EXHIBIT 10.42
MISSOURI FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT
THIS MISSOURI FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT
SECURES FUTURE ADVANCES AND FUTURE OBLIGATIONS AND SHALL BE GOVERNED BY SECTION
443.055 ▇.▇.▇▇., AS AMENDED. THE TOTAL PRINCIPAL AMOUNT OF THE PRESENT AND
FUTURE ADVANCES AND OBLIGATIONS WHICH MAY BE SECURED HEREBY IS $50,000,000.00
THIS MISSOURI FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT (this
"Deed of Trust") is made as of the 19th day of February, 2001, by and between
SAVVIS COMMUNICATIONS CORPORATION, a Missouri corporation (whether one or more,
collectively called "Grantor") having a mailing address of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as trustee ("Trustee") having
a mailing address of ▇▇▇▇▇ ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and WELSH, CARSON, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII, L.P., a Delaware
limited partnership, as beneficiary ("Beneficiary") having a mailing address of
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Savvis Communications Corporation, a Delaware Corporation
("Borrower") is justly indebted to Beneficiary, as evidenced by those certain
notes dated February 19, 2001 in the aggregate principal amount of
$20,000,000.00 (the "Convertible Senior Secured Notes") and issued by Borrower
pursuant to a Securities Purchase Agreement dated as of February 16, 2001 among
Borrower, Beneficiary and WCAS Management Corporation ("WCAS"), as amended from
time to time ("Securities Purchase Agreement");
WHEREAS, Beneficiary and WCAS will not enter into the Securities
Purchase Agreement and will not provide to Borrower the funds contemplated to be
provided under the Securities Purchase Agreement unless and until Grantor
delivers to Beneficiary and Beneficiary receives from Grantor this Deed of
Trust; and
WHEREAS, Grantor is a wholly owned subsidiary of Borrower and has
determined that it is in the best interest of Grantor for Borrower to receive
the funds contemplated under the Securities Purchase Agreement and acknowledges
that Grantor is effecting the grant of this Deed of Trust in consideration for,
and has received value for the grant hereunder as a result of, the loan by
Beneficiary and WCAS to Borrower contemplated under the Securities Purchase
Agreement; and
WHEREAS, to induce Beneficiary and WCAS to provide the funds
contemplated to be delivered under the Securities Purchase Agreement, Grantor is
willing to deliver this Deed of Trust to Beneficiary; and
WHEREAS, the parties intend that this conveyance shall secure the
performance and payment of the covenants, sums, and obligations of the Borrower
under the provisions of the Convertible Senior Secured Notes and all extensions,
renewals or modifications of all or part of said Convertible Senior Secured
Notes and any additional notes that may be issued according to the terms set
forth in the Securities Purchase Agreement (hereinafter said Convertible Senior
Secured Notes, any such additional notes and any renewals, extensions or
modifications thereof are referred to as the "Notes"), and all obligations of
Grantor now or hereafter owing to Beneficiary including any additional amounts
which Beneficiary may be permitted to advance now or hereafter to preserve and
protect the lien and encumbrance hereof or according to the terms of this Deed
of Trust (collectively, the "Indebtedness"). THIS DEED OF TRUST IS A MORTGAGE OF
INTERESTS IN IMPROVEMENTS ONLY AND
SECURES FUTURE ADVANCES AND FUTURE OBLIGATIONS PURSUANT TO SECTION 443.055 OF
THE MISSOURI REVISED STATUTES. THE TOTAL PRINCIPAL AMOUNT OF THE FUTURE ADVANCES
AND FUTURE OBLIGATIONS WHICH MAY BE SECURED HEREBY IS FIFTY MILLION DOLLARS
($50,000,000.00);
NOW THEREFORE, as security for the Indebtedness, and in consideration
thereof, and the sum of Ten Dollars ($10.00) in hand paid, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor by these presents does hereby REMISE, RELEASE AND QUIT
CLAIM, unto Trustee, his successors and assigns, IN TRUST, forever, the
Grantor's interest, if any, in (1) all buildings, improvements and structures
present as of the date of this Deed of Trust on that certain land situated in
the County of St. Louis, State of Missouri as more particularly described in
Exhibit A attached hereto and incorporated herein by this reference (the "Land")
and constructed by or on behalf of Grantor pursuant to or substantially in
accordance with the plans and specifications dated September 9, 1999 and
prepared by ▇▇▇▇▇▇/▇▇▇▇▇▇▇, P.C. and ACI ▇▇▇▇▇▇, Inc. for the project located at
Phantom Drive and ▇. ▇. ▇▇▇▇▇▇▇▇ Boulevard, Hazelwood, Missouri and all
buildings, improvements and structures hereafter, erected, situated or placed at
any time by or on behalf of Grantor on the Land (collectively, "Buildings" and
individually "Building"); and (2) the fee simple title to all or any portion of
the Land (collectively, the "Mortgaged Property").
