EXHIBIT 10.10
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
MASTER AGREEMENT
BY AND BETWEEN
WINSTAR WIRELESS, INC.
AND
SAVVIS COMMUNICATIONS CORPORATION
This Master Agreement is entered into as of the 30TH day of June, 2000 (the
"Effective Date") by and between WINSTAR WIRELESS, INC., a Delaware corporation,
with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("Winstar"), and SAVVIS COMMUNICATIONS CORPORATION, a corporation
organized under the laws of Missouri, with offices located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Customer").
EXPLANATORY STATEMENT
Winstar operates a telecommunications network between various points in the
United States. Customer desires to acquire from Winstar certain equipment and
associated connectivity. Winstar is willing to provide Customer with such
equipment and associated connectivity on the terms and conditions set forth
herein.
TERMS AND CONDITIONS
1. DEFINITIONS
1.1 CERTAIN DEFINITIONS.
(a) "Affiliate" shall mean, with respect to any entity, any other
entity Controlling, Controlled by or under common Control with such entity,
whether directly or indirectly through one or more intermediaries.
(b) "Agreement" means this Master Agreement.
(c) "Business Day" means any day on which Citibank, N.A. is open for
the transaction of banking business.
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(d) "Connectivity" shall mean the use of telecommunication facilities
and equipment necessary to achieve one or more desired connections.
(e) "Control" and its derivatives shall mean legal, beneficial or
equitable ownership, directly or indirectly, of more than fifty percent (50%) of
the outstanding voting capital stock (or other ownership interest, if not a
corporation) of an entity, or actual managerial or operational control over such
entity.
(f) "Days" or "days" shall mean calendar days unless otherwise
specified.
(g) "Effective Date" has the meaning set forth in the preamble to this
Agreement.
(h) "Eligible Location" shall mean a building designated by Customer
that has been approved by Winstar for purposes of installing the Equipment.
(i) "End User" shall mean the person or entity to whom Customer sells
the Equipment, or if the Equipment is used by Customer, Customer.
(j) "Equipment" shall mean the equipment provided by Winstar to
Customer pursuant to Exhibit A.
(k) "Events of Default" shall mean each of the following: (i) any
representation or warranty made by a Party in the Transaction Documents which
was incorrect in any respect when made and that could reasonably be expected to
have a material adverse effect upon the other Party's ability to realize the
benefits of the Transaction Documents; (ii) a material breach of the Transaction
Documents that is capable of being cured on commercially reasonable terms within
thirty (30) days, which breach is not cured within thirty (30) days after notice
of breach to the breaching Party, or (iii) a material breach of the Transaction
Documents that is not capable of being cured within thirty (30) days and the
breaching Party fails to (a) proceed promptly and diligently after written
notice to correct the breach, (b) develop within fifteen (15) days following
written notice of breach a complete plan for curing the breach, and (c) cure the
breach within sixty (60) days of notice thereof.
(l) "FCC Licenses" shall have the meaning set forth in Section 5.3.
(m) "FCC" shall mean the Federal Communications Commission.
(n) "Link Availability Letter" means a letter signed by Winstar and
delivered to Customer which advises Customer that the Link has been made
available for Customer's use at the designated location(s).
(o) "Link" shall mean a radio spectrum path on a line-of-sight basis
between radio pairs, one radio which is located at a Winstar hub and the other
of which is located at an Eligible Location, and the related backhaul facilities
connecting the Winstar hub to a Winstar switch center as set forth in Schedule
B-1 to Exhibit B.
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(p) "Local Connectivity" shall mean wireless local access
Connectivity.
(q) "Losses" shall mean all liabilities, damages and related costs and
expenses (including fines, levies, assessments, reasonable legal fees and
disbursements and costs of investigations, litigation, settlement, judgment,
interest and penalties) directly incurred by a Party.
(r) "Parties" shall mean Customer and Winstar, together.
(s) "Party" shall mean Customer or Winstar, individually, as
appropriate.
(t) "POP" shall mean the Winstar terminal facility (point of presence)
where the Links are delivered to Customer.
(u) "Purchase Price" shall mean the aggregate sum of all monies
required to be paid by Customer to Winstar pursuant to the Transaction
Documents.
(v) "Spectrum" shall mean certain licensed radio frequency network
capable of fiber quality transmissions.
(w) "Term" shall have the meaning set forth in Section 3.
(x) "Transaction Documents" shall mean the Agreement and all Exhibits
and Schedules thereto.
(y) "Winstar Network" shall mean the facilities-based
telecommunications system over which Winstar offers telecommunications services.
1.2 OTHER DEFINITIONS. Other terms used in this Agreement are defined in
the context in which they are used and have the meanings there stated or are
defined in the applicable Transaction Document.
2. REGULATORY ISSUES. Customer shall not take a position or issue a public
statement with respect to regulatory or legislative issues that could be
reasonably expected to impact Winstar's business without first consulting with
Winstar. In general, the Parties agree to affirmatively take a position in the
United States regulatory environment in favor of a level playing field and in
support of competition. Customer shall, at Winstar's expense, assist and support
in good faith all of Winstar's regulatory-related efforts in connection with
obtaining required licenses, approvals or otherwise in connection with Winstar's
obligations hereunder.
3. TERM. Except as may otherwise be provided therein, the term of the
Transaction Documents shall begin upon the Effective Date and shall end on that
date which is the later of (a) the tenth (10th) anniversary of the Effective
Date or (b) the term stated in any Schedule or Exhibit (the "Term"), unless
terminated earlier in accordance with this Agreement.
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4. OBLIGATIONS OF THE PARTIES
4.1 EQUIPMENT SALE. Winstar shall sell to Customer, and Customer shall
purchase from Winstar, the Equipment, pursuant to the terms and conditions in
Exhibit A.
4.2 INSTALLATION SERVICES. Winstar shall provide to Customer, and Customer
shall purchase from Winstar, installation services for the Equipment pursuant to
the terms and conditions in Exhibit B.
4.3 LOCAL CONNECTIVITY AND BACKHAUL TRANSPORT. Winstar shall provide to
Customer, and Customer shall purchase from Winstar, wireless Local Connectivity
and Backhaul transport pursuant to the terms and conditions of Exhibit C.
4.4 OPERATION AND MAINTENANCE OF EQUIPMENT. Winstar shall provide to
Customer and Customer shall purchase from Winstar the operation and maintenance
services with respect to the Equipment on similar terms as set forth in Exhibit
D.
4.5 COLLOCATION. Pursuant to the terms and conditions of the Terminal
Facility Collocation Space Exhibit attached as Exhibit E, Winstar shall lease to
Customer, and Customer shall lease from Winstar, space in certain premises.
5. COVENANTS OF THE PARTIES.
5.1 NETWORK INTEGRITY.
5.1.1 Customer may not improperly restrict or interfere with the
Winstar Network or the use thereof. Upon notice by Winstar, Customer shall
promptly remove any hazard, interference or service obstruction that may be
caused by hardware, software or connectivity, owned by or under the control of
Customer. Nothing stated herein shall be construed to interfere with Customer's
ability to comply with the rules, regulations or directives of any governmental
or jurisdictional authority.
5.1.2 In the event that Customer improperly restricts or interferes
with the Winstar Network or the use thereof, Winstar may, after giving Customer
notice, immediately modify, suspend, delay, condition, or cease until cured its
obligations under the Transaction Documents in whole or in part.
5.2 ACCESS TO FACILITIES. Each Party shall, upon the reasonable request of
the other Party, provide the other Party's personnel with access to its
facilities to the extent reasonably required for such Party to perform its
obligations hereunder. Any such access permitted hereunder shall be in
accordance with each Party's applicable internal security procedures, and any
applicable governmental requirements.
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5.3 CONTROL; LICENSES.
(a) Except as is agreed to by the Parties in writing, Customer shall
secure, at its own expense, other than the licenses held by Winstar for Local
Connectivity pursuant to this Agreement ("FCC Licenses"), all licenses, permits,
agreements, consents, rights-of-way, and other arrangements necessary for: (i)
the installation of Customer's equipment and (ii) the interconnection of
Customer-provided terminal equipment or communications systems with the Winstar
Network or other Winstar facilities. Winstar shall, at Customer's request, use
all reasonable efforts to cooperate with Customer in meeting its obligations
under this subparagraph 5.3 (a).
(b) During the Term, the Equipment shall at all times be operated in
compliance with all applicable FCC rules and regulations as well as all
applicable state and local regulations or requirements governing Winstar's FCC
Licenses, and the provision of telecommunications services thereunder.
(c) Winstar shall retain at all times during the term of this
Agreement control over its FCC Licenses, and shall have, at all times therein
unfettered access to the Equipment and all of the facilities where transmissions
and receptions under its FCC Licenses are being conducted.
(d) Winstar will take all reasonable precautions not to disturb or
interfere with Customer's services or property, unless such disturbance or
interference is deemed by Winstar to be necessary for control of the use of the
FCC Licenses, such as execution of a request from the FCC to shut down
interfering transmissions or performing emergency service restoration. Winstar
shall provide Customer with notice of any such disturbance or interference.
(e) During the Term, Customer shall not represent itself as the holder
of any of the FCC Licenses, nor as the representative of Winstar before the FCC,
any state regulatory body or any other third party.
(f) Except as otherwise required by law, all filings made during the
Term of this Agreement before regulatory bodies with respect to Winstar's FCC
Licenses shall be made by and in the name of Winstar, and Customer shall
cooperate fully with Winstar in the making of such filings.
(g) Nothing in this Agreement is intended to diminish or restrict
Winstar's compliance with its obligations before the FCC. Winstar and Customer
desire that this Agreement and the obligations performed hereunder be in full
compliance with (i) the terms and conditions of Winstar's FCC Licenses; (ii) all
applicable rules and policies of the FCC; (iii) the Communications Act of 1934,
as amended, and (iv) any other applicable federal, state and local law or
regulation. If the FCC or any state body of competent jurisdiction determines
that any provision of this Agreement violates any
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applicable rules, policies, or regulations, both Parties shall make reasonable
efforts to immediately bring this Agreement into compliance, consistent with the
terms of this Agreement. It is expressly understood by Winstar and Customer that
nothing in this Agreement is intended to give Customer any right which would be
deemed to constitute a transfer of control (as `control' is defined in the
Communications Act of 1934, as amended, and/or any applicable FCC rules or case
law) by Winstar of one or more of the FCC Licenses from Winstar to Customer.
6. PAYMENT TERMS
6.1 TRANSFER OF EQUIPMENT. As of the Effective Date, Customer agrees to
purchase the Equipment and related services pursuant to the Transaction
Documents and Winstar agrees to transfer the Equipment in consideration for the
price set forth in Exhibit A.
6.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable in
accordance with the payment terms set forth in the Exhibits attached hereto. In
the event that Customer elects to pay any component of the Purchase Price in
accordance with any such options in any Exhibits attached hereto, that portion
of the deferred Purchase Price shall be secured pursuant to Schedule M-6.2.
