and agrees to indemnify and hold the Customer harmless
from and against any and all suits, actions, claims, damages, charges and
expenses, including reasonable attorney fees, for damages or injuries to the
Equipment occurring or claimed to have occurred in, upon, or about the Space or
the Premises as a result of the negligence or willful misconduct of the Company
in handling the Equipment or using the Space or the Premises, unless arising
from the negligence or willful misconduct of the Customer.
9. LIMITATION OF LIABILITY.
(a) Liability for Damages to Property. The Company shall not be liable for any
damages whatsoever to the Customer's property resulting from the installation,
maintenance, repair or removal of Equipment and associated wiring unless the
damage is caused by the Company's negligence or willful misconduct.
(b) Liability for Equipment not Provided by the Company. The Company shall not
be liable for any damages whatsoever associated with facilities or Equipment not
furnished by the Company or for any act or omission of the Customer or any other
entity furnishing facilities or Equipment.
(c) Liability for Force Majeure Events. The Company shall not be liable for any
failure of performance due to causes beyond its control, including but not
limited to acts of God, fire, flood or other catastrophes; any law, order
regulation, direction, action or request of the United States Government, or of
any other government, including state and local governments having or claiming
jurisdiction or of any department, agency, commission, bureau, corporation, or
other instrumentality of any federal, state, or local government, or of any
civil or military authority; national emergencies; unavailability of materials
or rights-of-way; insurrections; riots; wars; or strikes, lock-outs, work
stoppages, labor difficulties, or utilities/power outages.
(d) No Special Damages. In no event shall the Company or the Customer be liable
for special, consequential, lost profit, exemplary, or punitive damages as a
result of its performance or nonperformance of this Agreement or as a result of
any default under or breach of this Agreement.
76
(e) No Claims against the Company's Landlords. The Customer acknowledges the
owners of any Premises subject to the Lease have no responsibilities or duties,
direct or indirect, to the Customer, and the Customer disclaims any rights
against or recourse to (i) the owners of any Premises subject to the Lease or
(ii) such Premises. In furtherance of this acknowledgment and disclaimer, the
Customer releases and waives any claim against such owners (such release and
waiver being for the benefit of, and enforceable by such owners as intended
third party beneficiaries).
10. CASUALTY OR EMINENT DOMAIN. In the event of any taking by eminent domain or
damage by fire or other casualty to the Premises and/or Space, the Customer
shall acquiesce and be bound by any action taken by or agreement entered into by
the Company with respect thereto, and in any event the Customer shall not have
(and hereby waives and releases) any claim with respect to any award, damages or
proceeds associated with any such taking or damage.
11. ENTIRE AGREEMENT. All prior agreements and understandings of the parties are
merged within this Agreement, which alone fully and completely sets forth the
understanding of the parties with respect to the subject matter of this
Agreement. This Agreement shall not be modified without the prior written
agreement of all the parties. Any handwritten modifications to this Agreement
shall be void ab initio.
12. NOTICES. Any and all notices or communications which either party may desire
or be required to give to the other shall be in writing and shall be sent to the
other party by certified or registered mail at the address designated below:
If to Company: Bridge Information Systems, Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxx Xxxx,
Executive Vice President and General Counsel
If to Customer: SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx X. Xxxxxxx,
Vice President and General Counsel
13. GOVERNING LAW. This Agreement shall be governed by the laws of [England]
[the State of Missouri].
14. INSURANCE. The Customer agrees to provide the Company evidence (in the form
of certificates of insurance), on or before the date of the commencement of the
Term, and to keep in force and effect during the Term, with respect to the
Equipment, a policy of comprehensive liability insurance, naming the Company as
an additional insured, and a policy of property insurance containing waivers of
subrogation against the Company and against the owners and
77
other parties in interest of any Premises subject to the Lease. Such insurance
shall otherwise be in a form conforming to the requirements of the applicable
provisions of the Lease.
15. INTERPRETATION. In the event of any conflict between the terms of this
Agreement and the terms contained in any Exhibit hereto, the terms of the
Exhibit shall govern.
[16. THIRD PARTY BENEFICIARIES. Except as expressly provided in this Agreement,
nothing in this Agreement will create or confer any rights or other benefits on
or in favor of any person who is not a party to this Agreement whether pursuant
to the Contracts (Rights of Third Parties) Act, 1999 or otherwise.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BRIDGE SAVVIS
======================================= ========================================
By: By:
======================================= ========================================
Title: Title:
======================================= ========================================
======================================= ========================================
Date: Date:
======================================= ========================================
78
EXHIBIT A TO EQUIPMENT COLLOCATION PERMIT
COLLOCATE SCHEDULE
[TO BE PROVIDED AT CLOSING]
1. Premises: _____________________________________________________________
2. Price:_________________________________________________________________
79
EXHIBIT B TO EQUIPMENT COLLOCATION PERMIT
LEASE
[TO BE COMPLETED AT CLOSING]
The term "Lease" shall include the leases listed below, as the
same may be amended from time to time by the Company.
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EXHIBIT I
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
[amount] St. Louis, Missouri
_____________, 2000
The undersigned, SAVVIS Communications Corporation, a Missouri
corporation, (hereinafter referred to as "Maker"), for value received, promises
to pay to the order of Bridge Information Systems, Inc. (the "Payee"), at its
office located at 000 Xxxxxx Xxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or at such
other place as may be designated in writing by the holder hereof, in lawful
money of the United States of America in immediately available funds, the
principal sum of _______________________________ United States Dollars
(US$_________________), together with interest thereon from the date hereof, at
the rate or rates hereinafter specified, as follows:
1. Interest. This Note shall bear interest on the aggregate
unpaid principal amount thereof from the date hereof at the fixed rate of
interest equal to ten percent (10%) per annum.
2. Interest and Principal Payments; Maturity. This Note shall
be payable as follows:
(a) Interest shall be payable semi-annually in cash
on each _____ and commencing on _______________, 2000.;
(b) On ________________, 2003, the Maker shall pay to
the Payee a final installment of principal and interest in an amount equal to
the sum of the principal balance of this Note together with the remaining
accrued and unpaid interest thereon.
3. Calculation of Interest. The interest rate payable
hereunder shall be calculated on the basis of twelve (12) thirty (30) day months
over a year of 360 days.
4. Application of Payments. All installments paid hereunder
shall be in currently available funds.
5. Payments Due on Saturdays, Sundays or Legal Holidays. If
any payment of principal or interest due on this Note is payable on a day which
is a Saturday, Sunday or legal holiday in the state of Missouri, then such
payment shall be due on the next business day, the amount of such payment, in
such case, to include all interest accrued to the date of actual payment.
6. Voluntary Prepayment. The indebtedness evidenced by this
Note may be prepaid, in whole or in part, at any time without premium. All
prepayments shall be applied first to accrued interest and the balance to the
reduction of the principal. No prepayment shall obligate Payee to re-advance any
sums prepaid.
7. Mandatory Prepayment. If the Maker receives an "Infusion
of Capital" of three hundred million United States dollars (U.S.$300,000,000.00)
or more in the aggregate, then it shall reduce the principal balance of this
Note by an amount equal to no less than fifty percent (50%) of the excess of
such infusions above $300 million; provided, however, if the Maker's board of
directors reasonably determine that Maker has insufficient funding to meet
estimated cash requirements for the ensuing 18 months, then no prepayment shall
be required. "Infusion of Capital" means any issuance of equity in exchange for
cash, and thus excluding acquisitions and stock options.
8. Default Rate of Interest. After maturity, by acceleration
or otherwise, this Note shall bear interest at a rate equal to fifteen percent
(15%) per annum ("Default Rate"). Should Maker fail to make any payment hereon
on the date on which it shall fall due, or should any default be made in the
performance by Maker or any affiliated entity of Maker of any of the agreements,
conditions, covenants, provisions or stipulations contained in this Note or any
material agreements, conditions, covenants, provisions or stipulations contained
in any other documents securing or executed in connection with this Note, then
the holder of this Note, at its option and without notice or demand, may declare
immediately due and payable the entire unpaid balance of principal under this
Note, together with all accrued interest thereon and after the date of such
default this Note shall bear interest at the Default Rate. In such case the
holder of this Note may also recover all costs of suit and other expenses in
connection with efforts to collect any of the aforesaid amounts, together with
attorneys' fees (including attorneys' fees for representation in proceedings
under the Bankruptcy Code), regardless of whether litigation is commenced,
together with interest on any judgment obtained by the holder of this Note at
the Default Rate, including interest at the Default Rate from and after the date
of any foreclosure sale until actual payment is made to the holder of this Note
of the full amount due such holder.
