EXHIBIT 10.2
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of May 21, 2001 (the "Amendment Date") unless otherwise
expressly stated herein, is by and among SAVVIS COMMUNICATIONS CORPORATION, a
Missouri corporation (the "Borrower"), SAVVIS COMMUNICATIONS CORPORATION, a
Delaware corporation ("Holdings"), each of the undersigned Lenders (as
hereinafter defined) and NORTEL NETWORKS INC., a Delaware corporation, as
administrative agent for itself and the other Lenders (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
RECITALS:
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A. Pursuant to that certain Amended and Restated Credit Agreement dated
as of September 5, 2000 (as the same may be amended, modified, renewed,
extended, restated or supplemented from time to time, the "Credit Agreement") by
and among the Borrower, Holdings, each of the lending entities which is a party
thereto or which may from time to time become a party thereto as a lender or any
successor or assignee thereof (individually, a "Lender" and, collectively, the
"Lenders"), and the Administrative Agent, the Lenders agreed to extend certain
credit facilities to the Borrower.
B. The Borrower, Holdings, the Administrative Agent and the Lenders
desire to amend the Credit Agreement upon the terms and conditions contained
herein.
AGREEMENTS:
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NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Terms Defined. Unless otherwise defined or stated in this
Amendment, each capitalized term used in this Amendment has the meaning given
to such term in the Credit Agreement (as amended by this Amendment).
2. Events of Default, Etc.
(a) Existing Defaults. Certain Events of Default have occurred and
continue under the Credit Agreement. More specifically, (i) an Event of Default
has occurred and is continuing under Section 11.1(e)(iv) of the Credit Agreement
given that Bridge Information Systems, Inc. ("Bridge") has commenced a voluntary
case under the United States Bankruptcy Code (the "Bridge Bankruptcy"), (ii) an
Event of Default has occurred under Section 11.1(c) of the Credit Agreement due
to the Borrower's incurrence of Debt for borrowed money in the aggregate
principal amount of $20,000,000 evidenced by those certain promissory notes
dated February 19, 2001 in the aggregate principal amount of $20,000,000 made by
the Borrower payable to the order of the Welsh, Carson, Xxxxxxxx & Xxxxx VIII,
L.P. and certain of its affiliates (collectively, the "Xxxxx Xxxxxx Parties),
which Debt is prohibited under Section 9.1 of the Credit Agreement, (iii) an
Event of Default has
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occurred under Section 11.1(c) of the Credit Agreement due to the Borrower's
grant of a Lien to secure the Debt evidenced by the promissory notes referred to
in clause (ii) preceding, which Lien (A) was created by that certain Missouri
Future Advance Deed of Trust and Security Agreement dated as of February 19,
2001, executed by the Borrower to and in favor of Xxxxxxxx X. Verde as trustee
for the benefit of WCAS Management Corporation, as collateral agent (as modified
by that certain Modification of Missouri Future Advance Deed of Trust and
Security Agreement, Including Appointment of Successor Trustee dated as of
February 19, 2001, and that certain Second Modification of Missouri Future
Advance Deed of Trust and Security Agreement dated as of May 9, 2001, the "Xxxxx
Xxxxxx Deed of Trust"), (B) covers certain real and personal property located in
St. Louis County, Missouri, and (C) is prohibited under Section 9.2 of the
Credit Agreement, (iv) an Event of Default has occurred under Section 11.1(c) of
the Credit Agreement due to the Borrower's failure to comply with the covenant
set forth in Section 8.16 of the Credit Agreement, (v) an Event of Default has
occurred under Section 11.1(i) of the Credit Agreement due to Holdings' failure
to pay when due the principal of and interest on the Debt of Holdings evidenced
by that certain Promissory Note dated February 18, 2000 in the original
principal amount of $21,565,751 made by Holdings payable to the order of Bridge
(the "Bridge Note"), (vi) an Event of Default has occurred under Section 11.1(a)
of the Credit Agreement due to the Borrower's failure to pay interest accrued on
the Loans in accordance with Section 2.4 of the Credit Agreement in the amount
of $1,082,781.36 which was due on March 28, 2001 and the Borrower's failure to
pay commitment fees in accordance with Section 2.11 of the Credit Agreement in
the amount of $194,717.36 which was due on April 2, 2001, (vii) an Event of
Default may have occurred under Section 11.1(o) of the Credit Agreement due to
the option to purchase certain shares of capital stock of Holdings granted by
Bridge to Reuters America Inc. and Reuters S.A. (individually and collectively,
the "Reuters Purchaser") pursuant to Section 7.26(c) of the Reuters Asset
Purchase Agreement (as such term is hereinafter defined) (the "Reuters Option
Agreement"), (viii) an Event of Default may have occurred under Section 11.1(c)
of the Credit Agreement due to a default under Section 9.2 of the Credit
Agreement with respect to certain Liens set forth as items 3, 4 and 10 on
Schedule 2.07 to the Reuters Securities Purchase Agreement, (ix) an Event of
Default may have occurred under Section 11.1(d) of the Credit Agreement due to
the insolvency of Bridge, (x) an Event of Default may have occurred under
Section 11.1(i) of the Credit Agreement due to the cumulative effect of the
payment defaults set forth as items 2, 3, 4, 8, 10, 11, 12, 16, 21 and 22 on
Schedule 2.12 to the Reuters Securities Purchase Agreement, (xi) an Event of
Default may have occurred under Section 11.1(n) of the Credit Agreement as a
result of items 5, 8 and 9 set forth on Schedule 2.07 of the Reuters Securities
Purchase Agreement, and (xii) an Event of Default may have occurred under
Section 11.1(s)(iii) (such Events of Default referred to in clauses (i) through
(xii) preceding, the "Existing Defaults").