Customer shall make payments under this Agreement by wire transfer of
immediately available funds to the United States account or accounts designated
by the payee. At the payee's discretion, payments to be made pursuant to this
Agreement may be made by check or draft of immediately available funds delivered
to the address designated in writing by the payee or, failing such designation,
to the address for notice to payee pursuant to Section 13.2. Except as expressly
provided otherwise, the Purchase Price will be the sole consideration due to
Winstar for the performance of any and all of its obligations due under the
Transaction Documents.
6.3 ALLOCATION. The Parties agree to allocate the Purchase Price (and all
other capitalizable costs) between and among the Equipment listed on the
allocation table attached as Schedule M-6.3 for all purposes (including for
accounting and tax purposes). Winstar and Customer agree to report the
allocation as provided in the applicable sections of the Internal Revenue Code
of 1986, as amended, and regulations promulgated thereunder, in accordance with
such allocation and agree to prepare and file all income tax returns in a manner
consistent with such allocation.
6.4 TAXES. The Parties' respective responsibilities for taxes arising
under or in connection with the Transaction Documents shall be as follows:
(a) Each Party shall be responsible for personal property taxes on
property it owns or leases, for franchise and privilege taxes on its business,
for taxes based on its net income or gross receipts, and for any third-party
imposed fees.
(b) Each Party shall timely report and pay any and all sales, use,
income, gross receipts, excise, transfer, ad valorem or other taxes, and any and
all
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franchise fees or similar fees assessed against it due to the implementation of
any facilities or equipment in connection with the Equipment.
(c) The Parties agree to cooperate with each other to enable each to
determine more accurately its own tax liability and to minimize such liability
to the extent legally permissible. Each Party shall provide and make available
to the other any resale certificates and other exemption certificates or
information reasonably requested by either Party that is applicable to the
subject matter of this Agreement.
(d) Each Party shall within thirty (30) business days notify the other
of, and coordinate the response to and settlement of, any claim for taxes
directly related to the transactions contemplated by this Agreement asserted by
applicable taxing authorities for which the other Party is responsible
hereunder. With respect to any claim arising out of a form or return signed by a
Party to this Agreement, such Party shall have the right to elect to control the
response to and settlement of the claim.
7. CONFIDENTIALITY
The terms and conditions of that certain non disclosure agreement between the
Parties, a copy of which is appended hereto as Schedule M-7, are incorporated
herein by this reference and shall continue in full force and effect throughout
the Term of this Agreement.
8. TERMINATION.
8.1 TERMINATION. In the event that either Party commits an Event of
Default, then the other Party may, by giving written notice to the defaulting
Party (i) terminate this Agreement for cause as of a date specified in the
notice of termination, and (ii) subject to the terms of this Section, pursue any
legal remedies it may have under applicable law or principles of equity relating
to such breach. Any Event of Default may be waived in writing at the
non-defaulting Party's option.
8.2 EFFECT OF TERMINATION. Termination of this Agreement refers to the
termination of the Parties' respective commitments and obligations from and
after the date of termination, but does not relieve the Parties of their payment
and other obligations incurred prior to the date of termination and their
continuing obligations under Sections 7 and 12 or as may be specifically
provided in any Schedule or Exhibit.
9. REPRESENTATIONS; DISCLAIMER
9.1 REPRESENTATIONS. Each Party represents and warrants to the other that:
(a) It has the requisite corporate power and authority to enter into
the Transaction Documents and to carry out the transactions contemplated by the
Transaction Documents; and
(b) The execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated by the
Transaction
7
Documents have been duly authorized by the requisite corporate action on the
part of such Party.
(c) Each Party represents that the Transaction Documents have been
duly executed and delivered, and create lawful, valid and legally binding
obligations, in accordance with their respective terms. The execution and
delivery of the Transaction Documents and the consummation of the transactions
contemplated hereby are not prohibited by, do not violate or conflict with any
provision of, and do not constitute a default under or a breach of: (a) any
contract, agreement or other instrument to which it is a party or by which any
of the assets that are the subject hereof are bound; or (b) to the Party's
knowledge, any order, writ, injunction, decree or judgment of any court or
governmental agency.
(d) Winstar represents that the Network Facilities will function in
accordance with the Terms of the Transaction Documents for the Term.
9.2 DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH IN THE TRANSACTION
DOCUMENTS, THE PARTIES MAKE NO WARRANTY TO EACH OTHER OR TO ANY OTHER ENTITY,
WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE OF THE EQUIPMENT, ANY FACILITIES PROVIDED OR USED
HEREUNDER OR DESCRIBED HEREIN, ANY SERVICES, EQUIPMENT, MATERIAL, GOODS, REAL
ESTATE OR OTHER TANGIBLE OR INTANGIBLE ASSET THAT IS CONVEYED, HYPOTHECATED,
LEASED, SOLD, OR OTHERWISE PROVIDED TO CUSTOMER IN ANY MANNER, OR AS TO ANY
OTHER MATTER, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED AND
DISCLAIMED.
IN NO EVENT SHALL WINSTAR, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS OR ASSIGNS BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST
PROFITS, LOSS OF BUSINESS, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER'S OR ITS AUTHORIZED
USERS' RELIANCE ON OR USE OF CONTENT, INFORMATION, SERVICES OR MERCHANDISE
PROVIDED ON OR THROUGH THE DATA SERVICES, OR THAT RESULT FROM OR ARE RELATED TO,
MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS
IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF ANY KIND, EVEN IF
WINSTAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LIABILITY
10.1 GENERAL INTENT. Subject to the specific provisions of this Section
10, it is the intent of the Parties that each Party shall be liable to the other
Party only for any direct damages incurred by the non-breaching Party as a
result of the breaching Party's failure to perform its obligations in the manner
required by the Transaction Documents.
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10.2 LIABILITY RESTRICTIONS.
(a) Each Party's liability to the other whether in contract or in tort
(including breach of warranty, negligence and strict liability in tort) shall be
limited to the amounts actually paid (including both principal and interest) to
Winstar by Customer at the time the event resulting in liability occurs.
(b) The limitation set forth in Subsection (a), above, shall not apply
with respect to: (i) third-party claims subject to indemnification pursuant to
the Agreement; or (ii) fees due and owing under this Agreement at the time of
the claim.
(c) For the purposes of this Section 10.2, all amounts payable or paid
to third parties in connection with claims that are eligible for indemnification
pursuant to this Agreement shall be deemed direct damages.
10.3 FORCE MAJEURE.
(a) Neither Party shall be liable for any default or delay in the
performance of its obligations under the Transaction Documents if and to the
extent such default or delay is caused, directly or indirectly, by fire,
explosion, vandalism, power outage, flood, lightning, earthquake, elements of
nature or "acts of God", war, riots, any civil or military authority (by
national emergency or acts of third parties), civil disorders, rebellions,
revolutions, insurrections, or acts of terrorism, provided that such default or
delay could not have been prevented by reasonable precautions by the Party with
the obligation to perform and cannot be reasonably circumvented by the Party
with the obligation to perform through the use of alternate sources, workaround
plans or other means.
(b) In such event, the Party with the obligation to perform shall be
excused from further performance or observance of the obligation(s) so affected
for as long as such circumstances prevail and such Party continues to use
commercially reasonable efforts to recommence performance or observance whenever
and to whatever extent possible without delay.
11. INDEMNIFICATION
11.1 INDEMNITIES BY WINSTAR. Winstar agrees to indemnify, defend and hold
harmless Customer and its Affiliates and their respective officers, directors,
employees, managers, contractors, agents, successors, and assigns, from any and
all Losses and threatened Losses, arising from, relating to, incurred in
connection with, or based on allegations of, any of the following:
(a) Any claims of infringement or misappropriation of any patent,
trade secret, copyright or other proprietary rights, alleged to have occurred
based upon the provision of the Equipment by Winstar, except to the extent that
such claims arise from (i) modification of the Equipment or any component
thereof by Customer that is not recommended or otherwise approved by Winstar,
(ii) use of the Equipment by
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Customer in combination with deliverables furnished by third parties that is not
recommended or otherwise approved by Winstar;
(b) To the extent caused by Winstar, the death or bodily injury of any
agent, employee, customer, business invitee or any other person caused by the
tortious conduct of Winstar;
(c) To the extent caused by Winstar, the damage, loss or destruction
of any real or tangible personal property caused by the tortious conduct of
Winstar; or
(d) To the extent caused by Winstar, any claim, demand, charge,
action, cause of action, or other proceeding asserted against Customer but
resulting from an act or omission of Winstar in its capacity as an employer of a
person.
11.2 INDEMNITIES BY CUSTOMER. Customer agrees to indemnify, defend and hold
harmless Winstar and its Affiliates and their respective officers, directors,
employees, managers, contractors, agents, successors, and assigns, from any and
all Losses and threatened Losses arising from, relating to, incurred in
connection with, or based on allegations of, any of the following:
(a) Any claims of infringement or misappropriation of any patent,
trade secret, copyright or other proprietary rights, alleged to have occurred
based upon misuse of the Equipment by Customer, including (i) modification of
the Equipment or any component thereof by Customer that is not recommended or
otherwise approved by Winstar, or (ii) use of the Equipment by Customer in
combination with deliverables furnished by third parties that is not
contemplated by the Transaction Documents, recommended or otherwise approved by
Winstar;
(b) The death or bodily injury of any agent, employee, customer,
business invitee or any other person caused by the tortious conduct of Customer;
(c) The damage, loss or destruction of any real or tangible personal
property caused by the tortious conduct of Customer; or
(d) Any claim, demand, charge, action, cause of action, or other
proceeding asserted against Winstar but resulting from an act or omission of
Customer in its capacity as an employer of a person.
12. DISPUTE RESOLUTION Any dispute between the Parties arising out of or
relating to the Transaction Documents, the interpretation of any performance
thereof, or the performance or failure to perform shall be resolved as provided
in this Section.
12.1 INFORMAL DISPUTE RESOLUTION.
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(a) Prior to the initiation of formal dispute resolution procedures,
the Parties shall first attempt to resolve their dispute informally pursuant to
this Section. Upon the written request of a Party, each Party shall appoint a
representative from its executive management whose task it will be to meet for
the purpose of endeavoring to resolve such dispute. If, after thirty (30) days
from the appointment of such representatives from executive management, the
representatives have not resolved such dispute, then the provisions of Section
12.2 shall apply.
(b) The Parties agree that disputes, controversies or claims between
them shall not be subject to the provisions of this Section where:
(i) A Party makes a good faith determination that a breach of the
terms of the Transaction Documents by the other Party is such that a temporary
restraining order or other injunctive relief is the only appropriate and
adequate remedy; or
(ii) Institution of formal proceedings earlier than as set forth
in this Section 12.1 for the resolution of a dispute may be commenced after the
earlier of (x) a good faith determination that such proceedings are necessary to
avoid the expiration of any applicable limitations period or (y) to preserve a
superior position with respect to other creditors.
(c) If a Party files a pleading with a court seeking immediate
injunctive relief and this pleading is challenged by the other Party and the
injunctive relief sought is not awarded in substantial part, the Party filing
the pleading seeking immediate injunctive relief shall pay all of the costs and
attorneys' fees of the Party successfully challenging the pleading.
