EXHIBIT 10.1
AGREEMENT REGARDING THE SUPPLEMENTAL
TERMS OF THE INTERIM SAVVIS FINANCING AS
APPROVED BY THE MAY 3, 0000 XXXXX XX XXX
XXXXXX XXXXXX BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF MISSOURI
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This Agreement regarding the Supplemental Terms of the Interim SAVVIS
Financing as Approved by the May 3, 0000 Xxxxx xx xxx Xxxxxx Xxxxxx Bankruptcy
Court for the Eastern District of Missouri ("Supplemental Agreement") is entered
into as of May 3, 2001 (and effective subject only to satisfaction of the
condition set forth in Section 9 hereof) by and among Bridge Information
Systems, Inc. ("Bridge"), Bridge Data Company ("Bridge Data") and for and on
behalf of all of Bridge's subsidiaries and affiliates which are
debtors-in-possession in Case Xx. 00-00000-000, Xxxxxx Xxxxxx Bankruptcy Court
for the Eastern District of Missouri, Eastern Division and the other related
cases being jointly administered thereunder (the "Case"), SAVVIS Communications
Corporation, a Delaware corporation ("SAVVIS-Delaware") and SAVVIS
Communications Corporation, a Missouri corporation ("SAVVIS-Missouri") (the
latter two parties being sometimes referred to herein collectively referred to
as "SAVVIS").
The parties hereto state and agree as follows:
1. The Sale Order. On May 3, 2001 the substantive terms of this
Supplemental Agreement were read into the record in the Case and approved
pursuant to the provisions of paragraphs 37 and 38 of the Bankruptcy Court's
Order entered of even date in the Case (the "Sale Order").
2. The Asset Purchase Agreement. Reuters America Inc. and Reuters S.A.,
and/or their respective designee(s) (the "Buyers") have entered into an Asset
Purchase Agreement (the "Asset Purchase Agreement") with Bridge and certain of
Bridge's subsidiaries as authorized by the Sale Order.
3. The Interim SAVVIS Financing. This Supplemental Agreement sets forth
the basic terms of the agreements between Bridge and SAVVIS providing for the
supplemental terms relating to the interim SAVVIS financing agreed to between
SAVVIS and the Buyers in order to finance SAVVIS during the period between the
Sale Order and the closing of the aforesaid Asset Purchase Agreement between
Bridge and Buyers (the "Pre-Closing Period") .
4. The SAVVIS Executory Contract Agreements Relating to the Asset
Purchase Agreement. In consideration of, inter alia, the agreement of Bridge to
the supplemental terms set forth herein and the independent agreement of Buyers
to provide interim supplemental financing to SAVVIS during the Pre-Closing
Period, SAVVIS has agreed to enter into a new and separately-negotiated and
documented Network Services Agreement with Buyers (the "Reuters NSA"), to be
effective upon the closing of the Asset Purchase Agreement, and further not to
object to Bridge's motion to reject the existing Network Services Agreement
between Bridge and SAVVIS (the "Bridge NSA"), such rejection again to be
effective only if and when the Asset Purchase Agreement closes.
5. The February, 2000 Note from SAVVIS-Delaware to Bridge and the
Satisfaction in Full of All Amounts Due Thereunder. In February, 2000,
SAVVIS-Delaware executed a note in the principal amount of $21,565,751, (the
"Note"), which Note matured by its terms on February 18, 2001. The amount
currently due pursuant to the Note is approximately $23,000,000. On the other
hand, Bridge presently owes SAVVIS-Missouri approximately $17,900,000 for
domestic U.S. services provided by SAVVIS-Missouri to Bridge pursuant to the
Bridge NSA prior to February 16, 2001 (the "SAVVIS Pre-Petition Receivable").
The parties have agreed that the Note indebtedness will be and will be deemed to
be fully satisfied, effective upon the satisfaction and fulfillment of the
conditions set forth in Sections 5(a)-(d) below, as follows:
(a) SAVVIS has forgiven the SAVVIS Pre-Petition Receivable and has
released Bridge from any and all damage claims, including, without limitation,
any claim for indemnity or contribution regarding any claims of third parties,
resulting from the rejection of Bridge NSA and any and all other pre-petition
agreements entered into between SAVVIS and Bridge or any of Bridge's related
chapter 11 debtors (the "Debtors"), including without limitation the Master
Establishment and Transition Agreement between Bridge and SAVVIS, dated February
9, 2000, and the Network Services Agreement between Bridge and SAVVIS, dated
February 15, 2000. Notwithstanding the foregoing, nothing herein shall release
any claim by either SAVVIS-Delaware or SAVVIS-Missouri for (i) payments for
post-petition services to the Debtors, including pursuant to the stipulations
referred to in paragraph 12 herein, (ii) payments by Bridge related entities
and/or subsidiaries that are not Debtors or (iii) the payments provided for in
paragraph 7 herein;
(b) SAVVIS has issued to Bridge $12,000,000 U.S. amount of
convertible preferred SAVVIS stock (the "Preferred Stock") such Preferred Stock
to be issued to Bridge upon the closing of long term financing pursuant to which
SAVVIS Delaware issues preferred stock in an amount equal to no less than
$50,000,000 (the "Long Term Financing"). The Preferred Stock will contain the
same rights and terms as the shares issued to the entities providing Long Term
Financing to SAVVIS. In the event that SAVVIS does not obtain Long Term
Financing prior to January 1, 2002, then no Preferred Stock shall be issued, the
Note shall remain unsatisfied and the SAVVIS Pre-Petition Receivable shall
remain unpaid such that all parties hereto shall be returned to their respective
positions with respect thereto without waiver of any claims, rights, defenses or
remedies;
(c) Bridge has granted to the Prepetition Lenders which previously
held a security interest in the Note, a replacement security interest in and
against the Preferred Stock, and a security interest in and to the Ground Lease
and in the total payments provided for in Section 6(a) below, such security
interests to be granted in and evidenced by documents reasonably acceptable to
the Prepetition Lenders. Bridge hereby covenants and agrees that it will
promptly upon the execution hereof take all steps necessary and reasonable to
grant such security interests and to execute all documents necessary to
effectuate the transactions contemplated in this Supplemental Agreement;
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(d) SAVVIS Shall have entered into an agreement with Reuters as
called for in Section 6 below.