Notwithstanding the foregoing, the Mortgaged Property shall not include
any or all of the following:
(a) furniture, fixtures, equipment and personal property, including
without limitation, replacements and substitutions therefor, and all leases
thereof and all rents, revenues, income, profits, royalties, deposits and
proceeds therefrom, now or hereafter owned or leased (i) by GE Capital
Corporation or by any one or more third party lessors, their respective
successors and assigns, and leased to Grantor or Bridge Information Systems
America, Inc., a Delaware corporation, as lesee, whether under an operating
lease, a capital lease or a synthetic lease, and/or (ii) by Grantor, any person
or entity occupying or using any part of the Building by or through Grantor
(or its lessees, successors or assigns) and/or any person or entity holding an
ownership or security interest in any Excluded Property;
(b) any subleases of any properties described in (a) of this paragraph
to Grantor, its successors and assigns, as sublessee;
(c) all furniture, fixtures, equipment and personal property, including
without limitation, replacements and substitutions therefor, and all leases
thereof and all rents, revenues, income, profits, royalties, deposits and
proceeds therefrom subject to a security interest granted by, or that either
Grantor or Borrower is obligated to grant, in either case, pursuant to a
security agreement or an other agreement effective prior to or as of the date of
this Deed of Trust;
(d) all real, personal, tangible and intangible property of any kind
that is in any way pledged pursuant to any of the agreements described on
Exhibit B attached hereto and incorporated into this Deed of Trust by this
reference; and
(e) all real, personal, tangible and intangible property of any kind
that is in any way encumbered by that certain first deed of trust by Bridge Data
Company, a Delaware corporation ("Bridge") in favor of ▇▇▇▇▇▇ Trust and Savings
Bank dated July 28, 2000 (the "First Deed of Trust") and any renewals,
modifications, replacements, and extensions of such First Deed of Trust
all of the foregoing being the ("Excluded Property"). The Excluded Property is
not a part of the Mortgaged Property for any purpose under this Deed of Trust.
Upon the from time to time request of
2
Grantor, Beneficiary will execute and deliver to Grantor such written
confirmations of the foregoing to the extent Grantor reasonably deems necessary
and appropriate.
TO HAVE AND TO HOLD the Mortgaged Property and every part thereof unto
Trustee, his successors and assigns, forever, IN TRUST, nevertheless, to secure
the payment of the Indebtedness and the performance and observance by Grantor of
every covenant and condition herein contained.
COVENANTS. Grantor hereby expressly covenants and agrees with Trustee and
Beneficiary that:
(1) PERFORMANCE OF OBLIGATIONS. Grantor will duly perform all of its
obligations under this Deed of Trust in accordance with the terms
hereof.
(2) DUE ON SALE OR ENCUMBRANCE. Grantor will not, without the prior
written consent of Beneficiary, transfer, convey or otherwise part
with title to any of the Mortgaged Property, or any portion
thereof or ownership interest therein, or create or permit or
allow to exist or to be created any mortgage, deed of trust,
pledge or other lien or encumbrance on any of the Mortgaged
Property, other than this Deed of Trust, and Grantor will not
suffer or permit any mechanic's or materialmen's lien or any other
lien of any nature whatsoever to attach to any of the Mortgaged
Property or to remain outstanding against the same or any part
thereof. Beneficiary hereby consents to arrangements between
Grantor and a third party providing for (i) the installation in
the Building of communications and/or computer equipment owned or
leased by third parties (including communications and/or computer
equipment leased by Grantor to such third parties) to enable
Grantor to provide such third parties with broadband connectivity
to the internet, IP VPN services, and/or all other internet,
intranet and extranet facilities and equipment and/or services
then currently being provided by Grantor; (ii) the use,
maintenance, repair, and operation of such communications and/or
computer equipment by such third parties and/or by Grantor; and
(iii) a grant by Grantor to such third parties of the right to
have actual and/or virtual access to the Building and to such
communications and/or computer equipment (each such third party is
a "Co-location Party"; the equipment of, owned, leased or
otherwise belonging to the Co-location Party is the "Co-location
Equipment" and the arrangements between Grantor and a Co-location
Party consistent with (i)-(iii) above being the "Permitted
Co-location Arrangements"). Notwithstanding the foregoing,
Permitted Co-location Arrangements may be effected whether or not
Grantor provides managed hosting services to the Co-location
Party.
3. INSURANCE. Until this Deed of Trust has been released in
accordance with Paragraph 17 below, Grantor shall maintain the
following insurance and otherwise comply with the provisions of
this Section (3):
(i) Grantor shall provide and maintain, at Grantor's sole
cost and expense throughout the duration of this Deed of Trust,
commercial general liability insurance, including blanket
contractual liability coverage (or its equivalent) specifically
endorsed to provide coverage for the obligations assumed by
Grantor pursuant to this Deed of Trust, against claims and
liability for personal injury, bodily injury, death, or property
damage occurring on, in, or about the Mortgaged Property, with
limits of liability of not less than Five Million Dollars
($5,000,000.00) for liability arising out of any one occurrence.
(ii) insurance insuring Grantor against loss or damage to
the Mortgaged Property by fire, lightning, windstorm, hail,
explosion, aircraft, smoke, vandalism, malicious mischief, vehicle
damage and other risks from time to time included under a so
called "Special Form Causes of Loss" policy (or its equivalent)
together with earthquake and, if the Mortgaged Property is located
in a HUD-identified flood hazard area, flood insurance and such
other similar policies as
3
Beneficiary may reasonably require to protect the Mortgaged
Property. Such insurance shall provide coverage in an amount
sufficient to prevent Grantor from being a co-insurer of any loss
under the policy or policies, but in no event less than 100% of
the full replacement cost of the improvements;
(iii) At all times during the duration of this Deed of Trust
when fuel tanks are located at or on any land on which any
Building is constructed, Grantor shall maintain so called "Above
Ground Storage Tank Third Party Liability and Cleanup" insurance
or its equivalent. Notwithstanding anything to the contrary in
this Deed of Trust, such insurance shall be on a claims made basis
with a per occurrence limit of at least One Million Dollars
($1,000,000) and a general aggregate limit of at least One Million
Dollars ($1,000,000) with reasonable deductibles and reasonable
coverage for defense costs.
