This AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT (“Amendment”) is entered into as of December 23, 2009 by and among SAVVIS Communications Corporation, a Missouri corporation (“Borrower”),
SAVVIS, Inc., a Delaware corporation (“Holdings”), Wells Fargo Foothill, LLC, as a Lender and as Agent for all Lenders (“Agent”) and the other Lenders party to the Credit Agreement (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, Borrower, Holdings, Agent and Lenders are parties to that certain Amended and Restated Credit Agreement, dated as of December 8, 2008 (as amended, modified and supplemented from time to
time, the “Credit Agreement”; capitalized terms not otherwise defined herein have the definitions provided therefor in the Credit Agreement); and
WHEREAS, Agent, Lenders, Borrower and Holdings have agreed to amend the Credit Agreement as set forth herein;
NOW THEREFORE, in consideration of the mutual conditions and agreements set forth in the Credit Agreement and this Amendment, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendment. Subject to the satisfaction
of the conditions set forth in Section 3 below, and in reliance upon the representations and warranties of Borrower set forth in Section 2 below, the Credit Agreement is amended as follows:
(a) Section 6.1(f) of the Credit Agreement is hereby amended and restated in its entirety as follows:
(f) Indebtedness of up to $213,000,000 (calculated in accordance with GAAP) of Borrower and Holdings under the Data Center
Capital Leases and the Holdings Data Center Capital Lease Guaranties, respectively,
(b) Section 6.3(c) of the Credit
Agreement is hereby amended and restated in its entirety as follows:
(c) Acquire, establish or create any
Subsidiary except pursuant to a Permitted Acquisition and except as otherwise consented to by Agent (which such consent of Agent with respect to this clause (c) shall not be (x) unreasonably withheld or (y) required with respect to
the first ten Subsidiaries established or created after the Closing Date), or
(c) Section 7(d) of the Credit Agreement is hereby amended and restated in its entirety
(d) Capital Expenditures. Permit Capital Expenditures of Holdings, Borrower and their
respective Subsidiaries (other than those Subsidiaries identified on Schedule Q-1) in any fiscal year in an amount less than or equal to, but not greater than,
Fiscal Year 2009
Fiscal Year 2010
Fiscal Year 2011
definition of “Foreign Cash Equivalents” set forth on Schedule 1.1 to the Credit Agreement is hereby amended and restated as follows:
“Foreign Cash Equivalents” means (a) certificates of deposit or bankers’ acceptances maturing within 1 year from the date of acquisition thereof issued by any bank organized
under the laws of a jurisdiction set forth on Schedule F-1 having at the date of acquisition thereof combined capital and surplus of not less than $250,000,000, (b) Deposit Accounts maintained with any bank that satisfies the criteria
described in clause (a) above, and (c) marketable direct obligations issued by the government of any country listed on Schedule F-1 and backed by the full faith and credit of the government of such country in each case
maturing within 1 year from the date of acquisition.
(e) Schedule A-2 to the Credit Agreement is hereby amended and restated
in its entirety as set forth on Schedule A-2 attached hereto.
(f) Schedule D-2 to the Credit Agreement is hereby
amended and restated in its entirety as set forth on Schedule D-2 attached hereto.
(g) Schedule F-1 to the Credit
Agreement is hereby amended and restated in its entirety as set forth on Schedule F-1 attached hereto.
Q-1 to the Credit Agreement is hereby amended and restated in its entirety as set forth on Schedule Q-1 attached hereto.
(i) Schedule 4.6(a) to the Credit Agreement is hereby amended and restated in its entirety as set forth on Schedule 4.6(a) attached hereto.
(j) Schedule 4.7(c) to the Credit Agreement is hereby amended and restated in its entirety as set forth on Schedule 4.7(c) attached hereto.
2. Representations and Warranties. Borrower hereby represents and warrant to Agent and Lenders that:
(a) The execution, delivery and performance of this Amendment, the Consent and Reaffirmation attached hereto and all other documents,
agreements and instruments executed and delivered in connection herewith have been duly authorized by all requisite corporate or limited liability company action on the part of each Loan Party, as applicable;
(b) No Default or Event of Default has occurred and is continuing; and
(c) The representations and warranties set forth in the Credit Agreement, and in the other Loan Documents, as amended to date, are true and
correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of the date hereof, with the same
effect as though made on the date hereof (except to the extent such representations and warranties expressly refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date).
3. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the following conditions precedent (unless
specifically waived in writing by Agent), each to be in form and substance satisfactory to Agent:
(a) Agent shall have
received a fully executed copy of this Amendment and a copy of the Consent and Reaffirmation attached hereto executed by each of SAVVIS, Inc. and SAVVIS Communications International, Inc., together with such other documents, agreements and
instruments as may be requested as required by Agent in connection with this Amendment;
(b) Agent shall have received an
amendment fee in the amount of $25,000 in connection with the execution and delivery of this Amendment by Agent, which fee shall be fully earned, due and payable on the date hereof and nonrefundable when paid;
(c) All proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be reasonably satisfactory to Agent and its legal counsel; and
(d) No Default or Event of
Default shall have occurred and be continuing.
(a) Within 45 days of the date hereof, Borrower shall use commercially reasonable efforts to deliver to Agent a fully executed Collateral
Access Agreement with respect to Borrower’s leased location at 350 East Cermak Road, Chicago, Illinois. Failure to comply with the foregoing shall constitute an immediate Event of Default.
(b) Within 8 days of the date hereof, Borrower shall deliver to Agent a counterpart of the Consent and Reaffirmation attached hereto
executed by SAVVIS Federal Systems, Inc. Failure to comply with the foregoing shall constitute an immediate Event of Default.
(a) Expenses. Each of Borrower and Holdings, jointly and severally, agree to pay on
demand all costs and expenses of Agent in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents
provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of the Credit Agreement as amended hereby.
(b) Governing Law. This Amendment shall be a contract made under and governed by the internal laws of the State of New
(c) Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the
same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Any party delivering an executed
counterpart to this Amendment by telefacsimile or other electronic transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Amendment.
(a) In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Loan Party, on
behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and Lenders, and their successors and assigns, and their present and
former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, each Lender and all such other Persons being hereinafter referred to collectively as the
“Releasees” and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings,
damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, either known or
suspected, both at law and in equity, which any Loan Party or any of their successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any
circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, including, without limitation, for or on account of, or in relation to, or in any way in connection with any of the Credit
Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.
(b) Each Loan Party understands,
acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in
breach of the provisions of such release.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed under
seal and delivered by their respective duly authorized officers on the date first written above.
Communications International, Inc. (1 share)
SAVVIS Europe B.V. (1 share)
SAVVIS Australia Pty. Ltd (1 share)
SAVVIS Hong Kong Limited (1 share)
SAVVIS New Zealand Limited (1 share)
Singapore Company Pte. Ltd. (1 share)
SAVVIS Argentina, S.A.
Communications International, Inc. (0.2%)
SAVVIS do Brasil Ltda.
Communications International, Inc. (5.0%)
SAVVIS Telecomunicacoes Ltda.
SAVVIS do Brasil Ltda. (99.8%)
Jurisdiction of Organization
Authorized Shares of Common Stock
Outstanding Shares of Common Stock
SAVVIS Communications Chile, S.A.
Communications International, Inc. (0.1%)
SAVVIS Mexico, S.A. de C.V.
Communications International, Inc. (1.0%)
SAVVIS France S.A.S.
SAVVIS Germany GmbH
SAVVIS Magyarorszag Tavkozlesi Kft.
SAVVIS Italia S.r.l.
Communications International, Inc. (5.0%)
SAVVIS Poland Sp Zo.o.
SAVVIS Switzerland A.G.
SAVVIS UK Limited
SAVVIS Malaysia Sdn. Bhd
Timothy Lwa (1 share)
SAVVIS Europe B.V.
SAVVIS (South Africa) (Properietary) Limited
SAVVIS Thailand Limited
Gregory W. Freiberg (1 share)
SAVVIS Korea Limited
Republic of Korea
SAVVIS Communications International, Inc. (100%)
CONSENT AND REAFFIRMATION
Each of the undersigned hereby (i) acknowledges receipt of a copy of the foregoing Amendment No. 4 to Amended and Restated Credit
Agreement (the “Amendment”); (ii) consents to Borrower’s execution and delivery of the Amendment; (iii) agrees to be bound by the terms of the Amendment (including without limitation Section 6 of the
Amendment); and (iv) reaffirms that the Loan Documents to which it is a party (and its obligations thereunder) shall continue to remain in full force and effect. Although each of the undersigned has been informed of the matters set forth herein
and have acknowledged and agreed to same, each of the undersigned understands that Agent and Lenders have no obligation to inform any of the undersigned of such matters in the future or to seek any of the undersigned’s acknowledgment or
agreement to future amendments, waivers or consents, and nothing herein shall create such a duty.
IN WITNESS WHEREOF, each of
the undersigned has executed this Consent and Reaffirmation on and as of the date of the Amendment.