12.2 ARBITRATION.
(a) Except as provided in Section 12.1(b), any dispute, controversy or
claim arising out of or relating to the Transaction Documents or the breach,
termination or validity thereof, shall be finally settled in accordance with the
commercial arbitration rules of the American Arbitration Association (the "AAA")
then obtaining, by a panel of three arbitrators. Judgment upon the award of the
Arbitrators may be entered by any court of competent jurisdiction over the
Parties on the subject matter of the Agreement. Each party shall have the right
to appoint one arbitrator from the list of arbitrators supplied to the parties
by the AAA, and the two arbitrators so appointed shall appoint the third.
(b) The place of arbitration shall be the City of New York, New York,
U.S.A. The language of the arbitration shall be in English. The arbitrators
shall determine the matters in dispute in accordance with the internal law of
the State of New York, without reference to the Convention on Contracts for the
International Sale of Goods. Except as precluded by the United Nations
Convention on the Recognition and Enforcements of Foreign Arbitral Awards, the
internal procedural and substantive laws
11
of New York and the United States Federal Arbitration Act shall govern all
questions of arbitral procedure, arbitral review, scope of arbitral authority,
and arbitral enforcement.
(c) If any necessary party to the arbitration proceeding cannot be
made a party to the arbitration, and a proceeding is instituted in a court of
competent jurisdiction which results in either (i) either Party having to defend
both the arbitration and judicial proceeding or (ii) the arbitrator having to
adjudicate a set of facts identical to the judicial proceeding, then either
Party may at its option elect not to arbitrate, but litigate the issues.
(d) The parties agree that the award of the arbitrators shall be the
sole and exclusive remedy between them regarding any claims, counterclaims,
issues or accountings presented or pled to the arbitrators, that the award shall
be made and shall be promptly payable in U.S. dollars, free of any tax,
deduction or offset, and that any costs, fees or taxes instant to enforcing the
award shall, to the maximum extent permitted by law, be charged against the
party resisting such enforcement.
(e) The award shall include interest from the date of damages incurred
for breach or other violation of the Transaction Documents, and from the date of
the award until paid in full, at a rate to be fixed by the arbitrators.
(f) No claim may be submitted by a party to arbitration in accordance
with this Section 12 unless notified to the other party within one (1) year of
the date on which the submitting party first knew or should have known of the
existence of the facts indicating the existence of such dispute.
12.3 CONTINUED PERFORMANCE. Each Party agrees to continue performing its
obligations under the Transaction Documents while any dispute is being resolved
except to the extent the issue in dispute precludes performance (dispute over
payment shall not be deemed to preclude performance).
13. GENERAL
13.1 BINDING NATURE AND ASSIGNMENT.
(a) The Transaction Documents shall accrue to the benefit of and be
binding upon the Parties hereto and any purchaser or any successor entity into
which either Party has been merged or consolidated or to which either Party has
sold or transferred all or substantially all of its assets.
(b) Except as expressly provided in a Transaction Document, neither
Party may, or shall have the power to, assign the Transaction Documents or
delegate such Party's obligations hereunder without the prior written consent of
the other, except that either Party may assign its rights and obligations under
the Transaction Documents without the approval of the other Party to
(i) an entity which acquires all or substantially all of the
assets of the assigning party,
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(ii) to any Affiliate, in which event the assignor shall remain
liable as a guarantor of the assignee/Affiliate's performance of such Party's
obligations hereunder,
(iii) to a successor in a merger or acquisition, or
(iv) in the case of Customer, to any successor Affiliate in the
course of the spin-off or other reorganization transaction of Customer.
13.2 NOTICES. Any notices, requests, demands, and determinations under this
Agreement (other than routine operational communications), shall be in writing
and shall be deemed duly given (i) when delivered by hand, (ii) one (1) business
day after being given to an express, overnight courier with a reliable system
for tracking delivery, (iii) when sent by confirmed facsimile with a copy
delivered by another means specified in this Section, or (iv) on the day an
authorized employee of the receiving party accepts receipt in writing, when
mailed by United States mail, registered or certified mail, return receipt
requested, postage prepaid, and addressed as follows:
If to Customer: If to Winstar:
SAVVIS Communications Corporation Winstar Wireless, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Suite 700 South
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXECUTIVE VICE PRESIDENT, ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PRESIDENT
STRATEGIC DEVELOPMENT/ AND CHIEF OPERATING OFFICER
BUSINESS PLANNING WINSTAR LARGE ACCOUNTS
FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇ FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: With a copy to:
SAVVIS Communications Corporation Winstar Wireless, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 7799 Leesburg Pike
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
VICE PRESIDENT CHIEF COUNSEL
AND GENERAL COUNSEL WINSTAR LARGE ACCOUNTS
FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇ FACSIMILE: (▇▇▇) ▇▇▇-▇▇▇▇
A Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of the new
address or designee and the date upon which it will become effective.
13
13.3 COUNTERPARTS. The Transaction Documents may be executed in several
counterparts, all of which taken together shall constitute one single agreement
between the Parties hereto.
13.4 RELATIONSHIP OF PARTIES. Winstar, in furnishing the Equipment and
other services hereunder, is acting as an independent contractor, and Winstar
personnel (including, without limitation, any subcontractors) shall not be
considered or represented as employees or agents of Customer. Winstar is not
otherwise an agent of Customer and has no authority to represent Customer as to
any matters. Winstar is solely responsible for: (a) performing its
responsibilities under the Transaction Documents, (b) management and control of
its personnel; (c) the payment of all compensation owed to its personnel,
including payment of employment-related taxes, benefits, and worker's
compensation insurance; (d) the filing of all required employment returns and
reports; and (e) the withholding and payment of all applicable federal, state,
and local taxes and other wage or employment assessments, including but not
limited to income tax, social security tax, and unemployment insurance premiums
for its personnel.
13.5 SEVERABILITY AND MODIFICATION.
(a) In the event that any provision of the Transaction Documents
conflicts with the law under which the Transaction Documents are to be construed
or if any such provision is held invalid by an arbitrator or a court with
jurisdiction over the Parties, such provision shall be deemed to be modified to
reflect as nearly as possible the original intentions of the Parties in
accordance with applicable law. The remainder of the Transaction Documents shall
remain in full force and effect.
(b) In the event that a provision of any Underlying Agreement is in
conflict with this Agreement, the Agreement will be modified to conform with the
provisions of the Underlying Agreement.
(c) If this Agreement is modified pursuant to subsection (a), (b) or
(d) above, and as a result of such modification, either Party would not have
entered into this Agreement as set out in the Transaction Documents, then, that
Party may seek to terminate the Transaction Documents. Any such action must have
a good faith basis and the Party taking such action must prove that the
modification, had it been proffered at the time of the execution of the
Agreement, would have caused it not to so execute.
(d) If the FCC or any state body of competent jurisdiction determines
that any provision of the Transaction Documents violates any applicable rules,
policies, or regulations, both Parties shall make reasonable efforts to
immediately bring the Transaction Documents into compliance and shall endeavor
in those efforts to preserve for both Parties the economic benefits as reflected
in the Transaction Documents to the maximum extent possible.
14
13.6 CONSENTS AND APPROVAL. Except where expressly provided as being in the
sole discretion of a Party, where agreement, approval, acceptance, consent, or
similar action by either Party is required under this Agreement, such action
shall not be unreasonably delayed or withheld. An approval or consent given by a
Party under this Agreement shall not relieve the other Party from responsibility
for complying with the requirements of the Transaction Documents, nor shall it
be construed as a waiver of any rights under the Transaction Documents, except
as and to the extent otherwise expressly provided in such approval or consent.
13.7 WAIVER OF DEFAULT. No waiver or discharge hereof shall be valid unless
in writing and signed by an authorized representative of the Party against which
such amendment, waiver, or discharge is sought to be enforced. A delay or
omission by either Party hereto to exercise any right or power under the
Transaction Documents shall not be construed to be a waiver thereof. A waiver by
either of the Parties of any of the covenants to be performed by the other or
any breach thereof shall not be construed to be a waiver of any succeeding
breach thereof or of any other covenant.
13.8 CUMULATIVE REMEDIES. Except as otherwise expressly provided, all
remedies provided for in the Transaction Documents shall be cumulative and in
addition to and not in lieu of any other remedies available to either Party at
law, in equity or otherwise.
13.9 SURVIVAL. Any provision of the Transaction Documents which
contemplates performance or observance subsequent to any termination or
expiration of the Transaction Documents (in whole or in part) shall survive any
termination or expiration of the Transaction Documents (in whole or in part, as
applicable) and continue in full force and effect.
13.10 PUBLIC DISCLOSURES. All media releases, public announcements, and
public disclosures relating to this Agreement or the subject matter of this
Agreement, including promotional or marketing material, but not including
announcements intended solely for internal distribution or disclosures to the
extent required to meet legal or regulatory requirements beyond the reasonable
control of the disclosing Party, shall be coordinated with and shall be subject
to approval by each Party prior to release.
13.11 THIRD PARTY BENEFICIARIES. Except as otherwise provided in the
Transaction Documents, the Transaction Documents shall not be deemed to create
any rights in third parties, including suppliers and customers of a Party, or to
create any obligations of a Party to any such third parties, or to give any
right to Customer to enforce this Agreement on behalf of a third party.
15
13.12 GOVERNING LAW. The Transaction Documents and performance under them
shall be governed by and construed in accordance with the laws of the State of
New York without regard to its choice of law principles or the Convention on
Contracts for the International Sale of Goods.
13.13 AMENDMENT. The Transaction Documents shall not be modified, amended
or in any way altered except by an instrument in writing signed by both Parties.
13.14 INCORPORATION BY REFERENCE AND ORDER OF PRECEDENCE.
(a) Any conflict among or between the documents making up the
Transaction Documents will be resolved in accordance with the following order of
precedence (in descending order of precedence):
(i) The Schedules;
(ii) The Exhibits to the Schedules; and
(iii) The Agreement.
(b) In the event of conflict between the documents making up the
Transaction Documents and the terms and conditions of any purchase order issued
by either Party, the terms of the Transaction Documents shall supersede any such
purchase order.
13.15 ENTIRE AGREEMENT. The Transaction Documents constitute the entire
agreement between the Parties with respect to the subject matter in this
Agreement, and supersede all prior agreements, whether written or oral, with
respect to the subject matter contained in this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
Undersigned officers, thereunto, duly authorized, as of the Effective Date.
SAVVIS COMMUNICATIONS WINSTAR WIRELESS, INC.
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- ------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- ------------------------
Title: Executive Vice Title: President & Chief Operating
President--Strategic Officer of Large Accounts
Development &
Business Planning
--------------------------------- ------------------------
Date: June 30, 2000 Date: June 30, 2000
-------------------------------- ------------------------
16
SCHEDULE M-6.2
TO
MASTER AGREEMENT
SECURITY AGREEMENT
1. This Security Agreement Schedule ("Schedule") shall be governed by the terms
and conditions of the Equipment Purchase Agreement ("Agreement") dated as of the
30th day of June, 2000, between Winstar Wireless, Inc. ("Winstar") and SAVVIS
COMMUNICATIONS CORPORATION ("Customer"). Capitalized terms used in this Schedule
that are not defined below shall have the meaning set forth in the Agreement.
