EXHIBIT B
SECURITIES PURCHASE AGREEMENT, dated as of February 16, 2001, among
SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation (the "COMPANY"),
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P., a Delaware limited partnership
("WCAS"), WCAS MANAGEMENT CORPORATION ("WCAS MANAGEMENT") and the various
individuals listed as "Purchasers" on Schedule I hereto (the "WCAS PERSONS")
and, collectively with WCAS, WCAS Management and each other person that shall
become a "PURCHASER" pursuant to Section 6.07 hereof, the "PURCHASERS").
WHEREAS, the Company, WCAS and WCAS Management executed a Securities
Purchase Agreement, dated January 31, 2001 (the "PRIOR AGREEMENT"), whereby the
Company intended to sell to the Purchasers, and the Purchasers intended to
purchase from the Company, on the terms and subject to the conditions set forth
therein, $50,000,000 aggregate principal amount of 10% Convertible Senior
Secured Notes of the Company;
WHEREAS, the obligations of WCAS and WCAS Management to consummate the
transactions contemplated by the Prior Agreement were subject to certain
conditions precedent of the Company that all parties hereto acknowledge will not
be met;
WHEREAS, the Company, WCAS and WCAS Management desire to terminate the
Prior Agreement and instead execute this Agreement pursuant to which the Company
will sell to the Purchasers, and the Purchasers will purchase from the Company,
on the terms and subject to the conditions set forth herein, $20,000,000
aggregate principal amount of 10% Convertible Senior Secured Notes of the
Company in substantially the form of EXHIBIT A hereto (together with the notes
to be issued as payment-in-kind interest thereunder, the "NOTES"); and
WHEREAS, in order to induce the Purchasers to consummate the
transactions contemplated by this Agreement, the Company has agreed to grant to
the Purchasers certain registration rights with respect to the shares (the
"CONVERSION SHARES") of the Company's Common Stock, $.01 par value ("COMMON
STOCK"), issuable upon conversion of the Notes;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
I. PURCHASE AND SALE OF SECURITIES
SECTION 1.01. CLOSING. (a) On February 20, 2001 (the "CLOSING DATE"),
but subject to satisfaction of the conditions contained in Section 4.01, the
Company shall issue and sell to the Purchasers, and each Purchaser shall
purchase from the Company, a Note in the aggregate principal amount set forth
opposite the name of such Purchaser in Schedule I hereto under the heading
"Principal Amount of Note on Closing Date," for a purchase price equal to such
principal amount, and the Company shall issue and deliver
to each Purchaser such Note, registered in the name of such Purchaser,
evidencing the indebtedness of the Company to such Purchaser in connection
herewith.
(b) As payment in full for the Note being purchased by each Purchaser
hereunder, and against delivery of the Note as aforesaid, on the Closing Date
each Purchaser shall wire transfer to the account of the Company in immediately
available funds the sum set forth opposite the name of such Purchaser in
SCHEDULE I under the heading "Principal Amount of Note on Closing Date."
(c) Notwithstanding anything to the contrary contained herein, each
Purchaser purchasing Notes on the Closing Date may assign all or any portion of
such Notes and the related rights and obligations hereunder to any other
Purchaser or any Affiliate (as hereinafter defined) of such Purchaser or of any
other Purchaser (each a "PERMITTED TRANSFEREE").
(d) As used herein, the term "AFFILIATE" means, with respect to any
Person, any other Person directly or indirectly controlling, controlled by or
under common control with such Person. For the purpose of the foregoing
definition, the term "CONTROL" (including with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise. As used herein, the term "PERSON" means any individual, partnership,
limited liability company, corporation, trust, estate or other entity.
SECTION 1.02. PLACE OF CLOSING. The closing contemplated by Section
1.01 (the "CLOSING") hereof shall take place at the offices of Reboul,
MacMurray, Xxxxxx, Xxxxxxx & Kristol, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as may be mutually agreed upon by a majority in
interest of the Purchasers and the Company.
II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
SECTION 2.01. ORGANIZATION AND QUALIFICATION. The Company is a
corporation validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own or lease and
operate its properties and assets and to carry on its business as it is now
being conducted. The Company is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which the character
of its properties owned or leased or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
have a material adverse effect on the properties, assets, financial condition,
operating results, business or prospects of the Company and its subsidiaries,
taken as a whole (a "MATERIAL ADVERSE EFFECT").
