Exhibit 10.40
INKTOMI CORPORATION
CONDITIONAL WAIVER AND AMENDMENT
This CONDITIONAL WAIVER AND FIRST AMENDMENT TO DEFEASANCE DEPOSIT AGREEMENT
(this "Agreement") dated as of August 13, 2002, is by and among INKTOMI
CORPORATION, a Delaware corporation, as Lessee (the "Lessee"), WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity except
as otherwise expressly provided herein, but solely as Owner Trustee of the
Inktomi Trust 2000 and Lessor (the "Lessor"); WILMINGTON TRUST FSB, a federal
savings bank, not in its individual capacity except as otherwise expressly
provided herein, but solely as Co-Owner Trustee of the Inktomi Trust 2000
("Co-Owner Trustee"); DEUTSCHE BANK AG, NEW YORK BRANCH, a duly licensed branch
of Deutsche Bank AG, a German corporation, as an Investor (together with any
permitted successors and assigns, each an "Investor" and collectively the
"Investors"); DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCH, as a
Lender (together with the other financial institutions as may from time to time
become lenders, the "Lenders") under the Credit Agreement and as Agent for the
Lenders (in such capacity, the "Agent"); and DEUTSCHE BANK SECURITIES INC. f/k/a
DEUTSCHE BANC ALEX. XXXXX INC., as Arranger (the "Arranger"). Capitalized terms
used but not otherwise defined in this Agreement shall have the meanings set
forth in Annex A to the Participation Agreement (as defined below).
RECITALS:
A. The Lessee, the Lessor, the Co-Owner Trustee, the Investors, the
Lenders, the Agent and the Arranger are parties to that certain Participation
Agreement, dated as of August 24, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Participation Agreement").
B. The Lessee and the Lessor are parties to that certain Lease, dated as
of August 24, 2000 (as amended, restated, supplemented or otherwise modified
from time to time, the "Lease").
C. The Lessee, the Lessor, the Agent and the Investors are parties to
that certain Defeasance Deposit Agreement, dated as of August 24, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Defeasance Deposit Agreement").
D. Section 9.5(h) of the Participation Agreement contains a covenant of
Lessee to maintain at all times a minimum Consolidated EBITDA and Lessee has
notified the Agent that as of June 30, 2002, Lessee is in violation of the
Minimum Consolidated EBITDA covenant.
E. Section 12.7(c) of the Participation Agreement contains an agreement
by the Lessee to indemnify each Indemnified Person for any loss or expense which
such Indemnified Person may sustain or incur as a consequence of the making of a
prepayment of Loans or Investor Contributions which are Eurodollar Loans or
Eurodollar Investor Contributions on a day which is not the last day of an
Interest Period.
F. Section 8 of the Defeasance Deposit Agreement contains a five (5) day
notice requirement before the sale or disposition of any Collateral.
G. Section 20.1 of the Lease contains a thirty (30) day notice
requirement prior to the day that Lessee may exercise its Purchase Option
thereunder.
H. The parties desire to waive the breach of the Consolidated EBITDA
covenant contained in Section 9.5(h) of the Participation Agreement and any
resulting covenant or representation breaches related thereto through the second
quarter of 2002, conditioned on Lessee's agreement to exercise its Purchase
Option under the Lease on or prior to August 30, 2002.
I. The parties desire to waive the requirement of Section 20.1 of the
Lease providing thirty (30) day's notice for Lessee's exercise of its Purchase
Option.
J. The parties desire to waive until August 30, 2002, the Lessee's
obligation to indemnify each Indemnified Person for any payments Lessee may make
to prepay a Loan or Investor Contribution, in connection with Lessee's exercise
of its Purchase Option as contemplated by this Agreement, that are made on a day
which is not the last day of an Interest Period.
K. The parties desire to amend Section 8 of the Defeasance Deposit
Agreement to delete the five (5) day notice requirement for the sale or
disposition of any Collateral.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Limited Waiver of Default. Subject to satisfaction of the
conditions set forth in Section 6 below, the parties hereto agree to
waive the requirement of Section 9.5(h) for the fiscal quarter ending
June 30, 2002 on the condition that the Lessee terminate the Lease on or
before August 30, 2002; provided, however, that the waiver of the
requirement of Section 9.5(h) granted in this Section 1 shall be
rescinded, null and void and of no further force and effect if Lessee
has not exercised its Purchase Option on or prior to August 30, 2002.
Lessee further agrees that failure to exercise its Purchase Option on or
prior to August 30, 2002 shall constitute an election of the Purchase
Option as described in Section 20.1 of the Lease, with the payment of
the Purchase Option Price to occur by offset against the Collateral
(including the Defeasance Deposit Collateral, as such terms are defined
in the Defeasance Deposit Agreement) on August 30, 2002, and that
Lessee's agreement in this sentence shall constitute a direction to
Collateral Agent and to Defeasance Deposit Depositary Bank (as such
terms are defined in the Defeasance Deposit Agreement) to transfer into
Collateral Agent's own name, for the benefit of the Participants, an
amount of Collateral (including the Defeasance Deposit Collateral, as
such terms are defined in the Defeasance Deposit Agreement) necessary to
pay the Purchase Option Price. Lessee further agrees that the parties
hereto are under no obligation, express or implied to provide any
additional waiver or forbearance.
