EXHIBIT 10.2
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT ("Agreement") dated as of June 30, 2000, is by and
between SAVVIS COMMUNICATIONS CORPORATION, a Delaware corporation ("Debtor")
whose addresses are 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 and 00000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, and whose Tax I.D. No. is 00-0000000,
and NORTEL NETWORKS INC., a Delaware corporation ("Secured Party"), as
Administrative Agent for the "Lenders", as that term is defined below, whose
address is 0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, Xxxxx 00000.
R E C I T A L S:
A. Savvis Communications Corporation, a Missouri corporation ("Borrower")
entered into that certain Credit Agreement dated as of June 30, 2000 with
Debtor, the lenders party thereto (each individually a "Lender" and
collectively, the "Lenders") and Secured Party (such Agreement as it may be
amended, renewed, extended, restated, replaced, substituted, supplemented, or
otherwise modified from time to time is referred to herein as the "Credit
Agreement").
B. Debtor has directly and indirectly benefitted and will directly and
indirectly benefit from the Loans evidenced and governed by the Credit Agreement
and the other transactions evidenced by and contemplated in the Loan Documents.
C. The execution and delivery of this Agreement is required by the terms of
the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, and in order to induce the Lenders to make the Loans under
the Credit Agreement, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Capital Stock" means corporate stock and any and all securities, shares,
partnership interests, limited partnership interests, limited liability company
interests, membership interests, equity interests, participations, rights or
other equivalents (however designated) of corporate stock or any of the
foregoing issued by any entity (whether a corporation, a partnership, a limited
liability company or another entity) and includes, without limitation,
securities convertible into Capital Stock and rights or options to acquire
Capital Stock.
"Collateral" has the meaning specified in Section 2.1.
"Foreign Subsidiary" means each Subsidiary of Debtor that is not domiciled
in the United States and is identified in Section 8.17 of the Credit Agreement,
including, without limitation, the Foreign Subsidiaries set forth on Schedule 2
attached hereto.
"Governmental Authority" means any nation or government, any state,
provincial or political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Instrument" means any "instrument," as such term is defined in Article or
Chapter 9 of the UCC, now owned or hereafter acquired by Debtor, and, in any
event, shall include all promissory notes, drafts, bills of exchange and trade
acceptances of Debtor, whether now owned or hereafter acquired.
"Obligations" means the "Obligations", as such term is defined in the
Credit Agreement, and the obligations, indebtedness and liabilities of Debtor
under this Agreement and any other Loan Document to which Debtor may be a party.
"Person" means any individual, corporation, trust, association, company,
partnership, joint venture, limited liability company, joint stock company,
Governmental Authority or other entity.
"Pledged Shares" means all of the Capital Stock of each Foreign Subsidiary
owned directly or indirectly by Debtor, including without limitation, the
Capital Stock identified on Schedule 2 attached hereto, or on Schedule 1 to an
Amendment; provided, however, in no event shall the Pledged Shares constitute
more than 66% of the Capital Stock of any Foreign Subsidiary.
"Proceeds" means any "proceeds," as such term is defined in Article or
Chapter 9 of the UCC and, in any event, shall include, but not be limited to,
(a) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to Debtor from time to time with respect to any of the Collateral, (b)
any and all payments (in any form whatsoever) made or due and payable to Debtor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any Person acting, or purporting to act, for or on
behalf of any Governmental Authority), and (c) any and all other amounts from
time to time paid or payable under or in connection with any of the Collateral.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York; provided, that if, by applicable law, the perfection or effect of
perfection or non-perfection of the security interest created hereunder in any
Collateral is governed by the Uniform Commercial Code as in effect on or after
the date hereof in any other jurisdiction, "UCC"
means the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such perfection or the effect of
perfection or non-perfection.
Section 1.2 Other Definitional Provisions. Terms used herein that are
defined in the Credit Agreement and are not otherwise defined herein shall have
the meanings therefor specified in the Credit Agreement. References to
"Sections," "subsections," "Exhibits" and "Schedules" shall be to Sections,
subsections, Exhibits and Schedules, respectively, of this Agreement unless
otherwise specifically provided. All definitions contained in this Agreement are
equally applicable to the singular and plural forms of the terms defined. All
references to statutes and regulations shall include any amendments of the same
and any successor statutes and regulations. References to particular sections of
the UCC should be read to refer also to parallel sections of the Uniform
Commercial Code as enacted in each state or other jurisdiction where any portion
of the Collateral is or may be located.
