EXHIBIT 10.3
SECURITY AGREEMENT
THIS INSTRUMENT GRANTS A SECURITY INTEREST BY A UTILITY
THIS INSTRUMENT CONTAINS AN AFTER-ACQUIRED PROPERTY PROVISION
THIS SECURITY AGREEMENT ("Agreement") dated as of June 30, 2000, is by
and between SAVVIS COMMUNICATIONS CORPORATION, a Missouri corporation ("Debtor")
whose addresses are 12007 Sunrise Valley Drive, Reston, Virginia 20191 and 12851
Worldgate Drive, Herndon, Virginia 20170, and whose Tax I.D. No. is 43-1727675,
and NORTEL NETWORKS INC., a Delaware corporation ("Secured Party"), as
Administrative Agent for the "Lenders", as that term is defined below, whose
address is 2221 Lakeside Blvd., Richardson, Texas 75082.
R E C I T A L S:
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A. Debtor entered into that certain Credit Agreement, concurrently
herewith, with Savvis Communications Corporation, a Delaware corporation
("Holdings"), 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. The execution and delivery of this Agreement is required by the
terms of the Credit Agreement and is a condition to the availability of the
Loans to Debtor pursuant to 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:
"Collateral" has the meaning specified in Section 2.1.
"Document" means any "document," as such term is defined in
Article or Chapter 9 of the UCC, now owned or hereafter acquired by
Debtor, including, without limitation, all documents of title and all
receipts covering, evidencing or representing goods now owned or
hereafter acquired by Debtor.
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"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.
"Master Purchase Agreement" means the certain Nortel Networks
Global Purchase Agreement dated as of June 30, 2000, by and between the
Debtor and Nortel Networks, as amended, supplemented or restated from
time to time.
"Nortel Networks" means Nortel Networks Inc., a Delaware
corporation.
"Nortel Networks Equipment" means all hardware, software and
equipment (including fixtures) manufactured, sold or otherwise provided
to Debtor or any Subsidiary of Holdings by Nortel Networks and/or
Nortel Networks Corporation pursuant to the Master Purchase Agreement.
"Nortel Networks Software" means any and all software sold or
licensed by Nortel Networks and/or Nortel Networks Corporation to
Debtor or any Subsidiary of Holdings pursuant to the Master Purchase
Agreement.
"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.
"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.
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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 Nortel Networks Equipment purchased under the Master
Purchase Agreement with proceeds of the Loans, and any and all substitutions and
replacements of any of the foregoing, wherever located and whether the same
constitute personal property or fixtures, together with all components and parts
installed directly therein or directly thereon;
(b) all Nortel Networks Software purchased or licensed under
the Master Purchase Agreement with proceeds of the Loans;
(c) 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 Title. Debtor is, and with respect to Nortel Networks
Equipment acquired after the date hereof Debtor will be, the legal and
beneficial owner of the Nortel Networks Equipment free and clear of any Lien or
other encumbrance, except for Permitted Liens and Liens in favor of Secured
Party.
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Section 3.2 Financing Statements. Debtor has not signed any financing
statement, security agreement or other Lien instrument covering all or any part
of the Collateral, except 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 3.3 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 addresses of Debtor shown at the
beginning of this Agreement.
Section 3.4 Location of Collateral. All Collateral owned by the Debtor
is located in the United States at the locations listed on Schedule 2. Debtor
has exclusive possession and control of its Collateral.
Section 3.5 Perfection. Upon the filing of Uniform Commercial Code
financing statements in the jurisdictions listed on Schedule 2, the security
interest in favor of Secured Party created herein will constitute a valid and
perfected Lien upon and security interest in the Collateral, subject to no equal
or prior Liens except for those (if any) which constitute Permitted Liens,
except to the extent a filing against fixtures would be required to be made in a
location other than the filing offices and jurisdictions listed on Schedule 2
and to the extent that a filing against fixtures in the filing offices and
jurisdictions listed on Schedule 2 requires a legal description of the property.