6. Reuters Board Rights. SAVVIS shall enter into an agreement with
Reuters, which Agreement provides Reuters with certain rights to either
designate one (1) director to the board of directors of SAVVIS (the "SAVVIS
Board") and/or to select a designee to attend all meetings of the SAVVIS Board
and any committee thereof as an observer.
7. The Ground Lease and Related Subordination, Non-Disturbance and
Attornment Agreement. Bridge Data presently owns a parcel of land located at 000
XxXxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xx. Xxxxx Xxxxxx, Xxxxxxxx (the "Hazelwood
Land") upon which SAVVIS, with the express prior knowledge and consent of
Bridge, has constructed a Data Center and related improvements (the "SAVVIS Data
Center"). The parties have agreed as follows with respect to the SAVVIS Data
Center located on the Hazelwood Land:
(a) Concurrently with the execution hereof, Bridge Data will enter
into a ground lease with a ninety-nine (99) year term and a rent commencement
date of December 1, 2001, with rent due monthly at the rate of approximately
$27,443 per month (the "Ground Lease"). The Ground Lease will contain other
provisions which have been mutually agreed to between Bridge Data and SAVVIS,
will be substantially in the form attached hereto as "Exhibit B", a memorandum
of which will be recorded in the real estate records of St. Louis County,
Missouri as soon as reasonably possible upon its execution;
(b) Concurrently with the execution hereof, Bridge Data will obtain
from Xxxxxx Trust and Savings Bank, as administrative agent ("Xxxxxx"), and
Xxxxxx will execute in favor of SAVVIS a Subordination, Non-Disturbance and
Attornment Agreement in substantially the form attached to the Ground Lease
("SNDA"), which SNDA will contain other provisions which have been mutually
agreed to between Bridge Data and SAVVIS, will be in substantially the form
attached hereto as "Exhibit C", will promptly be delivered to SAVVIS and will be
recorded in the real estate records of St. Louis County, Missouri as soon as
reasonably possible upon its execution; and
(c) Bridge Data, consistent with the authority contained in
Paragraph 37(b) of the Sale Order, will grant Buyers a security interest in and
against the Hazelwood Land to secure the Buyers' interim financing to SAVVIS
pursuant to the provisions of the Asset Purchase Agreement.
8. The Termination Payment to be Paid from Bridge to SAVVIS. SAVVIS
will incur in the future certain termination liability to third parties with
respect to the termination of certain circuits no longer necessary to Bridge
under the Bridge NSA given the specific ongoing needs of Buyers with respect to
the assets to be purchased pursuant to the Asset Purchase Agreement. The parties
have agreed to fully and finally settle SAVVIS' claims against Bridge in respect
of such termination liabilities as follows:
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(a) In addition to all other postpetition amounts owing from Bridge
to SAVVIS under the Xxxxxx XXX, Xxxxxx agrees to make a Termination Liability
Payment to SAVVIS in the total amount of Five Million Two Hundred Fifty Thousand
U.S. Dollars ($5,250,000) subject to Section 7(c) below;
(b) As soon as reasonably practicable, Bridge shall provide SAVVIS
with a list of those circuits Bridge believes will be terminated and the date on
which such circuits will be terminated. The Termination Liability Payment to
SAVVIS will be made in three installments of $1,750,000 each with the first such
installment being due on the date on which Bridge provides SAVVIS with the
definitive list of circuits to be terminated and on the same day of each month
thereafter; provided, however, in the event the Asset Purchase Agreement is
closed prior to the time the Termination Liability Payment is paid in full,
Bridge shall pay the remaining portion of the Termination Liability to SAVVIS on
the date the Asset Purchase Agreement is closed. The Termination Liability
Payments shall be made by wire transfer made in time to be received by SAVVIS on
each such due date with written confirmation provided to SAVVIS in accordance
with the Notice provisions contained in Section 14 of this Supplemental
Agreement; and
(c) In the event that the Bridge-Asia operations are continued and
there are no termination liabilities associated with such continuation, then the
final Termination Liability Payment shall be reduced by $1,750,000. In the event
the Bridge-Asia operations are continued and there are termination liabilities
incurred, the Termination Liability Payment shall be reduced by the difference
between $1,750,000 and the actual termination liability actually incurred with
regard thereto. In the event the Bridge-Asia operations are discontinued, Bridge
shall pay the Termination Liability as set forth in Section 7(b) above.