9. Oral Agreements. Oral agreements or commitments to loan
money, extend credit or to forbear from enforcing repayment of a debt including
promises to extend or renew such debt are not enforceable. To protect you
(Maker) and us (Payee) from misunderstanding or disappointment, any agreements
we reach covering such matters are contained in this writing, which is the
complete and exclusive statement of the agreement between us, except as we may
later agree in writing to modify it.
10. Governing Law. This Agreement shall be construed
according to and governed by the laws of the State of Missouri.
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IN WITNESS WHEREOF, Maker has executed and delivered this
Note the day and year first above written.
SAVVIS Communications Corporation
By:______________________________
Name:____________________________
Title:___________________________
83
EXHIBIT J
FORM OF CALL ASSET TRANSFER AGREEMENT
This Transfer Agreement ("Agreement") made as of 12:01 A.M. on
this ___ day of _____________, 20____ (the "Effective Date"), by and between
Bridge _________________________________, a corporation organized under the laws
of __________________, having its principal place of business at
_________________ ("Seller"), and SAVVIS ____________________ [a ______________
company organized under the laws of_________________][_____________ branch, the
____________ branch of a ______________ company organized under the laws of
_______________] having its [registered][principal] office at
______________________________ ("SAVVIS") (Seller and SAVVIS each a "Party" and
collectively the "Parties").
WITNESSETH
WHEREAS, pursuant to that certain Master Establishment and
Transition Agreement dated ________ ___, 2000 by and between Bridge Information
Systems, Inc. and SAVVIS Communications Corporation (the "Master Establishment
and Transition Agreement") the direct or indirect parent entity of Seller,
Bridge Information Systems Inc. ("BISI"), has granted to SAVVIS Communications
Corporation ("SCC"), which is the direct or indirect parent of SAVVIS and the
subsidiaries or other operations of SCC worldwide, the right to purchase the
Call Assets and to assume the Assumed Liabilities in the Call Jurisdictions.
Capitalized terms used but not defined herein shall have the meaning ascribed to
them in the Master Establishment and Transition Agreement;
WHEREAS, pursuant to the Master Establishment and Transition
Agreement, transfers of Call Assets and the Assumed Liabilities, rights and
obligations associated therewith will be effected by subsidiaries of BISI and
SCC pursuant to individual transfer services agreements between such entities;
and
WHEREAS, SAVVIS and Seller desire to effect a transfer of the
certain Call Assets and the liabilities, rights and obligations associated
therewith on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and obligations herein set forth and of other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties agree as
follows:
1. DEFINITIONS
1.1 In this Agreement and the Schedules the following expressions
shall have the following meanings namely:
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"Agreement" means the agreement between the Parties the terms of
which are set out herein;
"Assets" means the assets of the IP Network set forth in Clause 2.1
as amended pursuant to Clause 2.2;
"Closing" has the meaning set forth in Clause 5.1;
"Effective Date" has the meaning set forth in the first paragraph;
["Employees" means those employees of Seller listed on the attached
Schedule 4;]
"IP Network" means those assets that are used by Seller which
consists of providing telecommunications facilities utilizing
Internet protocols between Seller, suppliers and group companies of
Seller and Seller's customers;
"Liabilities" means all liabilities and obligations of Seller
(whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether
liquidated or unliquidated, and whether due or to become due)
fulfilling both of the following requirements:
(a) which are directly associated with (i) the Assets,
(ii) the Contracts, (iii) the use of the IP Network
or (iv) those matters set forth on Schedule [5]
attached hereto; and
(b) which result from or arise out of the ownership or
operation of the IP Network prior to the Effective
Date, including liabilities which exist with respect
to (i) obligations under the Contracts, other than an
obligation to make payment, which are required to be
fulfilled by Seller wholly prior to Closing, or (ii)
obligations to make payment, to the extent such
payment is for services rendered under the Contracts
prior to Closing.
"Software" means any and all software and software applications,
including operating software and embedded software, owned or used by
Seller in relation to the maintenance, ownership or operations of the
Assets listed in Clause 2.1.1.
1.2 In this Agreement words importing the singular include the plural
and vice versa and words importing gender include any other gender.
1.3 The headings of Clauses are for ease of reference and shall not
affect the construction of this Agreement.
1.4 References in this Agreement to Clauses or Schedules are
references to clauses of or schedules to this Agreement.
85
1.5 Any undertaking hereunder not to do any act or thing shall be
deemed to include an undertaking not to permit or suffer the doing of
that act or thing.
1.6 The expression "person" used in this Agreement shall include
(without limitation) any individual, partnership, local authority,
company or unincorporated association.
2. SALE & PURCHASE
2.1 Seller shall sell and SAVVIS shall purchase with effect from the
Effective Date the Assets subject in all cases to the Liabilities,
which are the following:
2.1.1 the computer equipment listed in Schedule 1, including
but not limited to the Ascend Cascade Switch 9000s and the
Baynet Routers;
2.1.2 the full benefit of all agreements between Seller and
any other person, firm or corporation (other than SAVVIS) to
which Seller is entitled in connection with the operations
of the IP Network which are in force at the Effective Date
including, without limitation, the contracts listed in
Schedule 2 as well as any maintenance, support, supply or
licensing agreements, if any, relating to the Software;
2.1.3 the right of SAVVIS to represent itself as operating
the IP Network in succession to Seller;
2.1.4 all technical and contractual information relating to
the IP Network;
2.1.5 the Software.
2.2 SAVVIS and Seller shall take all reasonable efforts to jointly
prepare, within fifteen days after the Effective Date, or as soon as
practical thereafter, a revised list of the Assets as set forth in
Schedules 1 and 2. This revised list shall supersede the attached
Schedules 1 and 2 and shall include any assets purchased or acquired
by Seller after the as of date for the inventory taken to prepare
Schedules 1 and 2 but before the Effective Date which comprise part
of the IP Network. The parties shall negotiate in good faith to
finalize such revised Schedules and shall provide to each other any
information or records reasonably necessary to finalize such revised
Schedules.
3. CONSIDERATION
3.1 The purchase price for the Assets exclusive of any VAT, stamp
duty, and transfer taxes (the "Consideration") shall be the sum
specified in Schedule 3. To the extent the Assets are revised
pursuant to Clause 2.2, the Consideration set forth in Schedule 3
shall be adjusted based on the net book value on the Effective Date
(in the books of Seller) of the Assets which are added to or removed
from the revised list. The Parties shall take all
86
reasonable efforts to jointly prepare any such revisions to Schedule
3 within fifteen days after the Effective Date, or as soon as
practical thereafter. The parties shall negotiate in good faith to
finalize such revised Schedule and shall provide to each other any
information or records reasonably necessary to finalize such
Schedule.
3.2 The Consideration shall be due and payable as set forth in
Schedule 3.
3.3 The amount set forth in Schedule 3 is exclusive of VAT, and any
and all transfer or other taxes or duties applicable to the
transaction provided for in this Agreement, which SAVVIS hereby
agrees to pay.
4. REPRESENTATIONS AND WARRANTIES.
Seller represents and warrants to the Buyer that the statements
contained in this Clause 4 are correct and complete as of the date of
this Agreement.
4.1 Seller is a corporation duly organized, validly existing, and in
good standing under the laws of the jurisdiction in which Seller is
organized.
4.2 Seller has full corporate power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of the
Seller, enforceable in accordance with its terms and conditions.
4.3 Except as would not result in the imposition of any Impermissible
Security Interest upon any of the Assets and except where the
violation, conflict, breach, default, acceleration, termination,
modification, cancellation, failure to give notice, or a lien would
not impair the value of use of the Assets or have a material adverse
effect on ability of the parties to consummate the transactions
contemplated by this Agreement, neither the execution and the
delivery of this Agreement nor the consummation of the transactions
contemplated hereby by the Seller will:
(a) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
the Seller is subject or any provision of the charter or bylaws of
the Seller,
(b) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right
to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other
arrangement to which the Seller is a party or by which they are bound
or to which any of the Assets are subject; or
87
(c) require Seller to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any third
party, government or governmental agency.
4.4 Seller has no liability or obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which the Buyer could
become liable or obligated.
4.5 The Seller has good title to, or a valid leasehold interest in
the Assets, free and clear of all Impermissible Security Interest,
and there exists no material restriction on the transfer of such
property.
4.6 Each of the Contracts with respect to the Assets is a valid and
binding obligation of the parties thereto, enforceable in accordance
with terms, in full force and effect. No party to any such contract
is in material breach or violation thereof or default thereunder.
Except for matters which would not, in the aggregate, have a material
adverse effect on the Assets, no event has occurred which, through
the passage of time or the giving of notice, or both, would
constitute, and neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby do or will
constitute or result in, a breach or violation of or default under
any contract, or would cause the acceleration of any obligation of
any party thereto or the creation of any Impermissible Security
Interest upon the Assets.