SECTION 2.02. SUBSIDIARIES. (a) Except as disclosed in the Company SEC
Filings (as defined in Section 2.08), the Company does not have any Significant
Subsidiaries (as defined in Rule 1-02 of Regulation S-X).
SECTION 2.03. CAPITALIZATION. (a) The authorized capital stock of the
Company consists of 250,000,000 shares of Common Stock and 50,000,000 shares of
Preferred Stock, $.01 par value ("PREFERRED STOCK"). As of the date hereof,
93,840,935 shares of Common Stock and no shares of Preferred Stock were issued
and outstanding, all of which shares of Common Stock were duly authorized and
validly issued and are fully paid and nonassessable.
(b) As of the date hereof, except for options granted pursuant to the
Company's stock option plan (the "STOCK OPTION PLAN") to purchase an aggregate
8,732,537 shares of Common Stock, no subscription, warrant, option, convertible
security, stock appreciation or other right (contingent or other) to purchase or
acquire any shares of any class of capital stock of the Company or any of its
subsidiaries is authorized or outstanding, and (except as otherwise expressly
contemplated by this Agreement) there is not any commitment of the Company or
any of its subsidiaries to issue any shares, warrants, options or other such
rights or to distribute to holders of any class of its capital stock, any
evidences of indebtedness or assets.
SECTION 2.04. AUTHORIZATION OF AGREEMENTS, ETC. (a) Except as set
forth on SCHEDULE 2.04, each of (i) the execution and delivery by the Company of
this Agreement, the Notes, the Registration Rights Agreement, dated as of the
Closing Date (the "REGISTRATION RIGHTS AGREEMENT"), among the Company and the
Purchasers, in substantially the form attached hereto as EXHIBIT B and the Deed
of Trust, dated as of the Closing Date, between the Company's subsidiary and the
Purchasers, in form and in substance reasonably satisfactory to WCAS (the
"DEED," and collectively with the Notes and the Registration Rights Agreement,
the "ANCILLARY AGREEMENTS"), (ii) the performance by the Company of its
obligations hereunder and thereunder, and (iii) the issuance, sale and delivery
by the Company of the Notes has been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Certificate of Incorporation or Bylaws of the
Company, or any provision of any indenture, agreement or other instrument to
which the Company or any of its properties or assets is bound, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any liens, claims, charges, restrictions, rights
of others, security interests, prior assignments or other encumbrances
(collectively, "CLAIMS") in favor of any third person upon any of the assets of
the Company or any of its subsidiaries, except that no representation is made as
to the compliance of the indemnification or contribution provisions of the
Registration Rights Agreement with law or public policy. The Board of Directors
of the Company has taken all actions necessary under the Delaware General
Corporation Law (the "DGCL"), including approving the transactions contemplated
by this Agreement, to ensure that Section 203 of the DGCL does not apply to the
Purchasers.
(b) The issuance, sale and delivery of the Notes to the Purchasers
hereunder are not subject to any preemptive rights of stockholders of the
Company or to any right of first refusal or other similar right in favor of any
person.
(c) The Conversion Shares have been duly authorized by the Company
and, when issued in accordance with the provisions of the Notes, will be validly
issued, fully paid and nonassessable shares of Common Stock. The issuance, sale
and delivery of the Conversion Shares to the Purchasers are not and upon
conversion of the Notes will not be subject to any preemptive rights of
stockholders of the Company or to any right of first refusal or other similar
right in favor of any person.
SECTION 2.05. VALIDITY. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
Each of the Notes and the Ancillary Agreements, when executed and delivered by
the Company as provided in this Agreement, will constitute the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except that no representation is made as to the enforceability
of the indemnification or contribution provisions of the Registration Rights
Agreement.
SECTION 2.06. GOVERNMENTAL APPROVALS. Subject to the accuracy of the
representations and warranties of the Purchasers set forth in Article III hereof
and except for a possible required filing and approval under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
ACT"), upon conversion of all of the Notes into Conversion Shares, no
registration or filing with, or consent or approval of, or other action by, any
federal, state or other governmental agency or instrumentality is or will be
necessary for the valid execution, delivery and performance of this Agreement,
the Notes or the Ancillary Agreements, or the issuance, sale and delivery of the
Conversion Shares.