9. Agreement Regarding Bridge-Asia and Bridge-Europe Bridge Affiliate
and Subsidiary Debts Owed to SAVVIS. Bridge Information Systems, Inc. has
certain affiliates and/or subsidiaries which operate in Asia ("Bridge-Asia
Affiliates") and in Europe ("Bridge-Europe Affiliates") which are not
debtors-in-possession directly subject to the Bankruptcy Court's jurisdiction in
the jointly-administered Case. SAVVIS is owed amounts, however, relating to the
provision of services (pursuant to the Bridge NSA and related subagreements) for
the benefit of the Bridge-Asia Affiliates and of the Bridge-Europe Affiliates.
Bridge agrees subsequent to the execution of this Supplemental Agreement to
exercise its reasonable commercial efforts to assist SAVVIS in connection with
the collection of amounts due from Bridge-Asia and/or Bridge-Europe affiliates,
but Bridge does not hereby make any guarantee or warranty of collectibility to
SAVVIS with respect to the indebtedness described in this Section 8.
10. Condition Precedent to Effectiveness. This Supplemental Agreement's
effectiveness and performance (as well as SAVVIS' agreement to enter into the
Reuters NSA) is subject to the sole condition precedent that the agreements
herein set forth must be approved by the requisite percentage in amount of
Lenders (as that term is defined in the Sale Order), and upon written notice
from Lenders that such approval has been granted, the parties shall take
immediate steps to effectuate each of the provisions herein contained as soon as
possible.
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11. Time of Essence. Time is of the essence with respect to each of the
provisions of this Supplemental Agreement.
12. Dispute Resolution. Any dispute hereunder shall be submitted for
decision and resolution, by express agreement of the parties, to the Bankruptcy
Judge then assigned to the Case.
13. SAVVIS' Continuing Right to Participate in Case. SAVVIS has and had
other relationships with and to Bridge, including without limitation certain
stipulations previously entered into between Bridge and SAVVIS with Sprint, MCI
WorldCom and AT&T, determination of the net amount, if any, remaining due to
SAVVIS from Bridge for services provided under the Bridge NSA during the period
on and/or subsequent to February 16, 2001. Nothing herein precludes or inhibits
SAVVIS' continuing right to participate in the Case and receive notice and be
heard as a creditor and party-in-interest in the Case subsequent to the date
hereof.
14. Specific Performance. The parties hereto agree that there is no
adequate remedy at law for a prospective breach of this Supplemental Agreement
and that any aggrieved party shall be entitled to seek specific performance with
respect hereto.
15. Notices. Any notice to be given hereunder shall be given in
writing, effective upon actual receipt whether sent by mail, express mail,
delivery or facsimile and shall be forwarded to:
If to Bridge or Bridge Data:
Xxxxxx Xxxxxxxx
Chief Restructuring Officer
Bridge Information Systems, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
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If to SAVVIS:
Xxxxxx X. Xxxxxxx, Esq.
General Counsel
SAVVIS Communications Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxxxx LLP
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
16. Governing Law. This Supplemental Agreement shall be interpreted in
accordance with the substantive law of the State of Missouri without regard to
any principle(s) of conflicts of law.
17. Further Assurances. Each party shall execute and deliver such
reasonable additional instruments and other reasonable documents and shall take
such further reasonable actions as may be reasonably necessary or appropriate to
effectuate, carry out and comply with all of the terms of this Supplemental
Agreement and the transactions contemplated hereby.
18. Execution in Counterparts. This Supplemental Agreement may be
executed in counterparts, including the forwarding of facsimile signature
counterparts, one full set of which shall constitute a complete original.
19. Headings. The headings to the Sections hereof are included for
convenience only and do not change, modify or alter in any way the substantive
terms hereof.
20. Modification/Amendment. This Supplemental Agreement may not be
modified, amended or altered in any way except by a writing signed by all
parties hereto, which writing shall not be effective without the express written
consent of Lenders.
21. Binding Agreement. This Supplemental Agreement shall be binding
upon each of the parties hereto and their respective successors and/or assigns.
IN WITNESS WHEREOF, the parties have executed this Supplemental
Agreement as of the 3rd day of May, 2001.
BRIDGE INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Chief Restructuring Officer
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XXXXXX DATA COMPANY
By: /s/ Xxxxxx Xxxxxxxx
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Title: Chief Restructuring Officer
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SAVVIS COMMUNICATIONS CORPORATION,
a Delaware Corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President, General Counsel
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SAVVIS COMMUNICATIONS CORPORATION,
a Missouri Corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President, General Counsel
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