EXHIBIT 10.5
AMENDED AND RESTATED LEASE AGREEMENT
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THIS AMENDED AND RESTATED LEASE AGREEMENT ("Lease") dated as of January
25, 2002, by and between GENERAL ELECTRIC CAPITAL COPORATION, FOR ITSELF AND AS
AGENT FOR CERTAIN PARTICIPANTS ("Lessor") and SAVVIS COMMUNICATIONS CORPORATION,
a Missouri corporation ("Lessee").
WHEREAS, Lessor previously entered into a Master Lease Agreement (the
"Original Master Lease") with Bridge Information Systems America, Inc.
("Bridge"), pursuant to which Lessor leased to Bridge certain equipment;
WHEREAS, subsequent thereto Bridge entered into a Sublease Agreement
(the "Sublease") with Lessee, pursuant to which Bridge sublet to Lessee a
portion of said equipment;
WHEREAS, pursuant to that certain Sharing Agreement and Mutual Release
dated January 25, 2002 but effective as of the Effective Date (as defined
therein) (the "Sharing Agreement") and the Stipulation and Order entered by the
United States Bankruptcy Court for the Eastern District of Missouri in
connection therewith, Bridge has abandoned, assigned and sold to Lessor, among
other things, all of its rights, title, and interest in and to the equipment
sublet to Lessee, the Sublease, and all payments due and payable and to become
due and payable by Lessee to Bridge under the Sublease since March 1, 2001; and
WHEREAS, Lessor and Lessee now wish to amend in part and restate in
full the terms of the Sublease, upon which Lessor shall directly lease to Lessee
the Equipment.
NOW, THEREFORE, in consideration of the recitals and the mutual
covenants, representations, warranties, conditions and agreements hereunder
expressed, Lessor and Lessee hereby agree that the terms of the Sublease are
hereby amended and restated in full, as follows:
I. LEASING ARRANGEMENT:
Lessor agrees to lease directly to Lessee, and Lessee agrees to lease
directly from Lessor, the equipment (the "Equipment") described in the equipment
schedule attached hereto as Exhibit A (the "Equipment Schedule"), subject to the
terms and conditions set forth herein and in the Equipment Schedule.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder (the "Rent") and Lessee's right to use
the Equipment hereunder shall commence on the date hereof. The term of the Lease
(the "Term") with respect to any item of the Equipment shall be the period
specified in the Equipment Schedule. If the Term is extended with respect to any
item of Equipment pursuant to the terms hereof, the word "Term" shall be deemed
to refer to all extended terms, and all provisions of the Lease shall apply
during any extended terms, except as otherwise may be specifically provided in
writing.
(b) Rent shall be paid directly to Lessor by wire transfer of
immediately available funds to: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account
Number ▇▇-▇▇▇-▇▇▇, ABA Number ▇▇▇-▇▇▇-▇▇▇, or to such other account as Lessor
may direct in writing; and shall be effective only upon receipt. Payments of
Rent shall be in the amounts set forth in, and due in accordance with, the
provisions of the Equipment Schedule. If Rent is not paid within ten (10) days
of its due date, Lessee agrees to pay to Lessor a late charge of Five Cents
($0.05) per dollar on, and in addition to, the amount of such Rent but not
exceeding the lawful maximum, if any.
III. TAXES:
Lessee shall have no liability for taxes imposed by the United States
of America or any State or political subdivision thereof which are on or
measured by the net income of Lessor. Lessee shall report (to the extent that it
is legally permissible) and pay promptly all other taxes, fees and assessments
due, imposed, assessed or levied against any item of Equipment (or the purchase,
ownership, delivery, leasing, possession, use or operation thereof), this Lease
(or any rentals or receipts hereunder), the Equipment Schedule, Lessor or Lessee
by any foreign, Federal, state or local government or taxing authority during or
related to the term of this Lease, including, without limitation, all license
and registration fees, and all sales, use, personal property, excise, gross
receipts, franchise, stamp or other taxes, imposts, duties and charges, together
with any penalties, fines or interest thereon (all hereinafter called "Taxes").
Lessee shall (i) reimburse Lessor (on an after-tax basis), upon receipt of
written request for reimbursement for any Taxes charged to or assessed against
Lessor; (ii) on request of Lessor, submit to Lessor written evidence of Lessee's
payment of such Taxes, (iii) on all reports or returns show the ownership of the
Equipment in Lessor (for personal property tax purposes, but not federal or
state tax purposes), and (iv) send a copy thereof to Lessor.
IV. REPORTS:
(a) Lessee will notify Lessor in writing, within ten (10) days after
Lessee receives actual notice that any tax or other lien shall have attached to
any item of Equipment, of the full particulars thereof and of the location of
such Equipment on the date of such notification.
(b) Lessee will deliver to Lessor, (i) within ninety (90) days of the
close of each fiscal year of Lessee, Lessee's balance sheet and profit and loss
statement, and statement of cash flows, prepared in accordance with generally
accepted accounting principles consistently applied ("GAAP") certified by a
recognized firm of certified public accountants, (ii) monthly, within forty-five
(45) days of the close of each month of Lessee, in reasonable detail, copies of
Lessee's monthly financial report certified by the chief financial officer of
Lessee, and (iii) such additional information regarding the Equipment or
financial condition of Lessee as Lessor shall from time to time reasonably
request. The reports and certificates required by this Section shall be mailed
to GE Capital/Capital Funding Inc. at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(c) Lessee will permit Lessor to inspect the Equipment and all
maintenance records with respect thereto during normal business hours upon
reasonable notice.