SECTION 2.07. FINANCIAL STATEMENTS. (a) The Company has furnished to
the Purchasers the unaudited consolidated balance sheet of the Company and its
subsidiaries as of November 30, 2000 (the "NOVEMBER 30, 2000 BALANCE SHEET") and
the related consolidated statements of operations, stockholders' equity and cash
flows for the fiscal year then ended. All such financial statements (including
any related schedules and/or notes) have been prepared in accordance with
generally accepted accounting principles in the United States ("GAAP")
consistently applied and consistent with prior periods, except for normal
year-end adjustments and the absence of footnotes. Such balance sheet fairly
presents in all material respects the consolidated financial position of the
Company and its subsidiaries as of November 30, 2000, and such statements of
operations, stockholders' equity and cash flows fairly present in all material
respects the consolidated results of operations, stockholders' equity and cash
flows of the Company and its subsidiaries for the year ended November 30, 2000.
(b) Except as and to the extent (i) reflected on the November 30, 2000
Balance Sheet (including the notes thereto), (ii) incurred since November 30,
2000 in the ordinary course of business consistent with past practice, or (iii)
set forth on SCHEDULE 2.07 hereto, neither the Company nor any of its
subsidiaries has any material liabilities or obligations of any kind or nature,
whether known or unknown, secured or unsecured, absolute, accrued, contingent or
otherwise, and whether due or to become due, that would be required to be
reflected on a balance sheet, or the notes thereto, prepared in accordance with
GAAP. Since November 30, 2000, neither the Company nor any of its subsidiaries
has suffered any Material Adverse Effect.
SECTION 2.08. SEC FILINGS. The Company has filed all forms, reports
and documents required to be filed with the Securities and Exchange Commission
(the "SEC") since February 18, 2000, and the Company has made available to the
Purchasers, as filed with the SEC, complete and accurate copies of (i) the
Annual Report of the Company on Form 10-K for the year ended December 31, 1999,
and (ii) all other reports, statements and registration statements (including
Current Reports on Form 8-K and Quarterly Report on Form 10-Q) filed by the
Company with the SEC since December 31, 1999, in each case including all
amendments and supplements (collectively, the "COMPANY SEC FILINGS"). The
Company SEC Filings (excluding any financial statements or schedules included
therein, which are covered by the representations and warranties of the Company
in Section 2.07(a)) (i) were prepared in compliance with the requirements of the
Securities Act of 1933, as amended (the "SECURITIES ACT"), or the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and
regulations thereunder, and the rules and regulations thereunder, as the case
may be, and (ii) did not at the time of filing (or if amended, supplemented or
superseded by a filing prior to the date hereof, on the date of that filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
SECTION 2.09. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
otherwise disclosed in the Company SEC Filings and except as otherwise expressly
contemplated by this Agreement, since November 30, 2000, neither the Company nor
any of its subsidiaries has (i) issued any stock, bonds or other corporate
securities, (ii) borrowed or refinanced any indebtedness for borrowed money
other than borrowings under the Amended and Restated Credit Agreement dated as
of September 5, 2000 (the "Credit Agreement"), among the Company, Savvis
Communications Corporation, a Missouri Corporation, Nortel Networks Inc., as
Administrative Agent, and the lenders named therein, (iii) discharged or
satisfied any material Claim or incurred or paid any obligation or liability
(absolute or contingent) other than current liabilities shown on the November
30, 2000 Balance Sheet and current liabilities incurred since the date of such
balance sheet in the ordinary course of business consistent with past practice,
(iv) in the case of the Company only, declared or made any payment or
distribution to stockholders, or purchased or redeemed any shares of its capital
stock or other securities, or (v) except in connection with this Agreement and
the transactions contemplated hereby, entered into
any agreement, letter of intent or similar undertaking to take any of the
actions listed in clauses (i) through (iv) above.
SECTION 2.10. ACTIONS PENDING. Except as set forth in the Company SEC
Filings, there is no action, suit, investigation or proceeding pending or, to
the best knowledge of the Company, threatened against or affecting the Company
to which its property is subject, before any court or by or before any
governmental body or arbitration board or tribunal, which the Company would be
required to disclose pursuant to Item 1 of Part II of Form 10-Q if such Form
10-Q were required to be filed on and as of the date hereof. For the purposes of
this Agreement, the term "best of the knowledge of the Company" shall mean the
actual knowledge, upon reasonable inquiry, of the executive officers of the
Company.
