EXHIBIT 10.33
FIRST AMENDMENT AND WAIVER dated as of April 18, 2001
(this "Amendment"), to the Credit Agreement dated as of October
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31, 2000(the "Credit Agreement"), among EXODUS COMMUNICATIONS,
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INC., a Delaware corporation (the "Borrower"), the lenders party
thereto (the "Lenders"),THE CHASE MANHATTAN BANK, as
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administrative agent and collateral agent (the "Agent"), and
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CHASE MANHATTAN INTERNATIONAL LIMITED, as London agent
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make
certain loans to the Borrower; and
WHEREAS, the borrower has requested that certain provisions of the Credit
Agreement be modified in the manner provided for in this Amendment, and the
Lenders are willing to amend the Credit Agreement as requested by the Borrower,
subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein
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shall have the meanings given to them in the Credit Agreement, as amended
hereby.
SECTION 2. Amendment of Credit Agreement. Section 1.01 of the Credit
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Agreement is amended by revising the first sentence of the definition of
"Consolidated EBITDA" to read as follows:
"'Consolidated EBITDA' means, for any period, Consolidated Net Income for
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such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated
interest expense for such period, (ii) consolidated income tax expense for
such period, (iii) all amounts attributable to depreciation and amortization
for such period, (iv) any extraordinary charges for such period, (v)
acquisition and reorganization costs associated with the Global Acquisition
not in excess, in the aggregate for all periods, of $65,000,000, (vi) noncash
charges consisting of writedowns during such periods in the carrying value of
portfolio equity investments and (vii) noncash losses during such period
attributable to the ownership by the Borrower and the Restricted
Subsidiaries of Equity Interests in a Person the results of which are
required, in accordance with GAAP, to be consolidated with those of the
Borrower and the Restricted Subsidiaries during such period, provided,
however, that the Borrower and the Restricted Subsidiaries do not own more
than 20% of the outstanding Equity Interests of such Person, and minus
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(b) without duplication, (i) any extraordinary gains during such period, to
the extent included in the determination of such Consolidated Net Income, and
(ii) any cash expenditures made during such period in respect of acquisition
costs in connection with the Global Acquisition referred to in clause (a) (v)
above, but only to the extent the cumulative amount of such cash expenditures
for all periods exceeds $16,000,000."
SECTION 3. Waivers. (a) The Lenders hereby waive compliance with Section
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5.12 of the Credit Agreement to the extent, but only to the extent, of deferring
until June 30, 2001, the date by which Equity Interests of GlobalCenter Pty Ltd
owned by the Borrower and the Restricted Subsidiaries must be pledged pursuant
to the Pledge Agreement (it being understood that no such pledge will be
required if, prior to June 30, 2001, ownership of all such Equity Interests of
GlobalCenter Pty Ltd are transferred to a Foreign Subsidiary in respect of which
the Collateral and Guarantee Requirement has, to the extent applicable, been
satisfied).
(b) The Lenders hereby waive compliance with Section 6.09(a) and 6.09(b) of
the Credit Agreement to the extent, but only to the extent, necessary to permit
the voluntary redemption by the Borrower of the Borrower's 5% Convertible
Subordinated Notes due March 15, 2006 (the "Convertible Notes") for
consideration consisting of shares of common stock of the Borrower or, to the
extent required by the terms of the Convertible Notes, cash.
SECTION 4. Representation and Warranties. The Borrower hereby represents
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and warrants to the Agent and the Lenders as of the date hereof that, after
giving effect to this Amendment:
(a) No Default or Event of Default has occurred and is continuing.
(b) All representations and warranties of the Borrower contained in the
Credit Agreement are true and correct in all material respects as of the date
hereof (expect to the extent that any representation or warranty expressly
relates to an earlier date, in which
case such representation or warranty is true and correct in all material
respects as of such earlier date).
SECTION 5. Effectiveness. This Amendment shall become effective
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as of March 31, 2001, at such time as the Agent shall have received counterparts
hereof duly executed and delivered by the Borrower and the Required Lenders.
SECTION 6. Effect of Amendment. Expect as expressly set forth
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herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders or the Agent under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respect and shall continue in full force and effect. Nothing herein shall be
deemed to entitle any Loan Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreement contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. After the effectiveness of this Amendment, any
reference in any Loan Document to the Credit Agreement shall mean the Credit
Agreement, as modified hereby. This Amendment shall constitute a "Loan Document"
for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 7. Counterparts. This Amendment may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
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AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Expenses. The Borrower agrees to reimburse the
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Administrative Agent for all out-of-pocket expenses in connection with this
Amendment, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their duly authorized officers, all as of the date and
year first above written.
EXODUS COMMUNICATIONS, INC.,
By /s/ X. Xxxxxxxx Case
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Name: X. Xxxxxxxx Case
Title: EVP, Finance, CFO
THE CHASE MANHATTAN BANK
Individually and as Agent,
By /s/ Xxxxxx Xxxxx Xxxxx
___________________________
Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