All of the foregoing insurance will be issued by an insurance
company of recognized financial standing having at least an A+
rating by Best Insurance Reports. Said policies shall be in form
as are reasonably acceptable to and approved by Beneficiary. All
such insurance policies are assigned to and are to be held by and,
to the extent of its interest, for the benefit of and payable in
case of loss to the Beneficiary, and Grantor will deliver to
Beneficiary such policies, marked "Paid", and new policies as
replacement for any expiring policies at least fifteen (15) days
before the date of such expiration. All such policies of insurance
shall have attached the standard non-contributory first mortgagee
clause or its equivalent in favor of Beneficiary, with
cancellation only upon at least fifteen (15) days' prior written
notice to Beneficiary. Grantor shall obtain written certification
from the appropriate governmental authority as to whether or not
the All amounts recoverable under any such policies or to which
Grantor is otherwise entitled from third parties are hereby
assigned to Beneficiary and, in the event of a loss, each
insurance company or other third party concerned is authorized and
directed to make payment for such loss directly to Beneficiary
alone and Beneficiary is hereby authorized to adjust, compromise,
receive, collect and ▇▇▇ for the same and Grantor hereby
authorizes and directs that such sum or sums be paid to
Beneficiary upon presentation of a duly certified copy hereof.
Beneficiary is further authorized to endorse Grantor's name upon
any check in payment of loss. All loss proceeds received by
Beneficiary shall be applied as follows: (i) first, to fund the
replacement, repair and restoration to and/or the Mortgaged
Property taken or injured if Grantor elects to effect such
replacement, repair and/or restoration, (ii) next, any remaining
funds to be applied against the Indebtedness secured hereby to the
extent then due and unpaid without the application of any
prepayment penalty and applied to principal and interest as
provided in the Notes, and (iii) next, any remaining funds to be
paid to Grantor. All of the policies of insurance shall be held by
Beneficiary as additional security and, in the event of a sale of
the Mortgaged Property upon foreclosure, all right, title and
interest of Grantor in and to such policies of insurance shall
pass to the purchaser at such sale and Grantor irrevocably
appoints Beneficiary as attorney-in-fact of Grantor to assign any
policies or proceeds thereof to such purchaser.
The following notice is provided pursuant to Section 427.120,
▇.▇.▇▇. As used herein, "you" means Grantor and "we" means
Beneficiary: UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE
REQUIRED BY YOUR AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT
YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR COLLATERAL. THIS
INSURANCE MAY, BUT NEED NOT, PROTECT YOUR INTERESTS. THE COVERAGE
THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT YOU MAKE OR ANY CLAIM
THAT IS MADE AGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU
MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER
PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY
OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE COLLATERAL, YOU
WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING THE
INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN
CONNECTION WITH THE PLACEMENT OF THE INSURANCE,
4
UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL
OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY
BE MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON
YOUR OWN.
(4) INDEMNITY. Grantor will protect, indemnify, defend and hold
harmless Trustee and Beneficiary from and against any and all
claims, causes of action, suits, liabilities, damages, losses,
costs and expenses (including attorneys' fees), of whatever
nature, which may arise or result, directly or indirectly by
reason of the use or occupation of the Mortgaged Property or any
part thereof or any failure by Grantor to comply with the
covenants contained herein.
(5) REPAIRS. Grantor will at all times keep and maintain the
Mortgaged Property and every part thereof in good order, repair
and condition, without any liability of Trustee or Beneficiary to
any person for damage for failure to repair or for any other
cause, and Grantor will promptly make all needed and proper
repairs, restorations, renewals and replacements thereof, so that
at all times the value of the Mortgaged Property and every part
thereof shall be fully preserved and maintained, and Grantor will
not cause or permit any waste on or of the Mortgaged Property or
otherwise allow the Mortgaged Property, or any part thereof, to
depreciate in value by any act or neglect.
(6) COMPLIANCE. Grantor will not use or suffer or permit to be used
the Mortgaged Property or any part thereof in any manner
inconsistent with the rights of Trustee or Beneficiary hereunder,
or in violation of the provisions of any insurance policy or any
rules or regulations of insurance underwriters, and will comply
with, and maintain, use and cause the Mortgaged Property to at all
times be in compliance with all laws, ordinances, rules,
regulations, orders and directions of any legislative, executive,
administrative or judicial body, officer or department applicable
to the Mortgaged Property or to the uses or purposes thereof.
(7) CONDEMNATION. In the event the Mortgaged Property, or any part
thereof, be taken through condemnation proceedings or by virtue of
the exercise of the right of eminent domain or pursuant to
governmental action, any and all amounts awarded in any such
condemnation proceeding for the taking of the Mortgaged Property,
or any part thereof, are hereby assigned to and shall be paid to
Beneficiary, and when received by Beneficiary, shall be applied as
follows: (i) first, to fund the repalcement, repair and
restoration to and/or of the Mortgaged Property taken or injured
if Grantor elects to effect such replacement, repair and/or
restoration, (ii) next, any remaining funds to be applied against
the Indebtedness secured hereby to the extent then due and unpaid
without the application of any prepayment penalty and applied to
principal and interest as provided in the Notes, and (iii) next,
any remaining funds to be paid to Grantor.
(8) SEVERABILITY. To the extent that any grant under this Deed of
Trust violates the terms of any other agreement to which Grantor
is a party as of the date of this Deed of Trust, such Grant shall
be deemed severed from this Deed of Trust and shall be deemed to
be null and void and of no force or effect as of the date of this
Deed of Trust and the remainder of this Deed of Trust shall remain
in full force and effect to extent permitted by law and this Deed
of Trust shall be deemed amended as appropriate to give effect to
such severance.