SECTION 2.11. COMPLIANCE WITH LAW; PERMITS. Neither the Company nor
any of its subsidiaries is in default in any respect under any order or decree
of any court, governmental authority, arbitrator or arbitration board or
tribunal or under any laws, ordinances, governmental rules or regulations to
which the Company or any of such subsidiaries or any of their respective
properties or assets is subject, except where such default would not have a
Material Adverse Effect. The Company possesses all permits, authorizations,
approvals, registrations, variances and licenses ("PERMITS") necessary for the
Company or its subsidiaries to own, use and maintain their properties and assets
or required for the conduct of its business in substantially the same manner as
it is currently conducted, except where the failure to possess any such Permit
would not have a Material Adverse Effect. Except to the extent the failure of
any of the following to be correct would not have a Material Adverse Effect,
each Permit is in full force and effect, and no proceeding is pending or, to the
best knowledge of the Company, threatened to modify, suspend, revoke or
otherwise limit any Permit, and no administrative or governmental actions have
been taken or, to the best knowledge of the Company, threatened in connection
with the expiration or renewal of any Permit.
SECTION 2.12. CONTRACTS. Except as disclosed in the Company SEC
Filings and as set forth on SCHEDULE 2.12, there are no contracts or agreements
that are material to the conduct of the Company's business or to the financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, that the Company would be required to disclose pursuant to paragraph 10
of Item 601 of Regulation S-K if a Form 10-Q were required to be filed on and as
of the date hereof. Each of the agreements (collectively, the "MATERIAL
AGREEMENTS") disclosed as an exhibit in the Company SEC Filings in response to
paragraph 10 of Item 601 of Regulation S-K under which there are continuing
rights or obligations is a valid and enforceable obligation of the Company and,
to the best knowledge of the Company, of the other parties thereto, except where
the failure to be valid or enforceable would not have a Material Adverse Effect.
To the best knowledge of the Company, the Company has not been notified in
writing of any claim that any Material Agreement is not valid and enforceable in
accordance with its terms for the periods stated therein (other than where such
enforceability is in violation of public policy or law), or that there is under
any such contract any existing default or event of default or event that with
notice or lapse of time
or both would constitute such a default, except any such
failure to be valid or enforceable and any such defaults that, in the aggregate,
would not have a Material Adverse Effect.
SECTION 2.13. OFFERING OF THE NOTES. Assuming the accuracy of the
representations and warranties of the Purchasers set forth in Article III
hereof, neither the Company nor any person acting on the Company's behalf has
taken or will take any action (including, without limitation, any offer,
issuance or sale of any securities of the Company under circumstances which
might require the integration of such transactions with the sale of the Notes
under the Securities Act or the rules and regulations of the SEC thereunder)
which would subject the offering, issuance or sale of the Notes to the
Purchasers pursuant to this Agreement to the registration provisions of the
Securities Act.
SECTION 2.14. RELATED-PARTY TRANSACTIONS. Except (i) as set forth in
the Company SEC Filings or (ii) as contemplated hereby, there are no existing
material arrangements or proposed material transactions between the Company and
any person or entity that the Company would be required to disclose pursuant to
Item 404 of Regulation S-K of the SEC if a proxy statement of the Company were
required to be filed on or as of the date hereof, other than arrangements or
transactions between the Company and any of the Purchasers.
SECTION 2.15. BROKERS. All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried on by the Company
directly with the Purchasers, without the intervention of any other person on
behalf of the Company in such manner as to give rise to any valid claim by any
other person against the Purchasers for a finder's fee, brokerage commission or
similar payment.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser, severally and not jointly, represents and warrants to
the Company as follows:
SECTION 3.01. BENEFICIAL OWNERSHIP. As of the date hereof, WCAS and
its affiliates beneficially own an aggregate of 60,578,344 shares of Common
Stock. For purposes of this Agreement, the term "beneficially own" shall have
the meaning as set forth in the Exchange Act.
SECTION 3.02. AUTHORIZATION. The execution, delivery and performance
by such Purchaser of this Agreement and the Ancillary Agreements, and the
purchase and receipt by such Purchaser of the Notes being acquired by it
hereunder, have been duly authorized by all requisite action on the part of such
Purchaser and will not violate any provision of law, any order of any court or
other agency of government, the charter or other governing documents of such
Purchaser, or any provision of any indenture, agreement or other instrument by
which such Purchaser or any of such Purchaser's properties or assets are bound,
or conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any such indenture, agreement or
other instrument, or result in any Claim upon any of the properties or assets of
such Purchaser.