ARTICLE 2
Security Interest
Section 2.1 Security Interest. As collateral security for the prompt
payment and performance in full when due of the Obligations (whether at stated
maturity, by acceleration or otherwise), Debtor hereby pledges and assigns (as
collateral) to Secured Party, and grants to Secured Party a continuing Lien on
and security interest in and to, all of Debtor's right, title and interest in
and to the following, whether now owned or hereafter arising or acquired and
wherever located (collectively, the "Collateral"):
(a) all of the Pledged Shares and certificates, if any, representing the
Pledged Shares, and all dividends, cash, Instruments, and other property from
time to time receivable or otherwise distributed or distributable in respect of
or in exchange for any or all of the Pledged Shares;
(b) all cash and non-cash Proceeds and products of any of the foregoing.
ARTICLE 3
Representations and Warranties
To induce Secured Party and the Lenders to enter into this Agreement and
the other Loan Documents, Debtor represents and warrants that:
Section 3.1 Financing Statements. No financing statement, security
agreement or other Lien instrument covering all or any part of the Collateral is
on file in any public office, except as may have been filed in favor of Secured
Party pursuant to this Agreement and except for financing
statements evidencing Permitted Liens. Except as otherwise disclosed on Schedule
1 hereto, Debtor does not do business and has not done business within the past
five (5) years under a trade name or any name other than its legal name set
forth at the beginning of this Agreement.
Section 3.2 Principal Place of Business. The principal place of business
and chief executive office of Debtor, and the office where Debtor keeps its
books and records, is located at the address of Debtor shown at the beginning of
this Agreement.
Section 3.3 Delivery of Collateral. Debtor has delivered to Secured Party,
endorsed in blank as appropriate, all Collateral the possession of which is
necessary to perfect the security interest of Secured Party therein.
Furthermore, promptly upon Debtor gaining any rights in any additional such
Collateral, Debtor shall deliver to Secured Party such additional Collateral
endorsed in blank as appropriate.
Section 3.4 Title. The Pledged Shares have been duly authorized and validly
issued and are fully paid and nonassessable under the laws of the jurisdiction
of incorporation or organization of the issuers thereof. Debtor is the legal and
beneficial owner of the Pledged Shares, free and clear of any Lien (other than
Permitted Liens), and Debtor has not sold, granted any option with respect to,
assigned, transferred or otherwise disposed of any of its rights or interest in
or to the Pledged Shares.
Section 3.5 Benefit. Debtor expects to derive substantial benefit (and
Debtor may reasonably be expected to derive substantial benefit), directly and
indirectly, from the Loans and the other transactions contemplated by the Credit
Agreement. Debtor will receive reasonably equivalent value in exchange for the
Collateral being provided by it pursuant to the Loan Documents to which it is a
party as security for the payment and performance of the Obligations.
ARTICLE 4
Covenants
Debtor covenants and agrees with Secured Party that until the Obligations
are paid and performed in full, the obligations of Secured Party under the Loan
Documents and all Commitments of the Lenders have expired or have been
terminated:
Section 4.1 Encumbrances. Debtor shall not create, permit or suffer to
exist, and shall defend all Capital Stock of any Foreign Subsidiary (including
the Collateral) against, any Lien or other encumbrance on such Capital Stock
(including the Collateral) except for Permitted Liens, and shall defend Debtor's
rights in and to such Capital Stock (including the Collateral) and Secured
Party's pledge and collateral assignment of and security interest in and to such
Capital Stock (including the Collateral) against the claims and demands of all
Persons. Debtor shall do nothing to impair the rights of Secured Party in and to
all Capital Stock of any Foreign Subsidiary (including the Collateral).
