EXHIBIT 10.33
SHARING AGREEMENT AND MUTUAL RELEASE
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This SHARING AGREEMENT AND MUTUAL RELEASE (the "Agreement") dated
January __, 2002 but effective as of the Effective Date (defined below), by and
among Xxxxxx Trust and Savings Bank ("Xxxxxx") in its capacity as administrative
agent for the Lenders (defined below), Xxxxxxx Xxxxx Credit Partners L.P.
("GSCP") in its capacity as syndication agent and lead arranger pursuant to the
Credit Agreement (defined below), Lenders who have executed an acknowledgment
and consent hereto, BIS Administration Inc. (f/k/a Bridge Information Systems,
Inc.) ("Bridge"), and its subsidiaries which have filed bankruptcy cases as
signatories hereto (the "Subsidiaries," together with Bridge, collectively, the
"Debtors"), SAVVIS Communications Corporation, a Missouri Corporation
("SAVVIS"), General Electric Capital Corporation ("GECC"), First Bank ("First
Bank"), Xxxxxx Financial Leasing, Inc. ("Xxxxxx"), Transamerica Equipment
Financial Services Corporation ("Transamerica"), Pilgrim Prime Rate Trust
("Pilgrim") and Highland Capital ("Highland") (GECC, First Bank, Xxxxxx,
Transamerica, Pilgrim and Highland are hereinafter collectively referred to as
the "Lessor Group"), in consideration of and in reference to the following:
RECITALS
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A. On February 15, 0000 (xxx "Xxxxxxxx Xxxx"), xxx Xxxxxx Xxxxxx
Bankruptcy Court for the Eastern District of Missouri (the "Bankruptcy
Court") entered orders for relief in each of the bankruptcy cases filed
by the Debtors, all of which are now being jointly administered under
Case No. 00-00000-000 (collectively, the "Chapter 11 Cases"), pursuant
to the provisions of Chapter 11 of Title 11 of the United States Code
(the "Code"). The Debtors are "debtors-in-possession" as defined in
Code section 1101(1). As of the date hereof, the Debtors remain in
possession of their assets and continue to manage their affairs
pursuant to Code sections 1107 and 1108.
B. Prior to the commencement of the Chapter 11 Cases, the Debtors entered
into that certain Amended and Restated Credit and Guaranty Agreement
dated as of July 7, 1998 (as amended through the date hereof, the
"Prepetition Credit Facility"), among each of the Debtors, either as
borrowers or guarantors, and certain lenders (collectively in such
capacity, the "Prepetition Lenders").
C. Pursuant to the terms of that certain Debtor-in-Possession Credit
Agreement dated February 16, 2001 (as amended through the date hereof,
the "DIP Credit Agreement") and the Final Order Approving Postpetition
Financing Pursuant to 11 U.S.C.ss.364(c) and (d), Granting
Superpriority Liens and Administrative Claims, Authorizing Use of Cash
Collateral and Modifying the Automatic Stay (the "Final DIP Order"),
certain lenders (collectively in such capacity, the "DIP Lenders")
agreed to provide the Debtors with certain post-petition financing up
to $30,000,000, subject to the terms and provisions thereof (the "DIP
Credit Facility"). The DIP Lenders and the Prepetition Lenders are
hereinafter collectively referred to as the "Lenders."
D. Pursuant to the DIP Credit Facility, the Debtors' maximum liability to
the DIP Lenders is $30,000,000, plus interest, fees and other amounts
payable thereunder (collectively, the "DIP Facility Obligation").
E. Pursuant to the Prepetition Credit Facility, as of the Petition Date,
the Debtors owed the Prepetition Lenders approximately $712,000,000,
together with all interest payable thereon through the commencement of
the Chapter 11 Cases, plus all fees and other amounts payable
thereunder (all obligations owed pursuant to the Prepetition Credit
Facility, the "Prepetition Credit Facility Obligations").
F. The DIP Facility Obligation and the Prepetition Credit Facility
Obligations are secured by security interests and liens granted by the
Debtors to the DIP Lenders and Prepetition Lenders, respectively, on a
substantial portion of their assets, excluding, however, all equipment
leased by the Lessor Group to Bridge Information Systems America, Inc.
