Co-Location Agreement - SAVVIS Communications Corp. and Reuters America Inc.
CO-LOCATION AGREEMENT
This CO-LOCATION AGREEMENT (the "AGREEMENT") is made and entered into as of
September 28, 2001 (the "EFFECTIVE DATE"), by and between SAVVIS COMMUNICATIONS
CORPORATION, a Missouri corporation ("SAVVIS"), and Reuters America Inc, a
Delaware corporation ("CUSTOMER").
BACKGROUND
(A) SAVVIS has a leasehold interest in a certain data center building
located at 587 McDonnell Boulevard, Hazelwood, Missouri on the land
described in Exhibit A attached hereto (the "PREMISES"), which is
suitable for the placement and operation of telecommunications
equipment (the "EQUIPMENT");
(B) Customer desires access to and certain rights of use with respect to
the Premises for the purpose of placing Equipment, racks and certain
associated cabling and related space requirements; and
(C) SAVVIS desires to grant Customer a license to occupy or use portions of
the Premises upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereby agree as follows:
1. DEFINITIONS
1.1 Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ADDITIONAL SPACE" means any space requested by Customer from SAVVIS pursuant to
the provisions of Section 3.5 of this Agreement;
"ADJUSTMENT DATE" shall have the meaning set out in Section 4.2 of this
Agreement;
"AUDIT" shall have the meaning set out in Section 4.6 of this Agreement;
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"BUSINESS DAY" means a day (other than Saturday or Sunday) on which commercial
banks are open for business in the City of London, England and in the City of
New York, USA.
"CONFIDENTIAL INFORMATION" means in respect of a party, information which has a
commercial value in the business of the party and is reasonably maintained in
confidence by the party, and shall include, without limitation, know-how,
processes, ideas, inventions (whether or not patentable), formulas, algorithms,
computer programs, databases, technical drawings, designs, circuits, layouts,
interfaces, materials, schematics, names and information about the expertise of
employees or consultants, customer lists, other technical, business, financial,
customer and product development plans, supplier information, forecasts,
strategies and the like.
"CUSTOMER EQUIPMENT" means the Equipment of the Customer located at the Premises
from time to time.
"CUSTOMER GROUP" means Reuters and its direct and indirect subsidiaries and any
holding company and any subsidiaries of such holding company from time to time,
together with such entities as are from time to time operating as authorized
distributors of Reuters in territories due to the local law not permitting
Reuters to operate through a subsidiary in those territories. For the purpose of
this definition a company is a "subsidiary" of a "holding company" (including
where appropriate Reuters) if that holding company owns, directly or indirectly,
at least fifty per cent (50%) of the voting stock of that company or otherwise
has the right to exercise control over the management and affairs of such
company.
"EFFECTIVE DATE" shall have the meaning set forth in the preamble to this
Agreement.
"EQUIPMENT" shall have the meaning set forth in the recitals to this Agreement.
"INITIAL TERM" shall have the meaning set forth in Section 3.1 of this
Agreement;
"MONTHLY FEE" shall have the meaning set forth in Section 4.1 of this Agreement;
"NETWORK SERVICES AGREEMENT" or "NSA" means that certain Network Services
Agreement, dated as of the date hereof, between SAVVIS Communications
Corporation, a Delaware corporation, and Reuters Limited, a company incorporated
in England, pursuant to which SAVVIS Communications Corporation and the SAVVIS
Group provide certain network services to the Reuters Group.
"RENEWAL TERM" shall have the meaning set forth in Section 3.1 of this
Agreement.
"SAVVIS Group" means SAVVIS Communications Corporation and any direct and
indirect subsidiaries thereof from time to time, together with such entities as
are from time to time operating as authorized distributors of SAVVIS in
territories due to the local law not permitting SAVVIS Communications
Corporation to operate through a subsidiary in
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those territories. For the purpose of this definition a company is a
"subsidiary" of SAVVIS Communications Corporation if it owns, directly or
indirectly, at least fifty per cent (50%) of the voting stock of that company or
otherwise has the right to exercise control over the management and affairs of
such company.
"SERVICES" means the services to be performed by SAVVIS as more particularly set
out in Exhibit B to this Agreement.
"SPACE" means such space as agreed by SAVVIS and the Customer from time to time
in accordance with this Agreement and more particularly set out Exhibit A,
including any Additional Space.
"Term" shall have the meaning set forth in Section 3.1 of this Agreement.
2. SERVICES PROVIDED, LICENSE TO OCCUPY AND PERMISSIBLE USE OF THE
PREMISES
2.1 SAVVIS hereby grants to Customer a license, subject to the terms and
conditions contained herein, to use the Space in the Premises as
delineated on Exhibit A attached hereto with respect to which Customer
shall have the rights as set forth in this Agreement. The Space shall
be utilized by the Customer only for location of the Customer
Equipment, related activities and as agreed between the parties
pursuant to this Agreement.
2.2 In connection with the Space made available hereunder, SAVVIS shall
perform the Services at no additional charge to Customer, except as
otherwise specifically provided on Exhibit B. However, Customer shall
be required to maintain the Space in an orderly manner and shall be
responsible for the removal of trash, packing, cartons, and similar
debris from the Space. In addition, Customer shall not cause the
condition of the Space to become unsafe, as determined by any
reasonable standards established by SAVVIS or as required by applicable
law.