(b) Waiver of Defaults. Subject to the satisfaction of all conditions
precedent set forth in Section 13 hereof and the proviso below, at the request
of the Borrower, the Administrative Agent and the Lenders hereby waive the
Existing Defaults through and until (but not after) the earliest to occur of the
following dates as determined by the Administrative Agent in its sole
discretion: (i) August 31, 2001, (ii) the initial date (if any) upon which that
certain Asset Purchase Agreement dated as of May 3, 2001 among Bridge, certain
subsidiaries of Bridge and the Reuters Purchaser (the "Reuters Asset Purchase
Agreement") is terminated or it is otherwise determined that such agreement will
not be executed or that the Reuters Purchaser will not purchase the assets of
Bridge pursuant to the Reuters Asset Purchase Agreement, (iii) the initial date
(if any) upon which (A) any commitment
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of Reuters Holdings Switzerland S.A. ("Reuters") to make loans to Holdings, in
addition to the $10,000,000 loan previously made on or about May 16, 2001, is
terminated, (B) Reuters fails (for whatever reason) to make loans to Holdings in
accordance with the Reuters Securities Purchase Agreement (as such term is
hereinafter defined) in the aggregate principal amount of $10,000,000 or more on
or before the date of this Agreement, in an aggregate principal amount
(including previously made loans under the Reuters Securities Purchase
Agreement) of $20,000,000 or more on or before June 30, 2001, in an aggregate
principal amount (including previously made loans under the Reuters Securities
Purchase Agreement) of $27,500,000 or more on or before July 31, 2001, or in an
aggregate principal amount (including previously made loans under the Reuters
Securities Purchase Agreement) of $30,000,000 or more on or before August 31,
2001, (C) the maturity of any loans made by any of the Xxxxx Xxxxxx Parties or
Reuters to Holdings is accelerated, (D) Holdings is required to purchase or
redeem any of the notes evidencing any loans made by any of the Xxxxx Xxxxxx
Parties or Reuters to Holdings or any event of default has occurred with respect
to any loans made by any of the Xxxxx Xxxxxx Parties or Reuters to Holdings
which event of default has not been cured or waived in accordance with the terms
of such notes, or (E) any indebtedness evidenced by any of the notes referred to
in clause (D) preceding is prepaid (whether pursuant to a voluntary or mandatory
prepayment) prior to the regularly scheduled due date for the payment thereof,
or (iv) the GE Capital Deferral Agreement (as such term is hereinafter defined)
is terminated or the "Deferral Period" (as such term is defined in the GE
Capital Deferral Agreement) is terminated (which earliest date is hereinafter
called the "Waiver Expiration Date"); provided, however, that (1) the waiver of
the Existing Defaults consisting of (and only consisting of) those specified in
clause (ii) and clause (iii) of Section 2.1(a) of this Amendment shall not
terminate on the Waiver Expiration Date but shall continue to be effective
thereafter, (2) the waiver of the Existing Default referred to in clause (viii)
of Section 2.1(a) of this Amendment shall be ineffective in the event that the
Lien referred to in item 4 or 10 on Schedule 2.07 to the Reuters Securities
Purchase Agreement results in the forfeiture or sale of the property affected
thereby, (3) the waiver of the Existing Default referred to in clause (ix) of
Section 2.1(a) of this Amendment shall not constitute a waiver with respect to
any insolvency of any Loan Party, (4) the waiver of the Existing Default
referred to in clause (x) of Section 2.1(a) of this Amendment shall be
ineffective in the event that the aggregate amount of Debt referred to therein
that has not been paid when due exceeds $6,000,000, and (5) in the event that
the Borrower fails to provide the Administrative Agent with ten (10) days prior
written notice of any proposed material amendment, modification, supplement or
waiver of any terms or provisions of the GE Capital Lease Documents (as
hereinafter defined) (except as expressly provided in the GE Capital Deferral
Agreement), then, upon written notice to the Borrower, the Administrative Agent
may terminate the waiver period contained in this Amendment, and the
Administrative Agent may, at its option, also terminate the waiver period
contained in this Amendment upon the effective date of any material amendment,
modification, supplement or waiver of any term or provision of the GE Capital
Lease Documents (except as expressly provided in the GE Capital Deferral
Agreement), and, in the event of any termination of the waiver period contained
in this Amendment in accordance with this clause (5), the Waiver Expiration Date
shall be deemed to have occurred concurrently with any such termination of such
waiver period. For purposes of this Amendment, the term "GE Capital Lease
Documents" shall mean any lease agreement, as amended, between the Borrower and
GE Capital, together with all other documents, instruments, certificates and
agreements related thereto.
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(c) Termination of Commitments. Due to the occurrence of the Existing
Defaults, the Commitments of the Lenders have and are terminated.
Notwithstanding the waiver set forth in clause (b) above, the Commitments are
not reinstated hereby and shall not be reinstated except pursuant to the written
agreement of the Administrative Agent and the Lenders executed at their sole
discretion.
(d) Suspension of Automatic Acceleration Due to the Bridge Bankruptcy.