(9) TAXES. Grantor hereby covenants and agrees to pay any and all
taxes, assessements, liens and other charges that may be levied or
assessed against the Mortgaged Property, or any part thereof,
prior to the time the same shall become delinquent, and Grantor
shall promptly provide Beneficiary with proof of payment thereof.
(10) CHANGE IN TAXATION LAWS. In the event of the enactment after the
date hereof of any law of the State of Missouri or the United
States of America imposing a specific tax on notes, bonds, or
5
other evidences of indebtedness or obligations secured by a
mortgage or deed of trust on real estate, or in the event the laws
now in force relating to taxes on notes, mortgages, bonds, or
other evidences of indebtedness or obligations secured by mortgage
or deed of trust shall be in any manner changed, or in case such a
tax shall be assessed under any existing law, as the result of
which Trustee or Beneficiary may become chargeable with the
payment of any such taxes, then and in any such event, Grantor
covenants and agrees to pay to Trustee or Beneficiary, within
thirty (30) days after written notice thereof, the amount of any
such tax; provided that if Trustee or Beneficiary shall be
required by law to pay any such tax, all moneys so expended shall
be due on demand, bear interest at the highest rate set forth in
the Notes (or if no rate is specified, at the maximum lawful rate)
and shall be secured hereby. In the event Grantor shall fail to
pay or cause to be paid or to reimburse Trustee or Beneficiary for
advances as aforesaid to pay any such tax or taxes, or if by such
law it should be illegal for Grantor to pay any such tax or taxes,
then all of the Indebtedness secured hereby shall, at the option
of Beneficiary, become immediately due and payable without further
notice, anything herein or in the evidences of any indebtedness or
other obligations secured by this Deed of Trust to the contrary
notwithstanding; provided, however, that Grantor shall not be
required to pay any such tax in excess of an amount which when
added to the interest paid by Grantor on the Indebtedness would
exceed the maximum lawful rate allowed in the State of Missouri.
(11) CURE PAYMENTS. If Grantor shall fail to pay any tax, assessment,
lien or other charge levied or assessed against the Mortgaged
Property, or any part thereof, or shall fail to keep and perform
any of the covenants and conditions herein contained, Trustee or
Beneficiary, shall be privileged, but shall not be obligated, to
pay any such tax, assessment, lien, rent or other charge, to
redeem such property from any sale or foreclosure for taxes or
assessments or liens, to effect and pay for insurance required
hereunder, to perform or pay for any other obligations, and to
make such other disbursements as are necessary or advisable in the
opinion of Trustee or Benefificary to cure any default of Grantor
hereunder or protect the lien or the rights of Trustee and
Beneficiary hereunder; any and all such sums of money advanced for
such purposes by Trustee or Beneficiary shall be deemed additional
Indebtedness secured by this Deed of Trust and shall be payable on
demand with interest accruing from the time so advanced at the
highest rate per annum set forth under the Notes (or if no rate is
specified, at the maximum lawful rate), and failure on the part of
Grantor to repay the amounts so advanced on demand shall
constitute an event of default hereunder; provided, however,
nothing herein contained shall be construed as requiring Trustee
or Beneficiary to effect such insurance or to advance or expend
money or take any action for any of the purposes aforesaid.
(12) FINANCIAL INFORMATION. Grantor shall furnish the financial
statements as and when required to be provided by Grantor pursuant
to and in accordance with the Securities Purchase Agreement.
(13) SECURITY AGREEMENT. This instrument is intended to be a security
agreement pursuant to the Uniform Commercial Code for any of the
items specified as part of the Mortgaged Property which, under
applicable law, may be subject to a security interest pursuant to
the Uniform Commercial Code, and Grantor hereby grants Beneficiary
a security interest in said items, whether now owned or hereafter
acquired. Grantor agrees that Beneficiary may file this
instrument, or a reproduction thereof, in the real estate records
or other appropriate index, as a financing statement for any of
the items specified as part of the Mortgaged Property. Any
reproduction of this instrument or of any other security agreement
or financing statement shall be sufficient as a financing
statement. In addition, Grantor agrees to execute and deliver to
Beneficiary, upon Beneficiary's request, any financing statements,
as well as extensions, renewals and amendments thereof, and
reproductions of this instrument, in such form as Beneficiary may
require to perfect a security interest with respect to said items.
Grantor shall pay
6
all costs of filing such financing statements and any extensions,
renewals and amendments thereof, and shall pay all reasonable
costs and expenses of any record searches for financing statements
Beneficiary may reasonably require. Without the prior written
consent of Beneficiary, Grantor shall not create or suffer to be
created pursuant to the Uniform Commercial Code any other security
interest in said items, including replacements and additions
thereto. Upon the occurrence of an event of default as hereinafter
provided, Beneficiary shall have the remedies of a secured party
under the Uniform Commercial Code and, at Beneficiary's option,
may also invoke the remedies as otherwise provided in this
instrument. In exercising any of said remedies, Beneficary may
proceed against the items of real property and any items of
personal property specified as part of the Mortgaged Property
separately or together and in any order whatsoever, without in any
way affecting the availability of Beneficiary's remedie, under the
Uniform Commercial Code or of the remedies otherwise provided in
this instrument.
(14) EXCLUDED PROPERTY. Beneficiary hereby acknowledges that it has no
security interest in any of the Excluded Property nor is Tenant's
interest of any third party in any Excluded Property subordinate
or subject to this Deed of Trust or any security interest in favor
of Beneficiary for Grantor. Beneficiary will execute and deliver
to Grantor such reasonable instruments as Grantor may from time to
time request confirming the provisions this Paragraph 14 in such
reasonable form as Grantor may request.