2. Security Interest. As collateral security for all of Customer's payment
obligations under the Agreement, Customer hereby grants Winstar a first priority
security interest in all of the Radios purchased or to be purchased under the
Agreement, to the maximum extent permitted by law (such items of collateral
being collectively or individually, referred to as the "Security"). Customer
shall, at Winstar's expense, take all commercially reasonable action required by
Winstar to further evidence and/or perfect such security interest, including
without limitation executing and delivering a separate security agreement and
UCC-1 financing statements. In the event Winstar exercises its rights set forth
below, Customer shall cooperate in good faith in assisting Winstar.
3. Remedies upon Default.
(i) Upon the occurrence of any Event of Default that has not been cured
Winstar shall have the right with or without legal process and with or without
previous notice or demand for performance, to replevin, take possession and/or
control of the Security or any part thereof (at the same or different times)
and, generally, to exercise any and all rights, of any kind or nature, afforded
to a secured party under the UCC, or other applicable law, or in equity. Without
limiting the generality of the foregoing, Customer agrees that Winstar shall
have the right upon nonpayment of any amounts due pursuant to this Agreement,
and such nonpayment has not been cured, subject to notice in paragraph (ii)
below and subject to the mandatory requirements of applicable law, to sell or
otherwise dispose of all or any part of the Security at public or private sale
for cash, upon credit or for future delivery as Winstar shall deem appropriate.
Upon consummation of any such sale Winstar shall have the right to assign,
transfer and deliver to the purchaser or purchasers thereof the Security so
sold. Each such purchaser at any such sale shall hold the property sold
absolutely, free from any claim or right on the part of Customer it being
understood that Customer shall retain the right to redeem the Security at any
time prior to sale.
(ii) Winstar shall give Customer 15 days' written notice (which Customer
agrees is reasonable notice within the meaning of Section 9-504(3) of the UCC or
its
17
equivalent in other jurisdictions) of Winstar's intention to make any sale of
the Security, pursuant to paragraph (i) above. Such notice, in the case of a
public sale, shall state the time and place for such sale. Any such public sale
shall be held at such time or times within ordinary business hours and at such
place or places as Winstar may fix and state in the notice of such public sale.
At any such sale, the Security, or portion thereof, to be sold may be sold in
one lot as an entirety or in separate parcels, as Winstar may (in its sole and
absolute discretion) determine. Winstar shall not be obligated to make any sale
of any Security if it shall determine not to do so, regardless of the fact that
notice of sale of such Security shall have been given. Winstar may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Security is made on credit or for future delivery, the Security so sold may be
retained by Winstar until the sale price is paid by the purchaser or purchasers
thereof, but Winstar shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Security so sold and, in case
of any such failure, such Security may be sold again upon like notice. At any
public (or, to the extent permitted by law, private) sale made pursuant to this
Section, Winstar may bid for or purchase, the Security or any part thereof
offered for sale and may make payment on account thereof by using any
"Obligation" (defined as all present and future monetary obligations of Customer
to Winstar under the Agreement) then due and payable to Winstar from Customer as
a credit against the purchase price and Winstar may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to Customer therefor, provided that the purchase price paid by
Winstar reflects at least the fair market value on the secondary market of the
Security. For purposes hereof, a written agreement to purchase the Security or
any portion thereof shall be treated as a sale thereof. As an alternative to
exercising the power of sale herein conferred upon it, Winstar may proceed by a
suit or suits at law or in equity to foreclose this Agreement and to sell the
Security or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver.
(iii) In the event Winstar exercises this right in lieu of a sale of
Security as provided above, then the amounts payable to Winstar which are in
default shall be credited by an amount equal to the fair market value of such
Security and Winstar shall retain its rights to pursue collection of any
remaining unpaid amounts.
4. Application of Proceeds. Winstar shall apply the proceeds of any collection
or sale of the Security, as well as any Security consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by Winstar in
connection with such collection or sale or otherwise in connection with this
Agreement or any of the Obligations, including all court costs and the fees and
expenses of its agents and legal counsel, the repayment of all advances made by
Winstar hereunder
18
on behalf of Customer and any other costs or expenses incurred in connection
with the exercise of any right or remedy hereunder;
SECOND, to the payment in full of the Obligations; and
THIRD, to Customer, its successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
Winstar shall have absolute discretion as to the time of application of any
such proceeds, moneys or balances in accordance with this Schedule. Upon any
sale of the Security by Winstar (including pursuant to a power of sale granted
by statute or under a judicial proceedings), the receipt of sale from Winstar or
of the officer making the sale shall be a sufficient discharge to the purchaser
or purchasers of the Security so sold and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to Winstar or such officer or be answerable in any way for the
misapplication thereof.
19
SCHEDULE M-6.3
ALLOCATION TABLE
----------------------------------------------------------------------------------------------------------------
Monthly Price 12 Months 10 Year Price Per Unit Quantity Total
per Link Per Year Term
----------------------------------------------------------------------------------------------------------------
RADIO EQUIPMENT [***] 500 [***]
----------------------------------------------------------------------------------------------------------------
INSTALLATION [***] 500 [***]
SERVICES
----------------------------------------------------------------------------------------------------------------
O&M [***] 12 10 [***] 500 [***]
----------------------------------------------------------------------------------------------------------------
BACKHAUL [***] 12 10 [***] 500 [***]
----------------------------------------------------------------------------------------------------------------
IN-BUILDING [***] 12 10 [***] 500 [***]
----------------------------------------------------------------------------------------------------------------
CENTRAL OFFICE [***] 12 10 [***] 30 [***]
COLLOCATION
----------------------------------------------------------------------------------------------------------------
TOTAL [***]
----------------------------------------------------------------------------------------------------------------
[***] CONFIDENTIAL TREATMENT REQUESTED
20
EXHIBIT A
TO
MASTER AGREEMENT
EQUIPMENT PURCHASE
This Equipment Purchase Exhibit ("Exhibit") shall be governed by the terms and
conditions of the Master Agreement ("Master Agreement") dated as of the 30th day
of June 2000, between WINSTAR WIRELESS, INC. ("Winstar") and SAVVIS
COMMUNICATIONS CORPORATION ("Customer"). Terms used in this Exhibit that are not
defined below shall have the meaning set forth in the Master Agreement.
1. CONVEYANCE OF THE RADIOS.
(a) During the Term of the Master Agreement, Customer shall purchase,
acquire, and accept from Winstar, all of Winstar's right, title and interest in
and to a total of five hundred (500) radio pairs and other related equipment
listed in Schedule A-1 attached hereto and made part of this Exhibit (all of
which is collectively referred to hereafter as "Equipment".
(b) Winstar shall convey, assign, transfer and deliver to Customer, and
Customer shall purchase Two Hundred Four (204) of such radio pairs and related
equipment on the Effective Date. Winstar shall deliver the Equipment to Customer
at the premises set forth in Schedule A-1.
2. PAYMENT FOR EQUIPMENT.
(a) Customer shall pay to Winstar the amount set forth in Schedule A-1 for
the Equipment, which shall be secured pursuant to Schedule M-6.2 to the Master
Agreement.
(b) Customer shall make payment to Winstar for the initial batch of
Equipment in the manner provided in Schedule A-2 and detailed in the purchase
order attached hereto as Schedule A-3. For all subsequent batches of Equipment,
Customer shall pay Winstar a Thirty percent (30%) down payment, with the
remaining amount due quarterly, on the Fifteenth (15th) day of the last month of
the quarter, over a six (6) year period at an interest rate of Eleven percent
(11%) per anum.
(c) If Customer fails to pay any amount due within fifteen (15) days of the
date due, at the option of Winstar, the full amount remaining unpaid under this
Agreement shall become immediately due and payable without presentment, demand
or notice of any kind; and Winstar may exercise any or all remedies available to
it under applicable law and the Transaction Documents. In addition, Customer
shall pay to Winstar on demand a late charge equal to eighteen percent (18%) of
the amount due.
(d) Customer shall be responsible for all sales and/or use or similar taxes
that may be due as a result of the transfer of the Equipment.
3. ACCEPTANCE OF, TITLE TO, AND RISK OF LOSS OF EQUIPMENT. Title to the
Equipment shall vest in Customer immediately upon shipment of the Equipment FOB
shipping point by Winstar. Risk of loss or damage to the Equipment shall pass to
Customer upon passage of title to the Equipment. Customer acknowledges that
Schedule 1-A hereto serves as its purchase order for all shipments of Equipment
and that Winstar is authorized to ship against it in the amount and on the dates
specified herein.
4. SHIPPING. Winstar shall: (a) ship to the destination designated in this
Exhibit; (b) ship according to routing instructions given by Customer; (c) place
the order number on all subordinate documents; (d) enclose a packing memorandum
with each shipment and, when more than one package is shipped, identify the
package containing the memorandum; and (e) ▇▇▇▇ the order number on all packages
and shipping papers. Adequate protective packing
21
shall be furnished at no additional charge. Shipping and routing instructions
may be furnished or altered by Customer without a writing. If Winstar does not
comply with the terms of the FOB clause of this Exhibit or with Customer'
shipping or routing instructions, Winstar authorizes Customer to deduct from any
invoice of Winstar (or to charge back to Winstar), any increased costs incurred
by Customer as a result of Winstar's noncompliance. Winstar will be responsible
for paying all shipping costs to Customer' premises indicated in the attached.
5. UPGRADE OF EQUIPMENT. Upon mutual agreement of the Parties, Customer may,
upon providing thirty (30) days written notice to Winstar, sell back to Winstar
any Equipment at the fair market value of the Equipment, as determined by a
commercially reasonable method of valuation agreed to by the Parties, as of the
effective date of the repurchase. Customer may only exercise its option to
upgrade once during the Term of the Master Agreement. In consideration, and upon
exercise of such option, Customer shall purchase, upon similar terms and
conditions as those described herein, Equipment with greater capacity than the
Equipment sold back to Winstar. Winstar shall inform Customer of the repurchase
price of the Equipment as well as the purchase price of the upgraded Equipment
as soon as practicable after receipt of notice from Customer of its intent to
exercise its option to upgrade the Equipment pursuant to this Section. This
upgrade clause shall be available during the year following the Effective Date
only.
(THIS SPACE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, the Parties hereto have caused this Exhibit to be executed
by their duly authorized representatives.
SAVVIS COMMUNICATIONS WINSTAR WIRELESS, INC.