2.3 Customer shall have access to the Space at any time on any date;
provided, however, Customer shall be required to comply with such
reasonable security requirements as SAVVIS shall from time to time
notify the Customer in advance with respect to entry on the Premises.
SAVVIS shall provide Customer with any documents, cards or other items
necessary to permit Customer unfettered access in compliance with any
such security requirements.
2.4 Customer acknowledges that it has been granted only a license (subject
to the terms and conditions contained herein) to occupy the Space and
that Customer has not been granted any real property interest in the
Space.
2.5 Notwithstanding the provisions of Section 2.4 above, Customer shall,
with SAVVIS' prior written consent, such consent not to be unreasonably
withheld,
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conditioned or delayed, be entitled to grant a sublicense of the Space
to a third party on substantially the same terms and conditions as this
Agreement, except that any fees collected by Customer from any
sublicense of the Space to a third party shall not be materially
different from the fees collected by SAVVIS from third parties for
comparable volume and term. Customer acknowledges that SAVVIS may
reasonably withhold consent to the sublicense by Customer of the Space
to the direct competitors of SAVVIS listed on Exhibit C attached
hereto, as such exhibit may be amended from time to time in accordance
with the Change Control Procedure set forth in Schedule 7.3 to the
Network Services Agreement. Customer may without limitation provide
services to its customers, which services include the Space, bundled
with Customer's own services.
3. TERM OF AGREEMENT, RENEWAL, RIGHT OF FIRST REFUSAL
3.1 This Agreement shall take effect from the Effective Date and shall
continue for a period of five (5) years (the "INITIAL TERM").
Thereafter, this Agreement may be renewed by Reuters, in its sole
discretion, for additional one year periods (each, a "RENEWAL TERM") by
giving SAVVIS not less than one hundred and eighty (180) days prior
written notice, to expire on the next anniversary of the Effective Date
(together with the Initial Term, the "TERM"). Notwithstanding the
foregoing, this Agreement shall terminate concurrently with the
termination of the Network Services Agreement. This Section 3.1 shall
be subject to the provisions of Section 6 hereof.
3.2 Notwithstanding anything to the contrary set forth in this Agreement
(including, without limitation, Section 2.4 hereof), any purchaser or
successor in interest to SAVVIS including, without limitation, SAVVIS
itself, if any of the options under SAVVIS' lease for the Premises are
exercised, of the Premises shall take the Premises subject to this
Agreement and the rights and obligations hereunder.
3.3 Nothing contained in this Agreement shall prohibit Customer from
seeking any relief or remedy against the condemning authority in the
event of an eminent domain proceeding or condemnation that affects the
Space.
3.4 At such times as SAVVIS has commitments for the purchase of 1000 racks
and 1,500 racks respectively, including Customer's forecasted
requirement for approximately [**] racks hereunder, SAVVIS shall notify
Customer and Customer shall thereafter have forty-five (45) days from
the date of receipt of SAVVIS' notice to purchase as many additional
racks as Customer desires at SAVVIS' then current rates, as such rates
are offered to other customers for comparable volume and term, or as
otherwise may be mutually agreed between the parties, such racks to be
installed in a commercially reasonable time frame. In the event that
Customer determines to purchase additional racks pursuant to the terms
of this Section 3.4, SAVVIS agrees that in accordance with the
provisions of the last sentence of
[**] CONFIDENTIAL TREATMENT REQUESTED
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Section 3.5 hereof, it will install such additional racks adjacent to
the racks Customer currently has at the time Customer purchases such
additional racks.
3.5 Customer may, at any time during the Term, submit a written request to
SAVVIS requesting additional space ("ADDITIONAL SPACE") in the
Premises. SAVVIS shall reasonably consider any such request in good
faith and shall promptly notify Customer of its decision and in any
event within thirty (30) days of Customer's request. SAVVIS shall
consider any such request no less favorably than any request submitted
by a third party. The parties shall agree in good faith the price for
any such Additional Space which shall not be more than the price
calculated on a per square foot basis being paid for the Space at the
time of the Customer's request. Any Additional Space shall be provided
in accordance with the provisions of this Agreement and shall be
adjacent to the Space currently occupied by Customer at the time of
Customers' request, unless the parties agree to the contrary. SAVVIS
agrees that in order to provide Customer Additional Space which is
adjacent to the Space currently occupied by Customer at the time of
Customer's request, SAVVIS will first use all space that is not
adjacent to the Space occupied by Customer for any purpose other than
as required by Customer.
4. PRICES AND PAYMENT TERMS
4.1 Customer shall pay SAVVIS a monthly fee equal to [**] (the "Monthly
Fee"), for twenty five percent (25%) of the building space or 27,250
square feet, which area constitutes the Space as described on Exhibit A
attached hereto. Billing for the Space shall commence on the Effective
Date. All payments are due within thirty (30) days after the date of
receipt by Reuters of such invoice. In no event shall Customer be
obligated to pay for any real estate taxes, assessments or any other
government imposition on the Premises or the underlying land. SAVVIS
may charge Customer an interest rate equal to the lesser of [**] for
any monthly fee not paid within such thirty-day period. All payments
required by this Agreement are exclusive of any national, state,
municipal or other governmental excise, sales, value-added and
occupational taxes and other levies, all of which Customer shall be
responsible for, and will pay in full, other than taxes based on
SAVVIS' net income.