(15) GROUND LEASE. Grantor shall have the right, without the prior
written consent of Beneficiary, to enter into a ground lease with
the fee owner of the Land on such terms as determined to be
necessary and appropriate by Grantor. Grantor shall further have
the right to record a memorandum of such ground lease in the
records of the County of St. Louis, State of Missouri. In such
event, such ground lease shall be superior to this Deed of Trust;
provided, however, Grantor shall, upon obtaining all necessary
third party consents, grant a leasehold deed of trust respecting
Grantor's leasehold interest to Beneficiary on such terms and
conditions as are mutually acceptable to Grantor and Beneficiary
and consistent with the terms of this Deed of Trust.
(16) SUBORDINATE TO FIRST DEED OF TRUST. Notwithstanding anything to
the contrary in this Deed of Trust, the rights granted by Grantor
to Beneficiary under this Deed of Trust respecting all portions of
the Mortgaged Property are at all times subject and subordinate to
the rights and interests of holder of fee simple title to the Land
and to the First Deed of Trust and any renewals, modifications,
replacements, and extensions of such First Deed of Trust thereof
to the extent that any of the Mortgaged Property is subject to
such First Deed of Trust. Grantor shall not be in default under
this Deed of Trust or be deemed to have breached any
representations under this Deed of Trust in the event and to the
extent that Beneficiary's rights under this Deed of Trust are so
subordinate. Further, Beneficiary agrees that it will execute such
reasonable agreements and instruments as may be required by
Grantor and/or its lenders to further evidence such subordination.
(17) RELEASE. If all of Grantor's covenants and agreements under this
Deed of Trust are performed in full and either (i) the debt
described in the Convertible Senior Secured Notes is paid when due
or (ii) the then outstanding principal amount of the Convertible
Senior Secured Notes plus all accrued interest on such principal
amount is converted into common shares of Borrower pursuant to the
Securities Purchase Agreement, then these presents shall be void
and this Deed of Trust shall be released with all recording costs
associated with recording any necessary release to be paid by
Grantor.
7
(18) NO THIRD PARTY RIGHTS OR INTERESTS AFFECTED. Grantor, by this
instrument, does not and does not intend to mortgage, pledge,
alter or interfere in any way whatsoever, with the rights of any
party(ies) not a party hereto. Specifically and without
limitation, Grantor by this instrument does not and shall not be
deemed to have taken any action against any property of the estate
of Bridge Information Systems, Inc., a Missouri corporation, or
any of its affiliates which are debtors-in-possession in
bankruptcy cases presently proceeding in the United States
Bankruptcy Court for the Eastern District of Missouri, Eastern
Division, Cases No. ▇▇-▇▇▇▇▇▇▇-▇▇▇ through ▇▇-▇▇▇▇▇▇▇-▇▇▇,
inclusive (collectively, herein the "Debtor"), or to act or
attempt to act to (i) take or transfer any interest in property of
Debtor's estate, (ii) create, perfect, or enforce any lien against
property of Debtor's estate, (iii) create, perfect or enforce any
pre-petition lien against property of Debtor's estate, (iv)
collect or recover any pre-petition claim against Debtor or its
estate, or (v) to set off the interests herein granted against any
pre-petition claim against the Debtor. This instrument conveys a
quitclaim security interest against the property rights, if any,
in the Mortgaged Property and against these rights, if any, only.
(19) DELIVERY OF NON-DISTURBANCE AGREEMENT. Upon the request of
Grantor, Beneficiary will execute and deliver a non-disturbance
and attornment agreement in favor of all users, occupants and
subtenants of the Mortgaged Property confirming that in the event
of a foreclosure of this Deed of Trust, the purchaser of the
Mortgaged Property at the foreclosure sale will recognize and not
disaffirm or disturb either the agreements between Grantor and any
such users, occupants and subtenants or the use and occupancy of
the Mortgaged Property by such users, occupants and subtenants in
accordance with such agreements all of which such agreements and
such users shall continue in full force and effect in accordance
with their terms.
(20) COUNTERPARTS. This Deed of Trust may be executed in several
counterparts, with signature to one such counterpart being deemed
signature to all such counterparts, each of which shall be deemed
an original and all of which taken together shall constitute one
and the same instrument.
(21) FURTHER ADVANCES. This Deed of Trust is to be governed by Section
443.055 of the revised Statues of Missouri, In the event Grantee
shall receive a notice pursuant to Section 443.055 of the Revised
Statues of Missouri terminating this Deed of Trust as security
for future advances for future obligations made or incurred after
the date of such notice, then upon receipt of such notice,
Grantee shall have no further obligation under Notes, any
document evidencing, securing or related to the indebtedness
secured by this Deed of Trust notwithstanding anything to the
contrary in any such document.