Subject to the succeeding proviso, notwithstanding the Bridge Bankruptcy and the
proviso contained in Section 11.2 of the Credit Agreement, the Administrative
Agent and the Lenders hereby agree to suspend the effects of the proviso
contained in Section 11.2 of the Credit Agreement as they relate to, and only as
they relate to, the Bridge Bankruptcy (i.e., the Administrative Agent and the
Lenders hereby agree to suspend the automatic acceleration of the maturity of
the Loans and other Obligations as a result of, but only as a result of, the
Bridge Bankruptcy); provided, however, that such suspension shall terminate and
expire on the Waiver Expiration Date and the maturity of the Obligations shall
automatically accelerate effective as of the Waiver Expiration Date as a result
of the prior filing of the Bridge Bankruptcy without the giving of any notice of
any nature to the Borrower, Holdings or any other Person, at which time all
Obligations shall be due and payable in full.
3. Limitations. Without limiting the generality of the provisions of
Section 13.11 of the Credit Agreement, the agreements of the Administrative
Agent and the Lenders set forth in Section 2 above shall be limited precisely as
written and are provided solely to address the matters set forth in Section 2.
The agreements set forth in Section 2 do not constitute, nor should they be
construed as, a waiver of compliance by the Borrower with respect to any other
term, provision or condition of the Credit Agreement or any other instrument or
agreement referred to therein. Without limiting the generality of the foregoing,
each of the Borrower and Holdings acknowledges and agrees that the exercise of
the option under the Reuters Option Agreement could constitute an Event of
Default under Section 11.1(o) of the Credit Agreement (excluding the effect of
the prior grant of such option) and that such an Event of Default is not waived
by virtue of this Amendment. For purposes of the immediately preceding sentence
and the Credit Agreement (including, without limitation, Section 11.1(o) of the
Credit Agreement), each of the Borrower, Holdings, the Administrative Agent and
the Lenders hereby agrees that the determination of whether a Change in Control
has occurred prior to the Waiver Expiration Date shall be determined as if the
option under the Reuters Option Agreement had not been granted. The
Administrative Agent and the Lenders expect the Borrower, Holdings and the other
Loan Parties to strictly comply at all times with the terms of the Credit
Agreement and the other Loan Documents. In the event that Defaults or Events of
Default presently exist in addition to the Existing Defaults, the identification
of the Existing Defaults shall not be construed as an implication, expression or
agreement that no other Default or Event of Default exists, and neither the
Administrative Agent nor the Lenders waives any such other Default or Event of
Default.
4. Amendments to Section 1.1. The following amendments are made to the
definitions set forth in Section 1.1 of the Credit Agreement:
(a) The definition of "Asset Disposition" is amended to read as
follows: "Asset Disposition" means the disposition of any or all of the Property
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of the Borrower or any of Borrower's Subsidiaries, whether by sale, lease,
transfer, assignment, condemnation or otherwise, but excluding (a) sales of
inventory in the ordinary course of business; (b) the grant of a Lien as
security; (c) any involuntary disposition resulting from casualty damage to
Property; (d) dispositions of equipment if and to the extent that the equipment
disposed of is, concurrently therewith, exchanged or replaced by equipment of
equal or greater value; (e) the sale of any IRU in the ordinary course of
business provided that any such sale is a sale of not more than the measured
data rate of one OC48 of a Fiber Optic Segment (for purposes of this definition,
a Fiber Optic Segment shall mean a fiber optic line connecting two points with a
measured data rate of OC192 operated by a single carrier; and (f) the sale in
the ordinary course of business to its customers of equipment to be located at
the customer's premises which is used to connect such customer to the
telecommunications network owned and operated by the Borrower or one of its
Subsidiaries.
(b) A new definition of "Construction and Lighting Expenses" is added
to read in its entirety as follows: "Construction and Lighting Expenses" means
amounts related to the construction of the United States long haul and metro
fiber networks including payments for indefeasible rights to use fiber
contracts, Level 3 co-location set-up fees, building entry fees, or other such
up-front payments associated with the construction of the Borrower's fiber
infrastructure, but excluding recurring management, operations and maintenance
expenses and amounts payable for equipment including without limitation access,
long-haul and metro optronics.
(c) The definition of "Data Centers" is amended and restated to read in
its entirety as follows: "Data Centers" means the buildings and/or space in
buildings from time to time constructed and/or operated by the Borrower, the
principal purpose of which is the location of equipment and at which the
Borrower provides networking, hosting and/or co-location services (as opposed to
buildings and/or space in buildings the principal purpose of which is the
location of the Borrower's network switching and transmission equipment),
including, without limitation, those located at 000 XxXxxxxxx Xxxx., Xxxxxxxxx,
Xxxxxxxx 00000, 000 Xxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxxxx 00000 and 000 Xxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx.
(d) A new definition of "First Amendment" is added to read in its
entirety as follows: "First Amendment" means that certain First Amendment to
Amended and Restated Credit Agreement dated as of May 21, 2001, among the
Borrower, Holdings, the Lenders and the Administrative Agent.