(d) Lessee has not yet been able to verify whether the Equipment is
located at the Equipment Location specified in the Equipment Schedule.
Accordingly, on or prior to January 31, 2002, Lessee shall use commercially
reasonably efforts to complete such verification and to deliver to Lessor a
listing of all Equipment found at a location different than that specified in
the Equipment Schedule, showing the current location thereof and giving the name
of the owner or landlord of each such premises.
(e) Lessee may move the Equipment from its current Location to a new
location within the continental United States provided that, within five (5)
days after the end of each calendar quarter: (i) Lessee shall provide to Lessor
written notice identifying the Equipment which has been relocated during the
immediately preceding calendar quarter, the old Equipment Location and the new
Equipment Location; and (ii) Lessee shall deliver to Lessor such documents and
instruments as reasonably may be required by Lessor in connection with such
relocation, including (without limitation) Uniform Commercial Code Financing
Statements. Upon Lessor's request, Lessee promptly will notify Lessor in writing
of the location of any Equipment as of the date of such notification.
(f) Lessee will promptly and fully report to Lessor in writing if any
Equipment is lost or damaged (where the estimated repair costs would exceed ten
percent (10%) of its then fair market value), or is otherwise involved in an
accident causing personal injury or property damage.
(g) Within thirty (30) days after any request by Lessor, Lessee
will furnish to Lessor a certificate of Lessee stating that it has reviewed the
activities of Lessee and that, to the best of its knowledge, there exists no
Default (as hereinafter defined) or event which, with the giving of notice or
the lapse of time (or both), would become a Default.
V. USE AND MAINTENANCE:
(a) Lessee agrees that the Equipment will be used by Lessee solely in
the conduct of its business and in a manner complying with all applicable
Federal, state and local laws and regulations and any applicable insurance
policies.
(b) Lessee will keep the Equipment free and clear of all liens and
encumbrances other than those claimed by or through Lessor. Lessor will keep the
Equipment free and clear of liens and encumbrances and claimed by or through
Lessor, at Lessor's expense.
VI. SERVICE:
(a) Lessee will, at its sole expense, maintain each item of Equipment
in good operating order, repair, condition and appearance in accordance with
manufacturer's recommendations, normal wear and tear excepted and Lessee's
standard practices (but in no event less than industry practices). Lessee's
maintenance programs shall be subject to review and approval by Lessor, not to
be unreasonably withheld, conditioned or denied. Lessee shall, if at any time
reasonably requested by Lessor, affix in a prominent position on each item of
Equipment plates, tags or other identifying labels showing the interest therein
of Lessor.
(b) Lessee will not, without the prior written consent of Lessor, affix
or install any accessory, equipment or device on any item of Equipment if such
addition will impair the value, originally intended function or use of such
Equipment. All additions, repairs, parts, supplies, accessories, equipment, and
devices furnished, attached or affixed to any item of Equipment which are not
readily removable shall be made only in compliance with applicable law,
including Internal Revenue Service guidelines, shall be free and clear of all
liens, encumbrances or rights of others, and shall become the property of Lessor
and part of the Equipment. Lessee will not, without the prior written consent of
Lessor and subject to such conditions as Lessor may impose for its protection,
affix or install any item of Equipment to or in any other personal or real
property.
(c) Any alterations or modifications to the Equipment that may, at any
time during the term of this Lease, be required to comply with any applicable
law, rule or regulation shall be made at the expense of Lessee.
VII. STIPULATED LOSS VALUE:
Lessee shall promptly and fully notify Lessor in writing if any item of
Equipment shall be or become worn out, lost, stolen, destroyed, irreparably
damaged in the reasonable determination of Lessee, or permanently rendered unfit
for use from any cause whatsoever (such occurrence being hereinafter called a
"Casualty Occurrence"). On the rental payment date next succeeding a Casualty
Occurrence (the "Payment Date"), Lessee shall pay Lessor the sum of (x) the
Stipulated Loss Value of such Equipment calculated in accordance with Annex B to
the Equipment Schedule as of the rental payment date next preceding such
Casualty Occurrence ("Calculation Date") and (y) all rental and other amounts
which are due hereunder as to such item of Equipment as of the Payment Date.
VIII. LOSS OR DAMAGE:
Lessee hereby assumes and shall bear the entire risk of any loss,
theft, damage to, or destruction of, any item of Equipment from any cause
whatsoever from the Effective Date.
IX. INSURANCE.
Lessee agrees, at its own expense, to keep all Equipment insured for
such amounts as specified in the Equipment Schedule and against such hazards as
Lessor reasonably may require, including, but not limited to, insurance for
damage to or loss of such Equipment and liability coverage for personal
injuries, death or property damage arising out of or in connection with the use
of such Equipment, with Lessor named as additional insured and with a loss
payable clause in favor of Lessor with respect to all fire and casualty
policies, irrespective of any breach of warranty or other act or omission of
Lessee. All such policies shall be with companies, and on terms, reasonably
satisfactory to Lessor. Lessee agrees to deliver to Lessor evidence of insurance
reasonably satisfactory to Lessor. No insurance shall be subject to any
co-insurance clause. Lessee hereby appoints Lessor as Lessee's attorney-in-fact
to make proof of loss and claim for insurance, and to make adjustments with
insurers and to receive payment of and execute or endorse all documents, checks
or drafts in connection with payments made as a result of the fire and casualty
insurance policies. Any expense of Lessor in adjusting or collecting insurance
shall be borne by Lessee. Lessee will not make adjustments with insurers except
(i) with respect to claims for damage to any item of Equipment where the repair
costs do not exceed ten percent (10%) of such Equipment's fair market value, or
(ii) with Lessor's written consent. Said policies shall provide that the
insurance may not be altered or canceled by the insurer until after thirty (30)
days' written notice to Lessor. Lessor may, at its option, apply proceeds of the
fire and casualty insurance, in whole or in part, to (i) repair or replace
Equipment or any portion thereof, or (ii) satisfy any obligation of Lessee to
Lessor hereunder.
