EXHIBIT 10.2
Upon recordation return to: This instrument amends a certain
--------------------------- Missouri Future Advance Deed of
Xxxxxxx X. Xxxxxx, Esq. Trust dated as of February 19, 2001, and
Reboul, MacMurray, Xxxxxx, recorded on February 20, 2001 in the
Xxxxxxx & Kristol records of the St. Louis County Recorder
00 Xxxxxxxxxxx Xxxxx of Deeds as Daily Number 450 ("DEED
New York, New York 10111 OF TRUST")
MODIFICATION OF MISSOURI FUTURE ADVANCE DEED OF TRUST AND
SECURITY AGREEMENT, INCLUDING APPOINTMENT OF SUCCESSOR TRUSTEE
THIS MODIFICATION OF MISSOURI FUTURE ADVANCE DEED OF TRUST, AND
SECURITY AGREEMENT, INCLUDING APPOINTMENT OF SUCCESSOR TRUSTEE (this
"AGREEMENT") is made and entered into effective as of the 19th day of February,
2001 (the "AGREEMENT DATE"), by and between SAVVIS COMMUNICATIONS CORPORATION, a
Missouri corporation ("GRANTOR") having a mailing address of 000 Xxxxxx Xxxxxxx,
Xx. Xxxxx, Xxxxxxxx 00000; WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P., a Delaware
limited partnership having a mailing address of 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, XX 00000; and WCAS MANAGEMENT CORPORATION, a Delaware corporation having a
mailing address of 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, as
collateral agent, pursuant to that certain Agreement for the Appointment of
Collateral Agent dated effective as of the Agreement Date, for the holders of
the Notes issued under the Securities Purchase Agreement (as defined in the Deed
of Trust) (such collateral agent or any successor agent appointed in accordance
with the Agreement for the Appointment of Collateral Agent, herein, the
"BENEFICIARY"). Capitalized terms utilized or otherwise defined herein shall
have the meanings ascribed to them by the Deed of Trust. The following recitals
form the basis of and are a material part of this Agreement:
A. To secure indebtedness of Savvis Communications Corporation, a
Delaware corporation, to the holders of the Notes issued pursuant to the
Securities Purchase Agreement, Grantor granted to Xxxxxx X. Xxxxxxxxx, as
Trustee, for the benefit of Welsh, Xxxxxx, Xxxxxxxx & Xxxxx VII, L.P., as
Beneficiary, the Deed of Trust encumbering Grantor's interest, if any, in
certain land and the improvements thereon more particularly described at EXHIBIT
A attached hereto.
B. The name of the Beneficiary is incorrectly provided in the Deed of
Trust.
C. The parties desire to enter into and record this Agreement to, among
other things, correct the name of the Beneficiary as set forth in the Deed of
Trust.
NOW, THEREFORE, in consideration of the foregoing recitals, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Affirmation of Recitals; Incorporation of Definitions. The parties
hereto agree that the foregoing recitals are true and correct and the
definitions therein contained are incorporated by reference.
2. Correction of Name of Beneficiary. Effective as of the Agreement
Date, the name "Welsh, Xxxxxx, Xxxxxxxx & Xxxxx, VII, L.P." wherever it appears
shall be replaced with the name "WCAS Management Corporation, as collateral
agent, pursuant to that certain Agreement for the Appointment of Collateral
Agent dated effective as of the Agreement Date for the holders of the Notes
issued under the Securities Purchase Agreement," and the Beneficiary under the
Deed of Trust as of the Agreement Date is hereby made "WCAS Management
Corporation, as collateral agent pursuant to that certain Agreement for the
Appointment of Collateral Agent dated effective as of the Agreement Date for the
holders of the Notes issued under the Securities Purchase Agreement."
Beneficiary shall include any successor collateral agent appointed in accordance
with the terms and conditions of the aforementioned Agreement for the
Appointment of Collateral Agent. References to the Agreement for the Appointment
of Collateral Agent, or the Securities Purchase Agreement, as the case may be,
shall include, with respect to each such Agreement, any modifications,
restatements or replacements of such Agreement made in accordance therewith.
3. Certain Other Conforming Changes.
(a) The phrase "to Beneficiary, as evidenced by" appearing in the
second line of the first recital (or WHEREAS clause) on the first page of the
Deed of Trust is hereby replaced effective as of the Agreement Date with the
phrase "to the holders of". The phrase "among Borrower, Beneficiary and WCAS
Management Corporation ("WCAS"),"appearing in lines four and five of the first
recital is hereby replaced with the phrase "made and entered into by WCAS
Management Corporation and Borrower, among others,".
