EXHIBIT 10.8
AMENDMENT NO. 1 AND CONSENT
This Amendment No. 1 and Consent, dated as of May 28, 2002
(this "Consent"), to Amended and Restated Master Lease Agreement, dated as of
March 8, 2002 (as it may hereafter be further amended, restated or otherwise
modified, the "Master Lease Agreement") is entered into by and among SAVVIS
Communications Corporation, a Missouri corporation, as Lessee ("Lessee"); the
other lessors signatory thereto from time to time and General Electric Capital
Corporation, as Lessor, and as Agent for Lessors (in such capacity "Agent").
RECITALS
A. Lessee has notified Agent and Lessors that Lessee wishes to lease
approximately 156,000 square feet from Duke Realty Limited Partnership ("Duke")
in a building at #0 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000 in
substantially the form annexed hereto as Annex A (the "Duke Lease"), and in
connection therewith to execute that certain $2,000,000 Promissory Note in
substantially the form annexed hereto as Annex B (the "Duke Note") in favor of
Duke, and as collateral for the payment of the Duke Note to enter into that
certain Missouri Leasehold Deed of Trust, Security Agreement and Fixture Filing
in substantially the form annexed hereto as Annex C (the "Duke Deed of Trust")
in favor of Duke (collectively, the execution of the Duke Note, the Duke Deed of
Trust, the Duke Lease and the letter of credit and related documents referred to
in recital B below are hereinafter referred to as the "Duke Transaction");
B. Lessee has requested that Agent and Lessors consent to the Duke
Transaction including issuance of a $3,000,000 letter of credit as a security
deposit for the Duke Lease, and Agent and Lessors are willing to do so pursuant
to the terms and conditions set forth in this Consent;
C. This Consent shall constitute a Credit Document and these Recitals
shall be construed as part of this Consent.
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and of the extensions of credit heretofore, now
or hereafter made to, or for the benefit of, Lessee by Lessors, Lessee, Agent
and Lessors hereby agree as follows:
1. Definitions. Except to the extent otherwise specified
herein, capitalized terms used in this Consent shall have the same meanings
ascribed to them in the Master Lease Agreement and Annex A thereto.
2. Consents and Other Agreements. Subject to satisfaction of
the conditions set forth in Section 3 hereof, Agent and Lessors hereby consent
to the consummation of the Duke Transaction upon the terms and conditions set
forth in the Duke Transaction Documents (as defined in Section 4.1 hereof),
notwithstanding the provisions of Section 6.3 to the Master Lease Agreement
limiting the incurring of any Indebtedness, the provisions of Section 6.7 to the
Master Lease Agreement limiting creation of any Lien on any of its properties or
assets, and the
provisions of Section 5.12 of the Master Lease Agreement requiring ten (10) days
prior notice to Agent of the acquisition of certain assets, including real
estate interests; provided, however, that the foregoing consent is subject to
continued satisfaction of the following terms: (a) Lessee may obtain a letter of
credit from Bank of America in a face amount not in excess of $3,000,000 for the
benefit of Duke in its capacity as landlord under the Duke Lease providing Duke
the contingent right to draw funds representing the security deposit for the
Duke Lease (and for no other purpose) provided that (i) the collateral for the
reimbursement obligations in respect of such letter of credit shall be comprised
exclusively of cash and/or U.S. Treasury bonds having a duration not in excess
of 90 days or certificates of deposit maturing no more than one year from the
date of creation thereof issued by Bank of America or another institution
acceptable to Agent, such letter of credit and related collateral arrangements
to be in form and substance satisfactory to Agent, and (ii) the rights of Lessee
in respect of its letter of credit arrangements shall be deemed modified as of
the date of this Consent as provided in Section 4.6 hereof; (b) if and when
requested by Agent, Lessee shall comply with the provisions of Section 5.12 of
the Master Lease Agreement which require each Credit Party, if requested by
Agent, to take all necessary action to have such assets become additional
Collateral; provided, that this clause (b) shall not be deemed to require
delivery of a leasehold mortgage in favor of Agent in respect of the building
covered by the Duke Lease; and (c) Lessee shall not make any current cash
payments of accrued interest pursuant to the Duke Note, but rather Lessee shall
elect to accrue such deferred interest pursuant to the terms of Section 1(a) of
the Duke Note.
3. Conditions Precedent to Effectiveness. The effectiveness of
the consents set forth in Section 2 hereof are subject to the satisfaction of
each of the following conditions precedent:
3.1. Consent. This Consent shall have been duly executed and
delivered by Lessee, each other Credit Party, Agent and Lessors.
