EXHIBIT 10.5
AMENDED AND RESTATED
GUARANTY AGREEMENT
This AMENDED AND RESTATED GUARANTY AGREEMENT (this "Guaranty"), dated
effective as of September 5, 2000, is executed and delivered by SAVVIS
COMMUNICATIONS CORPORATION, a Delaware corporation ("Guarantor"), to and in
favor of NORTEL NETWORKS INC., as administrative agent for itself and the other
Lenders (as such term is hereinafter defined) (in such capacity, together with
its successors and assigns in such capacity, "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
A. Subject to the terms of that certain Credit Agreement dated as of
June 30, 2000 among Savvis Communications Corporation, a Missouri corporation
("Borrower"), Guarantor, the lenders named therein (together with their
successors and assigns, "Lenders") and Administrative Agent (the "Original
Credit Agreement"), the Lenders extended certain credit facilities to Borrower.
As a condition to the effectiveness of the Original Credit Agreement, Guarantor
executed and delivered that certain Guaranty Agreement dated as of June 30, 2000
(the "Original Guaranty") pursuant to which Guarantor guaranteed payment and
performance of the "Obligations," as such term is defined in the Original Credit
Agreement.
B. Borrower, Guarantor, the Lenders and Administrative Agent are,
concurrently herewith, entering into that certain Amended and Restated Credit
Agreement dated as of September 5, 2000 (as the same may be amended, renewed,
extended, restated, replaced, substituted, supplemented or otherwise modified
from time to time, the "Credit Agreement") and, in connection therewith, inter
alia, Borrower is, concurrently herewith, executing and delivering that certain
Amended and Restated Note dated September 5, 2000, in the original principal
amount of $235,000,000 payable to the order of Nortel Networks Inc. (such
promissory note, as it may be amended, renewed, extended, restated, replaced,
substituted, supplemented or otherwise modified from time to time, the "Note"
and, to the extent there is more than one promissory note subsequent to a
partial assignment of the Loans, the "Notes").
C. Guarantor has directly and indirectly benefitted and will directly
and indirectly benefit from the loans evidenced and governed by the Credit
Agreement, the Notes and the other Loan Documents and the other transactions
evidenced by and contemplated in the Loan Documents.
D. Execution and delivery of this Guaranty is a condition to
Administrative Agent and Lenders entering into the Credit Agreement and the
making of Loans pursuant thereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Guarantor hereby agrees as follows:
1. Definitions. Unless otherwise defined in this Guaranty, all
capitalized terms used in this Guaranty shall have the meanings ascribed to such
terms in the Credit Agreement.
2. Guaranty of Indebtedness, Liabilities and Obligations. Guarantor
hereby absolutely, unconditionally and irrevocably guarantees (a) payment and
performance to Administrative Agent and Lenders, as and when the same become due
or performable strictly in accordance with the terms and provisions of the Loan
Documents, whether at stated maturity, by acceleration or otherwise, of any and
all Obligations (as such term is defined in the Credit Agreement), which
Obligations include, without limitation, (i) any and all interest, penalties,
fees and expenses (specifically including, but not limited to, reasonable
attorneys' fees and expenses) which Borrower may now or at any time hereafter
owe to Administrative Agent or any Lender (whether or not such interest,
penalties, fees and expenses were originally contracted with Administrative
Agent or any Lender or with another or others and whether or not such interest,
penalties, fees and expenses are enforceable against Borrower) pursuant to the
Credit Agreement, any Note or any other Loan Document plus (ii) the principal
amount of any and all indebtedness, liabilities and other obligations, whether
primary, absolute, secondary, direct, indirect, fixed, contingent, liquidated,
unliquidated, secured or unsecured, matured or unmatured, joint, several or
joint and several, due or to become due and whether arising by agreement, note,
discount, acceptance, overdraft or otherwise, which Borrower may now or at any
time hereafter owe to Administrative Agent or any Lender (whether or not such
indebtedness, liabilities and obligations were originally contracted with
Administrative Agent or any Lender or with another or others and whether or not
such indebtedness, liabilities or obligations are enforceable against Borrower)
pursuant to the Credit Agreement, any Note or any other Loan Document and (b)
the faithful, prompt and complete compliance by Borrower with all terms,
conditions, covenants, agreements and undertakings of Borrower under the Credit
Agreement, any Note or any other Loan Document (the Obligations and the
interest, penalties, fees, expenses, indebtedness, liabilities and obligations,
etc. referred to in clauses (a) and (b) preceding as to which payment,
performance and compliance are guaranteed pursuant to this Guaranty are
hereinafter individually and collectively called the "Guaranteed Obligations").
Notwithstanding that Borrower may not be liable or obligated to
Administrative Agent or any Lender for interest and/or reasonable attorneys'
fees and expenses on, or in connection with, the Guaranteed Obligations from and
after the Petition Date (as hereinafter defined) as a result of the provisions
of the federal bankruptcy laws or otherwise, the Guaranteed Obligations for
which Guarantor shall be liable and obligated under this Guaranty shall include
(to the extent permitted by law or a court of competent jurisdiction) interest
accruing on the Guaranteed Obligations at the highest rate provided for in the
Credit Agreement from and after the date on which Borrower files for protection
under the federal bankruptcy laws or from and after the date on which an
involuntary proceeding is filed against Borrower under the federal bankruptcy
laws (herein collectively referred to as the "Petition Date") and all attorneys'
fees and expenses incurred by Administrative Agent or any Lender from and after
the Petition Date in connection with the Guaranteed Obligations.