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 the Collateral against, any Lien or other encumbrance on
the Collateral except for Permitted Liens, and shall defend Debtor's rights in
the Collateral and Secured Party's pledge and collateral assignment of and
security interest in the Collateral against the claims and demands of all
Persons. Debtor shall do nothing to impair the rights of Secured Party in the
Collateral.
Section 4.2 Disposition of Collateral. Except as expressly permitted by
the terms of the Credit Agreement, Debtor shall not sell, lease, assign by
operation of law or otherwise, transfer or otherwise dispose of, or grant any
option with respect to, the Collateral or any part thereof without the prior
written consent of Secured Party.
Section 4.3 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
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further agreements, documents and instruments and take such further action as
Secured Party 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. Except as otherwise expressly permitted by the terms of
the Credit Agreement relating to disposition of assets and except for Permitted
Liens, Debtor agrees to defend the title to the Collateral and the Lien thereon
of Secured Party against the claim of any other Person and to maintain and
preserve such Lien. 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) deliver and pledge to Secured Party all Documents (including,
without limitation, all documents of title) evidencing the Collateral (except
for certificates of title covering vehicles) and cause Secured Party to be named
as lienholder on all such Documents; and (c) 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 the Loan Documents. 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 4.4 Insurance. Debtor shall maintain insurance in the types and
amounts, and under the terms and conditions, specified in Section 8.5 of the
Credit Agreement. If applicable, recoveries under any such policy of insurance
shall be paid as provided in Section 2.7(a) of the Credit Agreement.
Section 4.5 Bailees. If any of the Collateral is at any time in the
possession or control of any warehouseman, bailee or any of Debtor's agents or
processors, Debtor shall, at the request of Secured Party, notify such
warehouseman, bailee, agent or processor of the security interest created
hereunder and shall instruct such Person to hold such Collateral for Secured
Party's account subject to Secured Party's instructions.
Section 4.6 Inspection Rights. Debtor shall permit Secured Party and
its representatives and agents, during normal business hours and upon reasonable
notice to Debtor, to examine, copy and make extracts from its books and records,
to visit and inspect its Properties and to discuss its business, operations and
financial condition with its officers and independent certified public
accountants. The Debtor will authorize its accountants in writing (with a copy
to the Secured Party) to comply with this Section 4.6. The Secured Party and/or
its representatives may, at any time and from time to time at Debtor's expense,
conduct field exams for such purposes as the Secured Party may reasonably
request during normal business hours and upon reasonable notice to Debtor.
Section 4.7 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
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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 4.8 Books and Records; Information. Debtor shall maintain
appropriate books of record and account in accordance with GAAP consistently
applied in which true, full and correct entries will be made of its dealings and
business affairs.
Section 4.9 Collateral.
(a) Debtor shall keep the Collateral at the locations specified in
Section 3.4 hereto or at such other places within the U.S. where all
action required to perfect Secured Party's security interest in the
Collateral with the priority required by this Agreement shall have been
taken; provided that if any Collateral is being relocated to any
jurisdiction where the security interest of Secured Party under this
Agreement has not been previously perfected, then in such case Debtor
shall deliver prompt (and in any event within not less than thirty (30)
days) notice thereof to Secured Party.
(b) Debtor shall maintain the Collateral in good condition and
repair (ordinary wear and tear of the Collateral excepted). Debtor
shall not permit any waste or destruction of the Collateral. Debtor
shall not permit the Collateral to be used in violation of any law,
rule or regulation or the terms of any policy of insurance. Debtor
shall not use or permit any of the Collateral to be used in any manner
or for any purpose other than in the ordinary course of business that
would impair its value or expose it to unusual risk.
(c) Within forty-five (45) days of the end of each of Debtor's
fiscal quarters, Debtor shall provide Secured Party with a report
setting forth in reasonable detail any change during such preceding
fiscal quarter of the location of any Collateral.
Section 4.10 Warehouse Receipts Non-Negotiable. Debtor agrees that if
any warehouse receipt or receipt in the nature of a warehouse receipt is issued
in respect of any of the Collateral, such warehouse receipt or receipt in the
nature thereof shall not be "negotiable" (as such term is used in Section 7-104
of the UCC) unless such warehouse receipt or receipt in the nature thereof is
delivered to Secured Party.
