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N O T E
$12,000,000.00 JUNE 18, 1999
FOR VALUE RECEIVED, the undersigned, EBS BUILDING, L.L.C., a Delaware
limited liability company ("Borrower") promise(s) to pay to the order of FINPRO,
L.L.C., A MISSOURI LIMITED LIABILITY COMPANY ("Lender") at its office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place or
places as the holder of this Note may from time to time designate in writing, in
lawful money of the United States, the principal sum of Twelve Million and
No/100 Dollars ($12,000,000.00) or such lesser sum as may then constitute the
aggregate unpaid principal amount of all loans made by Lender to Borrower
pursuant to the Loan Agreement referred to below, together with interest to be
computed from the date hereof as set forth below:
Interest shall accrue, be computed and be payable on the unpaid
principal balance of this Note at a fluctuating rate equal to the LIBOR Rate
adjusted for Federal Reserve Board requirements and similar assessments, if any,
imposed upon Lender from time to time plus three and one-half percent (3.50%)
per annum (the "Standard Rate"). For the purposes hereof, the term "LIBOR Rate"
shall mean the per annum rate of interest as determined by Lender in its
reasonable discretion, at which deposits in United States dollars in an amount
approximately equal to the unpaid principal amount hereof and with maturities
comparable to the interest period selected by Borrower, are offered to
NationsBank, N.A. in immediately available funds in the London Interbank Market
by leading lenders in the Eurodollar market at approximately 11 a.m. (London
time) on the date ("Quote Date") which is two (2) business days prior to the
date upon which the rate is to become effective, as quoted to Borrower by ▇▇▇▇▇▇
on the Quote Date. For the purposes of the preceding sentence, the initial
interest period selected by Borrower shall be deemed to be one month and the
initial LIBOR Rate shall be effective for that period. Thereafter the succeeding
interest periods shall be either one-month, two-month or three-month interest
periods, as selected by Borrower on the Quote Date, and the succeeding LIBOR
Rates shall be effective for such selected periods; provided, however, that if
Borrower fails to select an interest period on any Quote Date, the next
succeeding interest period shall be deemed to be a one-month interest period;
and provided further that no more than four (4) interest periods may be in
effect at any one time. In no event may Borrower elect an interest period beyond
the maturity of this Note; provided, however, if an interest period expires
within thirty (30) days prior to the maturity of this Note, then the one-month
LIBOR interest period will be used for the short period. All defined terms used
herein which are not defined herein shall have the same definitions as set forth
in the Loan Agreement (as defined below).
The rate of interest charged on the Loan shall change immediately and
contemporaneously with any change in the LIBOR Rate. Interest shall be computed
for the actual number of days which have elapsed, on the basis of a 360-day
year.
Principal and interest payments shall be due and payable as follows:
Interest shall be payable on the first (1st) day of each month,
commencing on July 1, 1999, until this indebtedness is paid in full.
All unpaid principal shall be due and payable May 31, 2001, or on
the earlier dissolution of Borrower.
DISBURSEMENT. This Note is being disbursed pursuant to the terms of a
Credit Facility Agreement between Borrower and Lender of even date herewith (the
"Loan Agreement") and is secured by and is
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entitled to the benefits of a Deed of Trust, Security Agreement and Fixture
Filing (the "Mortgage") and an Assignment of Rents and Lessor's Interest in
Leases and Contract Rights, each granted by the Borrower and each of even date
herewith, and is further secured by and entitled to the benefits of an
Environmental Indemnity Agreement, a Management Agreement Subordination, a
Consulting Agreement Subordination and a Brokerage Agreement Subordination, each
of even date herewith. No amount that is repaid hereunder may be re-borrowed by
▇▇▇▇▇▇▇▇. This Note, all of the instruments described above which further
evidence or secure this Note, and any and all instruments now or hereafter
executed pursuant to or in connection with any of the foregoing, are
collectively referred to as the "Loan Documents." Reference is hereby made to
the Loan Documents for a description of the property pledged to secure the Note
(the "Mortgaged Premises"), and a statement of when the principal balance hereof
may be accelerated.
DEFAULT. A "Default" is hereby defined as (i) a failure of Borrower to
make any payment of interest, principal, or other sums payable hereunder, when
due, which failure is not cured within ten (10) days after written notice of
such failure is given by Lender to the Borrower in accordance with paragraph 25
of the Mortgage, or (ii) any other breach or failure by Borrower to comply with
any other obligation or covenant in any of the Loan Documents which has not been
cured within any applicable cure period established therein. In case of a
Default, if the holder of this Note so elects, notice of election being
expressly waived, the unpaid principal amount hereof and all interest and other
sums due hereunder may be declared due and payable forthwith. In case of a
Default in the payment of any installment when due, and the holder of this Note
does not exercise its option to declare all unpaid indebtedness due and payable,
the undersigned, at the holder's option, shall pay a "late charge" in the amount
of four percent (4%) of the installments due, when paid more than fifteen (15)
days after the due date thereof, and the holder of this Note may apply payments
received on any amounts due hereunder or under the terms of any instrument now
or hereafter evidencing or securing this Note as the said holder may determine.
The entire principal balance shall bear interest at two and one-half percent (2
1/2 %) per annum in excess of the Standard Rate after maturity whether by
acceleration or in due course; provided, however, that the interest rate shall
in no event exceed the maximum rate allowed by applicable law. The failure to
exercise, in case of one or more Defaults, any right or remedy given in this
paragraph, shall not preclude the holder of this Note from exercising any right
or remedy given in this paragraph in case of one or more subsequent Defaults. In
the event a Default shall have occurred and be continuing, Lender will not be
obligated to fund any additional moneys under this Note.
COSTS. The Borrower agrees to pay all costs of collection when
incurred, including reasonable attorneys' fees. No extension of the time for the
payment of this Note or any installment thereof made by agreement with any
person now or hereafter liable for the payment of this Note shall operate to
release, discharge, modify, change or affect the original liability under this
Note, either in whole or in part, of any of the undersigned. Presentment, demand
for payment, notice of dishonor and protest are hereby waived.