("BIA") and sublet to various Debtors and to SAVVIS, as set forth in
the Master Lease Documents (defined below).
G. Prior to the commencement of the Xxxxxxx 00 Xxxxx, XXX entered into
that certain Master Lease Agreement dated as of March 18, 1999, as
amended, with GECC, on behalf of itself and the other members of the
Lessor Group (which Master Lease Agreement, together with the schedules
related thereto and certain
guaranties given by certain of the Debtors in connection therewith, as
the same may have been amended, supplemented or otherwise modified
prior to the commencement of the Chapter 11 Cases are hereinafter
collectively called the "Master Lease Documents").
H. The Debtors' obligations under the Master Lease Documents are secured
by duly perfected, first priority security interests in and liens on
all equipment financed thereby (the "Lessor Group's Equipment") and by
an assignment of all of BIA's rights, title and interests in and to
that certain Sublease Agreement dated February 18, 2000 (the "SAVVIS
Sublease") between BIA and SAVVIS, including, without limitation, the
right to receive and collect all rent and other sums payable by SAVVIS
to BIA thereunder (the "SAVVIS Sublease Payments", which together with
the SAVVIS Sublease and the equipment sublet to SAVVIS (the "SAVVIS
Subleased Equipment") are hereinafter collectively called the "Master
Lease Collateral").
I. Pursuant to the Master Lease Documents, as of the Petition Date,
certain of the Debtors owed the Lessor Group approximately
$42,389,185.34 in remaining rents and other lease obligations, together
with all interest payable thereon, late charges, unpaid but earned fees
and other expenses due in connection therewith (all obligations owed
pursuant to the Master Lease Documents, the "Master Lease
Obligations").
J. Since the filing of these Chapter 11 Cases, SAVVIS has made certain of
the SAVVIS Sublease Payments to the Debtors (which are in the aggregate
amount of $3,831,418 (the "Initial Deposit") and are being held by the
Debtors in a segregated account); provided, however, that SAVVIS has
failed to remit all of the payments due. The required amount of the
SAVVIS Sublease Payments and the amount paid by SAVVIS (the difference
defined as the "Escrow Shortfall Amount") are calculated as follows:
Payment Due Date Amount
03/l/01 $ 600,491
04/l/01 $ 592,887
05/l/01 $ 597,167
06/l/01 $ 594,038
07/l/01 $ 594,443
08/1/01 $ 591,771
09/1/01 $ 591,699
10/1/01 $ 593,332
11/l/01 $ 591,317
12/1/01 $ 593,034
01/1/02 $ 590,762
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Total $ 6,530,941
Less SAVVIS Sublease
Payments Held by Debtors $ 3,831,418
============
Escrow Shortfall Amount $ 2,699,523
Additionally, the Lessor Group previously understood that the aggregate
amount of all scheduled rental payments due by SAVVIS to the Debtors
over the term of the SAVVIS Sublease exceeded the amounts listed above
plus those set forth on Exhibit C by $864,000 (the "Sublease Shortfall
Amount"), which SAVVIS disputes.
K. In September 2001, the Debtors sold a substantial portion of their
assets (the "Reuters Acquired Assets") to Reuters America Inc. and
Xxxxxx X.X. (collectively, "Reuters") pursuant to that certain Asset
Purchase Agreement (the "Reuters APA"), free and clear of all liens,
claims or encumbrances. The transaction contemplated by the Reuters APA
is hereinafter referred to as the "Reuters Sale" and the net proceeds
received from the transfer of the Reuters Acquired Assets to Reuters
are hereinafter referred to as the "Reuters Sale Proceeds."
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L. Excluded from the Reuters Sale is BIA's interest in and to the SAVVIS
Sublease, the SAVVIS Sublease Payments, and all rights granted pursuant
thereto and in the SAVVIS Subleased Equipment.
M. At the auction held by the Debtors leading up to the Reuters Sale, GECC
and the other members of the Lessor Group (other than Highland),
submitted written credit bids for their collateral of $36,976,539,
which the Lessor Group asserts was pursuant to and in accordance with
the provisions of Code sections 363(f) and 363(k).