4.2 The Monthly Fee payable hereunder shall remain the same during the
Initial Term of this Agreement. Prior to the end of the Initial Term
and at the end of each subsequent Renewal Term, the Monthly Fee payable
shall be reviewed by SAVVIS and adjusted effective on and from the
fifth anniversary of the Effective Date ("ADJUSTMENT DATE"), to an
amount equal to the lesser of (i) the product obtained by multiplying
the then current Monthly Fee by a fraction, the numerator of which is
the Consumer Price Index For All Urban Consumers, All Items for the St.
Louis metropolitan area (1982-1984 = 100), published monthly or
otherwise in the "Monthly Labor Review" of the Bureau of Labor
Statistics of the United States Department of Labor ("CPI"), for the
month preceding the month in which the
[**] CONFIDENTIAL TREATMENT REQUESTED
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Adjustment Date falls, and the denominator of which is the CPI for the
calendar month in which the Commencement Date occurs, and (ii) [**]. In
no event shall the Monthly Fee as adjusted be less than the Monthly Fee
for the previous twelve month period.
4.3 SAVVIS shall, within one hundred and twenty (120) days prior to the
Adjustment Date, give Customer written notice of any such adjustment,
and Customer shall commence paying the Monthly Fee as adjusted from the
Adjustment Date.
4.4 In the event the CPI is discontinued and not replaced by a successor
index by the Bureau of Labor Statistics, the adjustments to be made
hereunder shall be made based upon a nationally recognized and accepted
comparable statistical index meaning the cost of living for the City of
St. Louis in order to carry out the intent of Section 4.2 hereof.
4.5 If Customer in good faith disputes the accuracy or legitimacy of any
SAVVIS charge or invoice, Customer shall promptly notify SAVVIS of such
dispute and pay any undisputed amount by the due date. The parties
shall resolve any such dispute in accordance with the provisions of
Section 14 below. Customer shall not be deemed to be in breach of this
Agreement for non-payment if it is withholding payment of any amounts
that are disputed in good faith and Customer has promptly provided a
written statement to SAVVIS describing the basis of the dispute and the
amount being withheld. SAVVIS shall not deny, suspend or restrict any
Service pending the outcome of any billing dispute. Where resolution of
any such dispute determines that Customer should pay the disputed
amount, SAVVIS may charge Customer interest on such disputed amount
from the due date to the dates such sum is actually paid at the then
current LIBOR rate.
4.6 No more than once in any twelve (12) month period, Customer shall have
the right (either itself and/or through its third party contractors) to
conduct an audit to verify that Fees for the Services are being charged
by SAVVIS in accordance with the terms of this Agreement (an "AUDIT");
provided that the compensation of any third party contractor performing
an Audit shall not be contingent upon the results of such Audit. SAVVIS
shall provide to Customer and its third party contractor reasonable
facilities and access to the Premises during normal office hours, and
such documents and information as Customer shall reasonably require for
the purposes of the Audit, but in no event shall SAVVIS be required to
provide Customer or its third party contractor with any Confidential
Information of SAVVIS that is not necessary to properly conduct such
Audit. Customer shall ensure that any third party contractor hired by
Customer to perform an Audit shall execute a confidentiality agreement
which protects the Confidential Information of each party to no lesser
extent than as set out in Section 13 prior to the start of any Audit.
If any Audit shows that Customer was actually charged Fees for the
Services by SAVVIS that were more than [**] above what should have been
[**] CONFIDENTIAL TREATMENT REQUESTED
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charged Customer by SAVVIS in accordance with the terms of this
Agreement, then SAVVIS shall reimburse Customer for any reasonable fees
paid by Customer for such Audit.
4.7 The Space is being provided to Customer in accordance with the
description set out in Exhibit B. Customer, at its own cost and
expense, shall have the right to install racks and such other equipment
as is necessary to install the Customer Equipment, with the prior
written consent of SAVVIS, which consent shall not be unreasonably
withheld, conditioned or delayed. Customer shall be responsible for
connecting electrical power to the Customer Equipment, which electrical
power shall be separately metered. The parties shall mutually agree on
the method to be used for measuring and metering the power.
4.8 Customer shall connect the Customer Equipment at the Premises to its
carrier services by ordering such services through SAVVIS and the rates
Customer shall pay to SAVVIS for such services shall in no event be
greater than the actual amount of the rates charged to SAVVIS by its
carriers, plus the cost of the administrative fees, as set forth on
Exhibit B.
4.9 Customer agrees to reimburse SAVVIS for all reasonable repair or
restoration costs associated with damage or destruction caused by
Customer's personnel, its agents or its suppliers/contractors or
Customer's visitors during the Term or as a consequence of its removal
of the Customer Equipment or property installed in the Space. Customer
shall not make any construction changes or material alterations to the
interior or exterior portions of the Space, without obtaining SAVVIS'
written approval for Customer to have the work performed or have SAVVIS
perform the work, such approval not to be unreasonably withheld,
conditioned or delayed. SAVVIS shall have the right to bid for
construction or material alterations within the Premises and Space
areas at rates to be negotiated between the parties hereto.
