Exhibit 10.2
AMENDMENT NO. 3 TO AMENDED AND
RESTATED CREDIT AGREEMENT
This AMENDMENT NO. 3 TO AMENDED AND
RESTATED CREDIT AGREEMENT (“ Amendment ”) is
entered into as of April 30, 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 therefore in the Credit
Agreement);
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 2
below, the Credit Agreement is amended as follows:
(a) Section 6.15 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
6.15 Holdings as Holding
Company . Permit Holdings to incur any liabilities (other
than liabilities arising under the Loan Documents, the UK
Guarantee, the Holdings Data Center Capital Lease Guaranties, the
Convertible Notes, the unsecured guaranty of the Cisco Indebtedness
by Holdings pursuant to that certain Guaranty executed on
December 18, 2006 by Holdings in favor of Cisco Systems
Capital Corporation, a Nevada corporation, as in effect on
December 18, 2006, the Slough Estates Operating Lease
Guaranty, the Weehawken Data Center Operating Lease Guaranty and
the indemnification obligations under the CDN Purchase Agreement),
own or acquire any assets (other than the Stock of Borrower and the
other Subsidiaries of Holdings listed on Schedule 4.7(c) as
being directly owned by Holdings and the patent applications and
trademark listed on Schedule 4.14(a) and identified as being
owned by Holdings) or engage itself in any operations or business,
except in connection with its ownership of Borrower and its rights
and obligations under the Data Center Capital Leases and the
Convertible Notes.
(b) The defined term
“Permitted Purchase Money Indebtedness” set forth in
Schedule 1.1 to the Credit Agreement is hereby amended and restated
in its entirety as follows:
“Permitted Purchase Money
Indebtedness” means as of the date of determination,
(a) the then-existing Network Project Financing in an
aggregate principal amount not in excess of $17,000,000,
(b) Purchase Money Indebtedness incurred by Borrower arising
under the Kodak Asset Purchase Agreement in an aggregate principal
amount not in excess of $8,805,533.34 and (c) other Purchase
Money Indebtedness incurred by Holdings, Borrower or any of their
respective additional Subsidiaries after the Closing Date in an
aggregate principal amount outstanding at any one time not in
excess of $7,500,000.
(c) The defined term “UK
Indebtedness” set forth in Schedule 1.1 to the Credit
Agreement is hereby amended by deleting the reference to
“March 31, 2009” and inserting “June 30,
2009” in lieu thereof.
(d) New defined terms “Kodak
Asset Purchase Agreement”, “Third Amendment Effective
Date” and “Weehawken Data Center Operating Lease
Guaranty” are hereby added to Schedule 1.1 to the Credit
Agreement in their proper alphabetical order as follows:
“Kodak Asset Purchase
Agreement” means the Asset Purchase Agreement dated as of
March 31, 2009 by and between Borrower and Kodak Imaging
Networks, Inc., as in effect on the Third Amendment Effective
Date.
“Third Amendment Effective
Date” means April , 2009.
“Weehawken Data Center
Operating Lease Guaranty” means the unsecured guaranty by
Holdings of the obligations of Borrower under the Lease Agreement,
when effective, between Borrower and 1919 Park Avenue Associates,
L.L.C. regarding the premises at 1919 Park Avenue, Weehawken, New
Jersey, each in form and substance reasonably satisfactory to
Agent.
2. 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, together with the Consent
and Reaffirmation attached hereto;
(b) Borrower shall have delivered to
Agent such other documents, agreements and instruments as may be
requested or required by Agent in connection with this Amendment,
each in form and content acceptable to Agent;
(c) Agent shall have received an
amendment fee equal to $25,000, which fee shall be fully earned and
payable on the date hereof;
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