3.2. No Default. After giving effect to this Consent, no
Default or Event of Default shall have occurred and be continuing or would
result from the consummation of any of the transactions contemplated hereby, and
execution and delivery hereof by Lessee shall be deemed to constitute Lessee's
representation and warranty to Agent of the accuracy of the foregoing.
3.3. Purchase Option Agreement; Landlord Waiver. Agent shall
have received duly executed documentation reflecting (a) a satisfactory purchase
option in favor of Agent from Duke which option shall be in form and substance
satisfactory to Agent and (b) a landlord agreement waiving the landlord's lien
under the Duke Lease, which landlord agreement shall be in form and substance
satisfactory to Agent.
3.4. Duke Transaction Documents. Agent shall have received
copies of all documents necessary or desirable to complete the Duke Transaction
(but excluding any immaterial certificates or corporate authorization
documents), which documents shall be in form and substance satisfactory to Agent
and shall have been certified as true and correct copies of the Duke Transaction
Documents by an appropriate officer of Lessee.
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3.5. Secretary's Certificate. Agent shall have received a
certificate of the secretary or assistant secretary of Lessee and each other
Credit Party certifying as to the signature and incumbency of each Person
executing this Consent, and any other agreement, document and instrument
executed in connection herewith.
3.6. Miscellaneous. Agent and Lessors shall have received such
other agreements, instruments and documents as Agent or Lessors may reasonably
request.
4. Amendments to Master Lease Agreement. Effective as of the
date of execution and delivery of this Consent, the Master Lease Agreement is
hereby amended as set forth in this Section 4.
4.1. A new section 3.28 is added to the Master Lease Agreement
to read as follows:
"3.28 Duke Transaction.
(a) Lessee has heretofore delivered to Agent true,
correct and complete copies of (either executed or final forms prepared
for execution, as appropriate) of each of the Duke Note, Duke Deed of
Trust and Duke Lease, together with all other agreements, instruments
and documents executed and delivered in connection therewith, all
exhibits, annexes and schedules thereto, and all amendments,
modifications and supplements thereto (collectively, the "Duke
Transaction Documents"). Concurrently with the closing date under the
Duke Transaction (the "Duke Closing Date"), the transactions
contemplated by the Duke Transaction Documents to be consummated on the
Duke Closing Date shall have been consummated pursuant to and in
accordance with the terms of the Duke Transaction Documents.
(b) The Duke Transaction Documents set forth the entire
agreement among the parties thereto with respect to the subject matter
thereof. No party to the Duke Transaction Documents has waived the
fulfillment of any condition precedent set forth therein to the
consummation of the transactions contemplated therein, no party has
failed to perform any of its obligations thereunder or under any
instrument or document executed and delivered in connection therewith,
and nothing has come to the attention of Lessee or any other Credit
Party that would cause it to believe that any of the representations or
warranties contained in the Duke Transaction Documents were false or
misleading when made or when reaffirmed (to the extent so made or
reaffirmed) on the Duke Closing Date.
(c) Each applicable Savvis Party has the corporate power
and authority to execute, deliver and perform its obligations under
each of the Duke Transaction Documents. Each of the execution and
delivery by Lessee of each of the Duke Transaction Documents and the
documents in favor of Agent granting a lien on the Xxxxxxxxx Data
Center and leasehold interest therein and the performance of its
obligations thereunder will be duly authorized prior to the Duke
Closing Date by all requisite corporate and stockholder action and will
not
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violate any provision of applicable law, any order of any court or
other agency of government, the Certificate of Incorporation or Bylaws
of Lessee, or any provision of any indenture, agreement or other
instrument to which Lessee or any Credit Party or their properties or
assets is bound (other than the need for execution and delivery of the
Consent and Amendment No. 1 dated on or about the Duke Closing Date),
or conflict with, result in a breach of or constitute (with due notice
or lapse of time or both) a default, or result in the creation or
imposition of any liens, claims, charges, restrictions, rights of
others, security interests, prior assignments or other encumbrances in
favor of any third Person upon any of the assets of Lessee or any of
Credit Party."
4.2. In recognition of the grant by Lessee of a mortgage in
favor of Agent on the Xxxxxxxxx Data Center and Lessee's leasehold interest
relating thereto, references in the Master Lease Agreement and each other Credit
Document excluding such assets and any related assets from the Collateral given
to Agent or from compliance with requirements related to Collateral shall be
deemed modified as appropriate to include reference to such assets, subject to
no lien or encumbrance other than the lien granted under the Duke Deed of Trust.