(e) Clauses (g) and (h) of the definition of "Permitted Liens" are
amended to read as follows:
"(g) purchase-money Liens on any Property acquired after the
Closing Date or the assumption after the Closing Date of any Lien on
Property existing at the time of such acquisition (and not created in
contemplation of such acquisition), or a Lien incurred after the
Closing Date in connection with any conditional sale or other title
retention agreement or Capital Lease Obligation; provided that:
(i) any Property subject to any of the foregoing (A)
is acquired by the Borrower or any of its Subsidiaries in the
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ordinary course of its respective business and (B) the Lien on
such Property attaches concurrently or within 90 days after
the acquisition thereof; provided, that the Lien on equipment
acquired by the Borrower prior to the Closing Date from Lucent
Technologies, Inc. need not attach until the purchase price
for such equipment is financed or refinanced;
(ii) the Debt secured by any Lien so created, assumed
or existing shall not exceed the lesser of the cost or fair
market value at the time of acquisition of the Property
covered thereby (inclusive of the cost of engineering,
furnishing and installation services directly relating to such
Property);
(iii) each such Lien shall attach only to the
Property so acquired and the proceeds thereof; and
(iv) the aggregate amount of all Debt secured by all
such Liens, when aggregated with the Debt secured by all
purchase-money Liens and all Liens in connection with any
conditional sale or other title retention agreement or Capital
Lease Obligation existing as of the Closing Date or at any
other time, shall not exceed $125,000,000 at any time
outstanding in the aggregate;
(h) Liens on the buildings, improvements and structures (but
not on any furniture, fixtures, equipment or other personal property)
comprising, and Liens on any interest (whether fee, leasehold or other
interest) of the Borrower in the land on which is located, the Data
Center located in Hazelwood, Missouri, which Liens secure Debt not to
exceed $65,000,000 in aggregate principal amount at any time
outstanding plus the amount of Debt solely consisting of notes if and
to the extent that such notes were issued in lieu of the cash payment
of, and effectively represent, interest accrued on the principal amount
of notes of the same class previously issued ("payment in kind notes"),
and which Liens shall be in favor of, and which Debt shall be payable
to, the Xxxxx Xxxxxx Parties (as to such Debt aggregating $20,000,000
in principal amount) or Reuters (as to such Debt aggregating up to
$45,000,000 in principal amount)."
5. Amendment to Section 2.10(a). Section 2.10(a) of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"(a) Loans. The Borrower agrees that all proceeds of the Loans shall be used (i)
to refinance the existing Debt outstanding under the Original Credit Facility,
(ii) to finance the purchase price for Nortel Networks Goods and Installation
Services provided by the Vendor under the Master Purchase Agreement, excluding
sales and use taxes and freight charges, which Nortel Networks Goods and
Installation Services shall be used in the construction and operation of the
Network, (iii) to pay the purchase price of certain routers purchased by the
Borrower from Juniper Networks, Inc. in an aggregate amount not to exceed
$4,000,000, and (iv) to pay obligations of the Borrower under the Level 3
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Agreements when and as due and to pay Construction and Lighting Expenses in an
aggregate amount for all payments made under this clause (iv) not to exceed
$40,000,000."
6. Amendment to Section 5.1. Section 5.1 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"Section 5.1 Collateral. To secure the full and complete
payment and performance of the Obligations, Holdings and the Borrower
will, and will cause each Subsidiary of the Borrower to, grant to the
Administrative Agent for the benefit of the Administrative Agent and
the Lenders a perfected, first priority Lien on all of the right, title
and interest in and to their Properties as set forth below (as more
specifically described in the Security Documents) whether now owned or
hereafter acquired, pursuant to the Security Documents, including,
without limitation, the following:
(a) all Capital Stock of the Borrower and each Subsidiary of
the Borrower;
(b) all of the Property of the Borrower and each Subsidiary of
the Borrower (as such Property is more specifically described in the
Security Documents), including tangible and intangible Property and
real and personal Property, including, without limitation, the
following: Investments (including certificates of deposit); accounts;
inventory (including, without limitation, work in process); equipment;
deposit accounts (including cash collateral accounts); brokerage
accounts; instruments; contract rights (including, without limitation,
all contracts relating to the construction or operation of the Network,
including rights of way, easements, leases and all related contracts);
customer deposits in connection with purchase orders; general
intangibles; real Property and interests therein (if and to the extent
required pursuant to Section 5.4); instruments; chattel paper;
Licenses; Intellectual Property; and intercompany Debt;
(c) all Debt (i) owed by the Borrower to any Subsidiary of the
Borrower, (ii) owed by any Subsidiary of the Borrower to the Borrower
or to any Subsidiary of the Borrower, or (iii) owed by Holdings to the
Borrower or to any Subsidiary of the Borrower; and
(d) the building and fixtures comprising, and all equipment
from time to time located at, the Data Centers, including, without
limitation, all interests (including fee, leasehold and other
interests) in real property on which any such Data Center is located if
and to the extent that (i) any such real property interest is owned or
leased by the Borrower or Holdings and (ii) the aggregate fair market
value of such building and fixtures comprising, and all such equipment
and other personal property located at, such Data Center located on
such real property interest is $250,000 or more, provided, however,
that neither Holdings nor the Borrower will be required to grant to the
Administrative Agent, as security for the Obligations, a Lien on any
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leasehold interest in any such real property if and to the extent that
such Lien is prohibited, at the insistence of the owner of such real
property, under the lease agreement which creates such leasehold
interest and the Borrower and Holdings are unable to obtain the consent
of such owner to such Lien notwithstanding their commercially
reasonable efforts to obtain such consent; and
(e) all cash and non-cash proceeds and products of any of the
foregoing.