3. Continuing Guaranty of Payment. This Guaranty is and shall be an
absolute, unconditional, irrevocable and continuing guaranty of payment, and not
merely of collection, and from time to time or at any time the Guaranteed
Obligations may be increased, reduced or paid in full without affecting the
liability or obligation of Guarantor with respect to indebtedness, liabilities
and obligations of Borrower to Administrative Agent or any Lender thereafter
incurred. Guarantor further agrees that this Guaranty shall continue to be
effective or be reinstated (if a release or
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discharge has occurred), as the case may be, if at any time any payment (or any
part thereof) to Administrative Agent or any Lender in respect of the Guaranteed
Obligations is rescinded or must otherwise be restored by Administrative Agent
or any Lender pursuant to any bankruptcy, insolvency, reorganization,
receivership or other debtor relief granted to Borrower or its successors or
assigns. In the event that Administrative Agent or any Lender must rescind or
restore any payment received by Administrative Agent or any Lender,
respectively, in satisfaction of the Guaranteed Obligations, as set forth
herein, any prior release or discharge from the terms of this Guaranty given to
Guarantor by Administrative Agent or such Lender, respectively, shall be without
effect, and this Guaranty shall remain in full force and effect. It is the
intention of Administrative Agent, Lenders and Guarantor that Guarantor's
liabilities and obligations hereunder shall not be discharged except by the full
and complete payment and performance of the Guaranteed Obligations and then only
to the extent of such payment and performance. This Guaranty is independent of,
and in addition and without modification to and does not impair or in any way
affect any other guaranty, endorsement or other agreement executed in favor of
Administrative Agent or any Lender, and this Guaranty and Guarantor's
liabilities and obligations under this Guaranty shall not be impaired or
otherwise affected by the execution, delivery or performance by Guarantor or any
other Person of any other guaranty, endorsement or other agreement.
4. Absolute Guaranty. Guarantor's liabilities and obligations under
this Guaranty shall be absolute and unconditional irrespective of, shall not be
released, impaired, limited, reduced, conditioned upon or otherwise affected by
and shall continue in full force and effect notwithstanding the occurrence of
any event (other than an event consisting of payment and performance of such
liabilities and obligations as provided in Paragraph 3 hereof) at any time or
from time to time, including, without limitation, any one or more of the
following events specified in clauses (a) through (n) of this Paragraph 4 below,
and neither Administrative Agent nor any Lender shall be obligated or required
to take or to refrain from taking any of such actions or inactions specified
below and shall not have any liability, obligation or duty whatsoever with
respect to such actions or inactions, it being acknowledged and agreed by
Guarantor that all of such liabilities, obligations and duties (if any) of
Administrative Agent or any Lender otherwise existing and all rights and
remedies (if any) of Guarantor with respect thereto (whether such liabilities,
obligations, duties, rights or remedies exist by virtue of agreement, common
law, equity, statute or otherwise), and each and every defense which, under
principles of guaranty or suretyship law, would otherwise operate to eliminate,
impair, condition or restrict the liabilities and obligations of Guarantor for
the Guaranteed Obligations, are hereby expressly waived by Guarantor:
(a) the taking or accepting of any security or other guaranty
for any or all of the Guaranteed Obligations, whether heretofore,
concurrently herewith or hereafter;
(b) any failure to create or perfect or properly create or
perfect any lien, security interest or assignment intended as security,
or any release, surrender, exchange, substitution, subordination or
loss of any security or guaranty at any time existing in connection
with any or all of the Guaranteed Obligations for any reason; or any
suretyship defenses, including, without limitation, any impairment of
collateral;
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(c) any partial or full release of the liability or obligation
of Guarantor under any other guaranty whether or not similar to this
Guaranty;
(d) the entering into, delivery of, modification of, amendment
to or waiver of compliance with any Note or any other Loan Document
(other than the Credit Agreement to which the Guarantor is a party), or
any agreement, document or instrument evidencing, securing or otherwise
affecting all or part of the Guaranteed Obligations, without the
notification of Guarantor, the right of such notification being hereby
specifically waived by Guarantor;
(e) the bankruptcy, insolvency, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of authority
(whether corporate, partnership or trust or relating to any other
entity or Person) of Borrower, Guarantor or any other Person at any
time liable or obligated for the payment of any or all of the
Guaranteed Obligations, whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment,
modification, repayment, refunding and/or rearrangement of the payment
or any other terms or provisions of any or all of the Guaranteed
Obligations at any time and from time to time, whether on one or more
occasions, either with or without notice to or consent of Guarantor, or
any adjustment, indulgence, forbearance or compromise that might be
granted or given by Administrative Agent or any Lender to Borrower or
Guarantor;
(g) any neglect, delay, omission, failure or refusal of
Administrative Agent or any Lender (i) to exercise or properly or