4.7 EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE 4, THE SELLER MAKES
NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN
EQUITY, IN RESPECT OF ANY OF ITS ASSETS, LIABILITIES OR OPERATIONS,
INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY SUCH OTHER
REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. BUYER
HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT TO THE EXTENT
SPECIFICALLY SET FORTH IN THIS CLAUSE 4, THE BUYER IS PURCHASING THE
ASSETS ON AN "AS-IS, WHERE-IS" BASIS. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, THE SELLER MAKES NO REPRESENTATION OR WARRANTY
REGARDING ANY ASSETS OTHER THAN THE ASSETS BEING PURCHASED HEREUNDER
OR ANY LIABILITIES OTHER THAN THE LIABILITIES ASSUMED HEREUNDER, AND
NONE SHALL BE IMPLIED AT LAW OR IN EQUITY.
5. CLOSING
5.1 Closing of the sale shall take place on the Effective Date when
Seller shall deliver to SAVVIS all physical Assets hereby agreed to
be sold, other than the Assets referred to in Clause 2.2 above. All
physical Assets referred to in Clause 2.2 above shall be delivered to
SAVVIS as soon as practicable following the finalization of any
adjustment to the Assets as set forth in Clause 2.2.
88
5.2 Property in and title to the Assets referred to in Clause 2.1
shall pass to SAVVIS on the Effective Date. Property in and title to
the Assets referred to in Clause 2.2 shall pass to SAVVIS on the date
that the revised schedules are finalized in accordance with on Clause
2.2 but such transfer shall be effective as of the Effective Date.
5.3 Subject to Clause 7 below, Seller shall on or as soon as
practicable after the Effective Date deliver to SAVVIS all transfers,
assignments and novations relating to the Assets (including the
property) together with the documents of title thereto, necessary to
give effect to this Agreement; provided, however, that any such
transfers shall as between the Parties be deemed to be effective as
of the Effective Date.
6. THE LIABILITIES
Subject to the consent where necessary of other contracting parties
(which the Parties hereto shall use their reasonable best efforts to
obtain) SAVVIS shall as from the Effective Date assume, perform and
discharge all Liabilities. If it proves impossible to obtain any such
consent in relation to any of the Liabilities, SAVVIS will assume,
perform and discharge such Liability as agent for and on behalf of
Seller and will indemnify Seller accordingly. Seller will indemnify
SAVVIS for contractual liabilities for goods or services delivered
prior to the Effective Date.
7. THIRD PARTY CONSENTS
7.1 Seller and SAVVIS shall use their reasonable best efforts to
obtain any required consent of any other contracting parties to the
assignment or novation of any agreement referred to in Clause 2.1.2.
Unless and until such consent shall be forthcoming and the relevant
agreement shall have been assigned or novated, SAVVIS shall at its
own cost and expense assume Seller's obligations under such
agreements and Seller shall account to SAVVIS for all sums paid or
received therefrom.
7.2 Seller will at SAVVIS' request and expense give to SAVVIS all
assistance in the power of Seller to enable SAVVIS to enforce the
agreements referred to in Clause 2.1.2 against the other contracting
party or parties and, without prejudice to the generality of the
foregoing, will provide all such relevant books, documents and other
information as SAVVIS may require in relation thereto.
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[8. PERSONNEL
SAVVIS and Seller hereby agree and acknowledge that the Transfer of
Undertakings (Protection of Employment) Regulations applies to this
transaction and, therefore, that the contracts of employment of all
of the Employees of Seller, as set forth at Schedule 4 to this
Agreement, shall not be terminated at Closing but shall continue to
have effect as if originally made between such Employee and SAVVIS in
accordance such Regulations.]
[9. INDEMNIFICATION
Seller will indemnify, defend and hold SAVVIS and its shareholders,
directors, officers, successors, assigns, and agents of each of them,
harmless from and against any and all claims, losses, damages,
liabilities, expenses or costs, plus reasonable attorneys' fees and
expenses, incurred by SAVVIS to the extent resulting from or arising
out of any claim or suit by any Employee of Seller, or by any other
employee of Seller that is not being transferred to SAVVIS, asserting
rights under the Transfer of Undertakings (Protection of Employment)
Regulations 1981 or any other similar law or regulation.]
10. FURTHER ASSURANCE
From and after Closing, the Parties shall do such acts and execute
such documents and instruments as may be reasonably required to make
effective the transactions contemplated hereby. In the event that
consents, approvals, other authorizations or other acts contemplated
by this Agreement have not been fully effected as of Closing, the
parties will continue after Closing, without further consideration,
to use their reasonable best efforts to carry out such transactions;
provided, however, in the event that certain approvals, consents or
other necessary documentation cannot be secured, then the Party
having legal responsibility, ownership or control shall act on behalf
of the other Party, without further consideration, to effect the
essential intention of the Parties with respect to the transactions
contemplated by this Agreement.
11. SURVIVAL OF CERTAIN PROVISIONS
To the extent that any provision of this Agreement shall not have
been performed at Closing it shall survive and remain in full force
and effect notwithstanding Closing.
12. GOVERNING LAW AND CHOICE OF FORUM
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of [England][the state of Missouri, United
States of America] and the parties to this Agreement hereby agree
that all matters arising out of or in connection with this
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Agreement shall be subject to the exclusive jurisdiction of the
courts of [England][the state of Missouri].
[13. THIRD PARTY BENEFICIARIES
Except as expressly provided in this Agreement, nothing in this
Agreement will create or confer any rights or other benefits on or in
favor of any person who is not a party to this Agreement whether
pursuant to the Contracts (Rights of Third Parties) Act, 1999 or
otherwise.]
AS WITNESS the hands of duly authorized representatives of the parties the day
and year first above written
SIGNED by )
for and on behalf of )
------------------------ )
------------------------ )
SIGNED by )
for and on behalf of )
SAVVIS _____________ )
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SCHEDULE 1 TO CALL ASSET TRANSFER AGREEMENT
THE COMPUTER EQUIPMENT
[To be Completed at Call Right Exercise Closing]
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SCHEDULE 2 TO CALL ASSET TRANSFER AGREEMENT
THE CONTRACTS
[To be Completed at Call Right Exercise Closing]
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SCHEDULE 3 TO CALL ASSET TRANSFER AGREEMENT
THE CONSIDERATION
[To be Completed at Call Right Exercise Closing]
ALLOCATION OF CONSIDERATION
Consideration to be allocated as set forth in Schedule 1.
PAYMENT OF CONSIDERATION
The consideration shall paid at Closig to the account of Seller as
follows:
[Details of account]
To the extent any adjustment is to be paid under Section 3 of this
Agreement, such amount shall be due and payable to the above
indicated account, no later than five days after receipt by SAVVIS of
a valid invoice, which may be submitted on or after the Effective
Date.
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[SCHEDULE 4 TO CALL ASSET TRANSFER AGREEMENT
THE EMPLOYEES]
[To be Completed at Call Right Exercise Closing]
95
SCHEDULE 5 TO CALL ASSET TRANSFER AGREEMENT
THE LIABILITIES
[To be Completed at Call Right Exercise Closing]
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EXHIBIT K
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is made as of the ____ day of
January, 2000 (the "Effective Date"), by and between BRIDGE INFORMATION SYSTEMS
AMERICA, INC., a Delaware corporation ("Sublessor") and SAVVIS COMMUNICATIONS
CORPORATION, a Missouri corporation ("Sublessee").
WHEREAS, Sublessor entered into a Master Lease Agreement, a copy of
which is attached hereto as EXHIBIT A (the "Master Lease"), with General
Electric Capital Corporation for itself and as Agent for certain Participants
(collectively, the "Lessor"); unless otherwise defined herein, capitalized terms
used as defined terms shall have the meaning assigned to such terms in the
Master Lease;
WHEREAS, in conjunction with the planned spin-off of Sublessee by
Sublessor, Sublessor has obtained the consent of Lessor, a copy of which is
attached hereto as EXHIBIT B, to enter into a sublease with Sublessor; and
WHEREAS, Sublessor and Sublessee desire to set forth in writing the
terms and conditions of the sublease;
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants, representations, warranties, conditions and agreements hereunder
expressed, Sublessor and Sublessee agree as follows:
I. SUBLEASING ARRANGEMENT:
Sublessor agrees to lease to Sublessee, and Sublessee agrees to lease
from Sublessor, the equipment (the "Equipment") described in the equipment
schedules attached hereto as EXHIBIT C (the "Equipment Schedules"), subject to
the terms set forth herein and in the Equipment Schedules.