SECTION 3.03. VALIDITY. This Agreement has been duly executed and
delivered by such Purchaser and constitutes the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms. Each of the Ancillary Agreements, when executed and delivered in
accordance with this Agreement, will constitute the legal, valid and binding
obligation of such Purchaser, enforceable against such Purchaser in accordance
with its terms.
SECTION 3.04. INVESTMENT REPRESENTATIONS. (a) Such Purchaser is
acquiring the Notes being purchased by such Purchaser hereunder for such
Purchaser's own account, for investment, and not with a view toward the resale
or distribution thereof.
(b) Such Purchaser understands that he, she or it, as the case may be,
must bear the economic risk of such Purchaser's investment for an indefinite
period of time, because the Notes and, when issued upon conversion of Notes, the
Conversion Shares are not registered under the Securities Act or any applicable
state securities laws and may not be resold unless subsequently registered under
the Securities Act and such other laws or unless an exemption from such
registration is available. Such Purchaser also understands that, except as
provided in the Registration Rights Agreement, it is not contemplated that any
registration will be made under the Securities Act or that the Company will take
steps which will make the provisions of Rule 144 under the Securities Act
available to permit resale of the Notes or the Conversion Shares.
(c) Such Purchaser has the ability to bear the economic risks of the
investment in the Notes being purchased hereunder for an indefinite period of
time. Such Purchaser further acknowledges that he, she or it, as the case may
be, has received copies of the Company SEC Filings and has had the opportunity
to ask questions of, and receive answers from, officers of the Company with
respect to the business and financial condition of the Company and the terms and
conditions of the offering of the Notes and to obtain additional information
necessary to verify such information or can acquire it without unreasonable
effort or expense.
(d) Such Purchaser has such knowledge and experience in financial and
business matters that such Purchaser is capable of evaluating the merits and
risks of its investment in the Notes. Such Purchaser further represents that he,
she or it, as the case may be, is an "accredited investor" as such term is
defined in Rule 501 of Regulation D of the SEC under the Securities Act with
respect to its purchase of the Notes, and that any such Purchaser that is a
limited partnership has not been formed solely for the purpose of purchasing the
Notes.
(e) If such Purchaser is a limited partnership, such Purchaser
represents that it has been organized and is existing as a limited partnership
under the laws of the State of Delaware.
SECTION 3.05. GOVERNMENTAL APPROVALS. Except for a possible required
filing and approval under the HSR Act upon the conversion of all of the Notes
into Conversion Shares, no registration or filing with, or consent or approval
of, or other action by, any Federal, state or other governmental agency or
instrumentality is or will be necessary by the Purchasers for the valid
execution, delivery and performance of this Agreement and the Ancillary
Agreements.
SECTION 3.06. SCHEDULE 13D. The Schedule 13D filed by the Purchasers
with the SEC on March 8, 2000 did not at the time of filing contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. No amendment to the
Schedule 13D has been or, except as may be required by reason of the purchase of
the Notes pursuant to this Agreement, is required to be, made.
IV. CONDITIONS PRECEDENT
SECTION 4.01 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE
PURCHASERS. With regard to the Closing, the obligations of the Purchasers
hereunder are, at their option, subject to the satisfaction of the following
conditions:
(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties of the Company contained in this Agreement
shall be true and correct in all material respects on the Closing Date with
the same force and effect as though such representations and warranties had
been made on and as of such date.
(b) PERFORMANCE. The Company shall have performed and complied in all
material respects with all agreements and conditions contained herein
required to be performed or complied with by it prior to or on the Closing
Date.
(c) ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by the Company and all waivers and consents to be
obtained by the Company in connection with the transactions contemplated
hereby, including any such requirements of the Marketplace Rules of the
Nasdaq National Market and those set forth in SCHEDULE 2.04, shall have
been taken or obtained by the Company, and all documents incident thereto
shall be satisfactory in form and substance to the Purchasers and their
counsel.
(d) LEGAL PROCEEDINGS. On the Closing Date, no preliminary or
permanent injunction or other order, decree or ruling issued by any court
of competent jurisdiction nor any statute, rule, regulation or order
entered, promulgated or enacted by any governmental, regulatory or
administrative agency or authority, or national securities exchange shall
be in effect that would prevent the consummation of the transactions
contemplated Agreement.