PREPAYMENT. Privilege is reserved to pay the debt in whole or in part
at any time and from time to time without penalty.
WAIVER OF JURY. In the event any controversy or claim between or among
the parties hereto shall not be resolved, to the fullest extent permitted by
law, the parties hereto waive the right to trial by jury in connection with any
action, suit or other proceeding arising out of or relating to this instrument
or any other loan document.
PURPOSE. This Note is given for the business purpose of financing real
estate and shall be construed in accordance with the laws of the State of
Missouri.
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ORAL MODIFICATIONS. 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
(BORROWER(S)) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT.
The proceeds of this Note secured by Deed of Trust will be used for the
purposes specified in Section 408.035 of the Missouri Revised Statutes and the
indebtedness secured thereby constitutes both a business loan and a real estate
loan which come within the purview of Section 408.035 ▇.▇.▇▇.
EBS BUILDING, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY
BY: PRICEWATERHOUSECOOPERS LLP,
MANAGER
BY: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, DIRECTOR
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EXHIBIT 10.18
DEED OF TRUST, SECURITY AGREEMENT
AND
FIXTURE FILING
TO
FINPRO, L.L.C.
("MORTGAGEE")
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING SECURES FUTURE
ADVANCES AND FUTURE OBLIGATIONS OF PRINCIPAL UP TO A TOTAL AMOUNT OF
$12,000,000.00 AND INTEREST AND OTHER AMOUNTS AS PERMITTED BY SECTION 443.055 OF
THE REVISED STATUTES OF THE STATE OF MISSOURI, AS IT MAY BE AMENDED FROM TIME TO
TIME, AND THIS DEED OF TRUST IS GOVERNED BY SAID SECTION.
THIS DEED OF TRUST (referred to herein as "this instrument"), executed as of
June 18, 1999, by and among EBS BUILDING, L.L.C., a Delaware limited liability
company whose address is PriceWaterhouseCoopers LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Partner ("Mortgagor"),
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, whose address is ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Trustee"), and
Mortgagee, whose address is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
W I T N E S S E T H:
▇▇▇▇▇▇▇▇▇, for and in consideration of the loans, advances or other
financial accommodations by Mortgagee giving rise to the debt herein described
and the sum of One Dollar ($1.00), the receipt and adequacy of which are hereby
acknowledged, GRANTS, TRANSFERS, ASSIGNS, BARGAINS and SELLS, CONVEYS and
CONFIRMS to Trustee the following real property, whether now owned or held or
hereafter acquired by Mortgagor and whether now or hereafter existing (the
"Mortgaged Property"), subject to those easements, covenants, conditions, and
restrictions of record as of the date hereof and those written leases disclosed
in writing to Mortgagee on or prior to the date hereof, to have and to hold the
Mortgaged Property, with all rights, appurtenances and privileges thereunto
belonging, unto the Trustee, his successors and assigns forever.
▇▇▇▇▇▇▇▇▇ agrees and acknowledges that disbursement of loan proceeds to
Mortgagor shall be subject to the terms and conditions of that certain Credit
Facility Agreement between Mortgagor and Mortgagee of even date herewith (the
"Loan Agreement").
The Mortgaged Property is the following:
(1) all of the following described land (the "Land") situated in the City of
St. Louis, State of Missouri:
SEE LEGAL DESCRIPTION ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART
HEREOF
(2) all improvements and fixtures (the "Improvements") now or hereafter
existing or constructed upon the Land, including, but not limited to,
buildings and other structures;
(3) all of the hereditaments, easements, licenses, privileges, rights-of-way,
water rights, uses and other appurtenances to the Land and Improvements;
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(4) all right, title and interest, if any, of Mortgagor in and to nearby ways,
roads, streets, boulevards, avenues or other public thoroughfares; and
(5) all right, title and interest of ▇▇▇▇▇▇▇▇▇ in and to the rents, income,
issues, profits and revenues of all of the foregoing, including, but not
limited to, rents and royalties payable with respect to oil, gas or
minerals located on or under the Land.
(6) all of ▇▇▇▇▇▇▇▇▇'s rights as Lessee under that certain Lease dated December
22, 1982 by and between Land Clearance for Redevelopment Authority of the
City of St. Louis (the "LCRA"), as Lessor, and Edison Brothers Stores,
Inc., as Lessee, as amended by Addendum No. 1 dated October 4, 1984 and
Addendum No. 2 dated April 1, 1985 and as assigned to Mortgagor by
Assignment of Lease dated September 30, 1998 by and between Edison Brothers
Stores, Inc., as Assignor, and EBS Building, L.L.C., as Assignee (the
"Lease"), which Lease grants to Mortgagor the right to use 250 parking
spaces and certain other amenities in the parking garage constructed by the
Lessor on land located in City Block 118 in the City of St. Louis,
Missouri, and more particularly described in Exhibit B attached hereto and
made a part hereof.