II. TERM, RENT AND PAYMENT:
(a) The term of this Sublease (the "Term") with respect to any item of
the Equipment shall be the remaining term for such Equipment as set forth in the
Master Lease and the Equipment Schedules; provided, however, that the Term shall
begin effective from and after the Effective Date hereof.
(b) Rent shall be paid directly to Sublessor by wire transfer of
immediately available funds to: Bankers Trust Xxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, Account No. 00-000-000, ABA No. 000-000-000, or to such other account as
Sublessor may direct in writing; and shall be effective upon receipt. Payments
of Rent shall be in the amount set forth in, and due in accordance with, the
provisions of the applicable Equipment Schedules and the other related
provisions contained in the schedules to the Master Lease (together with the
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Equipment Schedules, individually and collectively, the "Schedules"). If Rent is
not paid within ten (10) days of its due date, Sublessee agrees to pay to
Sublessor a late charge of Five Cents ($0.05) per dollar on, and in addition to,
the amount of such Rent but not exceeding the lawful maximum, if any.
(c) Except as provided for in (d) below, Sublessee shall pay Rent, as
provided for herein without deduction or set-off. In the event of a non-payment
of Rent by Sublessee, Sublessor may continue to make payments to Lessor with
respect to the Equipment, with the right to set-off any such payments against
amounts due by the Sublessor or any of its affiliates to Sublessee or any of its
affiliates under any agreement.
(d) In the event of a default on the Master Lease by Sublessor with
respect to the Equipment, Sublessee shall have the right to act to cure any such
default, with the right to set-off the costs associated with curing such breach
against amounts due to Sublessor under this Sublease or against any other
amounts due by Sublessee or any of its affiliates to Sublessor or any of its
affiliates under any agreement.
III. TAXES:
Sublessee shall have no liability for taxes imposed by the United
States of America or any State or political subdivision thereof which are on or
measured by the net income of Lessor or Sublessor. Sublessee shall report (to
the extent that it is legally permissible) and pay promptly all other taxes,
fees and assessments due, imposed, assessed or levied against any Equipment (or
the purchase, ownership, delivery, leasing, possession, use or operation
thereof), this Agreement (or any rentals or receipts hereunder), any Schedule,
Lessor, Sublessor or Sublessee by any foreign, federal, state or local
government or taxing authority during or related to the term of this Agreement,
including, without limitation, all license and registration fees, and all sales,
use, personal property, excise, gross receipts, franchise, stamp or other taxes,
imposts, duties and charges, together with any penalties, fines or interest
thereon (all hereinafter called "Taxes"). Sublessee shall (i) reimburse Lessor
and/or Sublessor, as appropriate (on an after-tax basis), upon receipt of
written request for reimbursement for any Taxes charged to or assessed against
Lessor or Sublessor; (ii) on request of Lessor and/or Sublessor, submit to
Lessor and/or Sublessor, as appropriate, written evidence of Sublessee's payment
of Taxes, (iii) on all reports or returns show the ownership of the Equipment by
Lessor, and (iv) send a copy thereof to Lessor and Sublessor.
IV. REPORTS:
(a) Sublessee will notify Sublessor in writing, within ten (10) days
after any tax or other lien shall attach to any Equipment, of the full
particulars thereof and of the location of such Equipment on the date of such
notification.
(b) Sublessee will permit Lessor and Sublessor to inspect the Equipment
and all maintenance records with respect thereto during normal business hours
upon reasonable notice.
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(c) Subject to the following sentence, Sublessee will ensure that the
Equipment is located at the Equipment Location (specified in the applicable
Schedule) within the Continental United States. Sublessee may move the Equipment
from the Equipment Location to a new location within the Continental United
States provided that, within five (5) days after the end of each calendar
quarter: (i) Sublessee shall provide to Sublessor written notice identifying the
Equipment which has been relocated during the immediately preceding calendar
quarter, the old Equipment Location and the new Equipment Location; and (ii)
Sublessee shall deliver to Sublessor such documents and instruments as
reasonably may be required by Lessor or Sublessor in connection with such
relocation, including (without limitation) Uniform Commercial Code Financing
Statements and (if required by Lessor or Sublessor) Estoppel/Waiver Agreements,
to be filed at Sublessee's expense. Upon Lessor's or Sublessor's request,
Sublessee promptly will notify Lessor and/or Sublessor in writing of the
location of any Equipment as of the date of such notification.
(d) Sublessee will promptly and fully report to Sublessor in writing if
any Equipment is lost or damaged (where the estimated repair costs would exceed
ten percent (10%) of its then fair market value), or is otherwise involved in an
accident causing personal injury or property damage.
(e) Within thirty (30) days after any request by Lessor and Sublessor,
Sublessee will furnish to Sublessor a certificate of an authorized officer of
Sublessee stating that he has reviewed the activities of Sublessee and that, to
the best of his knowledge, there exists no Default (as hereinafter defined) or
event which, with the giving of notice or the lapse of time (or both), would
become a Default.
V. USE AND MAINTENANCE:
(a) Sublessee agrees that the Equipment will be used by Sublessee
solely in the conduct of its business and in a manner complying with all
applicable Federal, state and local laws and regulations and any applicable
insurance policies, and Sublessee shall not discontinue use of the Equipment.
(b) Sublessee will keep the Equipment free and clear of all liens and
encumbrances other than those which result from acts of Lessor or Sublessor.
VI. SERVICE:
(a) Sublessee will, at its sole expense, maintain each unit of
Equipment in good operating order, repair, condition and appearance in
accordance with manufacturer's recommendations, normal wear and tear excepted
and Sublessee's standard practices (but in no event less than industry
practices). Sublessee's maintenance programs shall be subject to review and
approval by Lessor and Sublessor. Sublessee shall, if at any time reasonably
requested by Lessor or Sublessor, affix in a prominent position on each unit of
Equipment plates, tags or other identifying labels showing the interest therein
of Lessor and Sublessor.
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(b) Sublessee will not, without the prior consent of Sublessor, affix
or install any accessory, equipment or device on any Equipment if such addition
will impair the value, originally intended function or use of such Equipment.
All additions, repairs, parts, supplies, accessories, equipment, and devices
furnished, attached or affixed to any Equipment which are not readily removable
shall be made only in compliance with applicable law, including Internal Revenue
Service guidelines, shall be free and clear of all liens, encumbrances or rights
of others, and shall become the property of Lessor. Sublessee will not, without
the prior written consent of Sublessor and subject to such conditions as Lessor
or Sublessor may impose for its protection, affix or install any Equipment to or
in any other personal or real property.
(c) Any alterations or modifications to the Equipment that may, at any
time during the term of this Agreement, be required to comply with any
applicable law, rule or regulation shall be made at the expense of Sublessee.
VII. STIPULATED LOSS VALUE:
Sublessee shall promptly and fully notify Sublessor in writing if any
unit of Equipment shall be or become worn out, lost, stolen, destroyed,
irreparably damaged in the reasonable determination of Sublessee, or permanently
rendered unfit for use from any cause whatsoever (such occurrence being
hereinafter called "Casualty Occurrences"). On the rental payment date next
succeeding a Casualty Occurrence (the "Payment Date"), Sublessee shall pay
Sublessor the sum of (x) the Stipulated Loss Value of such unit calculated in
accordance with Annex D to the Master Lease, which is incorporated herein by
reference as of the rental payment date next preceding such Casualty Occurrence
("Calculation Date"); and (y) all rental and other amounts which are due
hereunder as of the Payment Date. In addition to the amounts required to be paid
by Sublessee on any Rent Payment Date pursuant to the preceding clauses (x) and
(y), Sublessee shall also pay to Sublessor the amount of any swap breakage loss
incurred by Lessor and/or any Participant (as such term is hereinafter defined)
as a result of or in connection with such payment on such Rent Payment Date. As
used herein, "Swap Breakage Loss" shall include LIBOR and other funding breakage
costs, if any, and may be determined by Lessor and any Participant by reference
to the Standard International Swap Dealers Association calculation for "Loss."
Upon payment of all sums due hereunder, the term of this Sublease as to such
unit shall terminate and (except in the case of the loss, theft or complete
destruction of such unit) Lessor shall be entitled to recover possession of such
unit.
VIII. LOSS OR DAMAGE:
Sublessee hereby assumes and shall bear the entire risk of any loss,
theft, damage to, or destruction of, any unit of Equipment from any cause
whatsoever from the time the Equipment is shipped to Sublessee.
IX INSURANCE.
