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Published: 2008-03-26

Waiver and Amendment - Exodus Communications Inc. and The Chase Manhattan Bank



WAIVER AND AMENDMENT dated as of June 27, 2001 (this "Waiver"),
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to the Credit Agreement dated as of October 31, 2000 (the "Credit
------
Agreement"), as amended by the First Amendment and Waiver dated as of
---------
April 18, 2001, among EXODUS COMMUNICATIONS, INC., a Delaware
corporation (the "Borrower"), the Lenders party thereto (the
--------
"Lenders"), and THE CHASE MANHATTAN BANK, as Administrative Agent and
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Collateral Agent (the "Agent"), and CHASE MANHATTAN INTERNATIONAL
-----
LIMITED, as London Agent.

WHEREAS the Borrower has given notice on June 22, 2001, of the
termination of the unused Commitments and of the prepayment of all outstanding
Loans on July 2, 2001, in each case in accordance with the provisions of the
Credit Agreement.

WHEREAS the Borrower has requested, in light of the foregoing, that
any Events of Default under the Credit Agreement be waived until the time
specified below on July 2, 2001, in consideration for the Borrower's promise to
pay the Obligations in full in the manner provided for in this Waiver, and the
Required Lenders are willing to agree to this Waiver on the terms and conditions
and subject to the agreements hereinafter set forth.


NOW, THEREFORE, the parties hereto hereby agree as follows:

1.   Defined Terms.  Capitalized terms used and not defined herein
-------------
shall have the meanings given to them in the Credit Agreement.

2.   Waiver.  Subject to the conditions and agreements set forth in
------
Section 4 hereof, the Lenders hereby waive any Events of Default that exist or
arise under the Credit Agreement on the date hereof or thereafter through 11:59
p.m., New York time, on July 2, 2001 with the effect that any such Event of
Default did not occur; provided that such waiver will automatically expire, with
--------


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the same effect as if it had never been granted, at 11:59 p.m., New York time,
on July 2, 2001.

3.   Effect of Waiver.  Except as expressly set forth herein, this
----------------
Waiver shall not by implication or otherwise limit, impair, constitute a waiver
of, or otherwise affect the rights or remedies of the Lenders or the Borrower or
any other Loan Party under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed in
all respects and shall continue in full force and effect. Nothing herein shall
be deemed to entitle any Loan Party to a consent to, or a waiver, amendment,
modification or other change of, any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document in similar or different circumstances. The waiver in Section 2 hereof
shall apply and be effective only with respect to the matters expressly covered
hereby. This Waiver shall constitute a "Loan Document" for all purposes of the
Credit Agreement and the other Loan Documents.

4.   Agreements of the Borrower; Conditions to Waiver.  (a)  In order
------------------------------------------------
to induce the Lenders to grant the waiver set forth herein, the Borrower agrees
that, and it shall be a condition subsequent to the effectiveness of this Waiver
that:

(i)  The Borrower will, not later than 3:30 p.m., New York time, on
July 2, 2001, make payment in full (by wire transfer of immediately
available funds to the Administrative Agent or such other party as is
entitled thereto) of all outstanding Obligations (other than Obligations in
respect of outstanding Letters of Credit), including without limitation all
accrued and unpaid commitment fees and participation fees accrued through
July 1, 2001 in respect of Letters of Credit, all principal amounts of
outstanding Loans and interest accrued through July 1, 2001 on outstanding
Loans, the Tranche B Term Loan prepayment fee contemplated by Section
2.11(c)(A) of the Credit Agreement, fees, charges and disbursements of
Cravath, Swaine & Moore, counsel for the Administrative Agent, in the
amount of $82,551.30 as invoiced in such firm's statement dated June 22,
2001, fees, charges and disbursements of Appleby, Spurling & Kempe, local
counsel for the Administrative Agent in


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the amount of $14,625.17 as invoiced in such firm's statements dated March
30, 2001 and June 25, 2001, breakage costs, if any, under Section 2.15 of
the Credit Agreement (as advised to the Borrower in writing by the
Administrative Agent) in respect of prepayments of Tranche B Term Loans,
and each other Obligation owing by the Borrower of which the Borrower is
notified by the Administrative Agent prior to June 29, 2001;

(ii) The Borrower will, not later than 3:30 p.m., New York time, on
July 2, 2001, either (x) cause all outstanding Letters of Credit to be
surrendered for cancellation to the Issuing Bank in respect thereof or (y)
execute and deliver to each such Issuing Bank such letter of credit
reimbursement agreements and collateral agreements as such Issuing Bank may
request with respect to any Letter of Credit issued by it and not so
surrendered, and post with such Issuing Bank cash collateral in the full
amount of any such Letters of Credit plus any fees payable in respect
thereof in respect of periods after July 1, 2001, as reasonably required by
such Issuing Bank.