X. RETURN OF EQUIPMENT:
(a) Unless Lessee exercises its option to purchase the Equipment, upon
any expiration or termination of this Lease or the Equipment Schedule, Lessee
shall promptly, at its own cost and expense: (i) perform any testing and repairs
required to place the affected items of Equipment in the same condition and
appearance as when received by Lessee (reasonable wear and tear excepted) and in
good working order for their originally intended purpose; (ii) if
deinstallation, disassembly or crating is required, cause such items to be
deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is satisfactory to Lessor; and
(iii) return such items, free and clear of all liens and encumbrances other than
those claimed through Lessor, to a location within the continental United States
as Lessor shall direct.
(b) Until Lessee fully has complied with the requirements of subsection
(a) above, Lessee's Rent payment obligation and all other obligations under this
Lease shall continue from month to month notwithstanding any expiration or
termination of the Term. Lessor may terminate such continued leasehold interest
upon ten (10) days' notice to Lessee. In addition to these Rents, Lessor shall
have all of its other rights and remedies available as a result of this
non-performance.
XI. DEFAULT:
(a) Lessor may in writing declare this Lease to be in default
("Default") if: (1) Lessee breaches its obligation to pay Rent or any other sum
when due and fails to cure the breach within ten (10) days; (2) Lessee breaches
any of its insurance obligations under Section IX hereof; (3) Lessee breaches
any of its other obligations hereunder and fails to cure that breach within
thirty (30) days after written notice thereof; (4) any representation or
warranty made by Lessee in connection with this Lease shall be false or
misleading in any material respect; (5) Lessee ceases to do business, liquidates
or is dissolved; (6) any Equipment is illegally used; (7) a petition is filed by
or against Lessee under any bankruptcy or insolvency laws and, if such petition
is filed against Lessee, such petition is not dismissed within ninety (90) days;
(8) Lessee shall have terminated its corporate existence, consolidated with,
merged into, or conveyed or leased substantially all of its assets as an
entirety to any person (such actions being referred to as an "Event"), unless
not less than sixty (60) days prior to such Event: (x) such person is organized
and existing under the laws of the United States or any state, and executes and
delivers to Lessor an agreement containing an effective assumption by such
person of the due and punctual performance of this Lease; and (y) Lessor is
reasonably satisfied as to the creditworthiness of such person; or (9) other
than for the various defaults which now exist and are identified on Schedule XI
hereto, Lessee shall be in default under any other "material obligation" for
borrowed money, for the deferred purchase price of property, or under any lease
agreement, and all cure periods with respect thereto have expired and the holder
thereof has accelerated such obligation or taken any other enforcement action
against Lessee (or any available collateral) with respect to such obligation.
For purposes of subparagraph (9) hereof, the term "material obligation" means
any obligation where the amount payable under such agreement equals or exceeds
$200,000 and is exclusive of any trade payable obligation incurred by the Lessee
in the ordinary course of business.
(b) After Default, at the request of Lessor, Lessee shall comply with
the provisions of Section X(A) hereof. Lessee hereby authorizes Lessor to enter,
with or without legal process, any premises where any item of Equipment is
located and take possession thereof. Lessee shall, without further demand,
forthwith pay to Lessor (i) as liquidated damages for loss of a bargain and not
as a penalty, the Stipulated Loss Value of the Equipment (calculated in
accordance with Annex B to the Equipment Schedule as of the Rent Payment date
next preceding the declaration of default), and (ii) all accrued and unpaid Rent
and other sums then due hereunder. Lessor may, but shall not be required to,
sell the Equipment at private or public sale, in bulk or in parcels, with or
without notice, and without having the Equipment present at the place of sale;
or Lessor may, but shall not be required to, lease, otherwise dispose of or keep
idle all or part of the Equipment; and Lessor may use Lessee's premises for any
or all of the foregoing without liability for rent, costs, damages or otherwise.
The proceeds of sale, lease or other disposition, if any, shall be applied in
the following order of priorities: (1) to pay all of Lessor's costs, charges and
expenses incurred in taking, removing, holding, repairing and selling, leasing
or otherwise disposing of Equipment; then, (2) to the extent not previously paid
by Lessee, to pay Lessor all sums due from Lessee hereunder, then (3) to
reimburse to Lessee any sums previously paid by Lessee as liquidated damages,
and (4) any surplus shall be remitted to Lessee. Lessee shall pay any deficiency
in clauses (1) and (2) forthwith.
(c) In addition to the foregoing rights, after Default, Lessor may
terminate the Lease as to any or all of the Equipment.
(d) The foregoing remedies are cumulative, and any or all thereof may
be exercised in lieu of or in addition to each other or any remedies at law, in
equity, or under statute. Lessee waives notice of sale or other disposition (and
the time and place thereof), and the manner and place of any advertising. If
permitted by law, Lessee shall pay reasonable attorney's fees actually incurred
by Lessor in enforcing the provisions of this Lease and any ancillary documents.