This conveyance is made in trust, however, to secure all of the
following (the "Obligations"), and it is contemplated that the balance
outstanding under the Documents may fluctuate and that this instrument shall
secure the balance outstanding under the Documents from time to time from zero
up to the maximum stated in the notice regarding future advances at the
beginning of this instrument and, to the extent allowed by law, advances made by
Mortgagee or obligations incurred by Mortgagee, for the reasonable protection of
the security interest in the "Collateral" (as such term is defined in paragraph
2 below), including, but not limited to, amounts for taxes, insurance, repair,
maintenance and preservation of the Collateral, completion of improvements on
the Mortgaged Property and expenses of collection, sale and foreclosure
hereunder and that the same shall have priority over any intervening or
subsequent liens and encumbrances:
(7) The payment of all amounts due, including, but not limited to,
principal, interest, fees and expenses, from time to time (whether at stated
maturity, by acceleration or otherwise) and obligations arising under the
following documents, all of which are incorporated herein by reference:
(a) promissory note of Mortgagor in the principal amount of
$12,000,000.00 dated of even date with this Deed of Trust, with a
final payment of principal and interest due on May 31, 2001; and
(b) this instrument, the Loan Agreement, an Assignment of Rents and
Lessor's Interest in Leases and Contract Rights, an Environmental
Indemnity Agreement, a Management Agreement Assignment and
Subordination, a Consulting Agreement Assignment and Subordination, a
Brokerage Agreement Assignment and Subordination and Uniform Commercial
Code Financing Statements, each of even date herewith, and all
additional security agreements, mortgages, deeds of trust, assignments
and other instruments and agreements which are now or hereafter
executed and delivered to Mortgagee relative to the Obligations or
Collateral; and
(c) any and all extensions, renewals, amendments, replacements,
restatements, refinances, refundings or modifications (including, but
not limited to, modifications to interest rates or other payment terms)
of any of the foregoing.
The term "Documents" shall mean, unless otherwise specified, all of the
documents referred to in clauses (a), (b) and (c) above and "Document" shall
mean any one of such documents. Each Document shall be equal and without
preference over another.
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(8) The observance and performance by ▇▇▇▇▇▇▇▇▇ of each and every term,
covenant, condition and agreement required by the Documents to be observed
and performed by ▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇▇ FURTHER COVENANTS, AGREES, REPRESENTS AND WARRANTS AS
FOLLOWS:
1. DEFINED TERMS. All capitalized terms used in this instrument shall have the
meanings defined in the Sections where they are first used or if not therein
defined, the following meanings (such meanings to be equally applicable to both
the singular and the plural forms of the terms defined):
"Charter Documents" means the certificate or articles of incorporation
and bylaws of a corporation, the constitution, certificate or articles of
association and bylaws of an unincorporated association, the partnership
agreement of a general partnership agreement and certificate of partnership of a
limited partnership, the trust instruments under which a trust exists, and the
Articles of Organization and Operating Agreement of a limited liability company.
"Contaminants" means any pollutants, hazardous or toxic substances or
wastes, or contaminated materials including asbestos, urea formaldehyde,
petroleum products, pesticides, PCBs and all other materials and substances
designated or regulated as hazardous or toxic substances or wastes, pollutants
or contaminated materials under any Environmental Laws or regulation promulgated
thereunder.
"Default Rate" means an interest rate of two and one-half percent
(2.5%) in excess of the Above Standard Rate as defined in the Note.
"Environmental Enforcement Action" means any action, proceeding or
investigation instituted by the U. S. Environmental Protection Agency, the
Missouri Department of Natural Resources or any other federal, state or local
governmental agency related to any suspected or actual violation of any
Environmental Laws or Contaminants with respect to the Property and/or any
business conducted thereon.
"Environmental Laws" means the Clean Water Act, the Clean Air Act, the
Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act, the Superfund Amendment and
Reauthorization Act, the Toxic Substances Control Act, the Occupational Safety
and Health Act and any other federal, state or local environmental statute, rule
or regulation as enacted or amended from time to time and all licenses, orders,
permits, certificates or like authorizations promulgated under any of the
foregoing.
"Environmental Release" means any spilling, leaking, migrating,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment of any Contaminant which
causes the Property not to be in compliance with any applicable Environmental
Laws.
"Mortgagee" means the Mortgagee identified as such in this instrument
and any subsequent holder of any of the Documents or the other Obligations.
2. SECURITY INTEREST. Mortgagor also grants to Mortgagee to secure the
Obligations a security interest in all goods and personal property now owned or
hereafter acquired by Mortgagor that are intended to be used or are actually
used in the operation or maintenance of the Land and Improvements, and all
right, title and interest of Mortgagor in and to all of the following: (i) all
fixed assets, equipment, furniture and trade fixtures and other personal
property and construction materials and supplies used or intended to be used on
the Mortgaged Property, whether or not stored on the Land, (ii) all plans,
specifications, drawings, computations, sketches, test data, survey results,
models, photographs, renderings of or relating to the Mortgaged Property, (iii)
any security and like deposits, bank and deposit accounts, trademarks,
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tradenames, logos, general intangibles and other materials, now owned or
hereafter acquired, used or intended to be used in connection with the Mortgaged
Property, (iv) Mortgagor's interest as licensor or licensee, permitor or
permittee, assignor or assignee or contractor or contractee, in, under and to
all licenses, permits and contract rights now or hereafter held by Mortgagor
pertaining to the Mortgaged Property or pertaining to all contracting or
architectural services in connection with the Mortgaged Property, together with
all amendments, modifications, supplements, general conditions and addendum
thereto and work product resulting therefrom, (v) all security deposits, escrow
payments, sale contracts, ▇▇▇▇▇▇▇ money deposits, leasing and management
agreements, building and other permits, governmental and other authorizations,
licenses or commitments issued by various governmental agencies, utility
companies, lending institutions or other entities, franchises, advertisements,
rights, agreements, warranties and all other intangible or tangible personal
property now or hereafter issued used in connection with or required with
respect to the Mortgaged Property or the use thereof, (vi) all surveys, soil
reports and samples obtained or prepared in connection with the Land and budgets
and financial projections and information, utility allowance, trademarks, trade
names, logos and any and all agreements and contract rights and any parking
agreements, operating agreements, easement and reciprocal easements regarding,
pertaining to or used in connection with or required with respect to the
Mortgaged Property or the use thereof, (vii) Mortgagor's contract rights under
all receivables now or hereafter owing to Mortgagor under all existing and
future leases of space and occupancy agreements in all buildings now or
hereafter located on the Land; and all replacements thereof, substitutions
therefor and accessions thereto and cash and non-cash proceeds thereof, and
(viii) all right, title and interest of Mortgagor in those items set forth on
Exhibit B to the Uniform Commercial Code Financing Statement between Mortgagor
and Mortgagee of even date herewith (the "Personal Property Collateral"). This
instrument constitutes a "security agreement" as that term is used in the
Uniform Commercial Code in effect where the Mortgaged Property is located. This
instrument is a "Construction Mortgage" as that term is defined in Section 9-313
of the Uniform Commercial Code in effect where the Mortgaged Property is
located. The Personal Property Collateral and the Mortgaged Property are
hereinafter collectively referred to as the "Collateral".