diligently exercise any right or remedy with respect to any or all of
the Guaranteed Obligations or the collection thereof or any collateral,
security or guaranty therefor, whether under the Credit Agreement, any
Note or any other Loan Document or otherwise, including, without
limitation, to ensure compliance with any term or provision of the
Credit Agreement or any other Loan Document, (ii) to take or prosecute
or properly or diligently take or prosecute any action for the
collection of any or all of the Guaranteed Obligations against
Borrower, Guarantor or any other guarantor of any or all of the
Guaranteed Obligations and/or any other Person, (iii) to foreclose or
prosecute or properly or diligently foreclose or prosecute any action
in connection with any agreement, document or instrument or arrangement
evidencing, securing or otherwise affecting all or any part of the
Guaranteed Obligations, including, without limitation, any failure to
conduct a commercially reasonable foreclosure sale, or (iv) to mitigate
damages or take any other action to reduce, collect or enforce the
Guaranteed Obligations;
(h) any failure of Administrative Agent or any Lender to give
notice to Borrower and/or Guarantor of, or obtain the consent of
Borrower and/or Guarantor with respect to, (i) the incurrence of any of
the Guaranteed Obligations, (ii) the occurrence of any "Default" or
"Event of Default" as such terms are defined in the Credit Agreement or
any of the other Loan Document, (iii) demand, presentment, protest,
nonpayment, intention to accelerate, acceleration, lack of diligence or
delay in collection of all or any part of the Guaranteed Obligations or
any other matter, or the absence thereof, (iv) any renewal, extension
or
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assignment of the Guaranteed Obligations or any part thereof, (vi) the
disposition or release of all or any part of any security for the
Guaranteed Obligations (whether or not such disposition is commercially
reasonable) or (vi) any other action taken or refrained from being
taken by Administrative Agent or any Lender against Borrower, it being
agreed that (except as may be expressly provided in the other Loan
Documents) neither Administrative Agent nor any Lender shall be
required to give Borrower or Guarantor any notice of any kind or to
obtain Borrower's or Guarantor's consent under any circumstances
whatsoever with respect to or in connection with the Guaranteed
Obligations;
(i) the unenforceability, illegality or uncollectibility of
all or any part of the Guaranteed Obligations against Borrower by
reason of (i) failure of consideration, (ii) breach of warranty, (iii)
fraud, (iv) the fact that the interest contracted for, charged,
collected or received in respect of the Guaranteed Obligations exceeds
the amount permitted by law, (v) the act of creating the Guaranteed
Obligations or any part thereof is ultra xxxxx, (vi) the officers,
directors, partners, trustees or representatives creating the
Guaranteed Obligations acted in excess of their authority or lacked
legal capacity, (vii) the Credit Agreement, any Note or any other Loan
Document evidencing the Guaranteed Obligations has been forged or
otherwise is irregular or is not genuine or authentic, (viii)
expiration of the applicable statute of limitations of the Guaranteed
Obligations, (ix) failure to comply with the statute of frauds, (x)
lender liability, or (xi) accord and satisfaction;
(j) any payment by Borrower to Administrative Agent or any
Lender is held to constitute a preferential transfer or a fraudulent
conveyance or transfer under any applicable law, or for any reason
Administrative Agent or any Lender is required to refund such payment
or pay such amount to Borrower or any other Person;
(k) any merger, reorganization, consolidation or dissolution
of Borrower, any sale, lease or transfer of any or all of the assets of
Borrower, or any change in name, business, location, composition,
structure or any change in the shareholders, partners or members
(whether by accession, secession, death, dissolution, transfer of
assets or otherwise) of Borrower;
(l) any failure of Administrative Agent or any Lender to
notify Guarantor of (i) the acceptance of this Guaranty, (ii) the
making of Loans by any Lender in reliance on this Guaranty, (iii) the
failure of Borrower to make any payment due by Borrower to
Administrative Agent or any Lender, or (iv) any information regarding
the financial condition or prospects of Borrower;
(m) any full or partial release of the liability of Borrower,
any guarantor of all or any part of the Guaranteed Obligations or any
other Person for all or any part of the Guaranteed Obligations, it
being acknowledged and agreed by Guarantor that it may be required to
pay the Guaranteed Obligations in full without assistance or support,
whether from Borrower, any other guarantor or any other Person; or
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(n) any other action taken or omitted to be taken with respect
to any of the Credit Agreement, any Note or any other Loan Document,
the Guaranteed Obligations or the security and collateral therefor,
whether or not such action or omission prejudices Guarantor or
increases the likelihood that Guarantor will be required to pay all or
any part of the Guaranteed Obligations pursuant to the terms hereof.
Without limiting the foregoing or Guarantor's liability under this Guaranty, to
the extent that Administrative Agent and Lenders (or any of them) have advanced
funds or extended credit to Borrower and do not receive payments or benefits
thereon in the amounts and at the times required or provided by or in connection
with the Credit Agreement, any Notes or any other Loan Document, Guarantor is
absolutely liable to make such payments and to confer such benefits on Lenders
on a timely basis.