N. Prior to the hearing held on May 3, 2001 to approve the Reuters Sale
(the "Hearing"), the Lessor Group, among others, filed various
objections to said sale, all as more particularly set forth in the
pleadings filed therein.
O. The Debtors, Lenders and the Lessor Group have certain disputes among
them related to the Reuters Sale, including, among other things, the
ability of the Debtors to enter into the Reuters Sale without the
Lessor Group's consent, the value of the Master Lease Collateral, the
appropriate allocation of the Reuters Sale Proceeds, and the effect of
certain credit bids made by certain members of the Lessor Group
pursuant to 11 U.S.C. 363(k) (collectively, the "Disputes"). Due to the
complexities of the various issues presented in the Disputes, and in
order to avoid the inherent uncertainty and expense involved in
litigating said Disputes, the Debtors, the Lenders, the Lessor Group
and SAVVIS believe that it is in their respective best interests to
compromise and settle all of the controversies which now exist among
them including the Disputes, upon the terms and conditions contained
herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the matters set forth above, the
facts and circumstances out of which this Agreement arises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties do hereby covenant, stipulate, acknowledge and agree
as follows:
1. Payments to GECC on Behalf of the Lessor Group. On the Effective Date,
GECC, on behalf of the Lessor Group, shall receive from the Debtors
payment in the amount of $13,500,000 from the Reuters Sale Proceeds
and, in addition, the sum of $1,000,000.
2. SAVVIS Equipment. Effective as of the Effective Date, the Debtors shall
abandon and assign (without any recourse to the Debtors) to GECC, on
behalf of the Lessor Group, all of their rights, titles and interests
in and to the SAVVIS Sublease, the SAVVIS Subleased Equipment, the
SAVVIS Sublease Payments and all other payments due and to become due
from time to time thereunder, including, without limitation, all funds
then held in the Escrow Account (defined below), all free and clear of
all liens, security interests and other encumbrances. In furtherance of
such abandonment, the Debtors shall deliver to GECC, on behalf of the
Lessor Group, a xxxx of sale (substantially in the form attached hereto
as Exhibit A) (the "Xxxx of Sale"), conveying and transferring to GECC,
on behalf of the Lessor Group, its interest in the SAVVIS Subleased
Equipment and all rights incident thereto.
3. Bridge/Lessor Group Escrow Account.
a. Escrow Agreement. Contemporaneous with the final execution
hereof by the Debtors, SAVVIS and GECC, on behalf of the
Lessor Group (the "Execution Date"), such parties, together
with ___________________________________ as escrow agent (the
"Escrow Agent"), shall enter into an escrow agreement
substantially the form attached hereto as Exhibit B (the
"Escrow Agreement").
b. Debtors' Deposits. Within two (2) business days after the
Execution Date (the "Deposit Date"), the Debtors shall deposit
the Initial Deposit into the account created pursuant to the
Escrow Agreement (the "Escrow Account") together with any
additional SAVVIS Sublease Payments falling due before the
Deposit Date (as set forth on the schedule attached hereto as
Exhibit C, the "Payment Schedule") that the Debtors may have
received from SAVVIS. On the Effective Date and subject to its
occurrence, the Debtors shall deposit in the Escrow Account
the sum of
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$2,100,082 (the "Additional Deposit") (comprising $1,799,682
of the Escrow Shortfall Amount and $300,400 of the Sublease
Shortfall Amount) or, alternatively, shall pay such sum to
GECC, on behalf of the Lessor Group, if directed to do so by
GECC in writing. SAVVIS will reimburse Bridge in the amount of
$899,841 upon the earlier to occur of (i) twelve (12) months
from the date on which Debtors deposit $1,799,682 of the
Escrow Shortfall Amount in the Escrow Account or pay such
amount directly to GECC (as applicable), (ii) the closing by
SAVVIS of its new financing, which currently includes Xxxxx
Xxxxxx, but which may include other or different parties, or
(iii) any asset sale by SAVVIS in excess of $5,000,000,
including the same or capital lease of the Xxxxxxxxx facility.