Sublessee agrees, at its own expense, to keep all Equipment insured for
such amounts as specified in the Equipment Schedules and against such hazards as
Lessor or Sublessor may
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require, including, but not limited to, insurance for damage to or loss of such
Equipment and liability coverage for personal injuries, death or property
damage, with Lessor named as additional insured and with a loss payable clause
in favor of Lessor, as its interest may appear, irrespective of any breach of
warranty or other act or omission of Sublessee. All such policies shall be with
companies, and on terms, satisfactory to Lessor and Sublessor. Sublessee agrees
to deliver to Sublessor evidence of insurance satisfactory to Lessor and
Sublessor. No insurance shall be subject to any co-insurance clause. Sublessee
hereby appoints Lessor as Sublessee's attorney-in-fact to make proof of loss and
claim for insurance, and to make adjustments with insurers and to receive
payment of and execute or endorse all documents, checks or drafts in connection
with payments made as a result of such insurance policies. Any expense of Lessor
and Sublessor in adjusting or collecting insurance shall be borne by Sublessee.
Sublessee will not make adjustments with insurers except (i) with respect to
claims for damage to any unit of Equipment where the repair costs do not exceed
ten percent (10%) of such unit's fair market value, or (ii) with Lessor's or
Sublessor's written consent. Said policies shall provide that the insurance may
not be altered or canceled by the insurer until after thirty (30) days' written
notice to Lessor and Sublessor. Sublessee may, at its option, apply proceeds of
insurance, in whole or in part, to (i) repair or replace Equipment or any
portion thereof, or (ii) satisfy any obligation of Sublessee to Lessor or
Sublessor hereunder.
X. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any
Schedule, Sublessee shall promptly, at its own cost and expense: (i) perform any
testing and repairs required to place the affected units of Equipment in the
same condition and appearance as when received by Sublessee (reasonable wear and
tear excepted) and in good working order for their originally intended purpose;
(ii) if deinstallation, disassembly or crating is required, cause such units to
be deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is satisfactory to Lessor; and
(iii) return such units, free and clear of all liens and encumbrances, to a
location within the continental United States as Lessor shall direct.
(b) Until Sublessee fully has complied with the requirements of
Paragraph (a) above, Sublessee's Rent payment obligation and all other
obligations under this Agreement shall continue from month to month
notwithstanding any expiration or termination of the Term. Sublessor may
terminate such continued leasehold interest upon ten (10) days' notice to
Sublessee. In addition to these rents, Sublessor shall have all of its other
rights and remedies available as a result of this nonperformance.
XI. DEFAULT:
(a) Lessor or Sublessor may in writing declare this Agreement in
default ("Default") if: (1) Sublessee breaches its obligation to pay Rent or any
other sum when due and fails to cure the breach within ten (10) days; (2)
Sublessee breaches any of its insurance obligations under SECTION IX hereof, or
Sublessee fails to comply with the provisions of SECTION XXIII of the Master
Lease; (3) Sublessee breaches any of its other obligations hereunder and fails
to cure that breach within thirty (30) days after written notice thereof; (4)
any representation or warranty
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made by Sublessee in connection with this Agreement shall be false or misleading
in any material respect; (5) Sublessee becomes insolvent or ceases to do
business as a going concern; (6) any Equipment is illegally used; (7) a petition
is filed by or against Sublessee under any bankruptcy or insolvency laws and, if
such petition is filed against Sublessee, such petition is not dismissed within
ninety (90) days; (8) Sublessee shall have terminated its corporate existence,
consolidated with, merged into, or conveyed or leased substantially all of its
assets as an entirety to any person (such actions being referred to as an
"Event"), unless not less than sixty (60) days prior to such Event: (x) such
person is organized and existing under the laws of the United States or any
state, and executes and delivers to Lessor and Sublessor an agreement containing
an effective assumption by such person of the due and punctual performance of
this Sublease; and (y) Lessor and Sublessor are reasonably satisfied as to the
creditworthiness of such person; (9) effective control of Sublessor's voting
capital stock, issued and outstanding from time to time, is not retained by the
present stockholders (unless Sublessee shall have provided sixty (60) days'
prior written notice to Sublessor of the proposed disposition of stock and
Lessor and Sublessor shall have consented thereto in writing). Any provision of
this Agreement to the contrary notwithstanding, Lessor and Sublessor may
exercise all rights and remedies hereunder independently with respect to each
Schedule.
(b) After Default, at the request of Lessor, Sublessee shall comply
with the provisions of SECTION X(A) hereof. Sublessee hereby authorizes Lessor
to enter, with or without legal process, any premises where any Equipment is
located and take possession thereof. Sublessee shall, without further demand,
forthwith pay to Lessor (i) as liquidated damages for loss of a bargain and not
as a penalty, the Stipulated Loss Value of the Equipment (calculated in
accordance with Annex D to the Master Lease as of the Rent Payment date next
preceding the declaration of default), and (ii) all Rent and other sums then due
hereunder. Lessor may, but shall not be required to, sell the Equipment at
private or public sale, in bulk or in parcels, with or without notice, and
without having the Equipment present at the place of sale; or Lessor may, but
shall not be required to, lease, otherwise dispose of or keep idle all or part
of the Equipment; and Lessor may use Sublessee's premises for any or all of the
foregoing without liability for rent, costs, damages or otherwise. The proceeds
of sale, lease or other disposition, if any, shall be applied in the following
order of priorities: (1) to pay all of Lessor's costs, charges and expenses
incurred in taking, removing, holding, repairing and selling, leasing or
otherwise disposing of Equipment; then, (2) to the extent not previously paid by
Sublessee, to pay Lessor all sums due from Sublessee hereunder; then (3) to
reimburse to Sublessee any sums previously paid by Sublessee as liquidated
damages; and (4) any surplus shall be remitted to Sublessee. Sublessee shall pay
any deficiency in clauses (1) and (2) forthwith.
(c) In addition to the foregoing rights, after Default, Lessor or
Sublessor may terminate the lease as to any or all of the Equipment.
(d) The foregoing remedies are cumulative, and any or all thereof may
be exercised in lieu of or in addition to each other or any remedies at law, in
equity, or under statute. Sublessee waives notice of sale or other disposition
(and the time and place thereof), and the manner and place of any advertising.
If permitted by law, Sublessee shall pay reasonable attorney's fees actually
incurred by Lessor and Sublessor in enforcing the provisions of this Sublease
and any
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ancillary documents. Waiver of any Default shall not be a waiver of any other or
subsequent default.
(e) Any default under the terms of any other material agreement between
Sublessor and Sublessee or any of their affiliates giving rise to the
termination of such other agreement may be declared by Sublessor a default under
this agreement.
XII. ASSIGNMENT:
(a) SUBLESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR HYPOTHECATE ANY
EQUIPMENT OR THE INTEREST OF SUBLESSEE HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF SUBLESSOR.
(b) Sublessor may not, without the consent of Sublessee, assign this
Agreement or any Schedule, or the right to enter into any Schedule, such consent
not to be unreasonably withheld. In the event of a permitted assignment,
Sublessee agrees that it will pay all Rent and other amounts payable under each
Schedule to the Sublessor named therein; provided, however, if Sublessee
receives written notice of an assignment from Sublessor, Sublessee will pay all
Rent and other amounts payable under any assigned Schedule to such assignee or
as instructed by Sublessor. Each Schedule, incorporating by reference the terms
and conditions of this Agreement, constitutes a separate instrument of lease,
and the Sublessor named therein or its assignee shall have all rights as
"Sublessor" thereunder separately exercisable by such named Sublessor or
assignee as the case may be, exclusively and independently of Sublessor or any
assignee with respect to other Schedules executed pursuant hereto. Sublessee
further agrees to confirm in writing receipt of a notice of assignment as
reasonably may be requested by assignee.
(c) Sublessee acknowledges that it has been advised that General
Electric Capital Corporation is acting under the Master Lease for itself and as
agent for certain third parties (each being herein referred to as a
"Participant" and, collectively, as the "Participants"); that the interest of
the Lessor in the Master Lease, the Equipment Schedules, related instruments and
documents and/or the Equipment may be conveyed to, in whole or in part, and may
be used as security for financing obtained from, one or more third parties
without the consent of Sublessee (the "Syndication"). Sublessee agrees
reasonably to cooperate with Lessor and Sublessor in connection with the
Syndication, including the execution and delivery of such other documents,
instruments, notices, opinions, certificates and acknowledgments as reasonably
may be required by Lessor, Sublessor or such Participant; provided, however in
no event shall Sublessee be required to consent to any change that would
adversely affect any of the economic terms of the transactions contemplated
herein.
(d) Subject always to the foregoing, this Agreement inures to the
benefit of, and is binding upon, the successors and assigns of the parties
hereto.