5. Representations and Warranties. In connection with this Guaranty,
Guarantor hereby represents and warrants to Administrative Agent and Lenders
that:
(a) Borrower is a wholly-owned Subsidiary of Guarantor and
Guarantor has received and will receive a direct and indirect material
benefit from the transactions evidenced by and contemplated in the
Credit Agreement, the Notes and the other Loan Documents; this Guaranty
is given by Guarantor in furtherance of the direct and indirect
business interests and corporate purposes of Guarantor, and is
necessary to the conduct, promotion and attainment of the businesses of
Borrower and Guarantor; and the value of the consideration received and
to be received by Guarantor is believed by Guarantor to be reasonably
worth at least as much as the liability and obligation of Guarantor
hereunder;
(b) The execution and delivery of this Guaranty and the
performance of and compliance with the terms hereof will not constitute
a default (or an event which with notice or lapse of time or both would
constitute a default) under, or result in the breach of, any material
contract, agreement or instrument to which Guarantor is a party or
which may be applicable to Guarantor or any of its assets;
(c) This Guaranty, when executed and delivered by Guarantor,
will constitute the legal, valid and binding obligation of Guarantor
enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to
the enforcement of creditors' rights and general principles of equity;
(d) As of the date of this Guaranty, and after giving effect
to this Guaranty and the contingent obligation evidenced by this
Guaranty, Guarantor is not, on either an unconsolidated basis or a
consolidated basis with Guarantor's Consolidated Subsidiaries
(including, without limitation, Borrower), insolvent, as such term is
used or defined in any applicable bankruptcy, fraudulent conveyance,
fraudulent transfer or similar law, and Guarantor has and will have
assets which, fairly valued, exceed its indebtedness, liabilities and
obligations; Guarantor is not executing this Guaranty with any
intention to hinder, delay or defraud any present or future creditor or
creditors of Guarantor; Guarantor is not engaged
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in any business or transaction (including, without limitation, the
execution of this Guaranty) which will leave Guarantor with
unreasonably small capital or assets which are unreasonably small in
relation to the business or transactions engaged in by Guarantor, and
Guarantor does not intend to engage in any such business or
transaction; Guarantor does not intend to incur, nor does Guarantor
believe that it will incur, debts beyond Guarantor's ability to repay
such debts as they mature;
(e) All acts and conditions required to be performed and
satisfied prior to the creation and issuance of this Guaranty, and to
constitute this Guaranty as the legal, valid and binding obligation of
Guarantor in accordance with its terms, have been performed and
satisfied in due and strict compliance with all applicable laws;
(f) Guarantor is familiar with, and has independently received
books and records regarding, the financial condition of Borrower and is
familiar with the value of any and all collateral (if any) intended to
secure the Guaranteed Obligations; however, Guarantor is not relying on
such financial condition or any such collateral (if any) as an
inducement to enter into this Guaranty; Guarantor has adequate means to
obtain from Borrower, on a continuing basis, the information referred
to in this clause (f) and is not relying on Administrative Agent or any
Lender to provide any such information at any time;
(g) Guarantor has not been induced to enter into this Guaranty
on the basis of a contemplation, belief, understanding or agreement
that any Person other than Guarantor will be liable to pay the
Guaranteed Obligations;
(h) Except for the execution of the Credit Agreement, neither
Administrative Agent, any Lender nor any other Person has made any
representation, warranty or statement to, or promise, covenant or
agreement with, Guarantor in order to induce Guarantor to execute this
Guaranty; and
(i) All representations and warranties in the Credit Agreement
relating to the Guarantor are true and correct in all respects as of
the date hereof, except to the extent made only as of a specific prior
date, and on each date the representations and warranties thereunder
are restated pursuant to any of the Loan Documents with the same force
and effect as if such representations and warranties had been made on
and as of such date, all of which are incorporated herein by reference.
6. Default. Upon the occurrence of an Event of Default, Guarantor
shall, on demand by Administrative Agent and without further notice of dishonor
and without notice of any kind (including, without limitation, notice of
acceptance by Administrative Agent or any Lender of this Guaranty) having been
given to Borrower, Guarantor or any other Person previous to such demand,
promptly (i.e., not later than 1:00 p.m., New York, New York time, on the date
of such demand or, if such demand is made after 12:00 noon, on the next
succeeding Business Day) pay, in immediately available funds, the full unpaid
amount of the Guaranteed Obligations, or such lesser amount, if any, as may be
specifically demanded by Administrative Agent from time to time, to
Administrative
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Agent at Administrative Agent's Principal Office located in New York, New York
or at such other place as Administrative Agent may specify to Guarantor in
writing. If acceleration of the time for payment of any amount payable by
Borrower under or with respect to any of the Guaranteed Obligations is stayed or
otherwise delayed upon the insolvency, bankruptcy or reorganization of Borrower,
all such amounts otherwise subject to acceleration under the terms of the
Guaranteed Obligations shall nonetheless be payable by Guarantor hereunder
promptly on demand by Administrative Agent.
7. Cumulative Remedies; No Election. If Guarantor is or becomes liable
or obligated for the Guaranteed Obligations, by endorsement or otherwise, other
than under this Guaranty, such liability or obligation shall not be in any
manner impaired or affected hereby, and the rights and remedies of
Administrative Agent or any Lender hereunder shall be cumulative of any and all
other rights and remedies that Administrative Agent or such Lender may ever have
against Guarantor. The exercise by Administrative Agent or any Lender of any
right or remedy hereunder or under any other agreement, document or instrument,
or at law or in equity, shall not preclude the concurrent or subsequent exercise
of any other right or remedy. Without in any way limiting the generality of the
foregoing, it is specifically understood and agreed that this Guaranty is given
by Guarantor as an additional guaranty or security to any and all other
guaranties or security heretofore, concurrently herewith or hereafter executed
and/or delivered by Guarantor to or in favor of Administrative Agent or any
Lender relating to the Guaranteed Obligations, and nothing herein shall ever be
deemed to in any way negate or replace any such other guaranties or security;
provided, however, that Administrative Agent and Lenders shall have all of their
rights and remedies under this Guaranty irrespective of anything to the contrary
contained in any such other guaranties or security. This Guaranty may be
enforced from time to time as often as occasion therefor may arise, and it is
agreed and understood that it shall not be necessary for Administrative Agent or
any Lender, in order to enforce this Guaranty against Guarantor, first to
exercise any rights or remedies against Borrower or any other Person or
institute suit or exhaust any available rights or remedies against security in
Administrative Agent's or any Lender's possession or under Administrative
Agent's or any Lender's control, or to resort to any other sources or means of
obtaining payment of the Guaranteed Obligations.