The Collateral shall not include any of the following Property
of the Borrower or Holdings as long as such Property is encumbered by
any Permitted Liens (or, in the case of the Lucent Equipment, expected
to be encumbered by November 30, 2000) other than Permitted Liens
securing the Obligations ("Other Permitted Liens") and as long as such
Property is not (1) Nortel Networks Equipment, Nortel Networks Software
nor any other Property acquired with the proceeds of the Loans and (2)
only in the case of clause (y) succeeding, furniture, fixtures,
equipment or other personal property:
(x) any Property encumbered (or, in the case of the Lucent
Equipment, expected to be encumbered by November 30, 2000) by purchase
money Liens permitted by clause (g) of the definition of Permitted
Liens;
(y) all buildings, improvements and structures comprising (as
of the date of grant of the applicable Other Permitted Lien), and any
interest (whether fee, leasehold or other interest) of the Borrower in
the land on which is located (as of the date of the grant of the
applicable Other Permitted Lien), the Data Center located in Hazelwood,
Missouri; and
(z) funds held back by a lender from the proceeds of a Debt
Issuance in an escrow or collateral account for the purpose of paying
interest on such Debt as it accrues;
provided, however, that, if and when any of the foregoing Property
referred in to clause (x), clause (y) or clause (z) is no longer
encumbered by any Other Permitted Liens, then Holdings and the Borrower
will, and will cause each Subsidiary of the Borrower to, promptly
execute and deliver all Security Documents and to otherwise take such
action as may be requested by the Administrative Agent to ensure that
the Administrative Agent is granted and possesses a perfected, first
priority Lien against such Property as security for the payment and
performance of the Obligations. Without the consent or agreement of any
Lender, the Administrative Agent shall, upon the request of the
Borrower, execute such releases or other terminations of Liens as may
be necessary to terminate the Liens granted to the Administrative Agent
under the Security Documents in any of the Property described in the
foregoing clauses (x), (y) and (z)."
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7. Amendment to Section 8.1. Section 8.1 of the Credit Agreement is
amended to add a new clause (s) thereto, which clause shall read in its entirety
as follows: "(s) Cash Flow Projection; Cash Use Report and Forecast. (i) On or
before May 21, 2001, a cash flow projection for Holdings and its Consolidated
Subsidiaries (including, without limitation, the Borrower) for the period from
May 1, 2001 through and including August 31, 2001, (ii) on or before August 1,
2001, a cash flow projection for Holdings and its Consolidated Subsidiaries
(including, without limitation, the Borrower) for the period from a then-current
date through and including October 21, 2001, and (iii) on or before May 21, 2001
and on each subsequent Friday prior to the Waiver Expiration Date, a report as
to the cash uses of Holdings and its Consolidated Subsidiaries (including,
without limitation, the Borrower) for the period commencing May 7, 2001 and
ending on the then-current date and a forecast of the projected cash uses of
Holdings and its Consolidated Subsidiaries (including, without limitation, the
Borrower) for the period commencing on such then-current date through and
including August 31, 2001."
8. Amendment to Section 8.19. Section 8.19 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows: "Section 8.19
Contributions to the Equity Capital of the Borrower and/or Subordinated Loans to
the Borrower. Holdings agrees that, from and after February 16, 2001, it will,
substantially concurrently with its actual or constructive receipt of any Net
Proceeds of any Equity Issuance or Debt Issuance or any other proceeds from any
financing provided by any Person or any equity investment made by any Person,
contribute as equity to the capital of the Borrower, or loan to the Borrower as
Subordinated Debt, one hundred percent (100%) of such Net Proceeds or such other
proceeds; provided, however, that such Net Proceeds and such other proceeds not
to exceed $5,000,000 in aggregate amount (as to all such Net Proceeds and such
other proceeds from any and all sources) shall not be required to be contributed
as equity or Subordinated Debt to the Borrower."
9. Amendment to Section 9.1. Section 9.1 is amended as follows:
(a) The clause at the beginning of Section 9.1 preceding clause (a)
thereof which reads "Neither Holdings nor the Borrower will, nor will the
Borrower permit any Subsidiary of the Borrower to, incur, create, assume or
permit to exist any Debt, except" is amended and restated to read in its
entirety as follows: "Neither Holdings nor the Borrower will, nor will the
Borrower permit any Subsidiary of the Borrower to, incur, create, assume or
permit to exist any Debt, except (subject to the succeeding proviso)".
(b) Clause (g) of Section 9.1 is amended and restated to read in its
entirety as follows: "(g) if at the time of incurrence no Default exists or
would result therefrom, Debt of the type described in clauses (a), (b), (c) and
(d) of the definition thereof incurred by the Borrower or one of its
Subsidiaries to finance or refinance the construction of the Data Centers in an
aggregate principal amount not to exceed $20,000,000 (plus the amount of Debt
solely consisting of payment in kind notes) in the aggregate at any time
outstanding provided such Debt is secured by Permitted Liens of the type
described in clause (h) of the definition of Permitted Liens; and".
(c) Clause (h) of Section 9.1 is amended and restated to read in its
entirety as follows: "(h) Debt of Holdings for borrowed money in the aggregate
principal amount not to exceed
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$45,000,000 (plus the amount of Debt solely consisting of payment in kind notes)
incurred by Holdings and payable to Reuters, which Debt is incurred in
satisfaction of the condition precedent referred to in clause (ii) of Section
11(a) of the First Amendment;".
(d) The following clause is added to the end of Section 9.1 immediately
succeeding clause (h) thereof: "; provided, however, that, notwithstanding
anything to the contrary contained in this Agreement, in no event shall the
Borrower or Holdings incur any Debt for borrowed money at any time after May 1,
2001 except for the Debt of Holdings permitted in accordance with clause (h) of
this Section 9.1."
10. Amendment to Section 9.9. Section 9.9 of the Credit Agreement is
hereby amended to read in its entirety as follows: "Section 9.9 Sale and
Leaseback. Neither Holdings nor the Borrower will, nor will the Borrower permit
any Subsidiary of the Borrower to, enter into any arrangement with any Person
pursuant to which it leases from such Person real or personal Property that has
been or is to be sold or transferred, directly or indirectly, by it to such
Person."