CORPORATION
By: By:
---------------------------- --------------------------------
Name: Name:
---------------------------- --------------------------------
Title: Title:
---------------------------- --------------------------------
Date: Date:
---------------------------- --------------------------------
22
SCHEDULE A-1
TO
EQUIPMENT PURCHASE EXHIBIT
ALLOCATION LIST
Number of Radio Pairs 500
PRICE PER RADIO PAIR [***](OC-3)
[***](DS-3)
Customer Premises for Delivery:
--------------------
--------------------
--------------------
--------------------
ATTENTION:
----------
[***] CONFIDENTIAL TREATMENT REQUESTED
23
SCHEDULE A-2
TO
EQUIPMENT PURCHASE EXHIBIT
-------------------------------------------------
-------------------------------------------------
DATE PAYMENT
---- -------
-------------------------------------------------
6/30/00 [***]
-------------------------------------------------
9/15/00 [***]
-------------------------------------------------
12/15/00 [***]
-------------------------------------------------
3/15/01 [***]
-------------------------------------------------
6/15/01 [***]
-------------------------------------------------
9/15/01 [***]
-------------------------------------------------
12/15/01 [***]
-------------------------------------------------
3/15/02 [***]
-------------------------------------------------
6/15/02 [***]
-------------------------------------------------
9/15/02 [***]
-------------------------------------------------
12/15/02 [***]
-------------------------------------------------
3/15/03 [***]
-------------------------------------------------
6/15/03 [***]
-------------------------------------------------
9/15/03 [***]
-------------------------------------------------
12/15/03 [***]
-------------------------------------------------
3/15/04 [***]
-------------------------------------------------
6/15/04 [***]
-------------------------------------------------
9/15/04 [***]
-------------------------------------------------
12/15/04 [***]
-------------------------------------------------
3/15/05 [***]
-------------------------------------------------
6/15/05 [***]
-------------------------------------------------
9/15/05 [***]
-------------------------------------------------
12/15/05 [***]
-------------------------------------------------
3/15/06 [***]
-------------------------------------------------
6/15/06 [***]
-------------------------------------------------
[***] CONFIDENTIAL TREATMENT REQUESTED
24
SCHEDULE A-3
TO
EQUIPMENT PURCHASE EXHIBIT
PURCHASE ORDER
SAVVIS
PURCHASE ORDER
---------------
--------------------------------------------------
SHIP TO : SAVVIS/MERIDIAN
---------------------------------------------------------
PAYMENT TERMS : PER CONTRACT ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
DELIVERY TERMS: FOB SHIPPING POINT ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇
--------------------------------------------------------- --------------------------------------------------
DESCRIPTION QTY PRICE EXTENDED PRICE
----------- --- ----- ---------------
75 OC3 RADIOS PAIRS:
Basic OC-3 IDU with SNMP, 64K user channel, 10BT Wayside 75 [***] [***]
Channel and 1300nm F/O MM main channel
Basic OC-3 IDU with SNMP, 64K user channel, 10BT Wayside 75 [***] [***]
channel and 1300nm F/O SM main channel
ODU 38Ghz, Band 3A 75 [***] [***]
ODU 38Ghz, Band 3B 75 [***] [***]
1 Ft Antenna 150 [***] [***]
EtherAir - 2 port 100 base-T interface 150 [***] [***]
100BT to 100BFX converter 150 [***] [***]
------------------------------
SUBTOTAL [***]
(PRICE PER RADIO PAIR) [***]
272 DS3 RADIO PAIRS:
38 GHZ DS3 XP4 ODU BAND 1 LOW 136 [***] [***]
38 GHZ DS3 XP4 ODU BAND 1 HIGH 136 [***] [***]
38 GHZ DS3 XP4 ODU BAND 2 LOW 136 [***] [***]
38 GHZ DS3 XP4 ODU BAND 2 HIGH 136 [***] [***]
DS3 XP4 IDU WITH SNMP AND ATPC OPTION 544 [***] [***]
1 FT 38DBI ANTENNA 544 [***] [***]
------------------------------
SUBTOTAL [***]
(PRICE PER RADIO PAIR) [***]
TOTAL [***]
Upon mutual consent by both parties, Savvis may upon 30 days notice sell back to
Winstar DS3 radio links at fair market value in exchange for Savvis purchase of
OC3 radio links under the same terms and conditions outlined in the equipment
sale agreement. This upgrade clause is valid until June 30, 2001.
--------------------------------------------------------------------------------
Authorized Signature Date
--------------------------------------------------------------------------------
[***] CONFIDENTIAL TREATMENT REQUESTED
25
▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE by and between Winstar Wireless, Inc. and Customer is made
pursuant to that certain Equipment Purchase Agreement (the "Exhibit") between
the Parties of even date herewith. All capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Exhibit.
FOR AND IN CONSIDERATION of the mutual promises contained, and the consideration
recited, in the Exhibit, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and subject to the terms
and conditions of the Exhibit, Winstar hereby bargains, sells, grants, conveys,
transfers and assigns to Customer, its successors and assigns, all of the
Equipment listed on Schedule A, attached hereto and to the Exhibit.
IN WITNESS WHEREOF, Winstar has caused this ▇▇▇▇ of Sale to be duly executed on
the day and year written in the Exhibit.
ATTEST/WITNESS: WINSTAR WIRELESS, INC.
-------------------- -----------------------------
BY:
--------------------------
26
EXHIBIT B
TO
MASTER AGREEMENT
INSTALLATION SERVICES
This Installation Services Exhibit ("Exhibit") shall be governed by the terms
and conditions of the Master Agreement ("Master Agreement") dated as of the 30th
day of June, 2000 between WINSTAR WIRELESS, INC. ("Winstar") and SAVVIS
COMMUNICATIONS CORPORATION ("Customer"). Terms used in this Exhibit that are not
defined below shall have the meaning set forth in the Master Agreement.
1. BUILDINGS. Customer shall, no later than sixty (60) days following the
Effective Date, provide to Winstar a list of seven hundred and fifty (750)
buildings in which it desires to have Equipment installed ("Customer List").
SAVVIS shall order the Customer List from the building with the greatest
priority to have Equipment installed to the building with the least priority to
have Equipment installed. This list shall not contain any buildings that were
previously proposed to Winstar by Customer to become an Eligible Location.
Savvis may add to the Customer List once per calendar quarter.
2. INSTALLATION PROCESS. Once Winstar has installed One Hundred and Two (102)
radio pairs under this Agreement ("Inventory Event"), Customer shall be required
to maintain an Inventory of One Hundred and Two (102) radio pairs ("Minimum
Inventory"). To do so, within fifteen (15) days after the Inventory Event,
Winstar shall notify Customer of the buildings at which Winstar reasonably
believes it can install radio pairs within Seventy-Five (75) days of the notice
("Initial Radio Pair Notice"). In determining the buildings to be placed on the
Initial Radio Pair Notice, Winstar shall attempt to install radio pairs in the
priority order buildings appear on the Customer List. Every Thirty (30) days
thereafter, Winstar shall notify Customer of the next One Hundred (100)
buildings at which it believes it can install radio pairs within Seventy-Five
(75) days of the additional notice ("Additional Radio Pair Notice"). In
determining the buildings to be placed on the Additional Radio Pair Notice,
Winstar shall attempt to install radio pairs in the priority order buildings
appear on the Customer List. Customer will every Thirty (30) days purchase from
Winstar any additional radio pairs necessary for Customer to have on hand the
Minimum Inventory. Customer will thereafter select from the Initial Radio Pair
Notice and any Additional Radio Repair Notice, the buildings it desires to be
installed by Winstar, ensuring that at all times, Customer has selected at least
One Hundred and Two (102) buildings. This process shall terminate when Winstar
has installed a total of Five Hundred (500) radio pairs at buildings on the
Customer List. Notwithstanding the foregoing, Winstar may without penalty choose
not to install more pairs at no more then 2% of Locations set forth on the
Initial and any Additional Radio Pair Notice.
3. INSTALLATION SERVICES. Winstar shall be responsible for the payment of all
fees and expenses associated with roof acquisition or rental costs.
4. ADDITIONAL INSTALLATION SERVICES.
(a) At the request of Customer, Winstar shall move any Installed Equipment
from its place of installation to any Eligible Location or to its designated
inventory storage facilities. Winstar will treat all such moves as a "move, add,
change, or delete" ("MACD").
(b) Customer shall pay Winstar for all costs associated with such MACD
(i.e., decommissioning, deinstallation, and reinstallation) at Winstar's actual
cost, without ▇▇▇▇-up.
5. LINK TESTING.
(a) The Parties shall develop a mutually agreed-upon test plan for Links
within thirty (30) days of the Effective Date.
(b) After the Equipment for a Link is installed, Winstar shall deliver a
Link Availability Letter to Customer. Customer shall initiate and complete Link
testing within three (3) Business Days of the receipt of the Link Availability
Letter. Customer shall countersign the Link Availability Letter within three (3)
Business Days of Customer's receipt of the Link Availability Letter. In the
event that a counter-signed Link Availability Letter, or written objection by
Customer, to the Link Availability Letter designating items on which the Link
has failed a Link test and a detailed explanation of such testing and results,
is not received by Winstar within three (3) business days of Customer's receipt
of the Link Availability Letter, the subject Link provided shall be deemed
installed.
(c) Each Link shall be tested to ensure that the tested Equipment performs
to its applicable specifications.
6. PAYMENT FOR INSTALLATION SERVICES.
(a) In consideration of the installation services pursuant to this Exhibit
("Installation Services") Customer shall pay to Winstar the amount set forth in
Schedule B-6. Customer shall pay to Winstar of the cost of such Installation
Services no later than thirty (30) days after receipt of the Link Availability
Letter.
(b) Customer shall be responsible for all sales and/or use or similar taxes
that may be due as a result of the Installation Services.
7. COVENANTS, REPRESENTATIONS AND WARRANTIES. Each Party covenants and agrees
that it has or shall obtain any and all rights, licenses, permits,
authorizations, consents and approvals (including, without limitation, any
necessary local, state, federal or tribal authorizations and environmental
permits) as are reasonably necessary in order to permit them to perform their
obligations hereunder.
IN WITNESS WHEREOF, the Parties hereto have caused this Exhibit to be executed
by their duly authorized representatives.
SAVVIS COMMUNICATIONS WINSTAR WIRELESS, INC.
CORPORATION
By: By:
------------------------------- ------------------------------
Name: Name:
------------------------------- ------------------------------
Title: Title:
------------------------------- ------------------------------
Date: Date:
------------------------------- ------------------------------
28
SCHEDULE B-6
PRICING SCHEDULE
[***] per Link
All installation charges include standard installation up to common space area.
Out of scope work shall be billed at cost plus ten percent (10%), unless
otherwise stated in this Exhibit.
[***] CONFIDENTIAL TREATMENT REQUESTED
29
EXHIBIT C
TO
MASTER AGREEMENT
LOCAL CONNECTIVITY AND
BACKHAUL TRANSPORT SERVICES
This Exhibit ("Exhibit") shall be governed by the terms and conditions of the
Master Agreement ("Master Agreement") dated as of the 30th day of June, 2000,
between WINSTAR WIRELESS, INC. ("Winstar") and SAVVIS COMMUNICATIONS CORPORATION
("Customer"). Terms used in this Exhibit that are not defined below shall have
the meaning set forth in the Master Agreement.
1. PROVISION OF LOCAL CONNECTIVITY. Winstar shall provide to Customer and
Customer agrees to purchase from Winstar Local Connectivity in the form of Links
between Winstar hub locations and Eligible Locations. Customer shall not resell
to other entities all or any portion of any Local Connectivity purchased from
Winstar pursuant to this Exhibit.