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Section 4.11 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 Nortel Networks
Equipment or to Debtor's knowledge any of the Nortel Networks Software, (b) any
material change in any of the Nortel Networks Equipment or to Debtor's knowledge
any of the Nortel Networks Software, 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 Nortel Networks Equipment or to
Debtor's knowledge any of the Nortel Networks Software or the security interest
created hereunder.
Section 4.12 Transfers and Other Liens. 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.
Section 4.13 Possession; Reasonable Care. Following the occurrence and
during the continuation of an Event of Default, Secured Party shall be entitled
to take possession of the Collateral. Secured Party shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which Secured Party accords its own property, it being understood that
Secured Party shall not have any responsibility for taking any necessary steps
to preserve rights against any parties with respect to any Collateral.
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, sue 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 or any policy of insurance
specified in Section 8.5 of the Credit Agreement;
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(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 (including, without limitation, claims under any policy of
insurance specified in Section 8.5 of the Credit Agreement); 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 gross negligence or willful
misconduct or as set forth in Section 4.13. 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 Set-off. Each of Secured Party and the Lenders shall, after
the occurrence and during the continuation of an Event of Default, have the
right to set-off and apply against the Obligations, at any time and without
notice to Debtor, any and all deposits (general or special, time or demand,
provisional or final) or other sums at any time credited by or owing from any of
Secured Party or the Lenders to Debtor whether or not the Obligations are then
due. The rights and remedies of Secured Party and the Lenders hereunder are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that Secured Party and the Lenders may have.
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Section 5.3 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 5.4 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
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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 any 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.
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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
SECURITY AGREEMENT (Savvis Communications Corporation)
<PAGE>
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.
SECURITY AGREEMENT (Savvis Communications Corporation)
<PAGE>
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 4.13 and
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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SECURITY AGREEMENT (Savvis Communications Corporation)
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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 Missouri corporation
By: /s/ David J. Frear
--------------------------------------------
Name: David J. Frear
Title: Executive Vice President,
Chief Financial Officer
Address for Notices:
-------------------
12007 Sunrise Valley Drive
Reston, Virginia 20191
Attention: Chief Financial Officer
Telephone: (703) 453-7500
Telecopy: (703) 716-1059
and
12851 Worldgate Drive
Herndon, Virginia 20170
Attention: Chief Financial Officer
Telephone: (703) 234-8000
Telecopy: (703) 234-8309
with a copy which shall not constitute notice to:
717 Office Parkway
St. Louis, Missouri 63141
Attention: General Counsel
Telephone: (314) 468-7500
Telecopy: (314) 468-7550
SECURITY AGREEMENT (Savvis Communications Corporation)
<PAGE>
SECURED PARTY:
-------------
NORTEL NETWORKS INC.,
as Administrative Agent
By: /s/ Mitchell L. Stone
--------------------------------------------
Name: Mitchell L. Stone
Title: Director, Customer Finance Americas
Address for Notices:
-------------------
Nortel Networks Inc.
Mail Stop 991 15 A40
2221 Lakeside Blvd.
Richardson, Texas 75082-4399
Attention: Mitchell L. Stone
Director, Customer Finance Americas
Telephone: 972-684-0395
Telecopy: 972-684-3679
and
Nortel Networks Inc.
Mail Stop 468/05/B40
2100 Lakeside Blvd.
Richardson, Texas 75082-4399
Attention: Kimberly Poe
Director, Loan Administration
Telephone: 972-684-7687
Telecopy: 972-685-3613
SECURITY AGREEMENT (Savvis Communications Corporation)
<PAGE>
SCHEDULE 1
TRADE AND OTHER NAMES
Diamond.Net ISP, Inc.
Interconnected Associates Inc. (merged into Debtor in March 1998)
SAVVIS Communications Enterprises L.L.C. (merged into Debtor in April 1998)
<PAGE>
SCHEDULE 2
UNIFORM COMMERCIAL CODE FINANCING STATEMENTS; FILING LOCATIONS
To be attached.