c. SAVVIS Deposits. On or before the Deposit Date, SAVVIS shall
deposit the sum of $899,841 into the Escrow Account and
thereafter will deposit in the Escrow Account all future
SAVVIS Sublease Payments on the due date thereof to the extent
that they are due prior to the Effective Date.
d. SAVVIS Covenants/Remedies. In addition to the foregoing,
SAVVIS hereby covenants and agrees that prior to the Effective
Date, it shall pay to the Escrow Agent, for deposit into the
Escrow Account, (i) all rent on the dates and in the amounts
set forth in the Payment Schedule and (ii) all other sums due
and to become due under the SAVVIS Sublease as set forth
therein. On and after the Effective Date, SAVVIS shall pay to
GECC, on behalf of the Lessor Group, all rent as and when due
and payable under the New Lease (as hereinafter defined), to
the extent such payments were not previously paid by SAVVIS
into the Escrow Account prior to the Effective Date, together
with all sums that become due and payable thereunder. Prior to
the Effective Date, the Debtors shall use commercially
reasonable efforts, including, to the extent permitted by law,
initiating legal action to compel SAVVIS to timely make all
payments due and to become due under the SAVVIS Sublease,
including the rent due pursuant to the Payment Schedule;
provided, however, that (i) except with respect to the Initial
Deposit and the Additional Deposit, the Debtors shall have no
liability to make any payments due or to become due under the
SAVVIS Sublease or the New Lease, (ii) the Lessor Group's only
recourse for failure by SAVVIS to make any payment as and when
due by SAVVIS under the New Lease shall be against SAVVIS
alone and (iii) failure by SAVVIS to make any payment that
becomes due under the New Lease shall in no way affect the
enforceability and/or validity of the other terms and
conditions of this Agreement. All funds deposited in the
Escrow Account shall be held for the benefit of GECC, on
behalf of the Lessor Group, shall constitute "cash collateral"
over which GECC, on behalf of the Lessor Group, shall continue
to hold a duly-perfected first priority lien, and shall not be
distributed except in accordance with this Agreement or by
further order of the Bankruptcy Court.
4. Distribution of Escrow Funds. On the Effective Date, the Debtors and
GECC shall instruct the Escrow Agent to immediately disburse all funds
then on deposit in the Escrow Account (the "Escrow Funds") to GECC, for
the benefit of the Lessor Group. Such disbursement shall be free and
clear of any liens, claims, interests and encumbrances, including that
of the DIP Lenders, if any, and the parties hereto shall take such
actions and execute such documentation as is reasonably necessary to
effectuate such disbursement and carry out the intent hereof.
5. New SAVVIS Lease. Upon the Effective Date, GECC, on behalf of the
Lessor Group and as assignee of all of the Debtors' rights, title and
interests as lessor in, to and under the SAVVIS Sublease, and SAVVIS
shall amend and restate in its entirety the terms of the SAVVIS
Sublease (the "New Lease"), which amendment and restatement shall
replace and supercede in all respects the original SAVVIS Sublease and
the provisions of the New Lease alone shall govern the rights and
duties of the parties thereto with respect to the SAVVIS Subleased
Equipment and SAVVIS' use and possession thereof. The New Lease shall
be in substantially the form attached hereto as Exhibit D, and will at
a minimum provide for a lease term ending August 1, 2002, with the
remaining monthly rental payments being in the amounts and payable upon
the dates specified in Exhibit C attached hereto.
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6. Court Approval/Effective Date/Inclusion in Plan.
a. The parties to this Agreement will cooperate fully with one
another and will use their respective best efforts to secure
entry of an Order (in form and substance substantially similar
to the form of the Approval Order which is attached hereto as
Exhibit E) approving the terms and conditions hereof (the
"Approval Order").
b. The closing shall occur within two (2) business days after the
last to occur of the following: (i) entry of the Approval
Order and expiration of the time to object thereto or, if any
objections are lodged with respect to the Approval Order, the
date on which such objections are overruled or otherwise
resolved (a "Final Order") and (ii) approval by Final Order of
the Bankruptcy Court of payment of at least $14,500,000 of the
Reuters Sale Proceeds to the Prepetition Lenders. At the
closing, the following will contemporaneously occur: (x)
payment to GECC, on behalf of the Lessor Group, by the
Debtors, SAVVIS or the Escrow Agent, as the case may be, of
those amounts set forth in paragraphs 1 and 3 hereof, and (y)
execution and delivery of the Xxxx of Sale and the New Lease.