The Issuing Bank agrees that upon satisfaction of the foregoing conditions, the
Revolving Lenders will be released from their participation obligations in
respect of Letters of Credit. This Waiver shall serve as notification by the
Borrower of termination, as of July 2, 2001, of any Revolving Commitments
associated with outstanding Letters of Credit. If the Borrower effects the
payments referenced in Section 4(a)(i) by the time specified therein and in the
amounts specified therein or otherwise notified to it in writing by the
Administrative Agent prior June 29, 2001, the effectiveness of the Waiver set
forth herein will not be affected by any failure to make payment of any
Obligation not set forth or so notified; provided that the Borrower will remain
liable for the payment of any such Obligation.

(b)  Notwithstanding anything to the contrary in the Loan Documents,
until the outstanding Obligations are paid in full and the other conditions set
forth in Section 4(a) are satisfied, the Collateral Agent shall not be required
to release any Collateral (other than Collateral sold pursuant to Section 6.07
in the ordinary course of business) (including any pledged Equity Interests or
securities) or terminate or release any security interest with respect thereto.
Upon satisfaction of the


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conditions set forth in Section 4(a) hereof, the Collateral Agent will promptly,
at the Borrower's sole cost and expense, release all Collateral (including any
pledged Equity Interests, securities, options, warrants, and promissory notes
and accompanying powers and instruments of transfer) and deliver all documents
reasonably necessary to evidence such release or termination, including but not
limited to Uniform Commercial Code termination statements and similar documents,

in each case in accordance with the provisions of Section 7.14 of the Security
Agreement and Section 14(c) of the Pledge Agreement.

(c)  This Waiver will initially become effective on the date when the
Administrative Agent shall have received counterparts hereof duly executed and
delivered by the Borrower and the Required Lenders.

(d)  The agreements set forth in this Section 4 will survive any
expiration of this Waiver, the effectiveness of this Waiver and the termination
of the Loan Documents.

5.  Representations and Warranties.  The Borrower hereby represents
------------------------------
and warrants to the Agent and the Lenders as of the date hereof that the
execution, delivery and performance by the Borrower of this Waiver has been duly
authorized by all necessary corporate and other action and do not and will not
require any registration with, consent or approval of, notice to or action by,
any person (including any governmental agency) in order to be effective and
enforceable. The Credit Agreement as amended by this Waiver constitutes the
legal, valid and binding obligation of the Borrower, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.

6.  GOVERNING LAW; COUNTERPARTS.  (a) THIS WAIVER AND THE RIGHTS AND
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OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(b)  This Waiver may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which together
shall constitute a single instrument. Delivery of an


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executed counterpart of a signature page of this Waiver by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof.


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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.


EXODUS COMMUNICATIONS, INC.,

by
/s/ Adam Wegner
---------------
Name: Adam Wegner
Title: Executive Vice President,
Legal and Corporate Affairs,
General Counsel and Secretary


THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,


by
/s/ Tracey Navin Ewing
----------------------
Name: Tracey Navin Ewing
Title: Vice President


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: The Chase Manhattan Bank as Issuing Bank
----------------------------------------

By Tracey Navin Ewing
------------------

Name: Tracey Navin Ewing
Title: Vice President


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: AIM Floating Rate Fund
----------------------

By INVESCO Senior Secured Management, Inc.,
As Attorney in Fact

By /s/ Thomas H.B. Ewald
---------------------

Name: Thomas H.B. Ewald
Title: Authorized Signatory


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: AVALON CAPITAL LTD.
-------------------

By INVESCO Senior Secured Management
Inc., As Portfolio Advisor

By /s/ Thomas H.B. Ewald
---------------------

Name: Thomas H.B. Ewald
Title: Authorized Signatory


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: AVALON CAPITAL LTD. 2
---------------------

By INVESCO Senior Secured Management,
Inc., As Portfolio Advisor

By /s/ Thomas H.B. Ewald
---------------------

Name: Thomas H.B. Ewald
Title: Authorized Signatory


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: CERES II FINANCE LTD.
---------------------

By INVESCO Senior Secured
Management, Inc., As Sub-
Managing Agent (Financial)

By /s/ Thomas H.B. Ewald
---------------------

Name: Thomas H.B. Ewald
Title: Authorized Signatory

11


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: CHARTER VIEW PORTFOLIO
----------------------

By INVESCO Senior Secured
Management, Inc., As
Investment Advisor

By /s/ Thomas H.B. Ewald
---------------------

Name: Thomas H.B. Ewald
Title: Authorized
Signatory


12


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Credit Lyonnais New
-------------------
York Branch
-----------

By /s/ Mark A. Campelline
----------------------

Name: Mark A. Campelline
Title: First Vice
President


13


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:

CypressTree Investment Partners I, Ltd.,
By CypressTree Investment Management
Company, Inc., as Portfolio Manager

By /s/ Jonathan D. Sharkey
-----------------------
Name: Jonathan D. Sharkey
Title: Principal


CypressTree Investment Partners II, Ltd.,
By CypressTree Investment Management
Company, Inc., as Portfolio Manager