8. Joint and Several Obligation. Guarantor agrees that Administrative
Agent and Lenders, in their sole discretion, may (a) bring suit against all
guarantors or other Persons liable or obligated to Administrative Agent or any
Lender or against any one or more of them, for interest, penalties, expenses,
fees, indebtedness, liabilities and obligations owed to Administrative Agent or
any Lender and apply any amounts obtained by Administrative Agent or any Lender
in such a manner as Administrative Agent or any Lender may elect, (b) bring suit
against all guarantors of the Guaranteed Obligations jointly and severally or
against any one or more of them, (c) settle fully or in part with any one or
more of such guarantors for such consideration as Administrative Agent or any
Lender may deem proper, and (d) partially or fully release one or more of such
guarantors from liability under any guaranty agreement, and that no such action
shall impair the rights of Administrative Agent or any Lender to collect the
Guaranteed Obligations (or the unpaid balance thereof) from other guarantors
(including, without limitation, Guarantor), or any of them, not so sued, settled
with or released.
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9. Release of Collateral, etc. If all or any part of the Guaranteed
Obligations is at any time secured, Guarantor agrees that Administrative Agent
or any Lender may, at any time and from time to time in its discretion and with
or without valuable consideration, allow substitution or withdrawal of
collateral or other security and release collateral or other security without
impairing or diminishing the liabilities or obligations of Guarantor hereunder.
Guarantor further agrees that, if Borrower or any other Person executes in favor
of Administrative Agent or any Lender any collateral agreement, mortgage, deed
of trust, collateral assignment, security agreement or other security
instrument, the exercise by Administrative Agent or any Lender of any right or
remedy thereby conferred on Administrative Agent or any Lender shall be wholly
discretionary with Administrative Agent and such Lender, respectively, and that
the exercise or failure to exercise any such right or remedy shall in no way
impair or diminish the obligation of Guarantor hereunder. Guarantor further
agrees that (except to the extent prohibited by applicable law notwithstanding
an agreement of the parties to the contrary) neither Administrative Agent nor
any Lender shall be liable for its failure to use diligence or care in the
collection of the Guaranteed Obligations, in the creation or perfection of any
lien, security interest or assignment intended as security or in preserving the
liability of any Person liable or obligated on the Guaranteed Obligations, and
Guarantor hereby waives presentment for payment, notice of nonpayment, protest
and notice thereof, and diligence in bringing suit against any Person liable on
the Guaranteed Obligations or any part thereof.
10. Binding Effect. This Guaranty is for the benefit of Administrative
Agent and Lenders and their successors and permitted assigns, and in the event
of an assignment by Administrative Agent or any Lender or its successors or
assigns of the Guaranteed Obligations, or any part thereof, the rights and
benefits hereunder, to the extent applicable to the indebtedness, liabilities
and obligations so assigned, may be transferred with such indebtedness,
liabilities and obligations. This Guaranty is binding, not only upon Guarantor,
but upon its successors and assigns.
11. WAIVER OF SUBROGATION, CONTRIBUTION AND OTHER RIGHTS. UPON PAYMENT
BY GUARANTOR OF ANY SUMS IN RESPECT OF THE GUARANTEED OBLIGATIONS HEREUNDER
(INCLUDING, WITHOUT LIMITATION, ANY AMOUNTS ADVANCED TO BORROWER BY GUARANTOR),
ALL RIGHTS OF GUARANTOR AGAINST BORROWER OR ANY OTHER GUARANTOR OF THE
GUARANTEED OBLIGATIONS ARISING AS A RESULT THEREFROM BY WAY OF RIGHT OF
SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNIFICATION AND/OR
OTHERWISE SHALL IN ALL RESPECTS BE SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT
AND ENFORCEMENT TO THE PRIOR INDEFEASIBLE PAYMENT AND ENFORCEMENT IN FULL OF THE
GUARANTEED OBLIGATIONS. GUARANTOR SHALL NOT HAVE, AND HEREBY IRREVOCABLY WAIVES,
ANY AND ALL RIGHTS AND REMEDIES OF SUBROGATION, REIMBURSEMENT, EXONERATION,
CONTRIBUTION, INDEMNIFICATION AND/OR OTHERWISE AGAINST OR FROM BORROWER UNLESS
AND UNTIL ALL OF THE GUARANTEED OBLIGATIONS HAVE BEEN PAID AND PERFORMED IN
FULL. IN ADDITION TO THE FOREGOING, GUARANTOR HEREBY IRREVOCABLY WAIVES ANY AND
ALL CLAIMS OR OTHER RIGHTS AND
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REMEDIES IT MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST ADMINISTRATIVE AGENT, ANY
LENDER, BORROWER OR ANY OTHER PERSON UNDER CHAPTER 34 OF THE TEXAS BUSINESS AND
COMMERCE CODE, UNDER RULES 31 AND 163 OF THE TEXAS RULES OF CIVIL PROCEDURE,
UNDER SECTION 17.001 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE AND UNDER ANY
OTHER STATUTE OF ANY STATE OR OTHER JURISDICTION REQUIRING RECOURSE AGAINST THE
PRIMARY OBLIGOR OR IMPOSING OTHER REQUIREMENTS AS A CONDITION TO RECOURSE
AGAINST A GUARANTOR IF AND TO THE EXTENT THAT THE SAME MAY BE APPLICABLE TO THIS
GUARANTY. Except as expressly otherwise provided in this Xxxxxxxxx 00, Xxxxxxxxx
shall have all rights of subrogation, reimbursement, exoneration, contribution
and indemnification that may exist under currently applicable law.