Waiver of any Default shall not be a waiver of any other or subsequent default.
(e) Any default under the terms of any other material agreement between
Lessor or any Participant (as hereinafter defined) or any of their affiliates
giving rise to the termination of such other agreement may be declared by Lessor
a default under this Lease.
XII. ASSIGNMENT:
(a) LESSEE SHALL NOT ASSIGN, MORTGAGE, SUBLET OR HYPOTHECATE ANY
EQUIPMENT OR THE INTEREST OF LESSEE HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT
OF LESSOR.
(b) Lessor may not assign this Lease or the Equipment Schedule to any
party other than a participant under the Original Master Lease without the prior
written consent of Lessee, such consent not to be unreasonably withheld. In the
event of a permitted assignment of the entire Lease, Lessee agrees that it will
pay all Rent and other amounts payable under the Equipment Schedule to the
assignee or as instructed by Lessor. Lessee further agrees to confirm in writing
receipt of a notice of assignment as reasonably may be requested by assignee.
(c) Lessee acknowledges that it has been advised that General Electric
Capital Corporation is acting under this Lease for itself and as agent for
certain third parties (each being herein referred to as a "Participant" and,
collectively, as the "Participants"), and that the interest of the Lessor in
this Lease, the Equipment Schedule, related instruments and documents and/or the
Equipment may be conveyed to, in whole or in part, and may be used as security
for financing obtained from, one or more third parties without the consent of
Lessee (the "Syndication"). Lessee agrees reasonably to cooperate with Lessor in
connection with the Syndication, including the execution and delivery of such
other documents, instruments, notices, opinions, certificates and
acknowledgments as reasonably may be required by Lessor or such Participant;
provided, however, in no event shall Lessee be required to consent to any change
that would adversely affect any of the economic terms of the transactions
contemplated herein nor shall Lessee be obligated to expend any sums or incur
any out-of-pocket expenses to effect such cooperation.
(d) Lessor shall notify Lessee promptly after the transfer by any
Participant of its interest in this Lease and the related documents.
(e) Subject always to the foregoing, this Lease inures to the benefit
of, and is binding upon, the successors and assigns of the parties hereto.
XIII. NET LEASE; NO SETOFF, ETC.:
This Lease is a net lease. Lessee's obligation to pay Rent and other
amounts due hereunder shall be absolute and unconditional. Lessee shall not be
entitled to any abatement or reductions of, or set-offs against, said Rent or
other amounts, including, without limitation, those arising or allegedly arising
out of claims (present or future, alleged or actual, and including claims
arising out of strict tort or negligence of Lessor) of Lessee against Lessor
under this Lease or otherwise. This Lease shall not terminate and the
obligations of Lessee shall not be affected by reason of any defect in or damage
to, or loss of possession, use or destruction of, any Equipment from whatsoever
cause. It is the intention of the parties that Rents and other amounts due
hereunder shall continue to be payable in all events in the manner and at the
times set forth herein unless the obligation to do so shall have been terminated
pursuant to the express terms hereof.
XIV. INDEMNIFICATION:
(a) Lessee hereby agrees to indemnify, save and keep harmless, Lessor,
the Participants, their respective agents, employees, successors and assigns,
from and against any and all losses, damages, penalties, injuries, claims,
actions and suits, including legal expenses of whatsoever kind and nature, in
contract or tort, except those caused by the negligence or willful misconduct of
Lessor or an indemnified party, and including, but not limited to, Lessor's
strict liability in tort, arising out of (i) the selection, manufacture,
purchase, acceptance or rejection of Equipment, the ownership of Equipment
during the Term, and the delivery, lease, possession, maintenance, uses,
condition, return or operation of the Equipment during the Term (including,
without limitation, latent and other defects, whether or not discoverable by
Lessor or Lessee and any claim for patent, trademark or copyright infringement
or environmental damage), or (ii) the condition of Equipment sold or disposed of
after use by Lessee or any employees of Lessee. Lessee shall, upon request,
defend any actions based on, or arising out of, any of the foregoing.
(b) All of Lessor's and Participants' rights, privileges and
indemnities contained in this Section shall survive the expiration or other
termination of this Lease and the rights, privileges and indemnities contained
herein are expressly made for the benefit of, and shall be enforceable by
Lessor, the Participants and their respective successors and assigns.
XV. DISCLAIMER:
LESSEE ACKNOWLEDGES THAT IT HAS SELECTED THE EQUIPMENT WITHOUT ANY
ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR DOES NOT MAKE, HAS NOT
MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE EQUIPMENT LEASED
HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR
WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY,
PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All such risks, as
between Lessor and Lessee, are to be borne by Lessee. Without limiting the
foregoing, Lessor shall have no responsibility or liability to Lessee or any
other person with respect to any of the following: (i) any liability, loss or
damage caused or alleged to be caused directly or indirectly by any Equipment,
any inadequacy thereof, any deficiency or defect (latent or otherwise) therein,
or any other circumstance in connection therewith; (ii) the use, operation or
performance of any Equipment or any risks relating thereto; (iii) any
interruption of service, loss of business or anticipated profits or
consequential damages; or (iv) the delivery, operation, servicing, maintenance,
repair, improvement or replacement of any Equipment. If, and so long as, no
Default exists under this Lease, Lessee shall be, and hereby is, authorized
during the term of this Lease to assert and enforce, at Lessee's sole cost and
expense, from time to time, in the name of and for the account of Lessor, and/or
Lessee, as their interests may appear, whatever claims and rights Lessor may
have against any supplier of the Equipment.