Section 4.2 Further Assurances. At any time and from time to time, upon the
request of Secured Party, and at the sole expense of Debtor, Debtor shall
promptly execute and deliver all such further agreements, documents, and
instruments and take such further action as Debtor may deem necessary or
appropriate to preserve and perfect its security interest in and pledge and
collateral assignment of the Collateral and carry out the provisions and
purposes of this Agreement or to enable Secured Party to exercise and enforce
its rights and remedies hereunder with respect to any of the Collateral. Without
limiting the generality of the foregoing, Debtor shall, subject to the terms of
the Credit Agreement, (a) execute and deliver to Secured Party such financing
statements as Secured Party may from time to time require, (b) take such action
as Secured Party may request to permit Secured Party to have control over any
Collateral, (c) deliver to Secured Party all Collateral the possession of which
is necessary to perfect the security interest therein, duly endorsed and/or
accompanied by duly executed instruments of transfer or assignment, all in form
and substance reasonably satisfactory to Secured Party; and (d) execute and
deliver to Secured Party such other agreements, documents, and instruments as
Secured Party may require to perfect and maintain the validity, effectiveness,
and priority of the Liens intended to be created by this Agreement or any other
Loan Document. In the event Debtor fails, upon request of Secured Party, to
promptly (and in any event within two days of such request) execute and file one
or more financing or continuation statements, and/or amendments thereto,
relating to all or any part of the Collateral, Debtor authorizes Secured Party
to file such financing or continuation statements, and/or amendments thereto
without the signature of Debtor where permitted by law. A carbon, photographic
or other reproduction of this Agreement or of any financing statement covering
the Collateral or any part thereof shall be sufficient as a financing statement
and may be filed as a financing statement.
Section 4.3 Corporate Changes. Debtor shall not change its name, identity
or corporate structure in any manner that might make any financing statement
filed in connection with this Agreement seriously misleading unless Debtor shall
have given Secured Party thirty (30) days prior written notice thereof and shall
have taken all action deemed necessary or appropriate by Secured Party to
protect its Liens and the perfection and priority thereof. Debtor shall not
change its principal place of business, chief executive office or the place
where it keeps its books and records unless it shall have given Secured Party
thirty (30) days prior written notice thereof and shall have taken all action
deemed necessary or appropriate by Secured Party to cause its security interest
in the Collateral to be perfected with the priority required by this Agreement.
Section 4.4 Notification. Debtor shall promptly notify Secured Party of (a)
any Lien, encumbrance or claim (other than Permitted Liens) that has attached to
or been made or asserted against any of the Collateral, (b) any material change
in any of the Collateral, including, without limitation, any material damage to
or loss of Collateral, and (c) the occurrence of any other event or condition
(including, without limitation, matters as to Lien priority) that could have a
Material Adverse Effect on the Collateral or the security interest created
hereunder.
Section 4.5 Voting Rights; Distributions, Etc. So long as no Event of
Default shall have occurred and be continuing, Debtor shall be entitled to
exercise any and all voting and other consensual rights (including, without
limitation, the right to give consents, waivers, and notifications) pertaining
to any of the Pledged Shares; provided, however, that without the prior
written consent of Secured Party no vote shall be cast or consent, waiver, or
ratification given or action taken which would be inconsistent with or violate
any provision of this Agreement or any other Loan Document.
Section 4.6 Transfers and Other Liens; Additional Investments.
(a) Except as may be expressly permitted by the terms of the Credit
Agreement, Debtor shall not grant any option with respect to, exchange, sell or
otherwise dispose of any of the Collateral or create or permit to exist any Lien
upon or with respect to any of the Collateral except for the Liens created
hereby and Permitted Liens.
(b) Debtor agrees that it will (i) cause each issuer of any of the Pledged
Shares not to issue any Capital Stock, notes or other securities or instruments
in addition to or in substitution for any of the Pledged Shares, except, (A) as
required by Section 8.17 of the Credit Agreement or (B) otherwise with the prior
written consent of Secured Party, to Debtor; (ii) pledge hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any and all such Capital
Stock (but in any event not more than 66% of the Capital Stock of any Foreign
Subsidiary), notes or other securities or instruments, and (iii) promptly (and
in any event within three Business Days) deliver to Secured Party an Amendment,
duly executed by Debtor, in substantially the form of Exhibit A (an
"Amendment"), in respect of such Capital Stock, notes or other securities or
instruments, together with all certificates, notes or other securities or
instruments representing or evidencing the same. Debtor hereby (1) authorizes
Secured Party to attach each Amendment to this Agreement, (2) agrees that all
such Capital Stock, notes or other securities or instruments listed on any
Amendment delivered to Secured Party shall for all purposes hereunder constitute
Pledged Shares, and (3) is deemed to have made, upon such delivery, the
representations and warranties contained in Article 3 with respect to such
Pledged Shares.