(b) The phrase "Beneficiary and WCAS" appearing in the second, third
and fourth recitals (or WHEREAS clauses) on the first page of the Deed of Trust
is hereby replaced effective as of the Agreement Date with the phrase "the
holders of the Convertible Senior Secured Notes issued under the Securities
Purchase Agreement".
(c) The term "loan" appearing in the third recital (or WHEREAS
clause) on the first page of the Deed of Trust is hereby replaced effective as
of the Agreement Date with the term "loans and other extensions of credit".
(d) Following "Beneficiary" in the fifth recital (or WHEREAS clause)
on the first page of the Deed of Trust there shall be added effective as of the
Agreement Date the phrase "and any of the holders of the Notes".
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(e) Should at any time the holder of any "Note(s)" determine to
convert the indebtedness evidenced thereby into an equity interest in Borrower
pursuant to the terms of the Securities Purchase Agreement, the Note(s) of such
holder shall cease to be "Notes" for purposes hereof and shall not be hereby
secured, nor shall any equity interest in Borrower or rights in securities of
Borrower arising under any Note(s) or the Securities Agreement constitute
Indebtedness secured by the Deed of Trust.
4. Substitution of Trustee. Beneficiary hereby removes Xxxxxx X.
Xxxxxxxxx as the Trustee under the Deed of Trust and appoints Xxxxxxxx X. Xxxxx
who, subject to the further provisions of the Deed of Trust, shall serve as
Trustee thereunder and whose address is 000 X. Xxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000.
5. Obligations Secured by Deed of Trust as Hereby Modified. The Deed of
Trust is, and shall remain, the binding obligation of Grantor, and all of the
provisions, terms, stipulations, conditions, covenants and powers contained
therein shall stand and remain in full force and effect, except only as the same
are herein and hereby expressly and specifically varied or amended, and the same
are hereby ratified and confirmed.
6. UCC Financing Statements. Grantor shall execute and deliver to
Beneficiary such modifications to all UCC-1 financing statements as are
necessary to correct erroneous references to the secured party under any UCC-1
financing statement delivered by Grantor pursuant to the Deed of Trust.
7. Successors and Assigns. This Agreement and the Deed of Trust, each
as hereby modified, shall be binding upon, and inure to the benefit of, the
respective heirs, legal representatives, successors and permitted assigns of
each of the parties thereto.
8. Counterparts. This instrument may be executed in any number of
counterparts and by different parties thereto in separate counterparts, with
signature to each such counterpart constituting signature to all such
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one and the same instrument.
9. Severability. If any provision of this Agreement shall be unlawful,
then such provision shall be null and void, but the remainder of this Agreement
shall remain in full force and effect and be binding on the parties.
10. Oral Agreements. The following notice is provided pursuant to R.S.
MO ss. 432.045; For purposes of this notice only "you" means the Grantor, each
of "us" and "creditor" means Beneficiary, and "this writing" means the Deed of
Trust, each as hereby modified, and the writings referenced therein or related
thereto: ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU AND US FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN
THIS WRITING, WHICH IS
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THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE
MAY LATER AGREE IN WRITING TO MODIFY IT.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective as of the Agreement Date.
GRANTOR:
Savvis Communications Corporation, a Missouri
corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Print Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President, General Counsel
---------------------------------------
BENEFICIARY:
WCAS Management Corporation, as Collateral
Agent, pursuant to that certain Agreement for
the Appointment of Collateral Agent dated
effective as of the Agreement Date, for the
holders of the Convertible Senior Notes
issued under the Securities Purchase
Agreement
By: /s/ Xxxxxxxx X. Rather
------------------------------------------
Xxxxxxxx X. Xxxxxx, Treasurer
Accepted and agreed:
Xxxxx, Xxxxxx, Xxxxxxxx & Xxxxx VII, L.P.
By: WCAS VII Partners, LP
By /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxx, General Partner
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EXHIBIT A
Legal Description of Land Described in Deed of Trust
Lot 1 of Mallinckrodt HQ Campus according to the plat thereof recorded in Plat
Book 347 page 548 of the St. Louis County Records.
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