4.10 Customer's use of the Space, installation of Customer Equipment and
access to the Premises shall at all times be subject to Customer's
adherence to the reasonable security rules and rules of conduct
notified by SAVVIS in advance to Customer in writing for the Premises.
SAVVIS shall provide Customer with any documents, cards or other items
necessary to permit Customer to have unfettered access in compliance
with any such security requirements. Customer agrees not to erect any
signs or devices to the exterior portion of the Space without
submitting the request to SAVVIS and obtaining SAVVIS' written
approval, such approval not to be unreasonably withheld, conditioned or
delayed.
5. INSURANCE
5.1 Customer agrees to maintain, at its expense, during the Term (i)
Comprehensive General Liability Insurance in an amount not less than
One Million Dollars ($1,000,000.00) per occurrence for bodily injury or
property damage,
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(ii) Employers Liability in an amount not less than Five Hundred
Thousand Dollars ($500,000.00) per occurrence, and (iii) Workers'
Compensation in an amount not less than that prescribed by statutory
limits. Prior to taking occupancy of the Space, Customer shall, at
SAVVIS' reasonable written request, furnish SAVVIS with certificates of
insurance and evidence of property which evidence the minimum levels of
insurance set forth herein.
6. TERMINATION
6.1 A SAVVIS "EVENT OF DEFAULT" shall be deemed to occur if:
(a) SAVVIS has failed to a material degree to perform or comply
with or has violated to a material degree any representation,
warranty, term, condition or obligation of SAVVIS under this
Agreement (including Services provided hereunder, which shall
be provided in accordance with Exhibit B attached hereto), and
SAVVIS has failed to cure such failure or violation within
thirty (30) days after receiving notice thereof from Customer;
or
(b) other than as a result of a breach by Customer or the
applicable member of the Customer Group, of the Network
Services Agreement or of its Funding obligations made pursuant
to any Funding Agreements, SAVVIS becomes the subject of a
voluntary or involuntary bankruptcy which has not been
dismissed for thirty (30) days, insolvency, reorganization or
liquidation proceeding, makes an assignment for the benefit of
creditors, or admits in writing that it is generally unable to
pay its debts when due.
6.2 Customer shall have the right to terminate this Agreement, with no
liability to SAVVIS other than for charges (less any applicable
credits) for the Services provided prior to such termination, if (i)
Customer provides ten (10) days prior written notice of its intent to
terminate upon the occurrence of a SAVVIS Event of Default, or (ii)
Reuters Limited terminates that certain Network Services Agreement,
dated as of the date hereof, between Reuters Limited and SAVVIS
Communications Corporation, pursuant to Section 15 thereof, or such
Network Services Agreement otherwise terminates in accordance with its
terms.
6.3 SAVVIS shall have the right to terminate this Agreement if:
(a) Customer has failed to pay any invoice that is not the subject
of a bona fide dispute within ten (10) Business Days of the
date on which such payment is due and SAVVIS has provided
Customer with written notice thereof; provided, that Customer
shall have a further ten (10) Business Days from the
expiration of the ten (10) Business Day period referred to
immediately above to cure any such default;
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(b) Customer has failed to perform or comply with or has violated
any material representation, warranty, term, condition or
obligation of Customer under this Agreement, and Customer has
failed to cure such failure or violation within thirty (30)
days after receiving notice thereof from SAVVIS; or
(c) Customer becomes the subject of a voluntary or involuntary
bankruptcy which has not been dismissed for thirty (30) days,
insolvency, reorganization or liquidation proceeding, makes an
assignment for the benefit of creditors, or admits in writing
that it is generally unable to pay its debts when due.
6.4 In the event of a casualty, SAVVIS shall be obligated to restore the
Premises to their original condition, provided that if SAVVIS cannot
reasonably restore the Premises in one hundred and twenty (120) days,
Customer may terminate this Agreement without any further obligation to
pay Monthly Fees beyond the amount accrued and prorated up to the date
of termination. In the event that the Premises become the subject of a
taking by eminent domain by any authority having such power or a
transfer in lieu thereof (a "Condemnation"), then Customer may
terminate this Agreement. If the Condemnation is temporary and Customer
does not terminate this Agreement, then Monthly Fees shall be abated.
If a condemnation does not affect the entire Premises and Customer does
not terminate this Agreement, then SAVVIS shall be obligated to restore
the remainder of the Premises and Monthly Fees shall be reduced to
reflect the loss of square footage.
6.5 Upon termination or expiration of the Term, Customer agrees to remove
within ninety (90) days the Customer Equipment and other property that
has been installed by Customer or its agents. If this Agreement is
terminated pursuant to Sections 6.1, 6.3 or 6.4 hereof prior to the end
of a monthly period covered by the Monthly Fee, SAVVIS shall promptly
refund to Customer a pro-rata portion of such Monthly Fee.
7. WARRANTIES, REMEDIES AND DISCLAIMERS
7.1 SAVVIS shall, at SAVVIS' own expense, defend Customer against any and
all claims that the Space used by Customer hereunder infringes on any
third party's property or ownership, intellectual property or
proprietary rights. SAVVIS shall, at SAVVIS' sole option, either (i)
settle any such claim, (ii) secure valid rights for Customer's
continued use or (iii) furnish equivalent Space that is not infringing
and that can be used to satisfy the original specifications. This
warranty and remedy by SAVVIS shall be valid only if (i) Customer gives
SAVVIS prompt written notice upon its receipt of any such claim, (ii)
Customer provides SAVVIS with all pertinent information in Customer's
possession relative to such claim and (iii) SAVVIS shall have sole
control over the settlement or defense of such claim.