ARTICLE 5
Rights of Secured Party
Section 5.1 Power of Attorney. Debtor hereby irrevocably constitutes and
appoints Secured Party and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney_in_fact with full irrevocable
power and authority in the name of Debtor or in its own name, to take after the
occurrence and during the continuance of an Event of Default and from time to
time thereafter, any and all action and to execute any and all documents and
instruments which Secured Party at any time and from time to time deems
necessary or desirable to accomplish the purposes of this Agreement and, without
limiting the generality of the foregoing, Debtor hereby gives Secured Party the
power and right on behalf of Debtor and in its own name to do any of the
following after the occurrence and during the continuance of an Event of
Default, without notice to or the consent of Debtor:
(a) to demand, xxx for, collect or receive, in the name of Debtor or in its
own name, any money or property at any time payable or receivable on account of
or in exchange for any of the Collateral and, in connection therewith, endorse
checks, notes, drafts, acceptances, money orders, documents of title or any
other instruments for the payment of money under the Collateral;
(b) to pay or discharge taxes, Liens or other encumbrances levied or placed
on or threatened against the Collateral;
(c) (i) to receive payment of and receipt for any and all monies, claims
and other amounts due and to become due at any time in respect of or arising out
of any Collateral; (ii) to sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, proxies, stock powers, verifications and notices in connection with
accounts and other documents relating to the Collateral; (iii) to commence and
prosecute any suit, action or proceeding at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof and to
enforce any other right in respect of any Collateral; (iv) to defend any suit,
action or proceeding brought against Debtor with respect to any Collateral; (v)
to settle, compromise or adjust any suit, action or proceeding described above
and, in connection therewith, to give such discharges or releases as Secured
Party may deem appropriate; (vi) to add or release any guarantor, indorser,
surety or other party to any of the Collateral; (vii) to make, settle,
compromise or adjust any claims under or pertaining to any of the Collateral;
and (viii) to sell, transfer, pledge, convey, make any agreement with respect to
or otherwise deal with any of the Collateral as fully and completely as though
Secured Party were the absolute owner thereof for all purposes, and to do, at
Secured Party's option and Debtor's expense, at any time, or from time to time,
all acts and things which Secured Party deems necessary to protect, preserve,
maintain or realize upon the Collateral and Secured Party's security interest
therein.
This power of attorney is a power coupled with an interest and shall be
irrevocable until this Agreement is terminated in accordance with its terms.
Secured Party shall be under no duty to exercise or withhold the exercise of any
of the rights, powers, privileges and options expressly or implicitly granted to
Secured Party in this Agreement, and shall not be liable for any failure to do
so or any delay in doing so. Neither Secured Party nor any Person designated by
Secured Party shall be liable for any act or omission or for any error of
judgment or any mistake of fact or law, except for failure to exercise
reasonable care in the custody and preservation of the Collateral in its
possession. This power of attorney is conferred on Secured Party solely to
protect, preserve, maintain and realize upon its security interest in the
Collateral. Secured Party shall not be responsible for any decline in the value
of the Collateral and shall not be required to take any steps to preserve rights
against prior parties or to protect, preserve or maintain any Lien given to
secure the Collateral.
Section 5.2 Assignment by Secured Party. In accordance with the provisions
of the Credit Agreement, any of Secured Party and the Lenders may at any time
assign or otherwise transfer all or any portion of its rights and obligations
under this Agreement and the other Loan Documents
(including, without limitation, the Obligations), in connection with an
assignment of the Obligations, to any other Person, and such other Person shall
thereupon become vested with all the benefits thereof granted to Secured Party
and the Lenders, respectively, herein or otherwise.
Section 5.3 Performance by Secured Party. If Debtor shall fail to perform
any covenant or agreement contained in this Agreement, Secured Party may perform
or attempt to perform such covenant or agreement on behalf of Debtor. In such
event, Debtor shall, at the request of Secured Party, promptly pay any amount
expended by Secured Party in connection with such performance or attempted
performance to Secured Party, together with interest thereon at the Default Rate
from and including the date of such expenditure to but excluding the date such
expenditure is paid in full. Notwithstanding the foregoing, it is expressly
agreed that Secured Party shall not have any liability or responsibility for the
performance of any obligation of Debtor under this Agreement.