(22) EVENTS OF DEFAULT; REMEDIES. If an event of default as
specifically set forth herein shall occur, or in the event any
one or more of the following events shall occur (an "event of
default"): (a) If default shall be made in the payment of any of
the Indebtedness secured hereby, or any interest thereon, as and
when the same shall become due and payable, whether by reason of
demand, acceleration or otherwise; (b) If default shall be made
by Grantor in the due performance or observance of any covenant,
agreement or condition herein contained or required to be
performed or observed by Grantor and such default shall continue
for a period of ten (10) days after the date of the mailing of a
written notice addressed to Grantor at the address hereinabove
set forth, or to such other address as may be designated by
Grantor in written notice delivered to Beneficiary; (c) If
Grantor should become insolvent either in the equity or
bankruptcy definition of the term, or if a voluntary or
involuntary petition in bankruptcy or reorganization of Grantor
is filed, or if Grantor makes an assignment for the benefit of
creditors or an arrangement with its creditors, or if a receiver
or trustee is appointed by Grantor's business or property, or if
Grantor's interest in the Mortgaged Property shall pass by
operation of law as the result of any creditor's action, suit or
proceeding or if any of the foregoing shall occur with respect to
any guarantor of the
8
Indebtedness secured hereby; (d) If the Mortgaged Property or any
portion thereof or ownership interest therein is sold,
transferred, assigned or in any manner conveyed without the prior
written consent of Beneficiary; (e) If a default or event of
default shall occur under or within the meaning of any other deed
of trust or mortgage covering any of the Mortgaged Property; (f)
If a default or event of default shall occur under or within the
meaning of any loan agreement executed in connection with the
Indebtedness or under any agreement, document or instrument
(including any guaranty) evidencing or securing any of the
indebtedness secured hereby; (g) If a default or event of default
shall occur under any other present or future obligation to
Beneficiary, including, without limitation, any other loan, line
of credit, revolving credit, guaranty or reimbursement obligation
relating to any letter of credit issued by Beneficiary for the
account of Grantor, or any other agreement purporting to convey
to Beneficiary a lien or encumbrance upon, or a security interest
in, any of the property or assets of Grantor; or (h) If pursuant
to ss.443.055 ▇.▇.▇▇., as amended, Grantor shall notify
Beneficiary of Grantor's election to terminate the operation of
this Deed of Trust as security for future advances or future
obligations;
THEN, AND IN EACH AND EVERY SUCH EVENT: (1) All of the Indebtedness then
outstanding and unpaid and all accrued and unpaid interest thereon shall, at the
option of Beneficiary, become and be due and payable immediately, anything in
the Notes evidencing any of the Indebtedness or in this Deed of Trust to the
contrary notwithstanding; (2) Upon demand of Trustee or Beneficiary, Grantor
shall forthwith surrender to Beneficiary the actual possession of all of the
Mortgaged Property and it shall be lawful (whether or not Grantor has so
surrendered possession) for Beneficiary, either personally or by agents or
attorneys, forthwith to enter into or upon the Mortgaged Property and to exclude
Grantor, the agents and servants of Grantor, and all parties claiming by,
through or under Grantor, wholly therefrom, and Beneficiary shall thereupon be
solely and exclusively entitled to possession of said Mortgaged Property and
every part thereof, and to use, operate, manage and control the same, either
personally or by managers, agents, servants or attorneys, to the fullest extent
authorized by law; and upon every such entry, the Beneficiary may, from time to
time, at the expense of Grantor, make all necessary and proper repairs and
replacements to the Mortgaged Property as Beneficiary in its discretion sees
fit, and any amounts so expended shall be due on demand, bear interest at the
post-maturity rate set forth in the Notes and shall be secured hereby; (3)
Trustee, at the request of Beneficiary, shall proceed to sell, either by himself
or by agent or attorney, the Mortgaged Property or any part(s) thereof at public
vendue or outcry at the customary place to the highest bidder for cash after
first giving notice as required by the statutes of the State of Missouri and
upon such sale Trustee shall receive the proceeds of such sale and shall execute
and deliver deed or deeds or other instruments of conveyance, assignment and
transfer to the property sold, to the purchaser or purchasers thereof; and (4)
Trustee and/or Beneficiary may proceed by suit or suits at law or in equity to
enforce the Indebtedness secured hereby and/or to foreclose this Deed of Trust
and in such event Trustee shall be entitled to a reasonable fee for his services
and Trustee and Beneficiary shall be entitled to a reasonable fee for the
services of their attorneys and agents, and for all expenses, costs and outlays.
Upon or at any time after the filing of any suit to foreclose the lien hereof,
Beneficiary shall be entitled as a matter of right to the appointment of a
receiver of the Mortgaged Property, either before or after sale, without notice
and without regard to the solvency or insolvency of Grantor at the time of the
application for such receiver, and without regard to the solvency or insolvency
of Grantor at the time of the application for such receiver, and without regard
to the then value of the Mortgaged Property, and Trustee, or Beneficiary, may be
appointed as such receiver. Such receiver shall have all powers necessary or
incidental for the protection, possession, control, management and operation of
the Mortgaged Property.
In any sale or sales made by Trustee under the power herein granted, or
upon any sale or sales under or by virtue of any judicial proceedings: (i) the
whole of the Mortgaged Property, real, personal and mixed, may be sold in one
parcel as an entirety, or the Mortgaged Property may be sold in separate parcels
as may be determined by Trustee in his discretion; (ii) all recitals contained
in any deed or other
9
instrument of conveyance, assignment or transfer made and delivered by Trustee
in pursuance of the powers granted and conferred herein, shall be prima facie
evidence of the facts therein set forth; (iii) such sale or sales shall operate
to divest Grantor of all right, title, interest, claim and demand, either at law
or in equity, under statute or otherwise, in and to the Mortgaged Property and
every part thereof so sold and shall be a perpetual bar, both in law or equity,
against Grantor and any and all persons claiming or to claim from, through or
under Grantor; and (iv) Beneficiary may bid for and purchase the Mortgaged
Property or any part thereof and may make payment therefor by presenting to
Trustee the Notes secured hereby or the other evidences of the Indebtedness
secured hereby so that there may be endorsed as paid thereon the amount of such
bid which is to be applied to the payment of the Indebtedness secured hereby as
herein provided. Each time it shall become necessary to insert an advertisement
of foreclosure, and sale is not had, Trustee shall be entitled to receive the
sum of One Hundred Dollars ($100.00) for services and the amount of all
advertising charges from Grantor, all of which shall be further secured hereby.