2. BACKHAUL TRANSPORT SERVICES. As an adjunct to the Local Connectivity, Winstar
shall provide to Customer transport facilities from Winstar hub locations, used
to provide Local Connectivity, to Customer collocation cages at Winstar's switch
sites, all as more particularly listed in Schedule C-2.
IN WITNESS WHEREOF, the Parties hereto have caused this Exhibit to be executed
by their duly authorized representatives.
SAVVIS COMMUNICATIONS WINSTAR WIRELESS, INC.
CORPORATION
By: By:
---------------------------------- -------------------------------
Name: Name:
---------------------------------- -------------------------------
Title: Title:
--------------------------------- -------------------------------
Date: Date:
---------------------------------- -------------------------------
30
Schedule C-2
Winstar's Switch Sites
31
EXHIBIT D
TO MASTER AGREEMENT
EQUIPMENT OPERATIONS AND MAINTENANCE
This Equipment Operations and Maintenance Exhibit ("Exhibit") shall be governed
by the terms and conditions of the Master Agreement ("Master Agreement") dated
as of the 30TH day of June, 2000, between WINSTAR WIRELESS, INC. ("Winstar") and
SAVVIS COMMUNICATIONS CORPORATION ("Customer"). Terms used in this Exhibit that
are not defined below shall have the meaning set forth in the Master Agreement.
1. PROVISION OF EQUIPMENT SUPPORT SERVICES
1.1 Winstar shall provide to Customer, and Customer agrees to purchase from
Winstar, all testing, maintenance, monitoring, sparing, spectrum management,
restoration and repair services for the upkeep of the Equipment and the Local
Connectivity (the "Equipment Support Services"). Such Equipment Support Services
may include, but are not necessarily limited to: performing maintenance and
upkeep on the installed Equipment, repairing and calibrating the installed
Equipment, and performing frequency coordination and interference analyses.
Winstar will maintain the Equipment and all other equipment or software
(including, without limitation, cabling) provided by Winstar. Winstar, or a
Winstar designee, will provide the Equipment Support Services according to its
standard operating procedures.
1.2 Winstar shall pass through to Customer all manufacturers' warranties
from the manufacturers of the Equipment to the extent Winstar is able pursuant
to any agreements between Winstar and such manufacturers. In the event that
Winstar is unable to do so, Winstar shall enforce such manufacturers' warranties
on Customer's behalf. Winstar shall perform the Equipment Support Services in a
good and workmanlike manner, in accordance with its standard operating and
maintenance procedures. Winstar shall use commercially reasonable efforts to
cause the Equipment to remain in good working order and condition. Winstar will
maintain remote monitoring of the Equipment for surveillance purposes in
accordance with its standard procedures.
1.3 Customer shall be responsible for the use and compatibility with
Winstar's Network of any of Customer's equipment, including but not limited to
the Equipment.
1.4 Any scheduled maintenance (non-emergency) shall be performed at such
times so as to minimize any disruption of Customer's service and operations.
Winstar shall cooperate with Customer in scheduling any such maintenance. Where
practicable, any scheduled maintenance that is expected to produce any signal
discontinuity shall be scheduled after midnight and before 6:00 a.m. local time.
Winstar shall to the extent practical notify Customer in advance of the date and
time of any scheduled maintenance and as soon as practicable after becoming
aware of the need for any non-routine maintenance.
32
2. ASSIGNMENT OF EQUIPMENT SUPPORT SERVICES
Winstar may assign or subcontract to or otherwise have, any third party
perform any or all of the Equipment Support Services under this Exhibit at any
time, without the consent of Customer, provided that Winstar shall continue to
remain responsible for any such duties.
3. OUTAGES/OUTAGE CREDITS
3.1 In the event of an interruption of service for one or more of the
Equipment hereunder, resulting from physical damage to, or other failure of, any
Equipment, or otherwise ("Outage"), Customer shall notify Winstar by telephone
at (▇▇▇) ▇▇▇-▇▇▇▇ or through such other notification procedure as Winstar may
establish. Provided that Winstar personnel or contractors have access to
affected Customer facilities immediately upon notification, if necessary,
Winstar shall respond and commence work within three (3) hours from notification
by Customer and use commercially reasonable efforts to restore effective use of
the Equipment as expeditiously as practicable, with a goal of no more than five
(5) hours from receipt by Winstar of Customer's notification or from the time
Winstar otherwise becomes aware of such interruption.
3.2 Each OC-3 Link will have a performance standard of 99.99 %
availability. An "OC-3" Link, for purposes of this Agreement shall be defined as
the Link from the SAVVIS collocation rack in the Winstar POP to the OC-3 port on
the Customer-provided Lucent Stinger (including the fiber patch cable that
connects from the radio IDU to the Stinger). Performance shall be measured
quarterly on an OC-3 Link-by-OC-3 Link basis. For each OC-3 Link that does not
meet the performance standard above, Winstar will give Customer a credit of
[***] towards future Equipment Support Services. THE FOREGOING STATES THE SOLE
AND EXCLUSIVE REMEDY OF Customer, AND LIABILITY OF WINSTAR, FOR ANY TOTAL
OUTAGES.
3.3 If all or part of the Equipment or Local Connectivity requires
restoration, replacement or repair during the Term solely as a result of an act,
or any failure to act on the part of Customer as required hereunder, including
without limitation, the negligence or willful misconduct of Customer, its
officers, employees, agents, contractors, subcontractors, invitees or
representatives, such repair, replacement and/or restoration will be made by
Winstar, at Customer's sole expense, in accordance with Winstar's then current
time and materials rates plus applicable taxes. In addition, Customer will not
receive any Outage Credit resulting from the foregoing. If any such restoration,
replacement or repair is required as a result of the act, or failure to act as
required hereunder, by Customer and Winstar, the costs shall be apportioned in
accordance with their respective responsibility therefor.
4. RATES, BILLING AND PAYMENT FOR SERVICES.
A. AS CONSIDERATION FOR WINSTAR'S PROVISION OF THE EQUIPMENT SUPPORT SERVICES,
CUSTOMER SHALL PAY WINSTAR THE OPERATIONS AND MAINTENANCE FEES SET
[***] CONFIDENTIAL TREATMENT REQUESTED
33
FORTH IN SCHEDULE D-4 (THE "EQUIPMENT SUPPORT CHARGES") COMMENCING UPON THE
RADIO INSTALL DATE.
B. Winstar shall invoice Customer on a monthly basis in advance. Invoices shall
be payable upon receipt. If payment is not received within thirty (30) days of
the payment due date, the invoice will accrue interest at the lesser of 1.5% per
month or the highest rate permitted by law. In the event that payment is not
received within sixty (60) days of the payment due date, Winstar may suspend the
Equipment Support Services, in Winstar's sole discretion. If Equipment Support
Services are suspended, Equipment Support Services will be restored or
recommenced when all Equipment Support Charges and interest are paid in full.
5. Relocation.
5.1 If Winstar determines for bona fide operational reasons, or is required
by a third party within its proper authority or by a governmental entity, to
relocate all or any Equipment (as defined in Exhibit A), (a "Relocation"),
Winstar shall, to the extent practicable, provide Customer sixty (60) days'
prior notice of any such Relocation and shall proceed with such Relocation.
Winstar shall also keep Customer informed of any governmental proceedings which
would require such Relocation. Winstar shall have the right to direct such
Relocation, including the right to determine the extent of, the timing of, and
methods to be used for such Relocation, and shall keep Customer informed of the
same.
5.2. For purposes of this Section, a Relocation shall be for bona fide
operational reasons if it is undertaken in good faith (i) to settle or avoid a
bona fide threatened or filed condemnation action or order by a governmental
authority to relocate, (ii) to reduce the likelihood of physical damage to the
Winstar Network, (iii) as the result of a force majeure event, or (iv) for other
operational reasons to which Customer has consented, provided that Customer
shall not unreasonably withhold such consent. Winstar shall use reasonable
efforts to contest any exercise of condemnation authority that would require a
Relocation.
5.3. Winstar will Relocate the Equipment and all other equipment or
software provided by Winstar. Winstar will also be responsible for reinstalling
such Equipment at its new Eligible Location in accordance the procedures set
forth in Exhibit B. Customer shall be responsible for the use and compatibility
with Winstar's Network of any Equipment.
6. Term.
The term of this Exhibit shall commence as of the Effective Date and shall
remain in force for an initial term of ten (10) years.
7. BUILDING SLA
34
7.1 Winstar shall install a total of One Hundred and Two (102) Links, in
accordance with the terms and conditions set forth in Exhibit B, no later than
one (1) year after the Effective Date ("Installation Target"). In determining
whether Winstar has met the Installation Target, Winstar shall be entitled to
count as an installed Link all buildings to which Winstar is providing local
connectivity (for example, Winstar hub building). In the event that Winstar is
unable to meet the Installation Target, the remedy set forth in Section 7.2
shall be Customer's sole and exclusive remedy.
7.2 Beginning on the first anniversary of the Effective Date, and every
month thereafter, Winstar shall credit Customer an amount equal to [***] per
month toward the purchase of future Equipment Support Services, as set forth in
this Exhibit, for each Link below the Installation Target. For example, if by
July 30th, 2001, Winstar has installed eighty-two (82) Links, Winstar shall
credit Customer with [***] toward the purchase of future Equipment Support
Services [(20 Links under the Installation Target)[***]. If Winstar is only able
to install an additional five (5) Links by August 30, 2001, Winstar shall credit
Customer with an additional [***] toward the purchase of future Equipment
Support Services [(15 Links under the Installation Target)[***].
IN WITNESS WHEREOF, the Parties hereto have caused this Exhibit to be executed
by their duly authorized representatives.
SAVVIS COMMUNICATIONS WINSTAR WIRELESS, INC.
CORPORATION
By: By:
-------------------------------- ---------------------------------
Name: Name:
-------------------------------- ---------------------------------
Title: Title:
--------------------------------
---------------------------------
Date: Date:
-------------------------------- ---------------------------------
[***] CONFIDENTIAL TREATMENT REQUESTED
35
SCHEDULE D-4
OPERATIONS AND MAINTENANCE CHARGES
[***] per month per Link
[***] CONFIDENTIAL TREATMENT REQUESTED
36
EXHIBIT E
TO
MASTER AGREEMENT
WINSTAR COLLOCATION SPACE
THIS WINSTAR COLLOCATION EXHIBIT ("EXHIBIT") SHALL BE GOVERNED BY THE TERMS AND
CONDITIONS OF THE MASTER AGREEMENT ("MASTER AGREEMENT") DATED AS OF THE 30TH DAY
OF JUNE 2000, BETWEEN WINSTAR WIRELESS, INC. ("WINSTAR") AND SAVVIS
COMMUNICATIONS CORPORATION ("CUSTOMER"). TERMS USED IN THIS EXHIBIT THAT ARE NOT
DEFINED BELOW SHALL HAVE THE MEANING SET FORTH IN THE MASTER AGREEMENT.