11. Addition of Section 9.19. A new Section 9.19 of the Credit
Agreement is hereby added to the end of Article 9 of the Credit Agreement
(immediately preceding Section 9.20 of the Credit Agreement), which new section
shall read in its entirety as follows:
"Section 9.19 No Amendment or Waiver of Xxxxx, Xxxxxx or
Reuters Loan Documents. Neither Holdings nor the Borrower will, nor
will such Loan Party permit, any amendment, modification, supplement or
waiver to any term or provision of (a) the securities purchase
agreement, note, deed of trust or other agreement, document or
instrument evidencing, governing, securing or guaranteeing the loan or
loans in the aggregate principal amount of $20,000,000 made by Welsh,
Carson, Xxxxxxxx & Xxxxx VIII, L.P. and/or its affiliates to Holdings
or (b) the securities purchase agreement, note, deed of trust or other
agreement, document or instrument evidencing, governing, securing or
guaranteeing the loan or loans in the aggregate principal amount of up
to $45,000,000 made or to be made by Reuters Holdings Switzerland S.A.
to Holdings, in each case (i.e., as to each of clause (a) and clause
(b) preceding) in any manner that has or could reasonably be expected
to have the effect of (i) increasing the interest rate applicable to
any such loan or loans, (ii) increasing the rate or the amount of cash
interest paid or payable with respect to any such loans, (iii)
shortening the maturity of any such loan or loans or any regularly
scheduled installment thereof, (iv) providing that additional
collateral or security shall be granted to secure any such loan or
loans, (v) reducing the commitment or commitments of any lender to make
or advance any such loan or loans, (vi) requiring the satisfaction of
any additional condition precedent to the obligation of any lender to
make or advance any such loan or loans, (vii) adding any event of
default relating to any such loan or loans (other than the amendment to
the event of default section of the 10% Convertible Senior Secured
Notes made by Holdings payable to the Xxxxx Xxxxxx Parties set forth in
Section 4(c) of the Consent and Amendment dated as of May 16, 2001
among Holdings and the Xxxxx Xxxxxx Parties), (viii) changing or
eliminating any term or provision relating to the conversion of any
such loan or loans to equity (other than amending such loans payable to
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the Xxxxx Xxxxxx Parties to permit the conversion or exchange of the
indebtedness represented thereby into common stock and/or preferred
stock of Holdings), or (ix) materially adversely affecting Holdings or
the Borrower."
12. Addition of Section 9.20. A new Section 9.20 of the Credit
Agreement is hereby added to the end of Article 9 of the Credit Agreement
(immediately succeeding Section 9.19 of the Credit Agreement), which new section
shall read in its entirety as follows: "Section 9.20 Prohibition regarding
Payment of Cash Interest. Holdings will not permit interest payable in cash to
accrue on or with respect to its indebtedness owed to (a) Welsh, Carson,
Xxxxxxxx & Xxxxx VIII, L.P. and/or the affiliates of such entity or (b) Reuters
Holdings Switzerland S.A. until on or after May 1, 2004, and Holdings will not
pay any interest, other than interest payable in kind by the issuance of
indebtedness of the same class, accrued on or with respect to any such
indebtedness referred to in clause (a) or clause (b) preceding until after May
1, 2004."
13. Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent, all
of which conditions precedent must be satisfied on or before, or concurrently
with, the date of execution of this Amendment by all parties hereto:
(a) The Administrative Agent shall have received all of the following
and/or all of the following shall have been completed to the satisfaction of the
Administrative Agent, as applicable:
(i) Amendment Documents. This Amendment as executed by the
parties hereto and any other agreement, document, instrument or
certificate reasonably required by the Administrative Agent or the
Lenders to be executed or delivered by the Borrower or any other Loan
Party in connection with this Amendment (collectively, the "Amendment
Documents");
(ii) Reuters Stock Purchase Agreement, etc. A true, correct
and complete copy of that certain (A) Securities Purchase Agreement
dated as of May 16, 2001, among Holdings and Reuters (the "Reuters
Securities Purchase Agreement"), (B) 12% Convertible Senior Secured
Note due May 1, 2005, in the principal amount of $10,000,000 made by
Holdings payable to the order of Reuters (the "Reuters Notes"), (C)
Missouri Future Advance Deed of Trust and Security Agreement dated as
of May 11, 2001, executed by the Borrower to and in favor of Xxxxxx X.
Trad as trustee for the benefit of Reuters (the "Reuters Deed of
Trust"), and (D) Registration Rights Agreement dated as of May 16,
2001, among Holdings and Reuters (the "Registration Rights Agreement"),
each of which agreements, documents or instruments referred to in
clauses (A), (B), (C) and (D) preceding (the "Reuters Loan Documents")
shall be in the form previously submitted to and approved by the
Administrative Agent; pursuant to the Reuters Loan Documents, Reuters
shall have agreed to lend a minimum amount of $30,000,000 and a maximum
of $45,000,000 in aggregate amount to Holdings (the "Reuters Loan")
during the month of May 2001 and continuing monthly thereafter through
and including October 2001, which Reuters Loan (1) shall be payable and
mature on or after May 1, 2005 and shall not amortize prior to such
Page 11
maturity date, (2) shall not accrue cash interest but may only accrue
interest payable in kind prior to May 1, 2004, (3) shall be secured
only by a second priority Lien on the buildings, improvements and
structures owned by the Borrower (but not on any furniture, fixtures,
equipment or other personal property) comprising, and on any interest
(whether fee, leasehold or other interest) of the Borrower in the land
on which is located, the Data Center located in Hazelwood, Missouri,
and (4) shall be mandatorily convertible into preferred stock of
Holdings upon the satisfaction of certain conditions as provided in the
Reuters Securities Purchase Agreement.