Upon the foreclosure and/or sale of the Mortgaged Property, or any part thereof,
the proceeds of such sale or sales shall be applied as follows: First, to the
cost and expense of executing this trust, including reasonable compensation of
Trustee and reasonable attorneys' fees and expenses, outlays for documentary
stamps, cost of procuring title insurance commitments, continuing abstracts,
title searches or examinations reasonably necessary or proper; next, to the
payment of any and all advances made by Trustee or Beneficiary, with interest
thereon as hereinabove provided; next, to the payment of the balance of the
Indebtedness secured hereby, with interest thereon as therein provided; and any
surplus thereafter shall be paid to Grantor or any other party legally entitled
thereto; provided that in the event the net proceeds of such sale or sales shall
not be sufficient to pay in full the Indebtedness secured hereby, Grantor hereby
promises and agrees to pay any deficiency thereon on demand with interest.
Grantor shall not apply for or avail itself of any appraisement,
valuation, redemption, stay, extension or exemption laws, or any so-called
"moratorium laws", now existing or hereafter enacted, in order to prevent or
hinder the enforcement or foreclosure of this Deed of Trust, and hereby waives
the benefit of such laws. Grantor, for itself, its successors and assigns,
hereby wholly waives the period of redemption and any right of redemption
provided under any existing or future law in the event of a foreclosure of this
Deed of Trust. Grantor, for itself and all who may claim through or under it,
hereby waives any and all right to have the property and estates comprising the
Mortgaged Property marshalled upon any foreclosure of the lien hereof and hereby
agrees that any court having jurisdiction to foreclose such lien may order the
Mortgaged Property sold as an entirety. Grantor hereby waives any order or
decree of foreclosure, pursuant to the rights herein granted, on behalf of the
Grantor, and each and every person acquiring any interest in or title to the
Mortgaged Property, subsequent to the date of this Deed of Trust, and on behalf
of all other persons to the extent permitted by applicable law.
The Trustee may resign at any time by written instrument to that effect
delivered to Beneficiary. Beneficiary shall be entitled to remove, at any time
and from time to time, including any time before, during or after the
commencement or completion of any foreclosure proceeding, the Trustee. In case
of the death, removal, resignation, refusal to act or otherwise being unable to
act of the Trustee, Beneficiary shall be entitled to select and appoint a
successor Trustee hereunder by an instrument duly executed, acknowledged and
recorded in the manner and form for conveyances of real estate in the State of
Missouri, which recording may occur before, during or after the commencement or
completion of any foreclosure proceeding, and any such successor Trustee shall
thereupon succeed to Trustee as Trustee hereunder and to all of the rights,
powers, duties, obligations and estate of said Trustee as if specifically named
herein, provided no defect or irregularity in the resignation or removal of said
Trustee or in the appointment of a successor Trustee or in the execution and
recording of such instrument shall affect the validity of said resignation,
removal or appointment or any act or thing done by such successor Trustee
pursuant thereto. Additionally, whether the recording of the successor Trustee
instrument takes place before, during or after the commencement or completion of
any foreclosure proceeding shall have no effect upon the validity of said
proceeding. Trustee shall not be disqualified from acting as Trustee
10
hereunder or from performing any of the duties of Trustee, or from exercising
the rights, powers and remedies herein granted, by reason of the fact that
Trustee is an officer, employee or stockholder of Beneficiary, or is interested,
directly or indirectly, as the holder of the Convertible Senior Secured Notes or
other Indebtedness secured hereby, Grantor hereby expressly consenting to
Trustee acting as Trustee irrespective of the fact that Trustee might be
otherwise disqualified for any of the foregoing reasons, and that any interest
which Trustee or any successor shall have or may acquire in the Indebtedness
secured hereby, or the Mortgaged Property, shall neither interfere with nor
prevent his acting as Trustee or from purchasing said property at said sale or
sales, and all parties waive any objection to Trustee having or acquiring any
such interest in the Indebtedness or Mortgaged Property and continuing to act as
Trustee. Trustee covenants faithfully to perform and fulfill the trust herein
created, but shall be liable, however, only for gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
No remedy herein conferred upon or reserved to Trustee or Beneficiary is
intended to be exclusive of any other remedy, but every remedy herein provided
shall be cumulative, and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity, or by statute; and
every power and remedy given by this Deed of Trust to Trustee or to Beneficiary
may be exercised from time to time and as often as may be deemed expedient. No
delay or omission by Trustee or by Beneficiary to exercise any right or power
arising from any default shall impair any such right or power or shall be
construed to be a waiver of any default or an acquiescence therein. In case
Trustee shall have proceeded to enforce any right under this Deed of Trust by
foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned because of waiver or for any other reason, or shall
have been determined adversely, then, and in such and every such case, Grantor
and Trustee shall severally and respectively be restored to their former
positions and rights hereunder in respect of the Mortgaged Property, and all
rights, remedies and powers of Trustee shall continue as though no such
proceedings had been taken. If any additional sum or sums shall become due and
owing, by Grantor to Beneficiary, pursuant to the provisions hereof, the
affidavit of Beneficiary shall be sufficient evidence of the fact that such
additional sums are secured hereby in the amount set forth in such affidavit.