Notwithstanding anything contained herein to the contrary, the
terms of this Agreement shall become effective and binding on
the parties hereto only upon consummation of the closing
contemplated under this paragraph 6.b and the occurrence of
each of the events described in subsection 6.b.(x) and (y)
(the "Effective Date"). In the event that the Effective Date
has not occurred on or prior to February 15, 2002, this
Agreement shall be null and void.
c. The parties agree that any plan of reorganization proposed by
any of the parties hereto will contain the terms of this
Agreement or will incorporate them by reference to the
Approval Order and this Agreement.
7. Releases/Waivers.
a. Upon the Effective Date, the Lessor Group, the Debtors and the
Lenders (who have executed an acknowledgment and consent
hereto) each shall be deemed to have released and waived any
and all objections, claims, arguments or other allegations
(whether asserted or assertable against the Debtors, the
Lenders (who have executed an acknowledgment and consent
hereto) or the Lessor Group, as the case may be) relating to
the Disputes including, without limitation, to: (i) the
Reuters Sale (including, without limitation, the transfer of
the Reuters Acquired Assets to Reuters), (ii) the Lessor
Group's "credit bid" with respect to the Reuters Acquired
Assets and the Debtors' and Lenders' objections thereto, and
(iii) the value of the Master Lease Collateral. Except as
specifically set forth herein, the Lessor Group shall also be
deemed to have waived any claims, arguments or other
allegations relating to the Shortfall Amount and the Sublease
Shortfall Amount.
b. Upon the Effective Date, GECC, on behalf of the Lessor Group,
shall release their security interest in any and all
collateral including the Master Lease Collateral (other than
the SAVVIS Sublease Lease, SAVVIS Sublease Payments, SAVVIS
Subleased Equipment and the Escrow Funds), the Reuters Sale
Proceeds (other than those amounts payable to it pursuant to
paragraphs 1, 3.b., 3.c. and 4 hereof), and any collateral
granted to either GECC or the Lessor Group as adequate
protection in the Chapter 11 Cases. On the Effective Date,
GECC and the Lessor Group shall be deemed to waive and release
any deficiency claims, or any other claims related to the
Master Lease, in the Chapter 11 Cases.
c. Upon the Effective Date, SAVVIS and the Lessor Group shall be
deemed to have waived and released the Debtors from any and
all claims, allegations, rights, interests or other
liabilities that are in any way related to the Master Lease,
the SAVVIS Sublease or the SAVVIS Sublease Equipment;
provided, however, that nothing herein shall release the
Debtors with respect to their obligation to instruct the
Escrow Agent to deliver the Escrow Funds to GECC, on behalf of
the Lessor Group to the extent required by this Agreement or
to make the Initial Deposit and the Additional Deposit as
required by this Agreement.
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d. Upon the Effective Date and provided SAVVIS makes all payments
as and when due to GECC under the New Lease, the Debtors and
the Lessor Group shall be deemed to have waived and released
SAVVIS from its obligations to make any further scheduled
rental payments due by it under the original SAVVIS Sublease;
provided, however, that the foregoing waiver and release shall
not release or be deemed to release SAVVIS from its
obligations to make all payments as and when due under
paragraphs 3.c. and 3.d. hereof and under the New Lease.
e. From and after the Execution Date, Lessor Group and Debtors
shall each forebear from taking any action against SAVVIS in
respect of any default of SAVVIS and agree not to assert any
claim alleginig a default by SAVVIS in each case that accrued
prior to the Execution Date or that arises from and after the
Execution Date and prior to, but not including, the Effective
Date other than those events the occurrence of which would
constitute a default by SAVVIS under the terms of the New
Lease as if such New Lease were effective as of the Execution
Date; provided, however, the foregoing forbearance shall not
release or be deemed to release SAVVIS from its obligations to
make all payments as and when due under paragraphs 3.c. and
3.d. of this Agreement. Notwithstanding the foregoing, the
forbearance contained in this paragraph 7.e. shall
automatically expire and be of no force and effect in the
event that the Effective Date has not occurred on or before
February 15, 2002.