12. Subordination of Indebtedness and Liens. In connection with this
Guaranty, Guarantor hereby agrees that:
(a) The payment of any and all principal of and interest on
the Subordinated Indebtedness (as defined below) shall in all respects
be subordinate and junior in right of payment and enforcement to the
prior payment and enforcement in full of all Guaranteed Obligations as
provided in this Paragraph 12. The Subordinated Indebtedness shall not
be payable, and no payment of principal, interest or other amounts on
account thereof, and no property or guaranty of any nature to secure,
guarantee or pay the Subordinated Indebtedness shall be made or given,
directly or indirectly by or on behalf of Borrower or received,
accepted, retained or applied by Guarantor unless and until the
Guaranteed Obligations shall have been paid and performed in full. If
any sums shall be paid to Guarantor or any Affiliate of Guarantor by
Borrower or any other Person on account of the Subordinated
Indebtedness when such payment is not permitted hereunder, such sums
shall be held in trust by Guarantor for the benefit of Administrative
Agent and Lenders and shall forthwith be delivered to Administrative
Agent without affecting the liability of Guarantor under this Guaranty
and may be applied by Administrative Agent against the Guaranteed
Obligations in accordance with the Credit Agreement. Upon the request
of Administrative Agent, Guarantor shall execute, deliver, and endorse
to Administrative Agent such documentation as Administrative Agent may
request to perfect, preserve and enforce its rights hereunder. For
purposes of this Guaranty and with respect to Guarantor, the term
"Subordinated Indebtedness" means all indebtedness, liabilities and
obligations of Borrower to Guarantor, whether such indebtedness,
liabilities and obligations now exist or are hereafter incurred or
arise, or are primary, absolute, secondary, direct, indirect, fixed,
contingent, liquidated, unliquidated, secured or unsecured, matured or
unmatured, joint, several, joint and several, or otherwise, and
irrespective of whether such indebtedness, liabilities or obligations
are evidenced by a note, contract, open account or otherwise, and
irrespective of the Person or Persons in whose favor such indebtedness,
obligations or liabilities may, at their inception, have been, or may
hereafter be created, or the manner in which they have been or may
hereafter be acquired by Guarantor;
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(b) Any and all Liens (including any judgment Liens) upon
Borrower's property or assets securing payment of any Subordinated
Indebtedness (the "Subordinated Liens") shall be and remain inferior
and subordinate to any and all Liens upon Borrower's assets securing
payment of the Guaranteed Obligations or any part thereof, regardless
of whether such Subordinated Liens presently exist or are hereafter
created or when such Subordinated Liens were created, perfected, filed
or recorded. Guarantor shall not exercise or enforce any creditors'
rights or remedies that it may have against Borrower or foreclose,
repossess, sequester or otherwise institute any action or proceeding
(whether judicial or otherwise, including, without limitation, the
commencement of, or joinder in, any bankruptcy, insolvency,
reorganization, liquidation, receivership or other debtor relief law)
to enforce any Subordinated Lien on any property or assets of Borrower
unless and until the Guaranteed Obligations shall have been irrevocably
paid and performed in full.
(c) In the event of any receivership, bankruptcy,
reorganization, rearrangement, debtor's relief or other insolvency
proceeding involving Borrower as debtor, Administrative Agent shall
have the right to prove and vote any claim under the Subordinated
Indebtedness and to receive directly from the receiver, trustee or
other court custodian all dividends, distributions and payments made in
respect of the Subordinated Indebtedness until the Guaranteed
Obligations have been paid in full. Administrative Agent may apply any
such dividends, distributions and payments against the Guaranteed
Obligations in accordance with the Credit Agreement;
(d) All promissory notes, accounts receivable, ledgers,
records or any other evidence of Subordinated Indebtedness, and all
mortgages, deeds of trust, security agreements, assignments and other
security documents evidencing the Subordinated Liens, shall contain a
specific written notice thereon that the indebtedness and Liens
evidenced thereby are subordinated under the terms of this Guaranty;
and
(e) The terms and provisions of this Paragraph 12 are given by
Guarantor as additional rights, remedies and benefits to any and all
other subordination agreements heretofore, concurrently herewith or
hereafter executed by Guarantor to or in favor of Administrative Agent
or any Lender, and nothing in this Guaranty shall ever be deemed to in
any way negate or replace any other such previous, concurrent or
subsequent subordination agreements.