4.3. Section 3.6 (Ownership of Property; Liens) is amended to
add a new sentence at the conclusion thereof to read as follows:
"Upon recording of the leasehold deed of trust relating
thereto, the lien on the Xxxxxxxxx Data Center in favor of
Agent shall constitute a valid perfected lien subject to no
other Liens other than Permitted Encumbrances and the lien
granted pursuant to the Duke Deed of Trust, which prior lien
granted under the Duke Deed of Trust may also attach to
insurance and condemnation proceeds arising therefrom and
subleases and revenues from subleases thereunder."
4.4. Section 6.23 (UK Subsidiary Pledge) is amended to change
the reference to "thirty (30)" to read "one hundred twenty (120)."
4.5. A new Section 6.27 is added to read as follows:
"6.27 Duke Transaction. (a) Lessee shall not change,
amend, permit the amendment of, waive or otherwise modify or suffer to
modify any term of any of the documents evidencing the Duke
Transaction, other than any immaterial amendment or modification
thereof that could not be adverse to the rights of Lessee or the rights
and remedies of Agent, and in any event, Lessee shall not change,
amend, permit the amendment of, waive or otherwise modify or suffer to
modify any term of any of the documents evidencing the Duke Transaction
that would (i) increase the interest rate on any debt evidenced
thereby, (ii) change the dates upon which payments of principal,
interest or any other payment obligation are due other than to extend
such dates, (iii) change any default or event of default other than to
delete or make less restrictive any default provision therein or (iv)
change or amend any other term if such change or amendment would
increase the obligations of the Lessee thereunder or confer
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additional rights on Duke or the holder of any debt evidenced thereby,
or reduce any obligations of Duke thereunder in a manner adverse to
Lessee, Agent or any Lessor. Notwithstanding any term contained in the
Duke Note or any other Duke Transaction Document to the contrary,
Lessee shall not prepay the Duke Note.
(b) Following the date, if any, on which Agent shall
have purchased the Duke Note and the Duke Deed of Trust, Lessee shall
not fail to tender or otherwise direct any amounts received by Lessee
or any other Savvis Party pursuant to the terms of the Duke Note to the
Agent, which such amounts shall be applied by Agent in its sole
discretion."
4.6. Schedule 6.3 (Indebtedness) to the Master Lease Agreement
as it refers to the letter of credit arrangement with Bank of America is deemed
amended to provide that in no event shall Lessee or any Credit Party be entitled
at any time to increase the face amount of any letter of credit issued for such
Credit Party's account or obtain any new or additional letters of credit (nor
increase the available amount under any letter of credit following any reduction
in the currently outstanding letter of credit issued by Bank of America or the
letter of credit contemplated in subsection 2(a) above) notwithstanding anything
to the contrary contained in or implied by the Master Lease Agreement, including
Schedule 6.3 thereto.
4.7. Annex A to the Master Lease Agreement is hereby amended
by adding the following definitions in alphabetical order:
"Consent and Amendment No.1" means that certain Consent and
Amendment No.1 dated May 28, 2002.
"Duke" means Duke Realty Limited Partnership.
"Duke Closing Date" has the meaning given such term in Section
3.28 hereof.
"Duke Deed of Trust" means that certain Missouri Leasehold
Deed of Trust, Security Agreement and Fixture Filing in favor of Duke
in substantially the form annexed to the Consent and Amendment No.1 as
Annex C.
"Duke Lease" means the lease of a building at #0 Xxxxxx Xxxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000 in substantially the form annexed to
the Consent and Amendment No.1 as Annex A.
"Duke Note" means that certain $2,000,000 Promissory Note in
favor of Duke in substantially the form annexed to the Consent and
Amendment No.1 as Annex B.
"Duke Transaction" means, collectively, the execution of the
Duke Note, the Duke Deed of Trust, the Duke Lease and the letter of
credit and related documents.
"Duke Transaction Documents" has the meaning given such term
in Section 3.28 hereof.
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5. Post-Closing Condition.