3. ASSIGNMENT OF RENTS. Mortgagor hereby assigns to Mortgagee all of the
rents, issues, income, profits and revenues arising from the Mortgaged Property,
its interest as lessor in all existing and future leases of all or any part of
the Mortgaged Property, and its interest as licensor in all existing and future
licenses pertaining to the Mortgaged Property. Such assignment shall not be
construed as a consent by Mortgagee to any such lease or license or impose upon
Mortgagee any obligations with respect thereto. This assignment is absolute and
effective immediately; provided, however, that until an Event of Default occurs,
Mortgagor may receive the rents, issues, income, profits and revenues arising
from the Mortgaged Property, but shall hold the same as a trust fund to be
applied to the Obligations as they become due before using the same for any
other purpose. Mortgagor shall not terminate or cancel any such lease or
license, nor terminate or accept a surrender or cancellation of any such lease
or license, nor reduce the rent or fees payable thereunder, nor accept any
prepayment of rent or fees (except such amount as may be required by the terms
of the relevant lease or license to be prepaid for a period of not more than one
month) without first obtaining the written consent of Mortgagee on each
occasion, provided, however, that Mortgagor may alter, modify, amend, terminate
or cancel any Lease, or accept a surrender of any Lease, or waive any term or
condition of any Lease demising floor area not in excess of 20,000 square feet
without the prior consent (written or otherwise) of Mortgagee. Mortgagor shall
perform all of its obligations as lessor or licensor under such leases and
licenses. Mortgagor is executing and delivering to Mortgagee, on the date
hereof, an Assignment of Rents and Lessor's Interest in Leases and Contract
Rights (the "Assignment of Leases") in favor of Mortgagee. If any provision of
this Paragraph 3 pertaining to the assignment of leases or rents conflicts with
any of the provisions of the Assignment of Leases, then the provisions of the
Assignment of Leases shall govern.
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4. ESCROW OF TAXES, ASSESSMENTS AND INSURANCE. Mortgagor shall upon
Mortgagee's demand in writing deposit into the account for taxes and insurance
set forth in Section 7.11 of the Loan Agreement the amount, if any, as estimated
by Lender by which the annual charge against the Mortgaged Property for general
and special state, county and municipal taxes and assessments, and the annual
cost of insurance required to be maintained herein exceeds the amount required
to be deposited pursuant to Section 7.11 of the Loan Agreement. These payments
shall be held in said account pursuant to the terms of the Loan Agreement, shall
not bear interest and shall be applied by Mortgagee to payment of general and
special taxes and assessments and insurance premiums as they become due. In the
event the sums to be paid by Mortgagor shall not be sufficient to pay any such
general or special tax or assessment or insurance premium when due, Mortgagor
shall, immediately upon notice from Mortgagee, pay the deficiency to Mortgagee,
which shall then pay the general or special tax or assessment or insurance
premium then due. In case of default of any of the terms of this instrument, the
above funds deposited with Mortgagee shall constitute additional security for
all Obligations secured hereby and may be applied by Mortgagee against the same.
5. REPRESENTATIONS AND WARRANTIES. Mortgagor represents and warrants to
Mortgagee that:
5.1. POWER AND AUTHORITY. Mortgagor has full power, authority and legal
capacity to execute this instrument and perform ▇▇▇▇▇▇▇▇▇'s obligations
hereunder. If Mortgagor is not an individual,
5.1.1. Mortgagor is duly organized and exists in good standing under
the laws of the state of its organization; Mortgagor is duly qualified
to do business and is in good standing in every state where any of the
Collateral is located and the nature or extent of its business or
properties there require it to be qualified to do business as a foreign
entity; and Mortgagor has the power and authority to own and use the
Collateral as it is now being used.
5.1.2. The persons who have executed this instrument have been duly
authorized to execute and deliver this instrument on behalf of
▇▇▇▇▇▇▇▇▇; and this instrument has been duly authorized by all
requisite action of Mortgagor and its shareholders, partners or other
persons whose action is required for such authority to exist.
5.2. CONSENTS, PERMITS AND APPROVALS. Other than the consent of the
LCRA in connection with the assignment of the Lease, no consent of any third
party, and no consent, permit, license, approval or authorization of, or
registration, declaration or filing with or notice to, any governmental
authority is required in connection with the execution and delivery of this
instrument or the performance by ▇▇▇▇▇▇▇▇▇ of its obligations hereunder, or the
validity or enforceability against Mortgagor of this instrument.
5.3. LEGAL RESTRAINT. The execution and delivery of this instrument and
the performance by ▇▇▇▇▇▇▇▇▇ of its obligations hereunder does not and will not
violate any provision of any law, rule or regulation or of any order, judgment,
award or decree of any court, arbitrator or governmental authority, the Charter
Documents of Mortgagor or any security issued by Mortgagor if Mortgagor is not
an individual, or any agreement, indenture or undertaking to which Mortgagor is
a party or by which Mortgagor or the Collateral is bound or affected.
5.4. TITLE TO COLLATERAL. Mortgagor has marketable fee simple title to
the Mortgaged Property except for the leasehold estate in the portion of the
Mortgaged Property subject to the Lease, and owns the Personal Property
Collateral, free and clear of all easements, covenants, restrictions,
conditions, encumbrances, liens and claims except those easements, covenants,
conditions and restrictions of record as of the date hereof and those written
leases disclosed to Mortgagee on or prior to the date hereof.