13. Right of Setoff. Guarantor hereby grants to Administrative Agent
and each Lender a right of setoff upon any and all monies, securities or other
property of Guarantor, and the proceeds therefrom, now or hereafter held or
received by or in transit to Administrative Agent or any Lender from or for the
account of Guarantor, whether for safekeeping, custody, pledge, transmission,
collection or otherwise, and also upon any and all deposits (general or special)
and credits of Guarantor, and any and all claims of Guarantor against
Administrative Agent or any Lender at any time existing. The right of setoff
granted pursuant to this Paragraph 13 shall be cumulative of and in addition to
Administrative Agent's and each Lender's common law right of setoff.
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14. Further Assurances. Upon the request of Administrative Agent or any
Lender, Guarantor will, at any time and from time to time, duly execute and
deliver to Administrative Agent any and all such further agreements, documents
and instruments, and supply such additional information, as may be necessary or
advisable, in the reasonable opinion of Administrative Agent or any Lender, to
obtain the full benefits of this Guaranty.
15. Invalid Provisions. If any provision of this Guaranty is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable, this Guaranty shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision there shall be added
automatically as a part of this Guaranty a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable. No provision herein or in any other Loan Document
evidencing the Guaranteed Obligations shall require the payment or permit the
collection of interest in excess of the maximum permitted by applicable law.
16. Modification in Writing. No modification, consent, amendment or
waiver of any provision of this Guaranty, and no consent to any departure by
Guarantor herefrom, shall be effective unless the same shall be in writing and
signed by a duly authorized officer of Administrative Agent and Guarantor and
then shall be effective only in the specific instance and for the specific
purpose for which given.
17. No Waiver, Etc. No notice to or demand on Guarantor or
Administrative Agent in any case shall entitle Guarantor or Administrative
Agent, respectively, to any other or further notice or demand in similar or
other circumstances. No delay or omission by Administrative Agent, any Lender or
Guarantor in exercising any right or remedy hereunder shall impair any such
right or remedy or be construed as a waiver thereof or any acquiescence therein,
and no single or partial exercise of any such right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy
hereunder.
18. Cumulative Rights. All rights and remedies of Administrative Agent
and Lenders hereunder are cumulative of each other and of every other right or
remedy which Administrative Agent or any Lender may otherwise have at law or in
equity or under any other contract or document, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or subsequent
exercise of other rights or remedies.
19. Expenses. Guarantor agrees to pay on demand by Administrative Agent
all reasonable costs and expenses incurred by Administrative Agent or any Lender
in connection with the enforcement of the terms and provisions of this Guaranty
and, if and to the extent that Borrower is obligated therefor in accordance with
the Credit Agreement, any and all amendments, modifications, renewals,
restatements and/or supplements hereto from time to time, including, without
limitation, the reasonable fees and expenses of legal counsel to Administrative
Agent. If
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Guarantor should breach or fail to perform any provision of this Guaranty,
Guarantor agrees to pay to Administrative Agent all costs and expenses incurred
by Administrative Agent or any Lender in the enforcement of this Guaranty from
time to time, including, without limitation, the reasonable fees and expenses of
all legal counsel to Administrative Agent and Lenders.
20. APPLICABLE LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES).
21. NO ORAL AGREEMENTS. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
BETWEEN GUARANTOR AND ADMINISTRATIVE AGENT AND LENDERS RELATING TO THE SUBJECT
MATTER OF THIS GUARANTY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG GUARANTOR AND ADMINISTRATIVE AGENT OR
ANY LENDER. THIS GUARANTY SUPERSEDES ALL PRIOR (IF ANY) ORAL AGREEMENTS, ORAL
ARRANGEMENTS OR ORAL UNDERSTANDINGS RELATING TO THE SUBJECT MATTER OF THIS
GUARANTY, AND THIS GUARANTY SUPERSEDES ALL PRIOR (IF ANY) WRITTEN AGREEMENTS
RELATING TO THE SUBJECT MATTER OF THIS GUARANTY IF AND TO THE EXTENT THAT SUCH
PRIOR AGREEMENTS ARE INCONSISTENT WITH THIS GUARANTY.
22. Notices. All notices and other communications required or permitted
to be given under this Guaranty shall be given or made in writing and shall be
delivered in the manner and to the addresses, and shall be deemed to have been
duly given when, specified in the Credit Agreement.
23. Survival. All representations, warranties, covenants and agreements
of Guarantor in this Guaranty shall survive the execution of this Guaranty.
24. Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute one and the same Guaranty.