8. Representations and Warranties. Each party for itself or the specific
party identified below, as the case may be, further represents and
warrants to one another as follows::
a. The Lessor Group is, collectively, the sole and lawful owner
of all right, title and interest in and to every claim and
other matter which is being released or waived by them herein,
and that the Lessor Group and each member thereof, has not
heretofore assigned or transferred, or purported to assign or
transfer, to any person, firm or entity, any such claims or
other matters herein released or waived.
b. Each party has received independent legal advice from
attorneys of that party's choice with respect to the
advisability of executing this Agreement, that the party's
attorney reviewed this Agreement prior to the execution of
this Agreement by the party and discussed the terms of the
Agreement with the party prior to the execution of this
Agreement by the party.
c. Except as expressly stated in this Agreement, no party has
made any statement or representation to any other party
regarding any facts relied upon by said party in entering into
this Agreement, and each party specifically does not rely upon
any statement, representation or promise of any other party in
executing this Agreement or in making the settlement provided
for herein, except as expressly stated in this Agreement.
d. Each party has the full right and authority to enter into this
Agreement and the officer, partner, agent or other
representative executing this Agreement on behalf of it has
the full right and authority to fully submit and bind it to
this Agreement.
e. GECC, on behalf of the Lessor Group, shall notify SAVVIS
promptly after the transfer by any member of the Lessor Group
of its interest under the Master Lease Documents.
9. Cooperation of the Parties/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 Agreement and the transactions
contemplated hereby, including, without limitation and to the extent
necessary, written releases or waivers relative to this Agreement where
a party is deemed to have released or waived a matter by this
Agreement.
10. No Admission of Liability. The settlement and compromises set forth
herein are in the best interest of all of the parties to this Agreement
because of, among other reasons, the substantial risks inherent in and
the significant expenses that would arise from any continued
proceedings with respect to the Disputes. This
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Agreement is in compromise of the Disputes and nothing contained herein
shall be construed or offered as an admission of liability on behalf of
or with respect to any matters which are the subject of the Disputes.
11. Joint Negotiation. This Agreement is a product of negotiation among the
parties and represents jointly conceived, bargained for and agreed upon
language which is mutually determined by the parties to express their
intentions in entering into this Agreement. Any ambiguity or
uncertainty in this Agreement shall be deemed to be caused by or
attributable to all parties hereto collectively. In any action to
enforce or interpret this Agreement, this Agreement shall be construed
in a neutral manner and no term or provision of this Agreement, or this
Agreement as a whole, shall be construed more or less favorably to any
party to this Agreement.
12. Final Agreement. This Agreement is the complete, final and exclusive
statement of all of the agreements, conditions, promises and covenants
among the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous agreements, negotiations,
representations, statements, understandings and discussions among the
parties and/or their respective counsel with respect to the subject
matter covered. There exist no prior or contemporaneous negotiations,
statements, promises or agreements which survive the execution of this
Agreement. To the extent the terms of this Agreement or the Approval
Order differ from the summary of this Agreement which was read into the
record at the Hearing or the terms of the order approving the Reuters
Sale, the terms of this Agreement and the Approval Order shall control.
13. Notices. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing and shall be deemed
to be delivered when actually received by the party in question. All
such notices shall be addressed to the addressee at its address set
forth below or at such other address as such party may have specified
theretofore by notice delivered in accordance with this paragraph and
actually received by the addressee:
(1) If to the Debtors:
BIS Administration, Inc.
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel. No. (000) 000-0000
Attn: Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
with copies to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Citigroup Center
000 Xxxx 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(2) If to the Lessor Group:
General Electric Capital Corporation
000 Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
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with copies to:
Ober, Kaler, Xxxxxx & Xxxxxxx, a
Professional Corporation
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxx/
Xxxxxxx X. Xxxxxxx
and
Xxxxxxx & Xxxxx P.C.