1. License to Occupy, Permissible Use and Relocation Provisions.
(a) Winstar, or its Affiliates (Winstar and its Affiliates are collectively
referred to as "Winstar Affiliates"), owns, controls or has leasehold interests
in certain office and storage space within commercial buildings throughout the
United States (each specific building as a whole to be defined as a "Premises")
which are suitable for the placement and operation of telecommunications
equipment. Pursuant to the Master Agreement and this Exhibit, Winstar Affiliates
shall provide Customer access to the Premises in one or more locations therein
for the purpose of placing certain telecommunications equipment and cabling,
including all of its nodes (the "Customer Equipment"), at each individual
location within the Premises (each a "Terminal Facility").
(b) This Exhibit shall comprise a complete and binding agreement between
Customer and a Winstar Affiliate only upon prior execution by the Winstar
Affiliate and Customer of a Collocation Schedule, in the form attached hereto as
Schedule E-1, pertaining to an individual Terminal Facility, in which the
Winstar Affiliate has a leasehold interest. Each Collocation Schedule, and any
amendments thereto, when dated and subscribed to by Customer and the applicable
Winstar Affiliate, shall incorporate the terms and conditions of this Exhibit as
well as the Master Agreement, and be made part of both by reference. References
in this Exhibit to rights or obligations of Winstar shall refer to the rights
and obligations of the Winstar Affiliate named in the appropriate Collocation
Schedule with respect to the Terminal Facility to which it pertains.
(c) Each Collocation Schedule shall have attached thereto the following
Attachments: Facility Drawings, identified as "Attachment 1"; and General
Description of Work Tasks and Special Terms and Conditions, identified as
"Attachment 2".
37
(d) Customer shall utilize the specific area designated by Winstar within
the Terminal Facility (the "Space") only for interconnection of the Customer
Equipment to the network services of Winstar.
(e) Pursuant to the terms and conditions of this Exhibit, Winstar shall
provide to Customer up to two (2)] racks of collocation space, where available,
within the Terminal Facility at Winstar-designated central office and hub
Terminal Facilities as specified in the Collocation Schedules.
(f) Customer shall be responsible for delivering any additional Customer
network elements to a point of demarcation in the Space as designated by
Winstar. Winstar shall be responsible for transporting such network elements
from the point of demarcation to the collocated Customer Equipment.
(g) In connection with the Space made available hereunder, Winstar shall
perform services which support the overall operation of the Terminal Facility
(e.g., janitorial services, environmental systems maintenance, and power plant
maintenance) at no additional charge to Customer. 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 related items from the Space.
Further, Customer shall maintain the Space in a safe condition including, but
not limited to, the preclusion of storing combustible materials in the Space.
Winstar, however, will have no operations or maintenance responsibilities with
respect to Customer's Equipment, except as such responsibilities pertain to the
construction work, if specifically contemplated by this Agreement.
(h) Unless otherwise provided in the Collocation Schedule, each visit by
Customer to the Space will be deemed to utilize escort services furnished by
Winstar from the time Customer's employee(s) sign(s) in upon entering the
Terminal Facility to the time Customer's employee(s) sign(s) out upon leaving
the Terminal Facility.
(i) Customer acknowledges and agrees that it has been granted only a
limited, non-exclusive license to occupy the Space for the period of time and
under the terms and conditions set forth in the Transaction Documents and
herein, and that it has not been granted any real property interests of any kind
in the Space, Premises, or the Terminal Facility.
(j) The Equipment shall remain Customer's exclusive personal property
throughout the Term, and upon termination of this Exhibit, Customer shall have
the right to remove all Equipment at Customer's sole expense on or before the
expiration or earlier termination of this Exhibit; provided Customer repairs any
damage to the Space, Premises or Terminal Facility caused by such removal.
(k) Customer shall keep the Space, Premises, Terminal Facilities and the
Equipment free from any liens arising from any work performed, materials
furnished or obligations incurred by or at the request of Customer. All persons
either contracting
38
with Customer or furnishing or rendering labor and materials to Customer shall
be notified in writing by Customer that they must look only to Customer for
payment for any labor or materials. If any lien is filed against the Space,
Premises, Terminal Facility, or the Equipment as a result of the acts or
omissions of Customer, its employees, agents or contractors or subcontractors,
Customer shall discharge it or bond it off within thirty (30) days after
Customer learns that the lien has been filed.
(l) The Parties acknowledge and agree that Schedule E-2 attached hereto and
integrated herein sets out their entire obligations with regards to the OC-3
Link referenced therein.
2. DSLAM Collocation.
(a) In addition to the collocation services provided above, Winstar shall
make all reasonable efforts to provide Digital Subscriber Line Access
Multiplexer ("DSLAM") service to Customer.
(b) In providing DSLAM collocation to Customer, Winstar may, at its sole
reasonable discretion, provide: (i) rack space at an Eligible Location for a
multiplexer or (ii) a port within Winstar's own multiplexer located at the
Eligible Location.
(c) In deciding whether to offer DSLAM collocation to Customer, Winstar may
consider its own business objectives with respect to space on a rack or ports in
a multiplexer.
3. Term, Termination and Renewal.
(a) Customer's license to occupy each Space shall begin on the "Requested
Service Date," as set forth in paragraph 3 of each fully executed individual
Collocation Schedule or on the date Winstar completes preparation of the Space,
whichever is later, and shall continue for the lesser of the duration of the
Term or Winstar's underlying leasehold interest. In the event that Winstar's
underlying leasehold interest in a Terminal Facility expires prior to the
expiration of the Term, Winstar shall, at least one hundred twenty (120) days
before the expiration of such leasehold interest, make a good faith effort to
renew the underlying leasehold interest to allow Customer to continue to occupy
the Space for the duration of the Term.
(b) Upon termination or expiration of the license for each Space, Customer
agrees to remove the Customer Equipment and other property that has been
installed by Customer or Customer's agents (or by Winstar on behalf of Customer,
if Winstar desires such Customer Equipment to be removed). In the event such
Customer Equipment or property has not been removed within thirty (30) days
after the effective termination or expiration date, then the Customer Equipment
shall be deemed abandoned and Customer shall lose all rights and title thereto.
39
(c) In the event the Terminal Facility becomes the subject of a taking by
eminent domain by any authority having such power, Winstar shall have the right
to terminate the affected Collocation Schedule. Winstar shall give Customer
prompt advance notice, to the extent practicable of important developments and
the removal Schedule as it learns of the same. Customer shall have no claim
against Winstar for any relocation expenses, any part of any award that may be
made for such taking or the value of any unexpired term or renewed periods that
result from a termination by Winstar under this provision, or any loss of
business from full or partial interruption or interference due to any
termination. However, nothing contained in this Exhibit 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.
4. Prices and Payment Terms.
(a) Customer shall pay to Winstar consideration in accordance with the
pricing set forth in Collocation Schedule E-3 pursuant to terms and conditions
set forth in the Master Agreement.
(b) At any time during the Term, if Customer requests that Winstar provide
services not set forth in this Exhibit, Collocation Schedule(s) or any Schedule
attached hereto, Customer agrees to pay Winstar's then current price for such
services at the time such services are rendered.
(c) Customer agrees to reimburse Winstar promptly for all repair or
restoration costs associated with damage or destruction caused by Customer's
personnel, Customer's agents, Customer's suppliers/contractors or Customer's
visitors during the Term or as a consequence of Customer's removal of the
Customer Equipment or property installed in the Space.
5. Additional Terms Governing Use of Collocation Space; Installation of
Customer Equipment.
(a) Before beginning any delivery, installation, replacement or removal
work, Customer must obtain Winstar's written approval with respect to Customer's
choice of suppliers and contractors, which approval shall not be unreasonably
withheld. Winstar may request additional information before granting approval
and may require reasonable scheduling changes and substitution of suppliers and
contractors as conditions of its approval. Approval by Winstar is not an
endorsement of Customer's supplier or contractor, and Customer will remain
solely responsible for the selection of the supplier or contractor and all
payments for construction work or any other work relating thereto.
Notwithstanding any provision herein to the contrary, Winstar may, at its sole
discretion, perform some or all of the work required in connection with the
installation of Customer equipment, and Customer shall bear all reasonable costs
in connection therewith. In the event Winstar performs any of the work required
in connection with the installation of Customer equipment, Winstar shall send
advance
40
notice to Customer's Chief Technology Officer via electronic mail or any other
comparable communication device.
(b) Customer shall not make any construction changes or material
alterations to the interior or exterior portions of the Space, including any
cabling or power supplies for the Customer Equipment, without obtaining
Winstar's prior written approval for Customer to have the work performed or
having Winstar perform the work. Winstar shall have the right to perform and
manage any construction or material alterations within the Terminal Facility and
Space areas at rates to be negotiated between the Parties hereto.
(c) Customer's access to the Terminal Facility, use of the Space,
installation of the Customer Equipment, and type of Customer Equipment
installed, shall at all times be subject to Customer's adherence to generally
accepted industry standards, rules and requirements of the Premises, security
rules, and reasonable requirements and rules of conduct established by Winstar
for the Terminal Facility and Space. Without limiting the foregoing, Customer
acknowledges and agrees that it shall not be permitted to install or otherwise
utilize Customer Equipment that (i) provides switching or transmission
capabilities; (ii) creates heat greater than 1200 ▇▇▇▇▇ per cabinet; or (iii)
has a weight load of greater than 100 pounds per square foot. Customer shall not
erect any signs or devices to the exterior portion of the Space without
submitting the request to Winstar and obtaining Winstar's written approval which
may be withheld in its sole discretion.
(d) Customer may not provide, or make available to any third party, space
within the Collocation Space without Winstar's prior written consent, which may
be withheld in its sole discretion. If Customer should provide, or make
available to any third party, space within the Space without obtaining the
written consent of Winstar, Customer shall be in breach of this Exhibit and
Winstar may pursue any legal or equitable remedy, including but not limited to
the immediate termination of the license pursuant to Section 6 below.
(e) Notwithstanding any other provisions of this Exhibit, Customer
Equipment placed in the Space shall not interfere with or impair service
provided by Winstar or by any other lessee of the Premises; shall not
unreasonably disturb any other lessee of the Premises; shall not endanger or
damage the facilities of Winstar or of any authorized user of the Space, or the
Premises; shall not compromise the privacy of any communications carried in,
from, or through the Premises; and shall not create an unreasonable risk of
injury or death to any individual or to the public. Customer shall not
improperly restrict or interfere with Winstar's network or the use thereof. Upon
notice by Winstar, Customer shall promptly remove any hazard, interference, or
service obstruction that may be caused by hardware, software or connectivity
owned by or under the control of Customer. Nothing stated herein shall be
construed to interfere with Customer's ability to comply with the rules,
regulations or directives of any governmental or judicial authority. In the
event that the Customer improperly restricts or interferes with Winstar's
network, or the use thereof, Winstar may, after giving
41
Customer notice, immediately modify, suspend, delay, condition, or cease until
cured its obligations under this Exhibit in whole or in part.
(f) Winstar shall not arbitrarily or discriminatorily require Customer to
relocate the Customer Equipment; however, upon sixty (60) days prior written
notice or, in the event of an emergency, such time as may be reasonable, Winstar
reserves the right to change the location of the Space or the Terminal Facility
to a site which shall afford comparable environmental conditions for the
Customer Equipment and comparable accessibility to the Customer Equipment.