ARTICLE 6
Default
Section 6.1 Rights and Remedies. If an Event of Default shall have occurred
and be continuing, Secured Party shall have the following rights and remedies
with respect to the Collateral:
(a) In addition to all other rights and remedies granted to Secured Party
in this Agreement or in any other Loan Document or by applicable law, Secured
Party shall have all of the rights and remedies of a secured party under the UCC
(whether or not the UCC applies to the affected Collateral) and Secured Party
may also, without notice except as specified below, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any exchange,
broker's board or at any of Secured Party's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as Secured Party may
deem commercially reasonable or otherwise as may be permitted by law. Without
limiting the generality of the foregoing, Secured Party may (i) without demand
or notice to Debtor, collect, receive or take possession of the Collateral or
any part thereof and for that purpose Secured Party may enter upon any premises
on which the Collateral is located and remove the Collateral therefrom or render
it inoperable, and/or (ii) sell, lease or otherwise dispose of the Collateral,
or any part thereof, in one or more parcels at public or private sale or sales,
at Secured Party's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as Secured Party may deem commercially
reasonable or otherwise as may be permitted by law. Secured Party shall have the
right at any public sale or sales, and, to the extent permitted by applicable
law, at any private sale or sales, to bid (which bid may be, in whole or in
part, in the form of cancellation of indebtedness) and become a purchaser of the
Collateral or any part thereof free of any right or equity of redemption on the
part of Debtor, which right or equity of redemption is hereby expressly waived
and released by Debtor. Upon the request of Secured Party, Debtor shall assemble
the Collateral and make it available to Secured Party at any place designated by
Secured Party that is reasonably convenient to Debtor and Secured Party. Debtor
agrees that Secured Party shall not be obligated
to give more than five (5) days prior written notice of the time and place of
any public sale or of the time after which any private sale may take place and
that such notice shall constitute reasonable notice of such matters. Secured
Party shall not be obligated to make any sale of Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of Collateral
may have been given. Secured Party may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. Debtor shall be liable for all expenses of retaking, holding,
preparing for sale or the like, and all attorneys' fees, legal expenses and
other costs and expenses incurred by Secured Party in connection with the
collection of the Obligations and the enforcement of Secured Party's rights
under this Agreement. Debtor shall remain liable for any deficiency if the
Proceeds of any sale or other disposition of the Collateral applied to the
Obligations are insufficient to pay the Obligations in full. Secured Party may
apply the Collateral against the Obligations in such order and manner as Secured
Party may elect in its sole discretion. Debtor waives all rights of marshaling,
valuation and appraisal in respect of the Collateral. Any cash held by Secured
Party as Collateral and all cash proceeds received by Secured Party in respect
of any sale of, collection from or other realization upon all or any part of the
Collateral may, in the discretion of Secured Party, be held by Secured Party as
collateral for, and then or at any time thereafter applied in whole or in part
by Secured Party against, the Obligations in such order as Secured Party shall
select. Any surplus of such cash or cash proceeds and interest accrued thereon,
if any, held by Secured Party and remaining after payment in full of all the
Obligations shall be paid over to Debtor or to whomsoever may be lawfully
entitled to receive such surplus; provided that Secured Party shall have no
obligation to invest or otherwise pay interest on any amounts held by it in
connection with or pursuant to this Agreement.
(b) Secured Party may exercise any and all rights and remedies of Debtor
under or in respect of the Collateral, including, without limitation, any and
all rights of Debtor to demand or otherwise require payment of any amount under,
or performance of any provision of, any of the Collateral and any and all voting
rights and corporate powers in respect of the Collateral.
(c) Secured Party may collect or receive all money or property at any time
payable or receivable on account of or in exchange for any of the Collateral,
but shall be under no obligation to do so.
(d) On any sale of the Collateral, Secured Party is hereby authorized to
comply with any limitation or restriction with which compliance is necessary, in
the view of Secured Party's counsel, in order to avoid any violation of
applicable law or in order to obtain any required approval of the purchaser or
purchasers by any applicable Governmental Authority, including without
limitation, with respect to any applicable securities laws which may, among
other things, restrict the manner of sale or eligibility of certain purchasers
of the Collateral.
(e) Secured Party may cause any or all of the Collateral held by it to be
transferred into the name of Secured Party or the name or names of Secured
Party's nominee or nominees.