00 Xxxxx Xxxxxxxxx Xxxx.
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
(3) If to Lenders:
Xxxxxxx Sachs Credit Partners L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
with copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: J. Xxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(4) If to SAVVIS:
SAVVIS Communication Corporation
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
with copies to:
Xxxxxxxx Xxxxxx LLP
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxxxxxxx, Esq.
14. Miscellaneous Provisions.
a. Amendments or Modifications. To be legally binding, any
amendment or modification to this Agreement must be in
writing, must refer specifically to this Agreement and must be
signed by a duly-authorized representative of all parties
hereto. The parties hereto will not need further approval of
the Bankruptcy Court before entering into any amendment or
modification to this Agreement and any such amendment or
modification shall otherwise be legally binding absent any
further approval of the Bankruptcy Court so long as the
amendment or modification is in writing, refers specifically
to this Agreement, is signed by a duly-authorized
representative of all parties hereto and does not materially
alter the terms hereof.
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b. Governing Law. The laws of the State of New York and
applicable laws of the United Sates of America shall govern
the validity, enforcement and interpretation of this
Agreement. The venue for any legal action arising out of this
Agreement shall properly and exclusively lie in the Bankruptcy
Court.
c. Binding Effect. This Agreement shall be binding on the parties
and any and all of their purchasers, successors or assigns
including, without limitation, any trustee which may be
appointed in the Chapter 11 Cases or in any future bankruptcy
proceeding involving any of the parties or property which is
the subject of this Agreement.
d. No Waiver of Breach. The failure of any party to require the
performance of any of the terms or provisions of this
Agreement or the waiver by any party of any breach under this
Agreement shall neither prevent a subsequent enforcement of
such term or provision nor be deemed a waiver of any such
subsequent breach.
e. Paragraph Headings. Headings contained in this Agreement are
inserted only as a matter of convenience and in no way define,
limit or extend the scope or intent of this Agreement or any
term or provision hereof.
f. Counterpart Originals. This Agreement may be executed in
several identical counterparts, including execution delivered
by facsimile, each of which, for all purposes, is to be deemed
an original and all of which constitute, collectively, one
agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
dates indicated below as of the effective date stated herein.
Xxxxxx Trust and Savings Bank Xxxxxxx Sachs Credit Partners L.P.
By: /s/ Xxxxxxxx X. XxXxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxxxx X. XxXxxxx Name: Xxxxx X. Xxxxxxxxxx
------------------------------ ------------------------------
Its: Vice President Its: Authorized Signatory
------------------------------- -------------------------------
Bridge Information Systems, Inc. SAVVIS Communications Corporation
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Vice President and Treasurer
------------------------------- -------------------------------
General Electric Capital Corporation First Bank
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxx
------------------------------ ------------------------------
Its: AVP-Capital Funding, Inc. Its: Vice President
------------------------------- -------------------------------
Xxxxxx Financial Leasing, Inc. Transamerica Equipment Financial
Services Corporation
By: By: /s/ Xxx Xxxxx
-------------------------------- --------------------------------
Name: Name: Xxx Xxxxx
------------------------------ ------------------------------
Its: Vice President Its: Vice President
------------------------------- -------------------------------
Pilgrim Prime Rate Trust Highland Capital
By: /s/ Xxxxxx X. Xxxxxx By:
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxxxx Name: Senior Partner of Manager
------------------------------ ------------------------------
Its: Vice President Its: Highland Capital Management, LP
------------------------------- -------------------------------
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By Affixing its signature below, the undersigned Lender or Bridge
Subsidiary acknowledges and agrees to be bound by the terms and conditions of
the above Sharing Agreement and Mutual Release.
BIS America Administration, Inc. BV Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- ------------- -------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
BDC Administration, Inc. BTSS Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
BNI Administration, Inc. BTTI Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
BFAEA Administration, Inc. BIH Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
BTT Administration, Inc. BIS Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
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BHUKAmerica Administration, Inc. BI Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
EJV Brokerage, Inc. TFIS Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- --------------------------------
TLR Holdings Administration, Inc. TPR Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
BIS International Administration TPR Administration, Inc.
Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
BCRB Administration, Inc. BTS Administration, Inc.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Its: Chief Restructuring Officer Its: Chief Restructuring Officer
------------------------------- -------------------------------
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