(e) NO MATERIAL ADVERSE EFFECT. Except for the effects of the matters
referred to in Section 2.09, since November 30, 2000, there shall have been
no Material Adverse Effect.
(f) OPINIONS OF COUNSEL. The Purchasers shall have received from Xxxxx
& Xxxxxxx, L.L.P. and Xxxxxx X. Xxxxxxx, Esq., opinions dated the Closing
Date, covering customary matters and otherwise reasonably satisfactory in
form and substance to the Purchasers and their counsel.
(g) ANCILLARY AGREEMENTS. The Company shall have executed and
delivered each of the Ancillary Agreements, and all third party consents
(including the consent of lenders of the Company's parent, if necessary)
and all other documents and agreements necessary to make the Ancillary
Agreements effective in accordance with their terms shall have been
obtained and shall be effective.
SECTION 4.02. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY.
With regard to the Closing, the obligations of the Company hereunder are, at its
option, subject to the satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TO BE TRUE AND CORRECT. The
representations and warranties of the Purchasers contained in this
Agreement shall be true and correct in all material respects on the Closing
Date with the same effect as though such representations and warranties had
been made on and as of such date.
(b) PERFORMANCE. The Purchasers shall have performed and complied in
all material respects with all agreements and conditions contained herein
required to be performed or complied with by them prior to or on the
Closing Date.
(c) ALL PROCEEDINGS TO BE SATISFACTORY. All proceedings to be taken by
the Purchasers and all waivers and consents to be obtained by the
Purchasers in connection with the transactions contemplated hereby shall
have been taken or obtained by the Purchasers and all documents incident
thereto shall be satisfactory in form and substance to the Company and its
counsel.
(d) LEGAL PROCEEDINGS. On the Closing Date, no preliminary or
permanent injunction or other order, decree or ruling issued by any court
of competent jurisdiction nor any statute, rule, regulation or order
entered, promulgated or enacted by any governmental, regulatory or
administrative agency or authority, or national securities exchange shall
be in effect that would prevent the consummation of the transactions
contemplated by this Agreement.
(f) ANCILLARY AGREEMENTS. Each Purchaser shall have executed and
delivered each of the Ancillary Agreements.
V. SURVIVAL OF REPRESENTATIONS; INDEMNITY
SECTION 5.01 SURVIVAL OF REPRESENTATIONS. Subject as set forth below,
all representations and warranties made by any party hereto in this Agreement or
pursuant hereto shall survive for the period commencing on the date hereof and
ending on the first anniversary of the date hereof.
SECTION 5.02. GENERAL INDEMNITY. (a) Subject to the terms and
conditions of this Article V, the Company hereby agrees to indemnify, defend and
hold the Purchasers harmless from and against all demands, claims, actions or
causes of action, assessments, losses (including diminution in value of the
Notes or Conversion Shares), damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys'
fees and expenses (collectively, "DAMAGES"), asserted against, resulting to,
imposed upon or incurred by the Purchasers by reason of or resulting from a
breach of any representation, warranty or covenant of the Company contained in
or made pursuant to this Agreement.
(b) Subject to the terms and conditions of this Article V, the
Purchasers hereby agree to indemnify, defend and hold the Company harmless from
and against all Damages asserted against, resulting to, imposed upon or incurred
by the Company by reason of or resulting from a breach of any representation,
warranty or covenant of the Purchasers contained in or made pursuant to this
Agreement.