XVI. REPRESENTATIONS AND WARRANTIES OF LESSEE:
Lessee hereby represents and warrants to Lessor that on the date
hereof:
(a) Lessee has adequate power and capacity to enter into, and perform
under, this Lease and all related documents (together, the "Documents") and is
duly qualified to do business wherever necessary to carry on its present
business and operations, including the jurisdiction(s) where the Equipment is or
is to be located.
(b) The Documents have been duly authorized, executed and delivered by
Lessee and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy and
insolvency laws.
(c) No approval, consent or withholding of objections is required from
any governmental authority or instrumentality with respect to the entry into or
performance by Lessee of the Documents except such as have already been
obtained.
(d) The entry into and performance by Lessee of the Documents will not:
(1) violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's articles of incorporation, charter or by-laws; or (ii)
result in any breach of, constitute a default under or result in the creation of
any lien, charge, security interest or other encumbrance upon any Equipment
pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement or other instrument (other than this Agreement) to which Lessee is a
party.
(e) There are no suits or proceedings pending or threatened in court or
before any commission, board or other administrative agency against or affecting
Lessee, which would preclude Lessee from entering into this Lease.
(f) Lessee is and will be at all times validly existing and in good
standing under the laws of the state of its incorporation (specified in the
first sentence of this Agreement) and is in good standing and qualified as a
foreign corporation in (i) each jurisdiction in which the Equipment is or will
be located and (ii) in such jurisdictions where Lessee's ownership or lease of
property or the conduct of its business requires it to be so qualified.
XVII. REPRESENTATIONS AND WARRANTIES OF LESSOR:
Lessor covenants and agrees as follows:
(a) Lessor has adequate power and capacity to enter into, and perform
under, this Lease and the Documents.
(b) The Documents have been duly authorized, executed and delivered by
Lessor and constitute valid, legal and binding agreements, enforceable in
accordance with their terms, except to the extent that the enforcement of
remedies therein provided may be limited under applicable bankruptcy insolvency
laws.
(c) The Equipment is free and clear of all liens and encumbrances
created by Lessor.
XVIII. COVENANTS OF LESSEE:
Lessee covenants and agrees as follows:
(a) Promptly upon any officer or director of Lessee obtaining knowledge
of any Default, provide prompt written notice to Lessor specifying such Default
and what action Lessee is taking or proposes to take with respect thereto.
(b) Lessee will promptly execute and deliver to Lessor such further
documents, instruments and assurances and take such further action as Lessor
from time to time may reasonably request in order to carry out the intent and
purpose of this Lease and to establish and protect the rights and remedies
created or intended to be created in favor of Lessor hereunder.
(c) Lessee will not attach or incorporate any item of Equipment to or
in any other item of equipment or personal property or to or in any real
property in a manner that gives rise to the assertion of any lien, claim or
encumbrance on such item of Equipment by reason of such attachment or the
assertion of a claim that such item of Equipment has become a fixture. Lessee
hereby agrees that it will purchase any such item of Equipment which Lessor
notifies Lessee in writing is subject to the assertion of any such lien, claim
or encumbrance within ten (10) days of such notice.
(e) The Equipment will at all times be used for commercial or business
purposes.
(f) Lessee shall not take any action that would cause a Default under
this Lease or omit to take any action necessary to prevent a breach of this
Lease.
XIX. OWNERSHIP FOR TAX PURPOSES, GRANT OF SECURITY INTEREST; USURY
SAVINGS:
(a) For income tax purposes, Lessor will treat Lessee as the owner of
the Equipment. Accordingly, Lessor will not claim any tax benefits available to
an owner of the Equipment. The parties agree and acknowledge that this
transaction is being treated by the parties as a financing arrangement with
Lessee as the borrower and the owner of the Equipment for federal and state
income tax purposes and neither party shall take any position that is
inconsistent with such treatment.
(b) Lessee hereby grants to Lessor a first priority security interest
in the Equipment, together with all additions, attachments, accessions,
accessories and accessions thereto whether or not furnished by the supplier of
the Equipment and in any and all substitutions, replacements or exchanges
therefor, and in any and all insurance and/or other proceeds of the property in
and against which a security interest is granted hereunder.