ARTICLE 7
Miscellaneous
Section 7.1 No Waiver; Cumulative Remedies. No failure on the part of
Secured Party to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 7.2 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of Debtor and Secured Party and their respective heirs,
successors and permitted assigns, except that Debtor may not assign any of its
rights, indebtedness, liabilities or obligations under this Agreement without
the prior written consent of Secured Party.
Section 7.3 Entire Agreement; Amendment. THIS AGREEMENT EMBODIES THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR
VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
THE PARTIES HERETO.
Section 7.4 Notices. All notices and other communications provided for in
this Agreement shall be given or made by telecopy or in writing and telecopied,
mailed by certified mail return receipt requested, or delivered to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof, or, as to any party, at such other address as shall be designated
by such party in a notice to the other party given in accordance with this
Section 7.4. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopy or when personally delivered or, in the case of a mailed notice, three
(3) Business Days after deposit in the mails, in each case given or addressed as
aforesaid; provided, however, that notices to Secured Party shall be deemed
given when received by Secured Party.
Section 7.5 Governing Law; Submission to Jurisdiction; Service of Process.
EXCEPT AS MAY BE EXPRESSLY STATED TO THE CONTRARY IN THE CREDIT AGREEMENT, THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES) AND EACH
OF THE PARTIES
HERETO CHOOSE THE LAWS OF THE STATE OF NEW YORK TO GOVERN THIS AGREEMENT
PURSUANT TO N.Y. GEN. OBLIG. LAW SECTION 5-1401 (CONSOL. 1995) AND APPLICABLE
LAWS OF THE U.S. DEBTOR HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF EACH
OF (1) THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, (2) ANY
NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK, (3) THE U.S. DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS, AND (4) ANY TEXAS STATE COURT SITTING IN
DALLAS, COUNTY, TEXAS, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF
OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. DEBTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF
SUCH PROCESS TO DEBTOR AT ITS ADDRESS FOR NOTICES SET FORTH UNDERNEATH ITS
SIGNATURE HERETO. DEBTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
Section 7.6 Headings. The headings, captions and arrangements used in this
Agreement are for convenience only and shall not affect the interpretation of
this Agreement.
Section 7.7 Survival of Representations and Warranties. All representations
and warranties made in this Agreement or in any certificate delivered pursuant
hereto shall survive the execution and delivery of this Agreement, and no
investigation by Secured Party shall affect the representations and warranties
or the right of Secured Party to rely upon them.
Section 7.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 7.9 Waiver of Bond. In the event Secured Party seeks to take
possession of any or all of the Collateral by judicial process, Debtor hereby
irrevocably waives any bonds and any surety or security relating thereto that
may be required by applicable law as an incident to such possession, and waives
any demand for possession prior to the commencement of any such suit or action.
Section 7.10 Severability. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.11 Construction. Debtor and Secured Party acknowledge that each
of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by Debtor and Secured
Party.
Section 7.12 Termination. If all of the Obligations shall have been paid
and performed in full and all Commitments of the Lenders shall have expired or
terminated, Secured Party shall, upon the written request of Debtor, promptly
execute and deliver to Debtor a proper instrument or instruments acknowledging
the release and termination of the security interests created by this Agreement,
and shall duly assign and deliver to Debtor (without recourse and without any
representation or warranty, except as may be set forth in Section 5.1) such of
the Collateral as may be in the possession of Secured Party and has not
previously been sold or otherwise applied pursuant to this Agreement.
Section 7.13 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND EXPRESSLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF SECURED
PARTY IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
DEBTOR:
-------
SAVVIS COMMUNICATIONS CORPORATION,
a Delaware corporation
By:/s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
Address for Notices:
--------------------
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
00000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy which shall not constitute notice to:
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECURED PARTY:
--------------
NORTEL NETWORKS INC.,
as Administrative Agent
By:/s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director, Customer Finance Americas
Address for Notices:
--------------------
Nortel Networks Inc.
Mail Stop 991 15 A40
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxx
Director, Customer Finance Americas
Telephone: 000-000-0000
Telecopy: 000-000-0000
and
Nortel Networks Inc.
Mail Stop 468/05/B40
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxxx Xxx
Director, Loan Administration
Telephone: 000-000-0000
Telecopy: 000-000-0000