XIII. INDEMNIFICATION:
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(a) Sublessee hereby agrees to indemnify, save and keep harmless,
Lessor and Sublessor, their agents, employees, successors and assigns, from and
against any and all losses, damages, penalties, injuries, claims, actions and
suits, including legal expenses, of whatsoever kind and nature, in contract or
tort, whether caused by the active or passive negligence of Lessor or otherwise,
and including, but not limited to, Lessor's strict liability in tort, arising
out of (i) the selection, manufacture, purchase, acceptance or rejection of
Equipment, the ownership of Equipment during the Term, and the delivery, lease,
possession, maintenance, uses, condition, return or operation of the Equipment
(including, without limitation, latent and other defects, whether or not
discoverable by Sublessor or Sublessee and any claim for patent, trademark or
copyright infringement or environmental damage), or (ii) the condition of
Equipment sold or disposed of after use by Sublessee, any sublessee or employees
of Sublessee. Sublessee shall, upon request, defend any actions based on, or
arising out of, any of the foregoing.
(b) All of Lessor's and Sublessor's rights, privileges and indemnities
contained in this Section shall survive the expiration or other termination of
this Sublease and the Master Lease and the rights, privileges and indemnities
contained herein are expressly made for the benefit of, and shall be enforceable
by Lessor, Sublessor and their successors and assigns.
XIV. DISCLAIMER:
SUBLESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT ANY
ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. Except as may be provided in
the Master Establishment and Transition Agreement, between Sublessor and
Sublessee dated _____________, 2000 ("MEAT Agreement"), SUBLESSOR DOES NOT MAKE,
HAS NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE
EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY
OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR
OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All
such risks, as between Sublessor and Sublessee, or between Lessor and Sublessee,
are to be borne by Sublessee. Without limiting the foregoing, and except as may
be provided in the MEAT Agreement, Sublessor shall have no responsibility or
liability to Sublessee or any other person with respect to any of the following:
(i) any liability, loss or damage caused or alleged to be caused directly or
indirectly by any Equipment, any inadequacy thereof, any deficiency or defect
(latent or otherwise) therein, or any other circumstance in connection
therewith; (ii) the use, operation or performance of any Equipment or any risks
relating thereto; (iii) any interruption of service, loss of business or
anticipated profits or consequential damages; or (iv) the delivery, operation,
servicing, maintenance, repair, improvement or replacement of any Equipment. If,
and so long as, no default exists under this Sublease, Sublessee shall be, and
hereby is, authorized during the term of this Lease to assert and enforce, at
Sublessee's sole cost and expense, from time to time, in the name of and for the
account of Lessor, Sublessor and/or
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Sublessee, as their interests may appear, whatever claims and rights Sublessor
or Lessor may have against any Supplier of the Equipment.
XV. REPRESENTATIONS AND WARRANTIES OF SUBLESSEE:
Sublessee represents and warrants to Sublessor that on the date hereof:
(a) Sublessee has adequate power and capacity to enter into, and
perform under, this Agreement and all related documents (together, the
"Documents") and is duly qualified to do business wherever necessary to carry on
its present business and operations, including the jurisdiction(s) where the
Equipment is or is to be located.
(b) The Documents have been duly authorized, executed and delivered by
Sublessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy and
insolvency laws.
(c) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the entry into or
performance by Sublessee of the Documents except such as have already been
obtained.
(d) The entry into and performance by Sublessee of the Documents will
not: (i) violate any judgment, order, law or regulation applicable to Sublessee
or any provision of Sublessee's articles of incorporation, charter or by-laws;
or (ii) result in any breach of, constitute a default under or result in the
creation of any lien, charge, security interest or other encumbrance upon any
Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or
credit agreement or other instrument (other than this Agreement) to which
Sublessee is a party.
(e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or affecting
Sublessee, which will have a material adverse effect on the ability of Sublessee
to fulfill its obligations under this Agreement.
(f) Sublessee is and will be at all times validly existing and in good
standing under the laws of the state of its incorporation (specified in the
first sentence of this Agreement) and is in good standing and qualified as a
foreign corporation in (i) each jurisdiction in which the Equipment is or will
be located and (ii) in such jurisdictions where Sublessee's ownership or lease
of property or the conduct of its business requires it to be so qualified.
XVI. COVENANTS OF SUBLESSEE:
Sublessee covenants and agrees as follows:
(a) Promptly upon any officer or director of Sublessee obtaining
knowledge of any condition or event which constitutes a default or a potential
default hereunder, Sublessee shall
105
provide prompt written notice to Sublessor specifying such condition and what
action Sublessee is taking or proposes to take with respect thereto.
(b) Sublessee will promptly execute and deliver to Sublessor such
further documents, instruments and assurances and take such further action as
Lessor or Sublessor from time to time may reasonably request in order to carry
out the intent and purpose of this Sublease and to establish and protect the
rights and remedies created or intended to be created in favor of Sublessor or
Lessor hereunder.
(c) Sublessee will comply with all affirmative and negative covenants
set forth in Exhibits M and N to the Master Lease, to the same extent as if set
forth herein.
(d) Sublessee will not attach or incorporate any item of Equipment to
or in any other item of equipment or personal property or to or in any real
property in a manner that gives rise to the assertion of any lien, claim or
encumbrance on such item of Equipment by reason of such attachment or the
assertion of a claim that such item of Equipment has become a fixture. Sublessee
hereby agrees that it will purchase any such item of Equipment which Lessor or
Sublessor notifies Sublessee in writing is subject to the assertion of any such
lien, claim or encumbrance within [ten (10)] days of such notice.
(e) The Equipment will at all times be used for commercial or business
purposes.
(f) Sublessee shall not take any action that would cause a default
under this Sublease or the Master Lease or omit to take any action necessary to
prevent a breach of this Sublease or the Master Lease.
XVII. REPRESENTATIONS AND WARRANTIES OF SUBLESSOR:
(a) Sublessor has adequate power and capacity to enter into, and
perform under, this Agreement and all related documents (together, the
"Documents") and is duly qualified to do business wherever necessary to carry on
its present business and operations, including the jurisdiction(s) where the
Equipment is or is to be located.
(b) The Documents have been duly authorized, executed and delivered by
Sublessor and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy and
insolvency laws.
(c) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the entry into or
performance by Sublessor of the Documents except such as have already been
obtained.
(d) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or affecting
Sublessor, which will have a material adverse effect on the ability of Sublessor
to fulfill its obligations under this Agreement.
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(e) Sublessor has not received a Notice of Default on the Master Lease
from Lessor and, to Sublessor's knowledge after the exercise of Sublessor's
commercially reasonable best efforts to investigate the same, no material
default has occurred on the Master Lease with respect to the Equipment which
could not be cured by the giving of notice or undertaking of other actions not
material to the market value of the Equipment taken as a whole.
XVIII. COVENANTS OF SUBLESSOR:
Sublessor covenants and agrees as follows:
(a) Sublessor shall at all time perform its obligations under the
Master Lease with respect to the Equipment, except such covenant shall not apply
to the extent such default is due to actions or failure to act by Sublessee.
(b) Sublessor shall notify Sublessee in writing of any notice of
default which it receives from the Lessor with respect to the Equipment: (1) if
with respect to a failure to pay rent or any other sum when due, such notice to
be delivered to Sublessee no later than 2 days after receipt of the notice of
default received by Sublessor, and (2) if with respect to any other notice of
default, such notice to be delivered to Sublessee no later than 10 days after
receipt of the notice of default received by Sublessor
XIX. OWNERSHIP FOR TAX PURPOSES, GRANT OF SECURITY INTEREST; USURY SAVINGS:
(a) For income tax purposes, Lessor and Sublessor will treat Sublessee
as the owner of the Equipment. Accordingly, Lessor and Sublessor will not claim
any tax benefits available to an owner of the Equipment.
(b) Sublessee hereby acknowledges that Lessor has a first security
interest in the Equipment, together with all additions, attachments, accessions,
accessories and accessions thereto whether or not furnished by the Supplier of
the Equipment and any and all substitutions, replacements or exchanges therefor,
and any and all insurance and/or other proceeds of the property in and against
which a security interest is granted hereunder.