(c) It is the intention of the parties hereto to comply with any
applicable usury laws to the extent that the Equipment Schedule is determined to
be subject to such laws; accordingly, it is agreed that, notwithstanding any
provision to the contrary in the Equipment Schedule or this Lease, in no event
shall the Equipment Schedule require the payment or permit the collection of
interest in excess of the maximum amount permitted by applicable law. If any
such excess interest is contracted for, charged or received under the Equipment
Schedule or this Lease, or in the event that all of the principal balance shall
be prepaid, so that under any of such circumstances the amount of interest
contracted for, charged or received under the Equipment Schedule or this Lease
shall exceed the maximum amount of interest permitted by applicable law, then in
such event: (i) the provisions of this paragraph shall govern and control, (ii)
neither Lessee nor any other person or entity now or hereafter liable for the
payment hereof shall be obligated to pay the amount of such interest to the
extent that it is in excess of the maximum amount of interest permitted by
applicable law, (iii) any such excess which may have been collected shall be
either applied as a credit against the then unpaid principal balance or refunded
to Lessee, at the option of the Lessor, and (iv) the effective rate of interest
shall be automatically reduced to the maximum lawful contract rate allowed under
applicable law as now or hereafter construed by the courts having jurisdiction
thereof. It is further agreed that without limitation of the foregoing, all
calculations of the rate of interest contracted for, charged or received under
the Equipment Schedule or this Lease which are made for the purpose of
determining whether such rate exceeds the maximum lawful contract rate, shall be
made, to the extent permitted by applicable law, by amortizing, prorating,
allocating and spreading in equal parts during the period of the full stated
term of the indebtedness evidenced hereby, all interest at any time contracted
for, charged or received from Lessee or otherwise by Lessor in connection with
such indebtedness; provided, however, that if any applicable state law is
amended or the law of the United States of America preempts any applicable state
law, so that it becomes lawful for Lessor to receive a greater interest per
annum rate than is presently allowed, the Lessee agrees that, on the effective
date of such amendment or preemption, as the case may be, the lawful maximum
hereunder shall be increased to the maximum interest per annum rate allowed by
the amended state law or the law of the United States of America.
XX. END OF LEASE PURCHASE OPTION:
So long as (i) no Default exists hereunder, and (ii) the Term has not
been earlier terminated, Lessee may at the expiration of the Term of this Lease,
upon at least one hundred eighty (180) days' prior written notice to Lessor,
purchase all (but not less than all) of the Equipment described in the Equipment
Schedule on an AS IS, WHERE IS BASIS without recourse to or warranty from
Lessor, express or implied, for a purchase price of $1.00 payable to Lessor
(plus all applicable sales taxes). The payment shall be due and payable on the
expiration of the Term of this Lease.
If a Default occurs hereunder, so long as, within fourteen (14) days
after the occurrence of such Default, (i) Lessee gives written notice to Lessor
of Lessee's intent to purchase the Equipment (unless Lessee has previously given
such notice), and (ii) Lessee pays to Lessor all amounts which would otherwise
be due hereunder from the date of such Default through and including the end of
the Term, Lessee may purchase all (but not less than all) of the Equipment
described in the Equipment Schedule on an AS IS, WHERE IS BASIS without recourse
to or warranty from Lessor, express or implied, for a purchase price of $1.00
payable to Lessor (plus all applicable sales taxes), and such payment shall be
due and payable on the expiration of such 14-day perod.
XXI. MISCELLANEOUS:
(a) LESSEE HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS LEASE, THE SHARING AGREEMENT, ANY OF THE RELATED DOCUMENTS, ANY
DEALINGS BETWEEN LESSEE AND LESSOR OR THE LESSOR RELATING TO THE SUBJECT MATTER
OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS
BEING ESTABLISHED BETWEEN LESSEE AND LESSOR. The scope of this waiver is
intended to be all encompassing of any and all disputes that may be filed in any
court (including, without limitation, contract claims, tort claims, breach of
duty claims, and all other common law and statutory claims). THIS WAIVER IS
IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND
THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS LEASE, ANY RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED TRANSACTION. In the event
of litigation, this Agreement may be filed as a written consent to a trial by
the court.
(b) Any cancellation or termination by Lessor, pursuant to the
provision of this Lease, the Equipment Schedule, supplement or amendment hereto,
or the sublease of any Equipment hereunder, shall not release Lessee from any
then outstanding obligations to Lessor hereunder.
(c) All Equipment shall at all times remain personal property of Lessor
regardless of the degree of its annexation to any real property and shall not by
reason of any installation in, or affixation to, real or personal property
become a part thereof.
(d) Time is of the essence of this Lease. Lessor's failure at any time
to require strict performance by Lessee of any of the provisions hereof shall
not waive or diminish Lessor's right thereafter to demand strict compliance
therewith.
(e) Lessee agrees, upon Lessor's request, to execute any instrument
necessary or expedient for filing, recording or perfecting the interest of
Lessor. Lessee hereby specifically permits Lessor to file any financing
statement necessary or expedient for such purpose.
(f) All notices required to be given hereunder shall be in writing,
personally delivered, delivered by overnight courier service, sent by facsimile
transmission (with confirmation of receipt), or sent by certified mail, return
receipt requested, addressed to the other party at its respective address stated
below such party's signature hereto or at such other address as such party shall
from time to time designate in writing to the other party, and shall be
effective from the date of receipt.
(g) This Lease and the Equipment Schedule constitute the entire
agreement between the parties with respect to the subject matter hereof and
shall not be amended or altered in any manner except by a document in writing
executed by both parties. NO VARIATION OR MODIFICATION OF THIS LEASE OR ANY
WAIVER OF ANY OF ITS PROVISIONS OR CONDITIONS, SHALL BE VALID UNLESS IN WRITING
AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE PARTIES HERETO. Any provision
of this Agreement which is 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 hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
(h) The representations, warranties and covenants of Lessee and Lessor
herein shall be deemed to survive the execution of this Lease. The obligations
of Lessee which accrue during the term of this Lease and obligations which by
their express terms survive the termination of this Lease, shall survive the
termination of this Lease.
(i) In case of a failure of Lessee to comply with any provision of this
Lease, Lessor shall have the right, but shall not be obligated, to effect such
compliance, in whole or in part; and all moneys spent and expenses and
obligations incurred or assumed by Lessor in effecting such compliance (together
with interest thereon at the rate specified in subsection (j) of this Section)
shall constitute additional Rent due to Lessor within five (5) days after the
date Lessor sends notice to Lessee requesting payment. Lessor's effecting such
compliance shall not be a waiver of Lessee's default.