25. Limitation on Interest. Notwithstanding anything to the contrary
contained or referred to in this Guaranty, none of the terms and provisions of
this Guaranty, the Credit Agreement, the Notes or any other Loan Document shall
ever be construed to create a contract or obligation to pay interest at a rate
in excess of the Maximum Rate, and neither Administrative Agent nor any Lender
shall ever charge, receive, take, collect, reserve or apply, as interest on the
Obligations or the Guaranteed Obligations, any amount in excess of the Maximum
Rate. The parties hereto agree that any interest, charge, fee, expense or other
indebtedness, liability or obligation provided for in this Guaranty, the Credit
Agreement, the Notes or any other Loan Document which constitutes interest under
applicable law shall be, ipso facto and under any and all circumstances, limited
or reduced to an amount equal to the lesser of (a) the amount of such interest,
charge, fee, expense or other
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indebtedness, liability or obligation that would be payable in the absence of
this Paragraph 25 or (b) an amount, which when added to all other interest
payable under this Guaranty, the Credit Agreement, the Notes and any other Loan
Document, equals the Maximum Rate. If, notwithstanding the foregoing,
Administrative Agent or any Lender ever contracts for, charges, receives, takes,
collects, reserves or applies as interest any amount in excess of the Maximum
Rate, such amount which would be deemed excessive interest shall be deemed a
partial payment or prepayment of principal of the Obligations and the Guaranteed
Obligations and treated hereunder as such, and if the Obligations and the
Guaranteed Obligations, or applicable portions thereof, are paid in full, any
remaining excess shall promptly be paid to Borrower, Guarantor or such other
Person (as appropriate). In determining whether the interest paid or payable,
under any specific contingency, exceeds the Maximum Rate, Guarantor, Borrower,
Administrative Agent and Lenders shall, to the maximum extent permitted by
applicable law, (i) characterize any nonprincipal payment as an expense, fee or
premium rather than as interest, (ii) exclude voluntary prepayments and the
effects thereof, and (iii) amortize, prorate, allocate and spread in equal or
unequal parts the total amount of interest throughout the entire contemplated
term of the Obligations and the Guaranteed Obligations, or applicable portions
thereof, so that the interest rate does not exceed the Maximum Rate at any time
during the term of the Obligations and the Guaranteed Obligations; provided
that, if the unpaid principal balance is paid and performed in full prior to the
end of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds the Maximum Rate, Administrative
Agent and Lenders shall refund to Borrower, Guarantor or such other Person (as
appropriate) the amount of such excess and, in such event, neither
Administrative Agent nor any Lender shall be subject to any penalties provided
by any laws for contracting for, charging, receiving, taking, collecting,
receiving or applying interest in excess of the Maximum Rate.
26 Irrevocable Nature of Guaranty. This Guaranty may not be revoked by
Guarantor; provided, however, in the event it shall be determined that Guarantor
shall have the right, in accordance with applicable law and notwithstanding its
express agreement herein to the contrary, to revoke this Guaranty, Guarantor may
deliver to Administrative Agent, at its address for notices set forth in the
Credit Agreement, written notice of Guarantor's intention not to be liable
hereunder for any Guaranteed Obligations arising, created or incurred after
Administrative Agent's receipt of such notice, whereupon such notice shall be
effective to the extent (but only to the extent) provided hereinbelow as to
Guarantor from and after (but not before) the time when such notice is actually
delivered to and received by and receipted for in writing by Administrative
Agent (the "Effective Revocation Time"); provided, further, however, that such
notice shall not be effective as to, and shall not in any way restrict, limit,
impair, release or otherwise affect, the indebtedness, liabilities or
obligations of Guarantor under this Guaranty with respect to (a) any Guaranteed
Obligations consisting of indebtedness, liabilities or obligations under the
Credit Agreement, the Notes or any other Loan Document, whether incurred before
or after the Effective Revocation Time (including, without limitation, any
loans, advances or extensions of credit at any time made or created under the
Credit Agreement, whether or not agreed, committed or contemplated to be made by
Administrative Agent or any Lender and whether or not discretionary with
Administrative Agent or any Lender), (b) any Guaranteed Obligations arising,
created or incurred prior to the Effective Revocation Time, (c) any amendments,
modifications, renewals, extensions, restatements and/or supplements to or of
the indebtedness, liabilities or obligations referred to in clauses (a) and (b)
preceding, whether occurring
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before or after the Effective Revocation Time, or (d) any interest or costs of
collection with respect to any of the indebtedness, liabilities or obligations
referred to in clauses (a), (b) or (c) preceding. Any revocation or attempted
revocation of this Guaranty, whether in whole or in part, shall not be effective
except under limited circumstances (if any), and to the limited extent,
expressly provided in this Paragraph 26.
27 Reinstatement of Guaranteed Obligations. Notwithstanding anything to
the contrary contained in this Guaranty or any other Loan Document, if the
payment of any amount of principal of or interest with respect to the Guaranteed
Obligations, or any portion thereof, is rescinded, voided or must otherwise be
refunded by the Administrative Agent or any Lender or otherwise for any reason
whatsoever, then the Guaranteed Obligations will be automatically reinstated and
become automatically effective and in full force and effect, all to the extent
that and as though such payment so rescinded, voided or otherwise refunded had
never been made.
28 Covenants and Agreements. Guarantor covenants and agrees that, as
long as the Guaranteed Obligations or any part thereof are outstanding or any
Lender has any Commitment under the Credit Agreement, it will comply, strictly
in accordance with the terms thereof, with all covenants and agreements
specifically applicable to it as set forth in any one or more of the Credit
Agreement and the other Loan Documents, all of which are incorporated herein by
reference.
29 Amendment and Restatement. This Guaranty shall constitute an
amendment and restatement of all, but not an extinguishment, discharge,
satisfaction or novation of any, indebtedness, liabilities and/or obligations
(including, without limitation, the "Guaranteed Obligations" as such term is
defined in the Original Guaranty) of Guarantor under the Original Guaranty.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the date first written above.
GUARANTOR:
---------
SAVVIS COMMUNICATIONS
CORPORATION
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
The undersigned has executed this Guaranty solely for the purpose of
confirming receipt of this Guaranty and reliance on this Guaranty by
Administrative Agent and Lenders as of the date first written above.
NORTEL NETWORKS INC.,
as Administrative Agent
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director, Customer Finance
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