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2. Waiver of Thirty (30) Day Notice Requirement. Subject to
satisfaction of the conditions set forth in Section 6 below, the parties
hereto agree to waive Lessee's compliance with the provisions of Section
20.1 of the Lease requiring delivery of a written notice of Lessee's
intention to purchase the Property pursuant to the Purchase Option
thirty (30) days prior to the actual purchase date; provided, however,
that the Lessor and Lessee shall be afforded a reasonable period of time
to provide the supporting transfer documentation and to satisfy the
customary closing requirements of others involved in closing the sale
and purchase of the Property (including without limitation, title
insurers and escrow agents), but in no event shall the period of time
provided to transfer the Property extend beyond August 30, 2002.
3. Waiver of Eurodollar Break Cost. Subject to satisfaction of
the conditions set forth in Section 6 below, the parties hereto agree to
waive until August 30, 2002, Lessee's compliance with the provisions of
Section 12.7(c) of the Participation Agreement requiring Lessee to
indemnify each Indemnified Person for any payments Lessee may make to
prepay a Loan or Investor Contribution made (i) in connection with
Lessee's requirement to terminate the Lease as described in Section 1
above, and (ii) on a day which is not the last day of an Interest
Period.
4. Amendment to the Defeasance Deposit Agreement. Subject to the
satisfaction of the conditions set forth in Section 6 below, the
Defeasance Deposit Agreement is hereby amended as follows:
The last paragraph in Section 8 of the Defeasance Deposit
Agreement is hereby amended by deleting the same in its entirety
and replacing it with the following:
Collateral Agent shall distribute the proceeds of all Collateral
received by Collateral Agent after the occurrence of a Lease
Event of Default or default or breach hereunder to Lessor, the
Participants and Agent for application to the Obligations owed
to such Persons pursuant to the Participation Agreement, the
Lease and the other Operative Documents. If any proceeds of
Collateral remain after all Obligations have been paid in full,
Collateral Agent and Defeasance Deposit Depositary Bank shall
deliver the same to Lessee or other Person entitled thereto.
Unless otherwise required by Law, in any case where notice of
any sale or disposition of any Collateral is required, Lessee
hereby agrees that no notice of such sale or disposition is
required.
5. Representation and Warranties. The Lessee hereby represents
and warrants to the Agent, the Lessor, the Lender and the Investor that
the following are true and correct on the date of this Agreement and
that, after giving effect to the waivers set forth in Sections 1, 2 and
3 and the amendment in Section 4 above, the following will be true and
correct on the Effective Date (as defined below):
(a) The representations and warranties of the Lessee set
forth in Section 7.3 of the Participation Agreement are true and
correct in all material respects as if made on such date (except
for representations and warranties expressly made as
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of a specified date, which shall be true and correct in all
material respects as of such date);
(b) No Default or Event of Default has occurred and is
continuing; and
(c) Each of the Operative Agreements to which the Lessee
is a party is in full force and effect as to such Person.
6. Effective Date. The waivers effected by Sections 1, 2 and 3
and the amendment in Section 4 shall become effective as of the date of
this Agreement (the "Effective Date"), subject to receipt by
McGuireWoods LLP, counsel to the Agent, of (a) a copy of this Agreement
duly executed by the Lessee, the Owner Trustee, the Co-Owner Trustee,
the Agent and the Required Participants, and (b) a letter of direction
(a signed copy of which is attached hereto as Exhibit A) to Defeasance
Deposit Depositary Bank directing Defeasance Deposit Depositary Bank
under the Control Agreement to transfer an amount of Collateral
(including Defeasance Deposit Collateral, as such terms are defined in
the Defeasance Deposit Agreement) equal to the Purchase Option Price on
August 30, 2002 upon the direction of Collateral Agent (as such term is
defined in the Defeasance Deposit Agreement) unless directed prior to
such date to apply such amount in connection with the Lessee's exercise
of the Purchase Option.
7. Miscellaneous.
(a) Except as specifically waived or amended above, the
Participation Agreement, the Lease and the Defeasance Deposit
Agreement and each of the Annex, Schedules and Exhibits thereto
shall remain in full force and effect, and the Participation
Agreement, the Lease and the Defeasance Deposit Agreement are
hereby ratified and confirmed in all respects.
(b) Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
(c) This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and
separately constitute one agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier
shall be effective as delivery of a manually executed counterpart
of this Agreement.
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
duly executed and delivered by its proper and duly authorized officer as of the
date first written above.
INKTOMI CORPORATION,
as Lessee
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
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Title: CFO
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WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee and Lessor
By: /s/ Xxxxxxx X. Offer, Jr.
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Name: Xxxxxxx X. Offer, Jr.
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Title: Senior Financial Services Officer
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WILMINGTON TRUST FSB, not in its individual
capacity but solely as Co-Owner Trustee
By: /s/ Xxxxxx X. M[illegible]
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Name: Xxxxxx X. M[illegible]
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Title: Authorized Signer
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DEUTSCHE BANK AG, NEW YORK BRANCH, as
Investor
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Director
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By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President
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DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH,
as a Lender and as Agent for
the Lenders
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
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Title: Director
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By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
--------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President
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DEUTSCHE BANK SECURITIES INC. f/k/a
DEUTSCHE BANC ALEX. XXXXX INC., as Arranger
By: /s/ Xxxxxx Xxxxx[illegible]
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Name: Xxxxxx Xxxxx[illegible]
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Title: MD
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By: /s/ Xxxxxxx X. X'Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. X'Xxxxxxxx
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Title: Vice President
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