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7.2 SAVVIS warrants and represents that:
(a) it has the authority to enter this Agreement and that it has
the authority to grant the rights specified herein to Customer
for the Space. The Customer Equipment shall not be deemed or
become a fixture in the Premises;
(b) the Services will be performed in a competent manner by
personnel possessing all reasonable skills and experience; and
(c) the Premises shall be maintained in good operating condition
and in compliance with all applicable laws and regulations.
7.3 CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATION HAS BEEN MADE BY SAVVIS AS
TO THE FITNESS OF THE SPACE FOR CUSTOMER'S INTENDED PURPOSE OTHER THAN
ITS USE AS CURRENTLY CONTEMPLATED IN THIS AGREEMENT. EXCEPT FOR THE
WARRANTIES SET FORTH IN THIS ARTICLE, THERE ARE NO WARRANTIES, WHETHER
EXPRESS, IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SPACE OR
SERVICES COVERED OR FURNISHED PURSUANT TO THIS AGREEMENT.
8. ASSIGNMENT OR TRANSFER
8.1 Subject to Section 2.5 hereof, neither party may assign this Agreement
or all or part of its rights and obligations under this Agreement
without the prior written consent of the other party, such consent not
to be unreasonably withheld, conditioned or delayed. Subject to the
foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns.
9. MODIFICATION
9.1 This Agreement may be modified only by a written instrument signed by
the party against which the modification is being enforced.
10. PUBLICITY
10.1 Subject to Section 13 hereof, neither party shall disclose any of the
terms and conditions of this Agreement without the prior written
consent of the other. Customer shall also be permitted to refer to
SAVVIS and SAVVIS' network and network connections in any of Customer's
sales and marketing materials.
10.2 The parties hereto shall consult with each other and shall mutually
agree (the agreement of each party not to be unreasonably withheld or
delayed) upon the content and timing of any press release or other
public statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press
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release or other public statement prior to such consultation and
agreement, except as may be required by applicable law or by
obligations pursuant to any listing agreement with any securities
exchange or any stock exchange regulations as advised by legal counsel
to such party; provided, however, that to the extent practicable, each
party shall give prior notice to the other party of the content and
timing of any such press release or other public statement prior to
issuance.
11. LIABILITY
11.1 SAVVIS shall maintain adequate insurance or remain covered by insurance
taken out by its ultimate parent company in respect of its liabilities
arising under or during this Agreement as follows:
(a) in respect of liability, caused by defective equipment for
death, or injury: unlimited per occurrence; and
(b) in respect of liability, caused by defective products, for
property damage: limited to $5,000,000 (five million) US
Dollars or its equivalent per occurrence and, limited in all,
in any one year to $10,000,000 (ten million) US Dollars.
11.2 Customer shall indemnify and hold harmless SAVVIS, and member of the
SAVVIS Group, any member of the SAVVIS Group, and their respective
officers and employees, servants and agents from and against any and
all third party claims, cost, expenses or liability (including
reasonable attorney's fees) arising out of Customer's use of the Space
other than in accordance with the provisions of this Agreement.
11.3 Each party shall be liable to the other for damage to property and
death or injury to persons if such damage, loss or injury is caused by
the negligent or willful acts or omissions of such party, or its
officers, employees, servants, agents, affiliates or contractors, or by
the malfunction of any Equipment supplied or operated by said party.
11.4 SAVVIS will indemnify, defend and hold Customer harmless against (i)
any claim, action or proceeding alleging that the Services or the use
thereof as permitted in this Agreement infringes any third party
copyright, or misappropriates a third party trade secret and (ii) any
claim, action or proceeding by a third party alleging that the Services
or the use thereof as permitted in this Agreement directly caused any
bodily injury or damage to tangible property by a third party and
SAVVIS agrees to pay all damages costs, liabilities or expenses
incurred by the Customer resulting from such claim, action or
proceeding (or settlements thereof), including reasonable attorney's
fees. The foregoing obligation of SAVVIS does not apply to any
infringement claim that results from any use of the Services other than
as
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contemplated by this Agreement, or any modification of the Services by
anyone other than SAVVIS or its nominee or by SAVVIS at the direction
of Customer.
11.5 The party seeking indemnification hereunder (the "INDEMNITEE") shall
provide the other party (the "INDEMNITOR") with: (i) prompt written
notice of any claim subject to indemnification; provided, however, the
Indemnitor shall not be required to indemnify Indemnitee to the extent
any delay in providing such notification increases the amount of any
such claim; and (ii) reasonable assistance to defend or settle such
claim at the Indemnitor's expense. The Indemnitee agrees that the
Indemnitor shall have sole control of the defense and all related
settlement negotiations of such claim provided that the Indemnitor
shall not agree to any settlement or compromise that imposes any
obligation or liability on the Indemnitee without the Indemnitee's
prior written consent.