SECTION 5.03. CONDITIONS OF INDEMNIFICATION. The respective
obligations and liabilities of the Purchasers, on the one hand, and the Company,
on the other hand (the "indemnifying party"), to the other (the "party to be
indemnified") under Section 5.02 hereof with respect to claims resulting from
the assertion of liability by third parties shall be subject to the following
terms and conditions:
(a) within 20 days after receipt of notice of commencement of any
action or the assertion in writing of any claim by a third party, the party
to be indemnified shall give the indemnifying party written notice thereof
together with a copy of such claim, process or other legal pleading, and
the indemnifying party shall have the right to undertake the defense
thereof by representatives of its own choosing;
(b) in the event that the indemnifying party, by the 30th day after
receipt of notice of any such claim (or, if earlier, by the tenth day
preceding the day on which an answer or other pleading must be served in
order to prevent judgment by default in favor of the person asserting such
claim), does not elect to defend against such claim, the party to be
indemnified will (upon further notice to the indemnifying party) have the
right to undertake the defense, compromise or settlement of such claim on
behalf of and for the account and risk of the indemnifying party, subject
to the right of the indemnifying party to assume the defense of such claim
at any time prior to settlement, compromise or final determination thereof,
provided that the indemnifying party shall be given at least
15 days prior written notice of the effectiveness of any such proposed
settlement or compromise;
(c) anything in this Section 5.03 to the contrary notwithstanding (i)
if there is a reasonable probability that a claim may materially and
adversely affect the indemnifying party other than as a result of money
damages or other money payments, the indemnifying party shall have the
right, at its own cost and expense, to compromise or settle such claim, but
(ii) the indemnifying party shall not, without the prior written consent of
the party to be indemnified, settle or compromise any claim or consent to
the entry of any judgment which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the party to be
indemnified a release from all liability in respect of such claim; and
(d) in connection with any such indemnification, the indemnified party
will cooperate in all reasonable requests of the indemnifying party.
VI. MISCELLANEOUS
SECTION 6.01. RESTRICTIVE LEGENDS. Each Note and each certificate
representing the Conversion Shares and any shares of capital stock received in
respect thereof, whether by reason of a stock split or share reclassification
thereof, a stock dividend thereon or otherwise, and each certificate for any
such securities issued to subsequent transferees of any such certificate shall
be stamped or otherwise imprinted with the legends required to be borne by such
securities by the Registration Rights Agreement, except as expressly provided in
such agreement.
SECTION 6.02. EXPENSES, ETC. The Company shall reimburse WCAS or pay
on its behalf, all reasonable fees and expenses, including the reasonable fees
and expenses of counsel retained by WCAS, in connection with this Agreement and
the transactions contemplated hereby. Such fees and expenses shall be payable at
the Closing and at any Subsequent Closing through the Closing Date.
SECTION 6.03. SURVIVAL OF AGREEMENTS. Except as specifically limited
as provided in Section 5.01 hereto, all covenants, agreements, representations
and warranties made herein shall survive the execution and delivery of this
Agreement and the issuance, sale and delivery of the Notes pursuant hereto,
notwithstanding any investigation made at any time by or on behalf of any party
hereto. All statements contained in any certificate or other instrument
delivered by the Company hereunder shall be deemed to constitute representations
and warranties made by the Company.
SECTION 6.04. PARTIES IN INTEREST. All covenants and agreements
contained in this Agreement by or on behalf of any party hereto shall bind and
inure to the benefit of the respective successors and permitted assigns of such
party hereto whether so expressed or not.
SECTION 6.05. NOTICES. Any notice or other communications required or
permitted hereunder shall be deemed to be sufficient if contained in a written
instrument delivered in person or duly sent by first class certified mail,
postage prepaid, by nationally recognized overnight courier, or by facsimile
addressed to such party at the address or facsimile number set forth below or
such other address or facsimile number as may hereafter be designated in writing
by the addressee to the addressor listing all parties:
if to the Company, to
SAVVIS Communications Corporation
00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxxx
with a copy to
SAVVIS Communication Corporation
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
with a copy to
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxxx, Esq.
if to any Purchaser, to
Welsh, Carson, Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx
with a copy to
Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
or, in any case, at such other address or addresses as shall have been furnished
in writing by such party to the other parties hereto. All such notices,
requests, consents and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of mailing, on the fifth business day following the date of such
mailing, (c) in the case of delivery by overnight courier, on the business day
following the date of delivery to such courier, and (d) in the case of
facsimile, when received.
SECTION 6.06. FURTHER ASSURANCES. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its reasonable best
efforts to take, or cause to be taken, all action and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make effective
as promptly as practicable the transactions contemplated by this Agreement.
SECTION 6.07. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement (including
the Schedules and Exhibits thereto) constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be amended or
modified nor any provisions waived except in a writing signed by the Company and
the Purchasers. This Agreement shall not be assigned without the consent of the
other parties hereto, except that notwithstanding anything in this Agreement to
the contrary, the Purchasers shall be entitled to assign their rights and
obligations under this Agreement to any other Purchaser or entity affiliated
with WCAS Management in their sole discretion. It is understood and agreed that,
in the event of such assignment, each of the assignees shall, at such time,
agree to be a "Purchaser" for all purposes of this Agreement, and the assigning
Purchaser shall not be released from its liabilities under this Agreement.