(iii) Services Agreement Term Sheet with Reuters. Holdings and
Reuters Limited shall have executed and delivered that certain Services
Agreement Term Sheet dated as of May 21, 2001 (the "Services Agreement
Term Sheet"), which term sheet shall be in the form previously
submitted to and approved by the Administrative Agent, pursuant to
which Holdings agrees to provide, and Reuters Limited agrees to
purchase, $366,000,000 in services over an approximate five-year
contract period;
(iv) Consent to Assignment of the Services Agreement Term
Sheet. Reuters Limited, Holdings and the Borrower shall have executed
an agreement in form presented by the Administrative Agent pursuant to
which, among other things, each of such entities shall have consented
to the assignment of the Services Agreement Term Sheet referred to in
clause (iii) preceding to the Administrative Agent and its successors
and assigns;
(v) Xxxxx Xxxxxx Loans. The Xxxxx Xxxxxx Parties shall have
waived in writing, on terms and conditions satisfactory to the
Administrative Agent, any existing defaults under the loans from the
Xxxxx Xxxxxx Parties to Holdings (provided, however, that the execution
and delivery of this Amendment by the Administrative Agent shall
constitute the agreement of the Administrative Agent that the waiver in
the form provided to the Administrative Agent, when executed and
delivered by the Xxxxx Xxxxxx Parties, is satisfactory to the
Administrative Agent);
(vi) Confirmation of Contributions to the Borrower and
Subordinated Debt. The Administrative Agent shall be satisfied that the
proceeds of the $20,000,000 loan from the Xxxxx Xxxxxx Parties to
Holdings have been contributed by Holdings as equity to the capital of
the Borrower, and that any Debt of the Borrower to Holdings constitutes
Subordinated Debt pursuant to agreements satisfactory to the
Administrative Agent as required by clause (f) of Section 9.1;
(vii) Resolutions. Resolutions of the Board of Directors of
each of the Loan Parties certified by its Secretary or an Assistant
Secretary which authorize the execution, delivery and performance by
such Loan Party of this Amendment and the other Amendment Documents to
which it is or is to be a party;
(viii) Payment of Past Due Accrued Interest and Commitment
Fees. Payment in full from the Borrower of all past due and accrued and
unpaid interest with respect to the Loans through and including March
31, 2001 in the aggregate amount of $1,284,412.89 and all past due and
Page 12
accrued and unpaid commitment fees with respect to the Commitments
through and including March 31, 2001 in the aggregate amount of
$194,717.36;
(ix) Agreements from the Xxxxx Xxxxxx Parties and Reuters.
Each of the Xxxxx Xxxxxx Parties and Reuters shall have executed and
delivered to the Administrative Agent an agreement, in form and
substance reasonably satisfactory to the Administrative Agent, pursuant
to which it acknowledges that the Administrative Agent has a Lien in
the equipment and other personal property which constitutes Collateral
located at the Data Center located in Hazelwood, Missouri (or that the
Xxxxx Xxxxxx Parties or Reuters, as applicable, do not have a security
interest therein) and it agrees that it will not prohibit or restrict
the Administrative Agent from entering upon and otherwise having access
to the Data Center located in Hazelwood, Missouri to inspect, repossess
and/or remove such equipment and other personal property from such Data
Center;
(x) Payment of Legal Fees. Payment in full from the Borrower
of all fees and expenses of counsel to the Administrative Agent which
are payable in accordance with Section 13.1 of the Credit Agreement;
and
(xi) Section 8.19 of the Credit Agreement. Holdings and the
Borrower shall have complied with Section 8.19 of the Credit Agreement
as amended hereby.
(b) The representations and warranties contained herein and in all
other Loan Documents, as amended hereby, shall be true and correct as of the
date hereof as if made again on and as of the date hereof (except if and to the
extent that such representations and warranties are or were expressly made only
as of another specific date); and
(c) No Event of Default shall have occurred and be continuing
(immediately after giving effect to this Amendment).
Upon the satisfaction of all conditions precedent set forth in this Section 13
and upon request of confirmation of such satisfaction made by the Borrower to
the Administrative Agent, the Administrative Agent shall confirm such
satisfaction in writing to the Borrower.
14. Governing Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND APPLICABLE LAWS OF THE U.S.
15. Counterparts. This Amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one agreement,
and any of the parties hereto may execute this Amendment by signing any such
counterpart.
16. No Oral Agreements. THIS AMENDMENT, TOGETHER WITH THE CREDIT
AGREEMENT AND THE OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENT THE FINAL
AGREEMENTS BETWEEN AND AMONG THE PARTIES HERETO RELATING TO THE SUBJECT MATTER
Page 13
HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN (A) THE BORROWER OR ANY OTHER LOAN PARTY AND (B) THE
ADMINISTRATIVE AGENT AND/OR ANY LENDER.
17. Agreement Remains in Effect; No Waiver. Except as expressly
provided herein, all terms and provisions of the Credit Agreement and the other
Loan Documents shall remain unchanged and in full force and effect and are
hereby ratified and confirmed. No waiver by the Administrative Agent or any
Lender of any Default or Event of Default shall be deemed to be a waiver of any
other Default or Event of Default. No delay or omission by the Administrative
Agent or any Lender in exercising any power, right or remedy shall impair such
power, right or remedy or be construed as a waiver thereof or an acquiescence
therein, and no single or partial exercise of any such power, right or remedy
shall preclude other or further exercise thereof or the exercise of any other
power, right or remedy under the Credit Agreement, the Loan Documents or
otherwise.