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5.5. ENVIRONMENTAL REPRESENTATIONS. To the best of ▇▇▇▇▇▇▇▇▇'s
knowledge, information and belief:
5.5.1. The Mortgaged Property is free of any Contaminants (as defined
herein) and neither Mortgagor nor any other person (including, but not
limited to, prior owners, occupiers and tenants) has ever caused or
permitted any Contaminant to be manufactured, placed, generated,
stored, held, transferred, processed, produced, transported or disposed
on, at, through or under the Mortgaged Property other than minimal
quantities of substances on the Mortgaged Property which technically
could be considered Contaminants provided that such substances are of a
type and are held only in a quantity normally used in connection with
the construction, occupancy or operation of comparable buildings (such
as cleaning fluids, and supplies normally used in the day to day
operation of business offices), and such substances are being held,
stored and used in complete and strict compliance with all applicable
Environmental Laws.
5.5.2. Mortgagor has not caused or permitted any Contaminants to be
manufactured, placed, stored, located or disposed of on, under or at
any other real property owned, occupied (under leases or licenses or
otherwise) or operated by the Mortgagor other than minimal quantities
of substances on the Mortgaged Property which technically could be
considered Contaminants provided that such substances are of a type and
are held only in a quantity normally used in connection with the
construction, occupancy or operation of comparable buildings (such as
cleaning fluids, and supplies normally used in the day to day operation
of business offices), and such substances are being held, stored and
used in complete and strict compliance with all applicable
Environmental Laws.
5.5.3. No lien has or is currently attached to any revenues or any real
or personal property owned by ▇▇▇▇▇▇▇▇▇ including, but not limited to,
the Mortgaged Property as a result of any governmental entity expending
monies as a result of any alleged Environmental Release or the
existence of on, thorough or under the Mortgaged Property of a
Contaminant or a breach of an Environmental Law.
5.5.4. Neither Mortgagor nor, to ▇▇▇▇▇▇▇▇▇'s knowledge, any other
person (including, but not limited to, prior owners, occupants and
tenants) has received any notice or advice of any Environmental
Enforcement Action.
5.5.5. ▇▇▇▇▇▇▇▇▇ has conducted or caused to be conducted by a
consultant acceptable to Mortgagee a site assessment of the Mortgaged
Property to determine the presence of conditions indicating the
presence of Contaminants on the Mortgaged Property or violations of
Environmental Laws with respect to the Mortgaged Property. ▇▇▇▇▇▇▇▇▇'s
consultant has found no evidence of the presence of such Contaminants
or the violation of such Environmental Laws except as disclosed in such
report. A copy of said consultant's report has been delivered to
Mortgagee and Mortgagee has been authorized by ▇▇▇▇▇▇▇▇▇ and its
consultant to rely upon said report in agreeing to make the loan
secured by this Mortgage.
▇▇▇▇▇▇▇▇▇ hereby agrees to indemnify, defend and hold Mortgagee
harmless from and against any claims, damages, actions, liabilities, causes of
action, suits, investigations and judgments of any nature whatsoever, including,
without limitation, attorney's fees and expenses, incurred by Mortgagee in
connection with any breach of the representations and warranties set forth in
this paragraph except to the extent caused by Mortgagee. The foregoing indemnity
shall survive the payoff of the Note secured by this Mortgage.
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5.6. ENVIRONMENTAL COVENANTS. Mortgagor covenants and agrees that:
5.6.1. Mortgagor will keep or cause to be kept the Mortgaged Property
and any other real property owned, occupied or operated by Mortgagor
free of any Contaminants.
5.6.2. Mortgagor will not use the Mortgaged Property or any other real
property owned, operated or occupied by Mortgagor for the manufacture,
placement, generation, storage, location or disposal of any
Contaminants nor permit the Mortgaged Property or any other property
owned, occupied or operated by it to be used in such a manner.
5.6.3. Mortgagor shall not cause or permit to exist as a result of any
intentional or unintentional action or omission on its part or for
which it is responsible under applicable Environmental Laws an
Environmental Release of any Contaminant.
5.6.4. In the event of any Environmental Release of a Contaminant onto
the Mortgaged Property or to any other property owned, occupied or
leased by it or for which it is other wise responsible under applicable
Environmental Law, it shall promptly remediate or cause the remediation
of such Environmental Release in accordance with the provisions of all
Environmental Laws of governmental entities and authorities having
jurisdiction.
5.6.5. Mortgagor shall provide notice in writing to Mortgagee of any of
the following within three (3) business days:
a. An Environmental Release of any Contaminant on the Mortgaged
Property or onto any other real property owned, occupied or
operated by it or for which Environmental Release it is or may
be responsible or with respect to which such responsibility is
asserted by a governmental agency or in any private cause of
action, by a party to such suit under applicable law; or
b. Any notice of any pending or threatened Environmental
Enforcement Action with respect to Mortgagor or the Mortgaged
Property including copies of complaints, orders, citations or
notices from any person or entity including, without limitation,
Environmental Protection Agency and applicable state agencies.
5.6.6. Mortgagor hereby agrees that any reporting obligations created
under federal, state or local Environmental Laws and regulations shall
be the obligation of Mortgagor and not the Mortgagee.