SECTION 6.08. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 6.09. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflict of laws principles.
SECTION 6.10. AMENDMENTS AND WAIVERS. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege, nor will any waiving of any
right power or privilege operate to waive any other subsequent right, power or
privilege. The rights and remedies herein provided will be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 6.11. TERMINATION OF PRIOR AGREEMENT. The Company, WCAS and
WCAS Management each acknowledge and agree that the conditions to the
obligations of WCAS and WCAS Management to purchase any notes under the Prior
Agreement set forth in Section 4.01 (g), (i), (j) and (k) of the Prior Agreement
were not satisfied and as a result, WCAS and WCAS Management determined not to
consummate the First Closing (as defined in the Prior Agreement) in accordance
with the terms of the Prior Agreement. Furthermore, the Company, WCAS and WCAS
Management agree that the Prior Agreement is hereby terminated and from and
after the date hereof is no longer of any force or effect whether or not the
Closing occurs.
* * * * *
IN WITNESS WHEREOF, the Company and the Purchasers have executed this
Agreement as of the day and year first above written.
SAVVIS COMMUNICATIONS
CORPORATION
By:__________________________________________
Name:
Title:
WELSH, CARSON, XXXXXXXX &
XXXXX VIII, L.P.
By WCAS VIII Associates LLC,
General Partner
By:__________________________________________
Managing Member
WCAS MANAGEMENT CORPORATION
By:__________________________________________
Name:
Title:
Xxxxxx Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xx Xxxxxx
Xxxx X. Xxxxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
D. Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxx X. Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxx X. Xxx
Xxxxxxxx X. Rather
By:__________________________________________
Xxxxxxxx X. Rather
Individually and as Attorney-in-Fact
SCHEDULE I
Purchasers
Principal Amount of
Name Note on Closing Date
--------------------------------------------------------------------------------
Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P............ 19,047,600
Xxxxxx Xxxxxx........................................ 176,800
Xxxxx X. Xxxxxxxx ................................... 176,800
Xxxxxx Xxxx ......................................... 134,400
Xxxxxx X. Xxxxxxxxx ................................. 40,000
Xxxxxxx X. Xx Xxxxxx ................................ 20,000
Xxxx X. Xxxxxxx ..................................... 4,000
Xxxxxxxx X. Xxxxxx .................................. 20,000
Xxxxxxx Xxxxxx ...................................... 6,000
D. Xxxxx Xxxxxxx .................................... 2,000
Xxxxxx Xxxxx ........................................ 2,000
Xxxxx X. Xxxxxxx .................................... 2,000
Xxxx X. Xxxxx ....................................... 2,000
Xxxx X. Xxxxxxx ..................................... 2,000
Xxxx Xxxxxxx ........................................ 2,000
Xxxx X. Xxx ......................................... 800
Xxxxxxxx X. Rather .................................. 2,000
WCAS Management Corporation.......................... 359,600
TOTAL....................................... $20,000,000.00
==============
The address for each of the Purchasers is c/o Welsh, Carson, Xxxxxxxx
& Xxxxx, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000.
SCHEDULE 2.04
AUTHORIZATION OF AGREEMENT
1. The consent of the Company's lenders under the Credit Agreement (as
defined in Section 2.09)
2. Compliance with any applicable requirements of the Marketplace Rules of
the Nasdaq National Market.
SCHEDULE 2.07
MATERIAL LIABILITIES INCURRED BY SAVVIS FROM 12/1/00 TO 1/31/01
OBLIGOR DEBT COMMENTS
----------------------------------------------
Extremenet $ 359,906.56 Capital Lease obligation booked in December.
Balance at 12/3/00-$346,235.42
GE Capital $ 5,961,253.50 Capital Lease obligation booked in December.
Balance at 12/31/00- $5,842,150.14
Astral Point $ 478,380.00 Capital Lease obligation booked in December.
Balance at 12/31/00-$448,905.65
Nortel credit $30,698,774.91 Two drawdowns under facility.
facility One on 12/29/00, One on 1/22/01
--------------
Total $37,498,314.97
==============
SCHEDULE 2.12
An Event of Default (as defined in the Credit Agreement) has occurred
under the Credit Agreement as a result of Bridge filing for bankruptcy
under Chapter 11 of the United States Bankruptcy Code.