Winstar and Customer will work together in good faith to minimize any disruption
to Customer's services as a result of such relocation. Winstar shall be
responsible for the cost of improving the Space to which the Customer Equipment
may be relocated, and for relocation of Customer Equipment interconnected to
Winstar services, except that Winstar shall not be responsible for relocating
facilities installed in violation of this Section 4.
6. Insurance. Customer agrees to maintain, at Customer's expense, during the
entire time this Agreement is in effect for each Space (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, (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 furnish Winstar with certificates of insurance which
evidence the minimum levels of insurance set forth herein and which name Winstar
as an additional insured.
7. Covenants, Representations and Warranties. Each Party covenants and agrees
that it has or shall obtain any and all rights, licenses, permits,
authorizations, consents and approvals (including, without limitation, any
necessary local, state, federal or tribal authorizations and environmental
permits) as are reasonably necessary in order to permit them to perform their
obligations hereunder.
(THIS SPACE IS INTENTIONALLY LEFT BLANK)
42
IN WITNESS WHEREOF, the Parties hereto have caused this Exhibit to be executed
by their duly authorized representatives.
SAVVIS COMMUNICATIONS WINSTAR WIRELESS, INC.
CORPORATION
By: By:
----------------------------------- -----------------------------
Name: Name:
----------------------------------- -----------------------------
Title:
----------------------------------- Title:
----------------------------
Date: Date:
----------------------------------- -----------------------------
43
COLLOCATION SCHEDULE NO. E-1
This Collocation Schedule is made on this ______ day of ____________, 2000 (the
"Effective Date") and subject to all definitions, terms and conditions of that
certain Exhibit for Terminal Facility Collocation Space, dated ________, 2000
the ("Master Agreement") by and between Winstar Wireless, Inc., ("Winstar") and
SAVVIS Communications Corp. ("Customer") accepts and ratifies the terms and
conditions of the Master Agreement, with respect to the Terminal Facility
identified below, as specifically set forth herein.
1. Address of Terminal Facility Location:
2. Space.
(as applicable)
Cabinet(s): ___________________________
Shelves: ______________________________
3. Requested Service Date: __________
4. Escort Services
Escort Service is ____REQUIRED ____NOT REQUIRED each time Customer obtains
access to the Terminal Facility.
SAVVIS COMMUNICATIONS WINSTAR WIRELESS, INC.
CORPORATION
By: By:
---------------------------------- --------------------------------
Name: Name:
---------------------------------- --------------------------------
Title: Title:
---------------------------------- --------------------------------
Date: Date:
---------------------------------- --------------------------------
44
ATTACHMENT 1
To Collocation Schedule No. E-1
FACILITY DRAWINGS
45
COLLOCATION SCHEDULE NO. E-2
In-Building Installation Guidelines
Savvis will buy, and Winstar will install a wireless OC3 link between the Savvis
requested location and the Winstar hub site. The Wireless OC3 link shall consist
of a clear channel OC-3 connection.
For Option 1a - OC3 Distributed via Stinger:
o Winstar will connect the OC3 radio's indoor unit to the
Savvis-provided Lucent Stinger via fiber, as specified by Savvis.
o Winstar will provide appropriate power and rack space for the
Savvis-provided Lucent Stinger(s) in support of SAVVIS customers.
o Winstar will provide the vertical distribution utilizing a Category 5
cable plant with sufficient capacity to insure service to all SAVVIS
customers within a given building. Winstar will terminate the cable
plant utilizing standard 110 punch-down blocks to every 3rd floor
location from top to bottom of building. Winstar will maintain this
vertical cable.
o Savvis will connect from the 110 blocks to the customer station.
Savvis will install and maintain this horizontal cable.
o The cable plant can and must be shared by both entities and must be
able to service all Savvis customers as defined by an SLA.
For Option 1b - OC3 - Bulk Pipe To Single Customer/Floor:
o Winstar will install and terminate a 6-pair multimode fiber cable from
the radio indoor unit to the nearest telephone closet serving the
customer. This fiber run will be installed in appropriate protective
conduit and terminated in appropriate light-guide termination panel.
For Option 2:
o If Winstar has space in it's existing building cabinet for the
Savvis-provided Lucent Stinger, then Winstar will, at Savvis
discretion, make every effort to utilize that space for Savvis Stinger
deployment.
For Option 3:
46
o In a worst-case scenario where Savvis wishes to provide service to its
customer and there is no space available for it's equipment - Savvis
will utilize the Winstar infrastructure to provide this service. This
option does not satisfy SAVVIS "lit building" requirements and should
be used only at SAVVIS discretion.
47
COLLOCATION SCHEDULE NO. E-3
PRICE LIST
Central Office Collocation $____ per month (2 racks @ $____ per rack)
"B" Site Collocation (DSLAM) $____ per building per month
48
CONFIDENTIAL MATERIALS HAVE BEEN OMITTED FROM THIS EXHIBIT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE
BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE OMISSIONS.
September 29, 2000
▇▇. ▇▇▇ ▇▇▇▇▇▇▇
President - COO
Large Accounts
Winstar Wireless, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Dear ▇▇▇:
On June 30, 2000, SAVVIS Communications Corporation ("SAVVIS") and Winstar
Wireless, Inc. ("Winstar") entered into a series of agreements (the
"Agreements") pursuant to which SAVVIS and Winstar agreed to purchase and sell
certain products and services between them. Among the Agreements entered into
were a Master Agreement (the "Master Agreement"), a Professional Services
Agreement (the "Professional Services Agreement"), as amended and a Basic
Internet Services Agreement (the "BSA"). Capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in the Agreements
and the related exhibits. It is the intent of the parties to amend the
Agreements in accordance with the terms of this letter.
Pursuant to Exhibit A to the Master Agreement - Equipment Purchase, SAVVIS is
obligated to purchase 500 radios pairs from Winstar during the Term. SAVVIS
hereby agrees to accelerate the purchase of 106 radio pairs from Winstar as of
the date hereof as evidenced by the Purchase Order attached hereto as Schedule
A, such that subsequent to the date hereof, SAVVIS shall have acquired 310 of
the 500 radio pairs it is obligated to purchase under the Master Agreement.
SAVVIS shall be obligated to make payments with respect to such additional radio
pairs as set forth on Schedule A; provided, however, that in the event Winstar
has failed to install 175 radio pairs, which radio pairs have also been accepted
by SAVVIS on or before October 1, 2001, then SAVVIS shall continue to make
payments of [**] per quarter until such time as Winstar has installed and SAVVIS
has accepted 175 radio pairs. At such time SAVVIS shall resume the payment
schedule as set forth on Schedule A, provided that in the event that the 175
radio pairs were not installed and accepted by October 1, 2001 that amount paid
to Winstar from October 1, 2001 until the 175 radio pairs were installed and
accepted shall be offset against the future quarterly payment obligations. For
example, if the 175 radio pairs were not
installed and accepted until February 10, 2002, then the payment due to Winstar
on March 1, 2002 shall be [**] (being [**] minus [**]).
Section 3.2 of the Professional Services Agreement shall be amended to provide
that Winstar shall request Services from SAVVIS in a minimum amount of [**] (the
"Minimum") during calendar year 2001 which Services shall be provided to Winstar
at the rate of at least [**] per quarter. To the extent that Winstar does not
use Services in an amount equal to at least [**] per quarter, then SAVVIS shall
invoice Winstar and Winstar shall be obligated to pay such amounts. In the event
that Winstar fails to use Services in the year 2001 in an amount equal to the
Minimum, then SAVVIS shall invoice Winstar at the end of calendar year 2001 in
an amount equal to the difference between the Minimum and that amount previously
billed by SAVVIS during calendar year 2001.
The parties shall amend the BSA to provide that Winstar shall acquire from
SAVVIS an additional [**] in Frame Services and IP Services at the prices as are
set forth in the BSA. Such amount shall be prepaid to SAVVIS and shall be due
and owing to SAVVIS on October 2, 2000.
Section 6 of the Master Agreement shall be amended to provide that SAVVIS shall,
at its option, have a right of offset with respect to any amounts due and owing
to Winstar for the Equipment if, and to the extent, Winstar fails to pay any
amounts to SAVVIS under the Professional Services Agreement.
The parties agree that they shall amend the Agreements as set forth above but
that it is the intent of the parties that the amendments described herein shall
be binding on the parties as of the date hereof.
Sincerely,
SAVVIS Communications Corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Executive Vice President - Strategic Development & Business Planning
Winstar Wireless, Inc.
/s/ ▇▇▇ ▇▇▇▇▇▇▇
By: ▇▇▇ ▇▇▇▇▇▇▇
Its: President - COO Large Accounts
[**] CONFIDENTIAL TREATMENT REQUESTED
SAVVIS
PURCHASE ORDER
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------------------------------------
SHIP TO: SAVVIS/MERIDIAN
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PAYMENT TERMS : PER CONTRACT ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
DELIVERY TERMS: FOB SHIPPING POINT ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SHIP DATE: 9/29/2000 ATTN: ▇▇▇▇ ▇▇▇▇▇▇▇
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DESCRIPTION QTY PRICE EXTENDED
----------- ---- ----- PRICE
-----
106 OC3 RADIOS
ODU ALTIUM OC3 38GHZ NN TX LOW BAND 27 [**] [**]
ODU ALTIUM OC3 38GHZ NN TX HIGH BAND 27 [**] [**]
ODU ALTIUM OC3 38GHZ NN TX LOW BAND 27 [**] [**]
ODU ALTIUM OC3 38GHZ NN TX HIGH BAND 27 [**] [**]
ODU ALTIUM OC3 38GHZ NN TX LOW BAND 26 [**] [**]
ODU ALTIUM OC3 38GHZ NN TX HIGH BAND 26 [**] [**]
ODU ALTIUM OC3 38GHZ NN TX LOW BAND 26 [**] [**]
ODU ALTIUM OC3 38GHZ NN TX HIGH BAND 26 [**] [**]
▇▇▇▇▇▇▇ 1 FT ANTENNA LOW PROFILE FOR ALTIUM 106 [**] [**]
▇▇▇▇▇▇▇ 2FT ANTENNA LOW PROFILE FOR ALTIUM 106 [**] [**]
IDU ALTIUM OC3 MM ST NN 212 [**] [**]
SUBTOTAL [**]
(PRICE PER RADIO PAIR) [**]
TOTAL [**]
[**] CONFIDENTIAL TREATMENT REQUESTED
SAVVIS 3Q PURCHASE *
* All prices and payment terms are laid out in the contract
OC3 Price per contract [**]
Actual # of radio's [**]
Actual amount [**]
Down Payment 30% [**]
4Q00 [**]
1Q01 [**]
2Q01 [**]
3Q01 [**]
4Q01 [**]
1Q02 [**]
2Q02 [**]
3Q02 [**]
4Q02 [**]
1Q03 [**]
2Q03 [**]
3Q03 [**]
4Q03 [**]
1Q04 [**]
2Q04 [**]
3Q04 [**]
4Q04 [**]
1Q05 [**]
2Q05 [**]
3Q05 [**]
4Q05 [**]
1Q06 [**]
2Q06 [**]
3Q06 [**]
[**] CONFIDENTIAL TREATMENT REQUESTED