5.7. MORTGAGEE'S ENVIRONMENTAL RIGHTS. In addition to any other rights
Mortgagee has, Mortgagee shall have the following additional rights and remedies
with respect to the environmental status of the Mortgaged Property:
5.7.1. Mortgagee shall have the right, but not the obligation, and
without limitation of Mortgagee's other rights under this Mortgage,
without materially interfering with the rights or occupancies of
tenants except in the event of an emergency, to enter onto the
Mortgaged Property to conduct tests or to take such other actions as it
deems reasonably necessary to cleanup, remediate, encapsulate, remove,
resolve or minimize the impact of, or otherwise deal with, any
Contaminants or Environmental Enforcement Actions or breaches of
Environmental Laws pertaining to the Mortgaged Property or any part
thereof which could result in an order, suit or other action against
Mortgagor and/or which, in the reasonable opinion of Mortgagee, could
jeopardize its security under this Mortgage. All reasonable costs and
expenses incurred by
11
Mortgagee in the exercise of any such rights shall be secured by this
Mortgage and shall be payable by Mortgagor upon demand. Mortgagee may
only exercise the foregoing rights in the event Mortgagor shall have
received notice from Mortgagee with respect thereto and shall have
failed to take or initiate such action within the cure period
applicable to the performance of covenants hereunder.
5.7.2. Mortgagee shall have the right, in its sole discretion, to
require Mortgagor to periodically (but not more frequently than
annually unless an Environmental Enforcement Action is then outstanding
in which case this limitation will not apply) perform (at ▇▇▇▇▇▇▇▇▇'s
expense) environmental assessments satisfactory to Mortgagee, of the
Mortgaged Property. Said assessment must be by an environmental
consultant satisfactory to Mortgagee. Should Mortgagor fail to perform
or cause to be performed said environmental assessment within sixty
(60) days of the Mortgagee's written request, Mortgagee shall have the
right, but not the obligation, to retain an environmental consultant to
perform said environmental assessment. All reasonable costs and
expenses incurred by Mortgagee in the exercise of such rights shall be
secured by this Mortgage and shall be payable by Mortgagor upon demand
or charged to ▇▇▇▇▇▇▇▇▇'s loan balance at the discretion of Mortgagee.
5.7.3. Mortgagee's rights under this Article shall be exercised by it
in its sole discretion and for the benefit of Mortgagee only. Mortgagee
shall have no obligation to enter into the Mortgaged Property or to
take any other action which it is authorized by this Article to take
for the protection of its security. Any action which it may elect to
take hereunder shall be for its own benefit and all Mortgagee
beneficiary rights are hereby expressly negated. Mortgagee shall have
no responsibility for the conduct of ▇▇▇▇▇▇▇▇▇'s environmental
practices on the Mortgaged Property or in any other location. Any
action or inaction by Mortgagee hereunder shall not be deemed to
constitute the taking of control over Mortgagee waste disposal, waste
management, or other environmental practices with respect to the
Mortgaged Property or any other property.
6. COVENANTS. Mortgagor covenants and agrees with Mortgagee as follows:
6.1. PAYMENT OF PRINCIPAL AND INTEREST. Mortgagor will pay the
indebtedness evidenced by the Documents in accordance with the terms thereof,
without demand, counterclaim, offset, deduction or defense and without any
relief from valuation or appraisement laws of the State in which the Mortgaged
Property is located.
6.2. PAYMENT OF LIENABLE CHARGES AND CLAIMS. Mortgagor shall pay,
before they become delinquent, all taxes, penalties, assessments, charges and
other amounts which, if not so paid, will result in the imposition of a lien on
any of the Collateral, and Mortgagor shall pay all claims of contractors,
subcontractors, materialmen, laborers and suppliers which, if not paid, will
entitle the claimant to impose a mechanic or materialman's lien upon any of the
Collateral, except such of the foregoing as are being diligently contested in
good faith by Mortgagor by appropriate proceedings and for which ▇▇▇▇▇▇▇▇▇ has
obtained a bond to protect the interest of Mortgagee from a bonding company
acceptable to Mortgagee, or established reserves acceptable to Mortgagee or
caused Mortgagee's title insurance company to affirmatively insure over such
lien; provided, however, that, if in the reasonable judgment of Mortgagee, the
lien or security interest created by this instrument is materially endangered or
any material part of the Collateral is subject to imminent loss or diminution in
value as a result of such contest, then Mortgagor shall pay the same immediately
upon demand by Mortgagee. Mortgagor shall furnish to Mortgagee upon its request
evidence of its compliance with this Section.
12
6.3. PRESERVATION OF COLLATERAL. Mortgagor shall not commit or allow
waste of the Collateral and shall repair and maintain the Collateral so as to
keep it in no less than the same condition as existed on the date hereof,
ordinary wear and tear alone excepted.
6.4. COMPLIANCE WITH LAWS. Mortgagor shall comply with all laws, rules,
regulations and codes, including, but not limited to, fire and building codes of
federal, state and local authorities applicable to the Collateral or the use of
the Collateral, and with the requirements of every board of fire underwriters or
similar body whose requirements apply to similar property in the area where any
of the Collateral is located.
6.5. ALTERATIONS. Mortgagor shall not commit or allow any alteration,
demolition or removal of any of the Improvements which would materially impair
the value of the Collateral without the prior written consent of Mortgagee. The
foregoing shall not apply to alterations, demolition or removal in connection
with improvements contemplated by an approved lease.
6.6. INSPECTION BY MORTGAGEE. Mortgagee may at any time upon reasonable
prior notice inspect the Collateral and all books and records of Mortgagor
pertaining to the Collateral. Mortgagor shall give Mortgagee access to the
Collateral to exercise any of Mortgagee's rights and remedies under this
instrument.