(23) GENERAL PROVISIONS. This Deed of Trust and all provisions hereof shall
extend to and be binding upon Grantor and all parties claiming by, through
or under Grantor. All covenants and agreements of Grantor herein shall be
joint and several. Grantor acknowledges and agrees that all expenses and
amounts expended by Trustee and/or Beneficiary or owed to Trustee or
Beneficiary under any indemnity in this Deed of Trust, shall be due as and
when incurred, bear interest at the highest rate set forth in the Debt
Instruments (or if no rate is specified, at the maximum lawful rate) and
shall constitute Indebtedness secured hereby, and all indemnities contained
in this Deed of Trust shall apply notwithstanding any negligent conduct or
omission of Beneficiary or Trustee (except to the extent of gross
negligence or willful misconduct on the part of Beneficiary or Trustee),
are in addition to any legal liability or responsibility Grantor otherwise
has, and shall survive the foreclosure of this Deed of Trust and the
payment of the obligations secured hereunder. The unenforceability or
invalidity of any provision or provisions of this Deed of Trust shall not
render any other provision or provisions herein contained unenforceable or
invalid. The term "Beneficiary" shall be deemed to mean and include the
endorsee(s), transferee(s) or the holder(s) at the time being of the Debt
Instruments and/or any of the other Indebtedness secured hereby, and the
successors and assigns of Beneficiary, and the term "Trustee" shall be
deemed to mean and include any successors of the Trustee in the trust
hereby created; and the covenants and agreements shall bind and inure to
the benefit of the heirs, executors, personal representatives, succesors
and assigns of Grantor and the successors in trust of the Trustee and the
endorsee(s), transferee(s), successors and assigns of Beneficiary. All of
the grants, covenants, terms, agreements, provisions and conditions herein
contained shall run with the land. Time is of the essence of all Grantor's
obligations hereunder. The captions or headings used herein are for the
convenience of the parties and are not a part of this Deed of Trust. To the
extent that proeeeds of
11
the Indebtedness secured hereby or advances under this Deed of Trust
are used to pay any outstanding lien, charge or prior encumbrance
against the Mortgaged Property, Beneficiary is hereby subrogated to any
and all rights and liens held by any owner or holder of such
outstanding liens, charges and prior encumbrances, irrespective of
whether said liens, charges or encumbrances are released. Trustee
hereby lets the Mortgaged Property to Grantor and assigns until this
Deed of Trust be released and satisfied, or until default be made under
the covenants and agreements hereof, upon the following terms, to wit:
Grantor and all persons claiming or possessing said Mortgaged Property
or any part thereof, shall pay rent therefor during said term at one
cent per month, payable on demand, and shall and will surrender
peaceful possession of said premises, and every part thereof, to
Trustee immediately upon such default, and without notice or demand
therefor, provided that nothing in this Deed of Trust shall be
construed to prevent the Beneficiary from having and taking every legal
means to enforce payment of the Indebtedness secured hereby, without
having first enforced this Deed of Trust; provided, further that if
Grantor shall well and truly pay or cause to be paid to Beneficiary the
Indebtedness secured hereby as and when the same shall become due and
payable and this Deed of Trust is no longer intended to secure future
advances and future obligations under Section 443.055 ▇.▇.▇▇., as
amended, then this trust shall cease and be void and the Mortgaged
Property hereinbefore conveyed shall be released at the cost of
Grantor, otherwise to remain in full force and effect. To the extent
that Beneficiary receives any payment on account of the Indebtedness
and any such payment(s) or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside,
subordinated and/or required to be repaid to a trustee, receiver or any
other party under any bankruptcy act, state or federal law, common law
or equitable cause, then, to the extent of such payment(s) received,
the Indebtedness or part thereof intended to be satisfied and any and
all liens, security interests, mortgages and/or other encumbrances upon
or pertaining to any assets of Grantor and theretofore created and/or
existing in favor of Beneficiary as security for the payment of such
Indebtedness shall be revived and continue in full force and effect, as
if such payment(s) had not been received by Beneficiary and applied on
account of the Indebtedness. The Recitals above stated are incorporated
herein by this reference.
IN THE EVENT ANY OF THE INDEBTEDNESS SECURED HEREBY IS PAYABLE UPON
DEMAND, NEITHER THIS DEED OF TRUST NOR ANYTHING CONTAINED HEREIN SHALL BE DEEMED
TO ALTER, LIMIT, OR OTHERWISE IMPINGE UPON THE DEMAND CHARACTER OF SUCH
INDEBTEDNESS.
12
IN WITNESS WHEREOF, Grantor has executed this Missouri Future Advance
Deed of Trust and Security Agreement as of the day and year first above written.
Grantor:
SAVVIS COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Printed Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and General Counsel
13
EXHIBIT A
Land
Lot 1 of Mallinckrodt HQ Campus according to the plat thereof recorded in Plat
Book 347 page 548 of the St. Louis County Records.
14
EXHIBIT B
o Amended and Restated Credit Agreement, dated as of September 5, 2000, by
and among the Registrant, as guarantor, SAVVIS Communications Corporation,
a Missouri corporation, as borrower, and Nortel Networks Inc., as
administrative agent, and the lenders named therein.
o Pledge Agreement, dated as of September 5, 2000, by and between the
Registrant and Nortel Networks Inc., as administrative agent for the
lenders.
o Amended and Restated Pledge and Security Agreement, dated as of September
5, 2000, by and between SAVVIS Communications Corporation, a Missouri
Corporation and Nortel Networks Inc., as administrative agent for the
lenders.
o Pledge and Security Agreement, dated as of September 5, 2000, by and
between Global Network Assets, LLC and Nortel Networks Inc., as
administrative agent for the lenders.
o Amended and Restated Guaranty Agreement, dated as of September 5, 2000,
delivered by the Registrant to and in favor of Nortel Networks Inc., as
administrative agent for itself and the other lenders.
o Amended and Restated Guaranty Agreement dated as of September 5, 2000,
delivered by Global Network Assets, LLC to and in favor of Nortel Networks
Inc., as administrative agent for itself and the other lenders.
15