By /s/ Jonathan D. Sharkey
-----------------------
Name: Jonathan D. Sharkey
Title: Principal


CypressTree Investment Management Company, Inc.
As Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance Company
as Portfolio Manager

By /s/ Jonathan D. Sharkey
-----------------------
Name: Jonathan D. Sharkey
Title: Principal


14


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Sankaty Advisors, LLC
----------------------
as Collateral Manager
---------------------
for Great Point CLO
-------------------
1999-1 LTD as Term
------------------
Lender
------

By /s/ Diane J. Exter
------------------

Name: Diane J. Exter
Title: Managing Director
Portfolio Manager

15


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: INVESCO CBO 2000-1 LTD
----------------------

By INVESCO Senior Secured
Management, Inc., As
Portfolio Advisor

By /s/ Thomas H.B. Ewald
---------------------

Name: Thomas H.B. Ewald
Title: Authorized
Signatory


16


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: KATONAH I, LTD.
---------------

By /s/ Ralph Della Rocca
---------------------

Name: Ralph Della Rocca
Title: Authorized
Officer, Katonah
Capital, L.L.C. as
Manager


17


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Kemper Floating Rate
--------------------
Fund
----

By /s/ Kenneth R. Weber
--------------------

Name: Kenneth R. Weber
Title: SVP

18


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: KZH CypressTree-1 LLC
---------------------

By /s/ Kimberly Rowe
-----------------

Name: Kimberly Rowe
Title: Authorized Agent

19


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: KZH Shoshone LLC
----------------

By /s/ Kimberly Rowe
-----------------

Name: Kimberly Rowe
Title: Authorized Agent

20


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Liberty-Stein Roe Advisor Floating Rate
---------------------------------------
Advantage Fund
--------------

By Stein Roe & Farnham
Incorporated, as Advisor

By /s/ Kathleen A. Zarri
---------------------

Name: Kathleen A. Zarri
Title: Vice President

21


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Morgan Stanley Secure Funding, Inc.
-----------------------------------

By /s/ Lucy K. Galbraith
---------------------

Name: Lucy K. Galbraith
Title: Managing Director

22


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT



To approve the Waiver:


Name of Institution: OCTAGON INVESTMENT PARTNERS III, LTD.
-------------------------------------

By Octagon Credit Investors, LLC
as Portfolio Manager

By /s/ Andrew D. Gordon
--------------------

Name: Andrew D. Gordon
Title: Portfolio Manager

23


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: OCTAGON INVESTMENT PARTNERS II, LLC
-----------------------------------

By Octagon Credit Investors, LLC as
sub-investment manager

By /s/ Andrew D. Gordon
--------------------

Name: Andrew D. Gordon
Title: Portfolio Manager

24


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: PPM SPYGLASS FUNDING TRUST
--------------------------

By /s/ Ann E. Morris
-----------------

Name: Ann E. Morris
Title: Authorized Agent


25


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Sankaty High Yield Asset Partners, L.P.
---------------------------------------

By /s/ Diane J. Exter
------------------

Name: Diane J. Exter
Title: Managing Director Portfolio Manager

26


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Sankaty High Yield Asset Partners II, L.P.
------------------------------------------

By /s/ Diane J. Exter
------------------

Name: Diane J. Exter
Title: Managing Director Portfolio Manager

27


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Sankaty High Yield
------------------
Asset Partners III,
------------------
L.P.
---
By /s/ Diane J. Exter
------------------

Name: Diane J. Exter
Title: Managing Director
Portfolio Manager

28


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: SAWGRASS TRADING LLC
--------------------

By /s/ Ann E. Morris
-----------------

Name: Ann E. Morris
Title: Asst. Vice
President

29


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution:  Stein Roe Floating Rate
-----------------------
Limited Liability
-----------------
Company
-------

By /s/ Kathleen A. Zarn
--------------------

Name: Kathleen A. Zarn
Title: Vice President,
Stein Roe & Farnham
Incorporated, as
Advisor to the
Stein Roe Floating
Rate Limited
Liability Company

30


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: SRF 2000 LLC
------------

By /s/ Ann E. Morris
-----------------

Name: Ann E. Morris
Title: Asst. Vice
President

31


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: TORONTO DOMINION (NEW
---------------------
YORK), INC.
---------------------

By /S/ Stacey Malek
----------------

Name: Stacey Malek
Title: Vice President

32


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Wells Fargo Bank N.A.
---------------------

By /s/ Eric C. Houser
------------------

Name: Eric C. Houser
Title: Vice President

33


SIGNATURE PAGE to
WAIVER, dated as of June 27, 2001,
to EXODUS COMMUNICATIONS, INC.
CREDIT AGREEMENT




To approve the Waiver:


Name of Institution: Windsor Loan Funding,
---------------------
Limited
-------

By Stanfield Capital
Partners LLC as its
Investment Manager

By /s/ Gregory L. Smith
--------------------

Name: Gregory L. Smith
Title: Partner

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