(c) It is the intention of the parties hereto to comply with any
applicable usury laws to the extent that any Equipment Schedule is determined to
be subject to such laws; accordingly, it is agreed that, notwithstanding any
provision to the contrary in any Equipment Schedule or this Sublease, in no
event shall any Equipment Schedule require the payment or permit the collection
of interest in excess of the maximum amount permitted by applicable law. If any
such excess interest is contracted for, charged or received under any Equipment
Schedule or this Sublease, or in the event that all of the principal balance
shall be prepaid, so that under any of such circumstances the amount of interest
contracted for, charged or received under any Equipment Schedule or the Sublease
shall exceed the maximum amount of interest permitted by applicable
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law, then in such event: (i) the provisions of this paragraph shall govern and
control, (ii) neither Sublessee nor any other person or entity now or hereafter
liable for the payment hereof shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount of interest
permitted by applicable law, (iii) any such excess which may have been collected
shall be either applied as a credit against the then unpaid principal balance or
refunded to Sublessee, at the option of the Sublessor, and (iv) the effective
rate of interest shall be automatically reduced to the maximum lawful contract
rate allowed under applicable law as now or hereafter construed by the courts
having jurisdiction thereof. It is further agreed that without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged or
received under any Equipment Schedule or the Sublease which are made for the
purpose of determining whether such rate exceeds the maximum lawful contract
rate, shall be made, to the extent permitted by applicable law, by amortizing,
prorating, allocating and spreading in equal parts during the period of the full
stated term of the indebtedness evidenced hereby, all interest at any time
contracted for, charged or received from Sublessee or otherwise by Sublessor in
connection with such indebtedness; provided, however, that if any applicable
state law is amended or the law of the United States of America preempts any
applicable state law, so that it becomes lawful for Sublessor to receive a
greater interest per annum rate than is presently allowed, the Sublessee agrees
that, on the effective date of such amendment or preemption, as the case may be,
the lawful maximum hereunder shall be increased to the maximum interest per
annum rate allowed by the amended state law or the law of the United States of
America.
XX. END OF SUBLEASE PURCHASE OPTION:
So long as (i) no default exists under the Sublease or the Master Lease
and (ii) the Term of the Sublease and the Master Lease has not been earlier
terminated, Sublessee may at the expiration of the Term of the Sublease, upon
one hundred eighty (180) days' prior written notice to Sublessor, purchase all
(but not less than all) of the Equipment described in any Schedule on an AS IS,
WHERE IS BASIS without recourse to or warranty from Sublessor or lessor, express
or implied, for a purchase price of $1.00 payable to Lessor (plus all applicable
sales taxes). The payment shall be due and payable on the expiration of the Term
of the Sublease and the Master Lease.
XXI. MISCELLANEOUS:
(a) SUBLESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS SUBLEASE, ANY OF THE RELATED DOCUMENTS, ANY DEALINGS BETWEEN
SUBLESSEE AND SUBLESSOR OR THE LESSOR RELATING TO THE SUBJECT MATTER OF THIS
TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING
ESTABLISHED BETWEEN SUBLESSEE AND SUBLESSOR. The scope of this waiver is
intended to be all encompassing of any and all disputes that may be filed in any
court (including, without limitation, contract claims, tort claims, breach of
duty claims, and all other common law and statutory claims). THIS WAIVER IS
IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND
THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
108
MODIFICATIONS TO THIS SUBLEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the
event of litigation, this Agreement may be filed as a written consent to a trial
by the court.
(b) Any cancellation or termination by Sublessor, pursuant to the
provision of this Sublease, any Schedule, supplement or amendment hereto, or the
sublease of any Equipment hereunder, shall not release Sublessee from any then
outstanding obligations to Sublessor hereunder.
(c) All Equipment shall at all times remain personal property of Lessor
regardless of the degree of its annexation to any real property and shall not by
reason of any installation in, or affixation to, real or personal property
become a part thereof. Sublessee shall obtain and deliver to Sublessor (to be
recorded at Lessee's expense) from any person having an interest in the property
where the Equipment is to be located, waivers of any lien, encumbrance or
interest which such person might have or hereafter obtain or claim with respect
to the Equipment.
(d) Time is of the essence of this Agreement. Sublessor's failure at
any time to require strict performance by Sublessee of any of the provisions
hereof shall not waive or diminish Sublessor's right thereafter to demand strict
compliance therewith.
(e) Sublessee agrees, upon Sublessor's request, to execute any
instrument necessary or expedient for filing, recording or perfecting the
interest of Sublessor or Lessor.
(f) All notices required to be given hereunder shall be in writing,
personally delivered, delivered by overnight courier service, sent by facsimile
transmission (with confirmation of receipt), or sent by certified mail, return
receipt requested, addressed to the other party at its respective address stated
above or, with respect to the Lessor, in the Master Lease or at such other
address as such party shall from time to time designate in writing to the other
party, and shall be effective from the date of receipt.
(g) This Sublease and the Schedule, including the Equipment Schedules
and the schedules to the Master Lease, which are incorporated herein by
reference, constitute the entire agreement between the parties with respect to
the subject matter hereof and shall not be amended or altered in any manner
except by a document in writing executed by both parties. NO VARIATION OR
MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR
CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE PARTIES HERETO. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
109
(h) The representations, warranties and covenants of Sublessee herein
shall be deemed to survive the closing hereunder. The obligations of Sublessee
which accrue during the term of this Agreement and obligations which by their
express terms survive the termination of this Agreement, shall survive the
termination of this Agreement.
(i) In case of a failure of Sublessee to comply with any provision of
this Agreement, Sublessor shall have the right, but shall not be obligated, to
effect such compliance, in whole or in part; and all moneys spent and expenses
and obligations incurred or assumed by Sublessor in effecting such compliance
(together with interest thereon at the rate specified in Paragraph (j) of this
Section) shall constitute additional Rent due to Sublessor within five (5) days
after the date Sublessor sends notice to Sublessee requesting payment.
Sublessor's effecting such compliance shall not be a waiver of Sublessee's
default.
(j) Any Rent or other amount not paid to lessor when due hereunder
shall bear interest, both before and after any judgment or termination hereof,
at the lesser of eighteen percent (18%) per annum or the maximum rate allowed by
law.
(k) Any provisions in this Agreement and any Schedule which are in
conflict with any statute, law or applicable rule shall be deemed omitted,
modified or altered to conform thereto.
(l) So long as no Default shall have occurred and be continuing
hereunder, and conditioned upon Sublessee performing all of the covenants and
conditions hereof, as to claims of Sublessor or persons claiming under
Sublessor, Sublessee shall peaceably and quietly hold, possess and use the
Equipment during the Term of this Agreement subject to the terms and conditions
hereof.
(m) Whether or not any Equipment is leased hereunder, Sublessee shall
pay upon demand as additional Rent hereunder all reasonable and necessary
documented transaction expenses including, but not limited to, expenses of
counsel, due diligence, appraisals, lien searches, Uniform Commercial Code
and/or Estoppel/Waiver Agreement filing fees, and field audits.
XXII. CHOICE OF LAW; JURISDICTION:
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT. The parties agree that
any action or proceeding arising out of or relating to this Agreement may be
commenced in the United States District Court for the Southern District of New
York.
110
XXIII. CHATTEL PAPER:
To the extent that any Schedule would constitute chattel paper, as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction, no security interest therein may be created through the transfer
or possession of this Agreement in and of itself without the transfer or
possession of the original of a Schedule executed pursuant to this Agreement and
incorporating this Agreement by reference; and no security interest in this
Agreement and a Schedule may be created by the transfer or possession of any
counterpart of the Schedule other than the original thereof, which shall be
identified as the document marked "Original" and all other counterparts shall be
marked "Duplicate."
IN WITNESS WHEREOF, Sublessor and Sublessee have caused this Sublease
Agreement to be executed by their duly authorized representatives as of the date
first written above.
SUBLESSOR SUBLESSEE
BRIDGE INFORMATION SYSTEMS SAVVIS COMMUNICATIONS
AMERICA, INC. CORPORATION
By:__________________________ By:_________________________________________
Its:_________________________ Its:________________________________________
111
EXHIBIT A TO THE SUBLEASE AGREEMENT
MASTER LEASE AGREEMENT
112
EXHIBIT B TO THE SUBLEASE AGREEMENT
CONSENT OF LESSOR
113
EXHIBIT C TO THE SUBLEASE AGREEMENT
EQUIPMENT SCHEDULES
114
EXHIBIT L
JAPANESE STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made this _____
day of January, 2000, by and between Bridge International Holdings, Inc., a
Delaware corporation having its principal place of business at 000 Xxxxxx
Xxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("Seller"), and SAVVIS Communications
Corporation, a Delaware corporation having its principal place of business at
000 Xxxxxx Xxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 ("SAVVIS") (Seller and SAVVIS each
a "Party" and collectively the "Parties").