18. Representations and Warranties.
(a) All representations and warranties made in this Amendment or any
other Loan Document shall survive the execution and delivery of this Amendment
and the other Loan Documents, and no investigation by the Administrative Agent
or any closing shall affect the representations and warranties or the right of
the Administrative Agent and the Lenders to rely upon such representations and
warranties.
(b) Each of Holdings and the Borrower hereby represents and warrants to
the Administrative Agent and the Lenders as follows as of May 21, 2001:
(i) Bridge has not, directly or indirectly, instituted any
legal proceedings of any nature against the Holdings or the Borrower to
collect the Bridge Note. No Lien has been granted to secure the Debt
evidenced by the Bridge Note.
(ii) The Borrower has not granted any security interest in or
Lien on any of its properties or assets, whether to secure any
indebtedness, liability or obligation of the Borrower, Holdings or any
of their Affiliates or otherwise, other than (A) the Liens in favor of
the Administrative Agent securing the Obligations, (B) the Lien
evidenced by the Xxxxx Xxxxxx Deed of Trust, (C) Liens in favor of
General Electric Capital Corporation ("GE Capital") securing
obligations of the Borrower under equipment leases pursuant to which
the Borrower leases equipment from GE Capital, which Liens attach only
to the equipment so leased, and (D) the Lien on the buildings,
improvements and structures (but not on any furniture, fixtures,
equipment or other personal property) comprising, and on any interest
(whether fee, leasehold or other interest) of the Borrower in the land
on which is located, the Data Center located in Hazelwood, Missouri
securing payment of the Reuters Loan, and the Borrower and Holdings
represent and warrant to the Administrative Agent and the Lenders that
all of such Liens constitute Permitted Liens after giving effect to
this Amendment.
Page 14
(iii) GE Capital and the Borrower have executed that certain
letter agreement dated as of May 21, 2001 (the "GE Capital Deferral
Agreement"), a true and correct copy of which has been provided to the
Administrative Agent, pursuant to which (among other things) all
payments payable by the Borrower to GE Capital under any and all
equipment leases, which payments were due during April, May, June, July
and/or August 2001 in accordance with the terms of such equipment
leases, have been deferred by GE Capital and now are not due or payable
until on or after August 31, 2001.
19. Ratification of Obligations under the Loan Documents. Each of the
undersigned Loan Parties acknowledges and consents to the terms of this
Amendment and agrees that all of its indebtedness, liabilities and obligations
under the Loan Documents to which it is a party continue in full force and
effect notwithstanding the execution and delivery of this Amendment or the
consummation of the transactions contemplated hereby. There are no defenses,
offsets or counterclaims to the performance by any of the undersigned Loan
Parties of their respective indebtedness, liabilities and obligations under the
Loan Documents.
20. Reference to Credit Agreement. This Amendment shall constitute a
Loan Document. Each of the Loan Documents, including the Credit Agreement, the
Amendment Documents and any and all other agreements, documents or instruments
now or hereafter executed and/or delivered pursuant to the terms hereof or
pursuant to the terms of the Credit Agreement as amended hereby, are (if and to
the extent necessary) hereby amended so that any reference in such Loan
Documents to the Credit Agreement shall mean a reference to the Credit Agreement
as amended hereby.
21. Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
22. Successors and Assigns. This Amendment is binding upon and shall
inure to the benefit of the Administrative Agent, the Lenders, the Borrower and
the other Loan Parties and their respective successors and assigns; provided,
however, that neither the Borrower nor any of the other Loan Parties may assign
or transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and the Lenders.
23. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
24. Payment of Past Due Accrued Interest and Commitment Fees. The
Borrower agrees that it shall, concurrently with its execution of this
Amendment, pay to the Administrative Agent for and on behalf of the Lenders all
past due and accrued and unpaid interest with respect to the Loans through and
including March 31, 2001 in the aggregate amount of $1,284,412.89 and all past
due and accrued and unpaid commitment fees with respect to the Commitments
through and including March 31, 2001 in the aggregate amount of $194,717.36.
Page 15
25. Deferral of Certain Interest. Notwithstanding anything to the
contrary contained in the Credit Agreement, the Administrative Agent and the
Lenders hereby agree that all interest which is payable on or after April 1,
2001 in accordance with the Credit Agreement and the other Loan Documents shall
be due and payable on the later to occur of (a) the date upon which such
interest is due under the Credit Agreement or the other Loan Documents (as
applicable) or (b) the earlier to occur of (i) August 31, 2001 or (ii) the
Waiver Expiration Date (which date upon which such interest is due and payable
in accordance with this sentence is hereinafter called the "Due Date");
provided, however, that the Due Date shall be subject to acceleration in
accordance with Section 11.2 of the Credit Agreement in the event of the
occurrence of an Event of Default.
[Remainder of page intentionally left blank.]
Page 16
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers effective as of the day
and year first above written.
BORROWER:
--------
SAVVIS COMMUNICATIONS CORPORATION
a Missouri corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------
Title: Vice President and General Counsel
-----------------------------------------
HOLDINGS:
--------
SAVVIS COMMUNICATIONS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------
Title: Vice President and General Counsel
-----------------------------------------
Page 17
ADMINISTRATIVE AGENT:
--------------------
NORTEL NETWORKS INC.,
as Administrative Agent
By: /s/ Xxxx X. Day
------------------------------------------
Name: Xxxx X. Day
------------------------------------------
Title: VP, Customer Finance
------------------------------------------
LENDERS:
-------
NORTEL NETWORKS INC.
By: /s/ Xxxx X. Day
------------------------------------------
Name: Xxxx X. Day
------------------------------------------
Title: VP, Customer Finance
------------------------------------------
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