11.6 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER
PARTY, NOR ITS AFFILIATES, SUBSCONTRACTORS OR AGENTS SHALL BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, HOWSOEVER ARISING INCLUDING BUT NOT LIMITED TO, ANY
DAMAGES FOR LOST TIME, INCOME, REVENUE, CLIENTS, GOODWILL, PROFITS OR
OTHER SIMILAR ITEMS, OR FOR ANY BUSINESS INTERRUPTION OF ANY KIND, EVEN
IF THE OTHER PARTY, ITS AFFILIATES, SUBCONTRACTORS OR AGENTS HAS BEEN
INFORMED IN ADVANCE OR HAS KNOWLEDGE (ACTUAL OR CONSTRUCTIVE) THAT SUCH
DAMAGES MIGHT BE INCURRED.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All copyright, design rights, database rights, patents, trade marks,
mask work rights, moral rights, know how, trade secrets confidential
information and any other intellectual property rights, whether
registered or unregistered rights or applications for registration and
all rights which exist in any part of the world and any related
goodwill in Services are either licensed to or are the property of
SAVVIS or its sub-contractors, and nothing contained in this Agreement
shall be deemed to convey title or any ownership interest therein to
Customer, unauthorized users, or any other third party.
12.2 All copyright, design rights, database rights, patents, trade marks,
moral rights, know how, confidential information and any other
intellectual property rights, whether registered or unregistered rights
or applications for registration and all rights which exist in any part
of the world and any related goodwill in the customer materials and
Customer Equipment are either licensed to or are the property of
Customer, and nothing contained in this Agreement shall be deemed to
convey title or any ownership interest therein to SAVVIS unauthorized
users, or any other third party.
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13. CONFIDENTIALITY
13.1 During the Term and for a period of five (5) years from the date of its
expiration or termination (including all extensions thereof), each
party agrees to maintain in strict confidence all Confidential
Information received by it from the other party. 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.
13.2 Notwithstanding Section 13.1 hereof, either party may disclose the
Confidential Information of the other party to: (a) in the case of
Customer, its employees and the employees, directors and officers of
the Customer Group solely as necessary to implement this Agreement; or
(b) in the case of SAVVIS, its employees and the employees, directors
and officers of the SAVVIS Group solely as necessary to implement this
Agreement and (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) of this Section
13.2 shall be made only subject to the appropriate assurances that the
recipient of such information shall hold in strict confidence.
13.3 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 prior written consent, shall promptly destroy it and
provide the other party with written certification of such destruction.
13.4 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. Any failure by a party not
to respond to such request will not be deemed approval of such request.
13.5 Reuters 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
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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, and not in lieu of, any other
remedy available in law or equity.
13.6 Notwithstanding the foregoing, this Section will not apply to any
information which a party can demonstrate was:
(a) at the time of disclosure to it, in the public domain;
(b) after disclosure to it, published or otherwise became part of
the public domain through no fault of the party;
(c) in the possession of the receiving Party at the time of
disclosure to it;
(d) received after disclosure to it from a third party who had a
lawful right to disclose such information to it; or
(e) independently developed by it without reference to
Confidential Information of the other party.
13.7 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 to afford the other party the opportunity to seek any
protections against such disclosure as may be available. Absent the
other party's consent to such disclosure, such party will use its best
efforts to resist, and to assist the other party in resisting, such
disclosure, including without limitation using its best efforts to
obtain a protective order or comparable assurance that the Confidential
Information so provided will be held in confidence and not further
disclosed to any other person, absent the owner's prior consent. Any
Confidential Information that may be required to be disclosed shall
remain Confidential Information as between the parties hereto.
13.8 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.
14. DISPUTE RESOLUTION
14.1 In the event that any dispute between SAVVIS and Reuters arises from or
concerns in any manner the subject matter of this Agreement, each party will
attempt, in good faith,
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to resolve such dispute through discussion between its employees in the
following order: first, within five (5) days following receipt of any written
request by a member of the Reuters Group or SAVVIS, as the case may be, of a
dispute hereunder (a "DISPUTE NOTICE"), the Relationship Manager of each of
SAVVIS and the Reuters Group shall attempt to resolve the dispute; in the event
the Relationship Managers are unable to resolve such dispute within ten (10)
days following receipt of a Dispute Notice, then, the manager in charge of
Reuters Global Operations and the comparative executive of SAVVIS shall meet in
person to resolve such dispute; and finally in the event the respective managers
of Reuters Global Operations and the comparative-level executive at SAVVIS are
unable to resolve such dispute within twenty-five (25) days following receipt of
a Dispute Notice, then the Chief Operating Officer of the Reuters Group and the
Chief Operating Officer of SAVVIS shall meet in person or by other agreed means
to resolve such dispute. If the respective Chief Operating Officers cannot
resolve the dispute within ten (10) days following such dispute being submitted
to such Chief Operating Officers, the parties may proceed to litigation of such
unresolved dispute as provided under this Agreement. Any meetings between the
employees set forth above may occur in New York, New York, if such meeting is to
be in person, or may occur via telephone or videoconference, as the parties may
mutually determine.