(j) Any Rent or other amount not paid to Lessor when due hereunder
shall bear interest, both before and after any judgment or termination hereof,
at the lesser of eighteen percent (18%) per annum or the maximum rate allowed by
law.
(k) Any provisions in this Lease and the Equipment Schedule which are
in conflict with any statute, law or applicable rule shall be deemed omitted,
modified or altered to conform thereto.
(1) So long as no Default shall have occurred and be continuing
hereunder, and conditioned upon Lessee performing all of the covenants and
conditions hereof, as to claims of Lessor or persons claiming under Lessor,
Lessee shall peaceably and quietly hold, possess and use the Equipment during
the Term of this Lease subject to the terms and conditions hereof.
XXII. CHOICE OF LAW; JURISDICTION:
THIS LEASE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT. The parties agree that
any action or proceeding arising out of or relating to this Lease may be
commenced in the United States District Court for the Southern District of New
York.
XXIII. CHATTEL PAPER:
To the extent that the Equipment Schedule would constitute chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest therein may be created through
the transfer or possession of this Lease in and of itself without the transfer
or possession of the original of the Equipment Schedule executed pursuant to
this Lease and incorporating this Lease by reference; and no security interest
in this Lease and the Equipment Schedule may be created by the transfer or
possession of any counterpart of the Equipment Schedule other than the original
thereof, which shall be identified as the document marked "Original" and all
other counterparts shall be marked "Duplicate."
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be duly
executed by their duly authorized representatives as of the date first written
above.
LESSOR LESSEE
GENERAL ELECTRIC CAPITAL SAVVIS COMMUNICATIONS
CORPORATION CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Senior Vice President Chief Financial Officer
Address: Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Schedule XI
1. Events of Default (as defined in the Amended and Restated Credit
Agreement by and among Savvis Communications Corporation, a Missouri
corporation, Savvis Communications Corporation, a Delaware corporation
and Nortel Networks, Inc. dated as of September 5, 2000 as amended by
First Amendment to Amended and Restated Credit Agreement dated as of
May 21, 2001 (collectively known as the "Credit Agreement")), including
payment defaults, have occurred under the Credit Agreement.
2. Defaults by Lessee under that certain Sublease Agreement between the
Lessee and Bridge Information Systems America, Inc. dated as of
February 18, 2000.
3. Defaults or alleged defaults by Lessee under the Ground Lease
Agreement, dated as of February 18, 2000, between Lessee and Bridge
Data Company ("Ground Lease").
4. Defaults or alleged defaults by Lessee under its capital lease facility
with General Electric Capital Corporation.
5. Defaults or alleged defaults by under the Service Agreement, dated
August 15, 1996, between the Company and IXC Carrier, Inc., as amended.
6. Defaults or alleged defaults by under the Long Haul IRU Agreement,
dated as of August 2, 2000, between Lessee and ▇▇▇▇▇ ▇ Communications,
LLC.
7. Defaults or alleged defaults under the Metro IRU Agreement, dated as of
August 2, 2000, between Lessee and ▇▇▇▇▇ ▇ Communications.
8. Alleged breaches and/or alleged defaults by Lessee under its agreements
with Winstar including the Master Agreement, dated as of June 30, 2000.
9. Mechanic's liens of approximately $100,000 have been filed on Lessee's
data center in San Francisco, resulting from nonpayment by Lessee
relative to certain construction at such Data Center, which liens may
constitute an event of default under the Lease, dated as of February
29, 2000, between Lessee and the United States Postal Service.
10. Lessee is in default under an office Lease, dated March 3, 2000,
between Lessee and WXIII/FAR Yale Real Estate Limited Partnership,
relating to property located on ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇.
11. Possible defaults under (i) a Deed of Trust by Lessee in favor of WCAS
Management Corporation as collateral agent dated as of February 19,
2001 as amended and/or (ii) a Deed of Trust by Lessee in favor of
Reuters Holdings Switzerland SA, dated as of May 11, 2001 that may
result from the filing of mechanic's liens against the ground and/or
improvements described in the Ground Lease.
12. Defaults by Lessee under any agreements with BIS Administration, Inc.,
Bridge Information Systems, Inc. or any of its subsidiaries and/or
affiliates and/or with such entities as debtors in possession.
13. Defaults by Lessee under the February, 2001 Convertible Note Agreement
with ▇▇▇▇▇, ▇▇▇▇▇▇ and under the May, 2001 Convertible Note Agreement
with Reuters.
14. Defaults or alleged defaults by Lessee under Master Lease No. 9029
dated June 25, 1996 Schedules No. 0401, 0402, 0404, 0405, 0406, 0407,
0408, 0409, 0410, 0411, 0412, 0413, 0414, 0415, 0416, 0417, 0418, 0601,
0602, 0603, 0604, 0605, 0606, 0607, 0801, 0802, 0803, 0804, 0805, 0806,
0807, 0808, 0809, 0810, 0811, 0812, 0813, 0814, 0701, 0702, 0703, 0704,
0705, 0706, 0708, 0709, 0710, 0711, 0712, 0713 between Lessee and
Ascend Credit Corporation, assigned to Key Equipment Finance
("Lessor").
15. Alleged breaches by Lessee under certain obligations to pay for certain
equipment acquired to or to be acquired by Lessee from Lucent.