5.1. Mortgage Documents. As soon as practicable, and in any
event on or before June 7, 2001, Agent shall have received documentation
evidencing a valid and perfected Lien on the Xxxxxxxxx Data Center, subject only
to the lien granted under the Duke Deed of Trust, together with UCC fixture
filings, mortgagee insurance certificate and policy, a reliance letter relating
to the Phase 1 environmental report (including description of past usage
acceptable to Agent), a copy of the recorded lease or recorded memorandum of
lease, a notice letter to the landlord advising that Agent is a leasehold
mortgagee, opinions of counsel, and a title report and title insurance, all
satisfactory in form and substance to Agent and in recordable form as
applicable.
5.2. Event of Default. In the event Agent shall not have
received satisfactory evidence of the satisfaction of the condition set forth in
Section 5.1 above, an "Event of Default" shall be deemed to have occurred under
the Master Lease Agreement and all rights and remedies of Section 8.2 of the
Master Lease Agreement shall be available to Agent.
6. Reference to and Effect Upon the Master Lease Agreement and
other Credit Documents.
6.1. Except for the specific consents and amendments provided
for in Sections 2 and 4 above, the Master Lease Agreement and each other Credit
Document shall remain in full force and effect in accordance with its terms and
each is hereby ratified and confirmed.
6.2. The execution, delivery and effect of this Consent shall
be limited precisely as written and shall not be deemed to (i) be a consent to
any waiver of any term or condition (except for the specific consents in Section
2 above), or to any amendment or modification of any term or condition (except
as amended in Section 4 above), of the Master Lease Agreement or any other
Credit Document or (ii) prejudice any right, power or remedy which Agent or
Lessors now have or may have in the future under or in connection with the
Master Lease Agreement or any other Credit Document.
6.3. Nothing contained herein nor in any other communication
between or among Agent, Lessors, Lessee or any other Credit Party shall be
deemed to constitute or be construed as (i) a waiver or release of any of
Agent's or Lessors' rights or remedies against Lessee, any other Credit Party or
any other party to the Credit Documents or pursuant to applicable law, (ii) a
course of dealing obligating Agent or Lessors to provide any accommodations,
financial or otherwise, to Lessee or any other Credit Party at any time or (iii)
a commitment or any agreement to make a commitment with respect to any possible
waiver or other modification of the terms provided in the Master Lease Agreement
or any other Credit Document.
7. Acknowledgment and Consent of Credit Parties. Each Credit
Party hereby consents to this Consent and hereby confirms and agrees that (a)
notwithstanding the effectiveness of this Consent, each other Credit Document to
which it is a party is, and shall
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continue to be, in full force and effect and is hereby ratified and confirmed in
all respects, and (b) the Collateral Documents to which such Credit Party is a
party and all of the Collateral described therein do, and shall continue to,
secure the payment of all of the Secured Obligations (in each case, as defined
therein).
8. Counterparts. This Consent may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Consent by telecopier shall be
as effective as delivery of a manually executed counterpart signature page to
this Consent.
9. Costs and Expenses. As provided in Section 11.3 of the
Master Lease Agreement, Lessee shall pay on demand the fees, costs and expenses
incurred by Agent in connection with the preparation, execution and delivery of
this Consent (including, without limitation, attorneys' fees).
10. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO
CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW YORK.
11. Headings. Section headings in this Consent are included
herein for convenience of reference only and shall not constitute a part of this
Consent for any other purpose.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Consent has been duly executed as of
the date first written above.
LESSEE:
SAVVIS COMMUNICATIONS
CORPORATION, a Missouri corporation
By: /s/ Xxxxxx XxXxxxxxx
---------------------------------------
Name: Xxxxxx XxXxxxxxx
-------------------------------------
Title: CEO
------------------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Agent and Lessor
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Duly Authorized Signatory
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The following Persons are signatories to this Consent in their
capacity as Credit Parties.
SAVVIS COMMUNICATIONS
CORPORATION, a Delaware corporation
By: /s/ Xxxxxx XxXxxxxxx
----------------------------------------
Name: Xxxxxx XxXxxxxxx
--------------------------------------
Title: CEO
-------------------------------------
SAVVIS PROCUREMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx XxXxxxxxx
----------------------------------------
Name: Xxxxxx XxXxxxxxx
--------------------------------------
Title: CEO
-------------------------------------
SAVVIS COMMUNICATIONS
INTERNATIONAL, INC. , a Delaware corporation
By: /s/ Xxxxxx XxXxxxxxx
----------------------------------------
Name: Xxxxxx XxXxxxxxx
--------------------------------------
Title: CEO
-------------------------------------
GLOBAL NETWORK ASSETS, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx XxXxxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxxx
-------------------------------
Title: CEO
------------------------------
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