14.2 Any litigation brought arising from or concerning in any manner the
subject matter of this Agreement shall be brought in the state and federal
courts of the County of New York, State of New York. Each of the parties hereby
submits itself to the jurisdiction and venue of such courts for purposes of any
such litigation. Reuters hereby appoints the General Counsel, Reuters America
Inc. at its principal place of business in New York, New York, and SAVVIS hereby
appoints CT Corporation System at its principal place of business in New York,
New York, in each case, respectively, as such party's authorized agent to accept
and acknowledge on such party's behalf service of any and all process that may
be served in any such litigation. Any and all service of process and any other
notice in any such litigation shall be effective against the other party hereto
if given personally, or by registered or certified mail, return receipt
requested, or by any other means of mail that requires a signed receipt, postage
prepaid, mailed to such party as herein provided, or by personal service on such
party's authorized agent with a copy of such process mailed to such party by
first class mail or registered or certified mail, postage prepaid and return
receipt requested, at its address as set forth herein or at such other address
as it may furnish to the other party. Nothing contained herein shall be deemed
to affect the right of any party hereto to serve process in any manner permitted
by law.
15. GENERAL
15.1 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 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
15
<PAGE>
without the prior written approval of the other party, which consent
shall not be unreasonably withheld, conditioned or delayed.
15.3 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 on the second
(2nd) Business Day 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 Reuters: Reuters Limited
85 Fleet Street
London, EC4P 4AJ
Attention: Head of Vendor Relations and
Communications
With copy to: General Counsel
Reuters Limited
85 Fleet Street
London, EC4P 4AJ
+44 20 7542 5896 (fax)
If to SAVVIS: SAVVIS Communications Corporation
12851 Worldgate Drive
Herndon, Virginia 20170
(703) 234-8374 (fax)
Attention: Executive Vice President,
Strategic Development and Business Planning
With a copy to: Legal Department
717 Office Parkway
St. Louis, Missouri 63141
(314) 468-7550 (fax)
15.4 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.
15.5 The rights and remedies herein expressly provided are cumulative and
not exclusive of any other rights or remedies which a party would
otherwise possess at law, in equity, by statute or otherwise. No waiver
by any party of any default, misrepresentation, or breach of warranty
or covenant hereunder, whether
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<PAGE>
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.
15.6 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.
15.7 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.
15.8 The Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
15.9 Each party shall cooperate and take such actions as may be reasonably
requested by the other party in order to carry out the provisions and
purposes of this Agreement and the transactions contemplated hereby.
15.10 Nothing in this Agreement shall be construed to create a joint venture,
partnership or agency relationship between SAVVIS or any member of the
SAVVIS Group and any member of the Reuters Group. Except as expressly
provided herein with respect to the matters addressed in this
Agreement, neither SAVVIS nor Reuters is authorized to represent, bind,
obligate or contract on behalf of the other, nor is this Agreement
intended to create an exclusive relationship between SAVVIS and any
member of the Reuters Group.
15.11 This Agreement (including the Schedules referred to herein) constitutes
the complete and exclusive understanding between the parties and
supersedes any prior understandings, agreements, or representations by
or between the parties, written or oral, regarding the subject matter
herein, including, without limitation that certain Services Agreement
Term Sheet, dated as of May 21, 2001, between Reuters and SAVVIS.
15.12 In no event shall either party be liable to the other for any failure
to perform its obligations hereunder that is due to war, riots,
embargoes, strikes or other concerted acts of workers (excluding those
of the Customer or SAVVIS), 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 use reasonable efforts to
mitigate the extent of any failure to perform and the adverse
consequences thereof.
15.13 If SAVVIS cannot promptly provide a suitable temporary alternative to
all or part of the Space subject to an interruption in connection with
the existence of a force
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majeure condition, Reuters may, at its option and at its own cost,
contract with one or more third parties for the affected portion Space
for the shortest commercially available period likely to cover the
reasonably expected duration of the interruption, SAVVIS shall not
charge Reuters for the affected Space thus suspended during the period
of suspension. SAVVIS shall resume provision of the suspended portion
of the Space upon the later of the termination or expiration of
Reuters' legally binding commitments under contracts with third parties
for alternative services or the cessation or remedy of the force
majeure condition.
15.14 In the event that a force majeure condition shall continue for more
than sixty (60) days, Reuters may terminate the affected portion of the
Space with no further liability to SAVVIS other than for obligations
incurred with respect to such affected portion prior to the occurrence
of the force majeure condition.
15.15 The consequences arising from existence and continuation of a force
majeure condition shall be deemed not to constitute a breach by ether
party hereto of any representations, warranties or covenants hereunder.
15.16 This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of New York, as such laws are applied to
agreements made, entered into, performed entirely within New York by
New York residents without regard to the actual residence or domicile
of the parties and without giving effect to any choice or conflict of
law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
15.17 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will
constitute one and the same instrument.
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[SIGNATURE PAGE TO CO-LOCATION AGREEMENT]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
SAVVIS COMMUNICATIONS REUTERS AMERICA INC
CORPORATION
By: /s/ Matthew Fanning By: /s/ Graham John Albott
__________________________ ________________________________
Title: Executive Vice President Title: President Business Technology
Strategic Development and Group
Business Planning
Address: 717 Office Parkway Address: The Reuters Building
St. Louis, MO 63141 3 Times Square
New York, NY 10036
<PAGE>
EXHIBIT A
---------
DESCRIPTION OF THE LAND
Lot 1 of Mallinckrodt HO Campus according to plat thereof recorded in Plat Book
347 page 548 of the St. Louis County Records.