6.7. INSURANCE. Mortgagor shall at all times keep the Collateral
insured, in insurance companies and under forms of insurance acceptable to
Mortgagee, against fire, extended coverage and other perils as Mortgagee may
from time to time require ("Casualty Insurance"). If Mortgagor regularly carries
on a business using any of the Collateral, however, Mortgagor may omit from the
coverage of such insurance any items of the Collateral which are not of a
character usually insured by others carrying on a similar business. Mortgagor
shall also at all times carry insurance, in insurance companies acceptable to
Mortgagee, against liability on account of damage to persons or property
("Liability Insurance"), (the Casualty Insurance, Liability Insurance and any
other insurance required herein to be maintained by Mortgagor are sometimes
hereinafter referred to collectively as the "Insurance"). If Mortgagor regularly
carries on a business using any of the Collateral, the Liability Insurance shall
include product liability insurance and insurance required under all applicable
workers' compensation laws and shall cover all other liabilities common to
Mortgagor's business, in such manner and to such extent as such coverage is
usually carried by others conducting a similar business. All policies of
Liability Insurance shall name Mortgagee as an additional insured. All policies
of Casualty Insurance shall reflect Mortgagee's interest therein as a mortgagee
under a standard New York or Union mortgagee clause. All policies of Insurance
shall contain a clause providing that such policies may not be canceled without
thirty (30) days' prior written notice to Mortgagee. Mortgagor shall furnish to
Mortgagee upon its request at any time certificates evidencing the existence of
the Insurance. Such certificates shall specify the names of the insurers, the
limits of coverage, the expiration dates and the types of coverage, and shall
reflect that Mortgagee is an additional insured or that the proceeds thereof are
payable to Mortgagor and Mortgagee as their interests may appear, as applicable.
Upon the occurrence and during the continuance of an Event of Default, Mortgagee
is authorized, but not obligated, as the attorney-in-fact for ▇▇▇▇▇▇▇▇▇, (i) to
adjust and compromise proceeds payable under the policies of Insurance without
the consent of ▇▇▇▇▇▇▇▇▇, (ii) to collect, receive and give receipts for such
proceeds in the name of Mortgagor and Mortgagee, and (iii) to endorse
▇▇▇▇▇▇▇▇▇'s name upon any instrument in payment thereof. This power granted
Mortgagee shall be deemed coupled with an interest and shall be irrevocable.
Mortgagee may, at Mortgagee's sole option, apply the proceeds of Insurance to
the Obligations, and shall pay the portion not so applied to Mortgagor.
Notwithstanding the foregoing, in the event that the amount of any such proceeds
does not exceed $250,000.00, Mortgagor shall have the right to receive such
proceeds, provided that Mortgagor applies the same to the repair and/or
13
restoration of the Mortgaged Property. If the area where the Improvements are
located is now or in the future designated as a special flood hazard area
pursuant to the Flood Disaster Protection Act of 1973 (as amended), and if the
community where the Improvements are located is participating in the National
Flood Insurance Program, Mortgagor shall obtain and continuously maintain a
National Flood Insurance Program Standard Flood Insurance Policy or equivalent
covering the Mortgaged Property.
If at any time Mortgagee is not in receipt of written evidence
that all insurance required hereunder is in full force and effect, Mortgagee
shall have the right, without notice to Mortgagor, to take such action as
Mortgagee deems necessary to protect its interest in the Mortgaged Property,
including, without limitation, the obtaining of such insurance coverage as
Mortgagee in its sole discretion deems appropriate, and all expenses incurred by
Mortgagee in connection with such action or in obtaining such insurance and
keeping it in effect shall be paid by Mortgagor to Mortgagee upon demand and
until paid shall be secured by this Mortgage and shall bear interest at the
Default Rate.
For the purpose of this Paragraph, the terms "you" and "your"
shall refer to Mortgagor and the terms "we" and "us" shall refer to Mortgagee.
UNLESS YOU PROVIDE US WITH 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 US WITH
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 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.
6.8. CONDEMNATION. Mortgagor hereby assigns to Mortgagee all awards and
payments, including any interest thereon, and the right to receive the same,
which may be made with respect to the Collateral as a result of (i) condemnation
or the exercise of the right of eminent domain by any public or quasi-public
authority, (ii) the alteration of the grade of any street or (iii) any other
injury to or decrease in the value of the Collateral. ▇▇▇▇▇▇▇▇▇ agrees to
execute and deliver such further instruments as may be requested by Mortgagee to
confirm this assignment and sufficient for the purpose of assigning all proceeds
from such awards or payments to Mortgagee. Mortgagee is authorized, but not
obligated, as the attorney-in-fact for ▇▇▇▇▇▇▇▇▇, to collect, receive and give
receipts for such awards and payments. This power granted Mortgagee shall be
deemed coupled with an interest and shall be irrevocable. Mortgagee may, at
Mortgagee's sole option, apply such awards and payments to the Obligations,
whether or not then due and payable, and shall pay the portion not so applied to
Mortgagor.
6.9. MORTGAGEE'S RIGHT TO CAUSE PERFORMANCE OF COVENANTS. If Mortgagor
fails to maintain and pay the premiums for Insurance as required in Section 6.7,
to pay all taxes, penalties, assessments, charges, and claims as required in
Section 6.2, or to repair and maintain any of the Collateral as required in
Section 6.3, or if Mortgagor fails to keep or perform any of Mortgagor's other
covenants herein after notice and the applicable cure period, Mortgagee may
cause such repairs and maintenance to be made, obtain such
14
Insurance, pay such taxes, penalties, assessments, charges or claims, or cause
such other covenants to be performed. Mortgagor shall pay to Mortgagee on demand
all amounts paid by Mortgagee for the foregoing and the amount of all expenses
incurred by Mortgagee in connection therewith, together with interest thereon
from the date when incurred at the Default Rate. Such amounts and interest shall
be secured by this instrument and shall be a lien on and security interest in
the Collateral prior to any right, title, interest, lien or claim in or upon the
Collateral subordinate to the lien of this instrument. Any such payments by
Mortgagee shall not be deemed a waiver of any Default. Mortgagee shall not be
obligated to exercise Mortgagee's rights under this Section and shall not be
liable to Mortgagor for any failure to do so.