WITNESSETH
WHEREAS, Bridge Information Systems Inc. ("BISI"), the
ultimate parent company of the Seller, desires to effectuate a restructuring of
its network operations by transferring certain assets, liabilities, rights, and
obligations relating to its IP network, as well as stock, of certain
subsidiaries world-wide to its subsidiary, SAVVIS, and its subsidiaries pursuant
to an agreement to be executed between BISI and SAVVIS (the "Master
Establishment and Transition Agreement"); and
WHEREAS, pursuant to the Master Establishment and Transition
Agreement, the transfer of the IP network in foreign jurisdictions will be
effected pursuant to other agreements to be executed between BISI and SAVVIS or
their respective subsidiaries;
WHEREAS, the Seller owns all the outstanding stock of Bridge
Information Systems (Japan) KK, a company organized under the laws of Japan (the
"Company");
WHEREAS, the Company currently owns all the assets and
interests relating to the IP network in Japan;
WHEREAS, Seller desires to sell to SAVVIS, and SAVVIS desires
to purchase from Seller all the shares of common stock (the "Shares") of the
Company on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and obligations herein set forth and of other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties agree as
follows:
1. DEFINITIONS
1.1 In this Agreement, the following expressions shall have the
following meanings namely:
"Agreement" means the agreement between the Parties the terms of
which are set out herein;
115
"Closing" has the meaning set forth in Clause 4.1;
"Effective Date" means [December 31, 1999];
1.2 In this Agreement words importing the singular include the plural
and vice versa and words importing gender include any other gender.
1.3 The headings of Clauses are for ease of reference and shall not
affect the construction of this Agreement.
1.4 References in this Agreement to Clauses are references to clauses
of this Agreement.
1.5 Any undertaking hereunder not to do any act or thing shall be
deemed to include an undertaking not to permit or suffer the doing of
that act or thing.
1.6 The expression "person" used in this Agreement shall include
(without limitation) any individual, partnership, local authority,
company or unincorporated association.
2. SALE & PURCHASE
Upon the terms and subject to the conditions set forth in this
Agreement, Seller shall sell and SAVVIS shall purchase the Shares
free and clear of all security interests, claims, and restrictions,
with effect from the Effective Date.
3. CONSIDERATION
3.1 The purchase price for the Shares (the "Consideration") shall be
[US$_________________.]
3.2 The Consideration shall be due and payable within thirty (30)
days after the Closing.
4. CLOSING
4.1 Closing of the sale shall take place on January __, 2000, when
Seller shall deliver to SAVVIS the share certificate representing the
Shares.
4.2 Title to the Shares shall pass to SAVVIS on the Effective Date.
5. REPRESENTATIONS AND WARRANTIES
5.1 Seller represents and warrants that it is now and will be at
Closing the sole holder of record and beneficial owner of all the
Shares, that it owns the Shares free and clear of all security
interests, claims, and restrictions, and that the Shares constitute
all of the outstanding capital stock of the Company. Seller will
cause the transfer to SAVVIS of
116
good and marketable title to the Shares at Closing, free and clear of
all security interests, claims, and restrictions. Seller represents
that it has the legal capacity and authority to execute and deliver
this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby.
(a) 5.2 The tangible and intangible property owned and leased by the
Company and listed or described on Schedule 5.2 hereto constitutes
all of the property and property rights owned and ------------ leased
by the Company and all of the property and property rights that in
any way relate to, are used in, or are necessary for the operation of
the IP network of the Company in the manner and to the extent
presently conducted or planned. Further, the Company does not own or
lease any tangible or intangible property that is unrelated to the IP
network and not mentioned in Schedule 5.2. Should the Company own or
lease property not related to the IP network, the -------------
Parties shall endeavor to cause such property to be returned to the
Seller, and any charges incurred or revenues generated in connection
with such property shall be allocated to the appropriate Party as if
such property were owned or leased by the Seller.
6. FURTHER ASSURANCE
From and after Closing, the Parties shall do such acts and execute
such documents and instruments as may be reasonably required to make
effective the transactions contemplated hereby. In the event that
consents, approvals, other authorizations or other acts contemplated
by this Agreement have not been fully effected as of Closing, the
parties will continue after Closing, without further consideration,
to use their best efforts to carry out such transactions. However, in
the event that certain approvals, consents or other necessary
documentation cannot be secured, then the Party having legal
responsibility, ownership, or control shall act on behalf of the
other Party, without further consideration, to effect the essential
intention of the Parties with respect to the transactions
contemplated by this Agreement.
7. SURVIVAL OF CERTAIN PROVISIONS
To the extent that any provision of this Agreement shall not have
been performed at Closing it shall survive and remain in full force
and effect notwithstanding Closing.
8. GOVERNING LAW AND CHOICE OF FORUM
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Missouri, and the parties to
this Agreement hereby agree that all matters arising out of or in
connection with this Agreement shall be subject to the exclusive
jurisdiction of the state and federal courts located in St. Louis,
Missouri.
117
AS WITNESS the hands of duly authorised representatives of the parties the day
and year first above written
SIGNED by )
for and on behalf of )
BRIDGE INTERNATIONAL HOLDINGS, INC. )
SIGNED by )
for and on behalf of )
SAVVIS COMMUNICATIONS CORPORATION )
118
SCHEDULE 5.2 TO THE JAPANESE STOCK PURCHASE AGREEMENT
PROPERTY
119
SCHEDULE 1.3
OTHER ASSUMED LIABILITIES
None.
120
SCHEDULE 1.10
INTERNATIONAL NETWORK ASSETS
See attached.
121
SCHEDULE 1.17
US NETWORK ASSETS
See attached.
122
SCHEDULE 2.3
PAYMENT OF PURCHASE PRICE
Payment of Purchase Price for International Network Assets: Buyer shall pay to
the Seller, for the International Network Assets an amount cash equal to
$________________, which is the sum of the Net Book Value of such assets, as set
forth in each Local Transfer Agreement. This amount shall be paid by the
following entities in the following described manner:
See attached.
Payment of Purchase Price for LLC Interest:
--------------------------------------- ------------------------------ --------------------------------
TOTAL PURCHASE PRICE FOR CASH PRINCIPAL BALANCE OF PROMISSORY
INTEREST PAYMENT NOTE
--------------------------------------- ------------------------------ --------------------------------
$ $ $
--------------------------------------- ------------------------------ --------------------------------
123
SCHEDULE 3.3
CONSENTS
See attached.
124
SCHEDULE 3.5(A)
IP NETWORK EXCEPTIONS
None.
125
SCHEDULE 3.6
CONTRACTS
See attached.
126
SCHEDULE 3.7
EMPLOYEES
The Americas
Acocks, Xxxxx Xxxxxxxx, Xxx Xxxxxx, Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxxxx
Xxxxxx, Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxxx
Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxx
Xxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxx
Xxxxx, Xxxx Xxxx, Tab Robies, Xxxx
Xxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxx, Xxxxx
Xxxxxxxxx, Xxxx Xxxxxxx, Cinty Schwamie, Xxxxx
Xxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxxxxxx, Xxxxx
Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxx, Xxx
Xxxxxxxxx, Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxx, Xxxxx
Xxxxxxx, Xxxx Krify, Xxxxxx Xxxxxx, Xxxx
Xxxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxxxxx, Xxxxx
Xxxxxx, Xxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxxxx, Xxxxxxx Xxxxx, Xxxx
Xxxxx, Xxxx Xxx, Xxxx Xxxx, Xxxx
Xxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxx
Xxxxx, Xxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx
Xxxxxxx, Xxxxx Xxxxxxx, Xxx Xxxx, Xxxxxxxx
Xxxxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxxxxx, Xxx
Xxxxx, Xxxxxxx Xxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxxx, Don
Europe
Appleton, Xxxxx Xxxxx, Xxxx Xxxxx, Xxxx
Xxxxx, Xxxxx Xxxx, Xxx Xxxxxxxx, Xxxx
Xxxxx, Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxx
Xxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxx
Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxx
Xxxxx, Xxxx Xxxxxxx, Xxxx
X'Xxxx, Lincoln Xxxxxxxx, Xxxx
Asia
Xxxxx, Xxx Zu, Boon Tec
127
SCHEDULE 5.1
NOTICES AND CONSENTS
See attached.
128
SCHEDULE 5.2(A)
CALL RIGHT JURISDICTIONS AND CALL ASSETS
Jurisdiction: Assets:
Greece See attached
Hungary See attached
Ireland See attached
Poland See attached
South Africa
China See attached
Macau
Malaysia See attached
Taiwan See attached
Thailand See attached
[Mexico See attached]
Venezuela See attached
Bahrain See attached
Kuwait See attached
Oman
Qatar
Saudi Arabia See attached
United Arab Emirates See attached
129
SCHEDULE 5.2(B)
SATELLITE RIGHTS
Contracts:
Agreement for the Provision of DirecPC Professional Services Data Network and
Integrated Satellite Business Network Equipment Services in Europe and the
Middle East between HOT Telecommunications Limited and Bridge Information
Systems, Inc. commencing July 1, 1999.
Countries:
Bulgaria
Croatia
Cyprus
Czech Republic
Egypt
Estonia
Jersey
Latvia
Lithuania
Macedonia
Portugal
Romania
Russia
Slovakia
130
SCHEDULE 5.5
SHORT-TERM CALL ASSETS JURISDICTIONS
Greece
Hungary
Ireland
Poland
Taiwan
[Mexico]
Venezuela
131