DESCRIPTION OF THE SPACE
St. Louis Hosting Center
587, MCDONNELL BLVD
ST. LOUIS, MO
<PAGE>
SUMMARY
Completely diverse electrical system N + 1 redundancy mechanically and
electrically 202Oracks Single point entry 24 X 7 security personnel Stringent
weekly maintenance program
B. SECURITY
Perimeter Fence
4 feet reinforced concrete wall with 8' wrought iron
Crash and rollover resistant fence
Fiber optic vibration sensors on fence
Sliding steel entrance gate
Department of Defense crash barrier rating
Two (2) pan-tilt-zoom surveillance cameras focused on the entrance gate
Card access through gate
Carrier manhole intrusion detector - buried fiber optic detection loop
Eight (8) perimeter surveillance cameras - 360 degree
Pan/Tilt/Zoom
Perimeter lighting
Single point entry
24 Hour pre-notification for access for first time visit
Visitor escort at all times
Entry log maintained by access control
Card access to building
Metal detection at front entrance & X-ray machines at each entrance
Manually controlled floor to ceiling single man turnstile access to lobby and
handicap door 24 X 7 security personnel
Secure safe for personal possessions
340 Fixed surveillance cameras 90 Days of digital tape back-up video
Bio-metric access device to collocation area
Card access to all critical areas
Smart Card access to Intelligent Racks
C. FIRE SUPPRESSION
Fire Alarm and Detection
Fully addressable fire alarm system
FM 200 in collocation area Double inter-locked pre-action system
Full smoke exhaust system
VESDA -Very Early Smoke Detection Apparatus
D. ELECTRICAL
N + 1 Redundancy
A / B side redundancy
Two (2) - 12.47 KVA Separate utility feeds
Four (4) - 2500 KVA Service transformers
Four (4) - 2000 KW Generator system
20,000 Diesel fuel storage system
40 Hour fuel supply
Two (2) - 2500 KVA parallel redundant
UPS Systems
15 Minutes of battery back-up
36 - 125 KVA Static switch PDU's
Two (2) - 20 Amp, single pole position breaker per rack
Master label lightning protection system
TVSS on incoming utility service
Standard IEEE grounding system
E. MECHANICAL
4 - 300 Ton air-cooled chillers
21 - Built-up air handling units
800,000 CFM of laminar flow
Primary and secondary pumps
Primary and secondary boilers
F. CONTROLS & Monitoring
Trending electrical metering equipment
Griusial event.-c-ec.,ding
Complete facility electrical monitoring
Complete building control systems
24 Hour staffed monitoring
Remote monitoring capabilities
<PAGE>
G. FIBER
Two diverse points of entries
Two diverse paths
For each carrier
H. BUILDING CHARACTERISTICS
Base-isolated (Earthquake & Vibration Resistant)
Seismic Zone 4 (San Francisco, Los Angeles)
High Wind Event Resistant - Meets Dade County (Miami, FL) Wind Requirements
109,000 Square Feet
Prohibited Items
Food or beverages
Photographic or recording equipment
Electromagnetic devices
Loose jewelry
Tool belts
Loose change
<PAGE>
EXHIBIT B
---------
DESCRIPTION OF SERVICES
Utilities (not including Electrical Power): Includes Gas service, water service,
sewer service and trash hauling.
Critical Data Center Systems: All critical systems will be repaired and
maintained including the Generators, UPS/PDU systems, HVAC Chillers, Automatic
Transfer Switch, Fire Detection Systems, and the Electrical systems.
Janitorial: Nightly cleaning (Monday-Friday) of common area within the Data
Center.
General building systems: Includes maintenance of all building systems within
the common areas of the data center including, Electrical distribution, HVAC,
Plumbing, Elevator and Life safety components.
General building maintenance: Includes maintenance of the building including
painting, roof repairs, pest control and other similar items associated with
maintaining the building.
Security Systems Maintenance: Includes repairs and maintenance of the security
systems including X-rays machines, surveillance cameras, entrance gate,
biometric scanner, and other miscellaneous security systems within the data
center.
Taxes and Insurance: SAVVIS shall pay all real estate taxes, assessments or
government impositions of any kind assessed for the Premises or the underlying
land, and SAVVIS shall carry reasonable and customary property insurance on the
Premises.
Property Management/Staffing Fees: 1) Maintenance which includes one (1)
full-time on-site maintenance technician, 2) Critical Systems Engineer which
includes one (1) full-time on-site critical systems engineer, and 3) Security
which includes four (4) full time persons 24 x 7 during Monday through Friday on
Day, three (3) full time persons 24 x 7 during Monday through Friday on Evening
shifts and two (2) full time persons 24 x 7 on Midnight and all weekend shifts.
<PAGE>
PRICING
ST. LOUIS DATA CENTER PRICING
(1) Pricing requires a minimum [**] installed concurrently. Each Rack
includes:
[**]
[**]
[**]
[**]
(2) [**]
[**] CONFIDENTIAL TREATMENT REQUESTED
<PAGE>
EXHIBIT C
---------
SAVVIS COMPETITORS
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**] CONFIDENTIAL TREATMENT REQUESTED