16. Defaults or alleged defaults by Lessee under Master Lease Agreement No.
X178 dated August 28, 2000 Schedules No. 01, 02, 03 between Lessee and
Extreme Networks Credit Corporation, assigned to Key Equipment Finance
("Lessor").
EQUIPMENT SCHEDULE
DATED THIS 25th DAY OF JANUARY, 2002
TO AMENDED AND RESTATED LEASE AGREEMENT DATED AS OF JANUARY 25, 2002
Lessor & Mailing Address: Lessee & Mailing Address:
GENERAL ELECTRIC CAPITAL CORPORATION SAVVIS COMMUNICATIONS CORPORATION
CORPORATION
FOR ITSELF AND AS AGENT FOR CERTAIN ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
This Equipment Schedule is executed pursuant to, and incorporates by reference
the terms and conditions of, and capitalized terms not defined herein shall have
the meanings assigned to them in, the Amended and Restated Lease Agreement
identified above ("Agreement;" said Agreement and this Schedule being
collectively referred to as "Lease").
A. Equipment,
----------
Pursuant to the terms of the Lease, Lessor has acquired and agreed to
lease to Lessee the Equipment described on Annex A attached hereto and made a
part hereof.
B. Financial Terms.
----------------
1. Basic Term Commencement Date: The Effective Date.
2. Basic Term: The period commencing on the Base Term
Commencement Date and ending on August 30, 2002.
3. Equipment Location: See addresses on Annex A attached hereto
(subject to the provisions of Article IV(d) of the Agreement).
4. Lessee Federal Tax ID No.: ▇▇-▇▇▇▇▇▇▇.
5. Stipulated Loss Value: See Annex B attached for calculation of
the Stipulated Loss Value of the Equipment.
C. Rent.
----
1 . Commencing on the first day of the month in which the Basic
Term Commencement Date occurs, and on the first day of each month thereafter
(each, a "Rent Payment Date") during the Basic Term, Lessee shall pay as rent
monthly installments of principal and interest, each In the amount set forth on
Annex C attached hereto; provided, however, with respect to the Rental Payment
Date occurring on the first day of the month in which the Basic Term
Commencement Date occurs, the Lessee shall be given credit for any rental
payment made by the Lessee on such date under the Sublease.
As used herein, the following terms shall have the following meanings:
"Business Day" shall mean any day other than Saturday, Sunday, and any
day on which banking institutions located in the States of Missouri or
Connecticut are authorized by law or other governmental action to close.
2. If any Rent Payment Date is not a Business Day, the Rent
otherwise due on such date shall be payable on the next Business Day.
D. Insurance.
---------
1. ISO Commercial General Liability (or its equivalent):
$1,000,000, total liability per occurrence.
2. Casualty and Property Damage: An amount equal to the higher of
the Stipulated Loss Value or the full replacement cost of the Equipment.
This Equipment Schedule is not binding or effective until executed on
behalf of Lessor and Lessee by authorized representatives of Lessor and Lessee,
respectively.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Equipment
Schedule to be executed by their duty authorized representatives as of the date
first above written.
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION, SAVVIS COMMUNICATIONS CORPORATION
FOR ITSELF AND AS AGENT FOR
CERTAIN PARTICIPANTS
By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Senior Vice President Chief Financial Officer
This is counterpart No.__ of a total of 2 counterparts. Only counterpart No. 1
shall be considered chattel paper for purposes of the Uniform Commercial Code
and a security interest may be perfected only by possession of Counterpart No.
1.
Annex B
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Stipulated Loss Values
----------------------
Rental Payment Date Percentage
------------------- ----------
Payment #1 104.9483%
Payment #2 102.8858%
Payment #3 100.8099%
Payment #4 98.7203%
Payment #5 96.6170%
Payment #6 94.4999%
Payment #7 92.3690%
Payment #8 90.2240%
Payment #9 88.0649%
Payment #10 85.8917%
Payment #11 83.7042%
Payment #12 81.5023%
Payment #13 79.3859%
Payment #14 77.0549%
Payment #15 74.8093%
Payment #16 72.5489%
Payment #17 70.2737%
Payment #18 67.9834%
Payment #19 65.6781%
Payment #20 63.3576%
Payment #21 61.0218%
Payment #22 58.6707%
Payment #23 56.3040%
Payment #24 53.9217%
Payment #25 51.5238%
Payment #26 49.1100%
Payment #27 46.6803%
Payment #28 44.2346%
Payment #29 41.7727%
Payment #30 39.2946%
Payment #31 36.8001%
Payment #32 34.3892%
Payment #33 31.7616%
Payment #34 29.2174%
Payment #35 26.6563%
Payment #36 and thereafter 24.0784%
The Stipulated Loss Value of any Item of Equipment is determined by multiplying
the percentage set forth above times the original invoice cost of such Equipment
as set forth an Annex A. The Payment Number for any Item of Equipment Is based
upon the commencement date shown for such Item of Equipment on the Master Lease
Equipment Schedule attached hereto as Exhibit A, notwithstanding the fact that
th0e term of the Agreement commences on the Basic Term Commencement Date, as
defined In the Schedule.
Annex C
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Rental Payments
---------------
Rental Payment Date Amounts
------------------- -------
February 1, 2002 $590,016
March 1, 2002 $592,440
April 1, 2002 $587,908
May 1, 2002 $505,197
June 1, 2002 $503,470
July 1, 2002 $465,649
August 1, 2002 $527,028