6.10. COSTS OF PRESERVING OR ENFORCING THIS INSTRUMENT. Mortgagor shall
(to the extent permitted by law) pay to Mortgagee on demand the amount of all
costs and expenses, including reasonable attorneys' fees and disbursements and
appraisal fees, incurred by Mortgagee in connection with (i) amendment,
interpretation or enforcement of this instrument, Mortgagee's rights or remedies
under this instrument, or the priority of the lien and security interest of this
instrument, (ii) collection of any of the Obligations, or (iii) any title
examination or title insurance commitment or policy relating to the Mortgaged
Property, together with interest thereon from the date when incurred at the
Default Rate. Such amounts and interest shall be secured by this instrument and
shall be a lien on and security interest in the Collateral prior to any right,
title, interest, lien or claim in or upon the Collateral subordinate to the lien
of this instrument.
6.11. CHANGE IN TAX LAW. If, after the date of this instrument, any law
becomes effective where any of the Collateral is located that imposes a tax on
Mortgagee or any of the Obligations based upon or as a consequence of the amount
value or existence of this instrument or any of the Obligations, Mortgagee shall
have the right to declare that the Obligations, including all accrued interest,
shall be immediately due and payable; provided, however, that Mortgagee shall
not have such right if Mortgagor is permitted by law to pay the whole of such
tax in addition to the Obligations, in which event Mortgagor shall reimburse
Mortgagee for such tax upon demand and the amount thereof shall be secured by
this instrument and shall be a lien on and security interest in the Collateral
prior to any right, title, interest, lien or claim in or upon the Collateral
subordinate to the lien of this instrument.
6.12. CERTIFICATIONS. Mortgagor, upon the request of Mortgagee, shall
certify to Mortgagee or to any proposed assignee of this instrument, by a
writing duly acknowledged, whether any offsets or defenses are alleged to exist
against the Obligations and the names and addresses of any lessees or licensees
of the Mortgaged Property or any part thereof, together with a summary of the
material terms of their respective leases or licenses, the rents and fees
payable thereunder and whether any default exists thereunder. Mortgagee may
request such a certificate from Mortgagor at any time and from time to time.
Such certificate shall be executed and delivered to Mortgagee within ten (10)
business days of such request.
6.13. INDEMNITY. Mortgagor shall (to the extent permitted by law)
protect, defend, and indemnify Mortgagee, and hold Mortgagee harmless from and
against, any claims, actions or proceedings against Mortgagee and any loss,
cost, damage or expense, including, but not limited to, reasonable attorneys'
fees and disbursements, incurred by Mortgagee, arising out of or in any way
related to a breach of the representations, warranties, covenants or agreements
of Mortgagor herein. Mortgagee shall have the right, jointly with ▇▇▇▇▇▇▇▇▇, to
negotiate and settle any such claims, actions or proceedings.
6.14. DEFENSE OF TITLE. Mortgagor shall execute and deliver to
Mortgagee, at Mortgagor's sole expense, such further assurances of title to the
Collateral that are reasonably necessary to evidence, preserve or protect the
lien and security interest created by this instrument. Mortgagor shall, at its
sole
15
expense, warrant and defend title to the Collateral and the priority of the lien
and security interest created by this instrument against all claims and demands
whatsoever.
6.15. MAINTAIN EXISTENCE. Mortgagor will maintain in good standing its
corporate (if Mortgagor is a corporation) its limited liability company (if
Mortgagor is a limited liability company), its trust (if Mortgagor is a trust)
or partnership (if Mortgagor is a partnership) existence and its authority to
transact business in all jurisdictions where the nature of its business or
properties requires it to be so authorized.
7. FINANCIAL STATEMENTS.
7.1. Mortgagor will keep accurate books and records in accordance with
sound accounting principles in which full, true and correct entries shall be
promptly made with respect to the Mortgaged Property and the operation thereof,
and will permit all such books and records to be inspected and copied, and the
Mortgaged Property to be inspected and photographed, by Mortgagee and its
representatives during normal business hours and at any other reasonable times.
7.2. Mortgagor shall furnish to Mortgagee such financial information
and statements as are required by the Loan Agreement.
7.3. Mortgagor will furnish to Mortgagee at Mortgagor's expense, all
evidence which Mortgagee may from time to time reasonably request as to
compliance with all provisions of the Loan Documents. Any inspection or audit of
the Mortgaged Property or the books and records of Mortgagor, or the procuring
of documents and financial and other information, by or on behalf of Mortgagee,
shall be for Mortgagee's protection only, and shall not constitute any
assumption of responsibility to Mortgagor or anyone else with regard to the
condition, construction, maintenance or operation of the Mortgaged Property nor
Mortgagee's approval of any certification given to Mortgagee nor relive
Mortgagor of any of Mortgagor's obligations.
8. WAIVER OF RIGHTS. Except to the extent contrary to applicable law, ▇▇▇▇▇▇▇▇▇
hereby releases and waives the benefit of all laws now existing or hereafter
enacted that provide for appraisal before sale of the items of the Collateral
being sold or that provide for the extension of the time for the enforcement of
the collection of the Obligations or that create or extend the period for
redemption of any of the Collateral from any sale thereof to collect the
Obligations.
9. DEFAULT. Any one or more of the following shall constitute a "Default" under
this instrument:
9.1. PAYMENT OF OBLIGATIONS EVIDENCED BY THE DOCUMENTS OR OTHER
OBLIGATIONS. Nonpayment of any principal, interest or other payment on the
Obligations, whether evidenced by the Documents or constituting any fee or other
amount due from Mortgagor to Mortgagee hereunder, on or when such payment
becomes due (whether by acceleration or otherwise), and which nonpayment is not
cured within ten (10) days of the date on which Mortgagee gives written notice
of nonpayment to the Mortgagor in accordance with paragraph 25 of the Mortgage.
9.2. OTHER MATERIAL AGREEMENTS. A breach or default under any material
agreement (other than the Documents) relating to the Mortgaged Property,
including but not limited to the Lease, which continues unremedied beyond any
applicable grace or cure period.
9.3. PAYMENT OR ACCELERATION OF OTHER INDEBTEDNESS. Nonpayment, when
due, of any other indebtedness of ▇▇▇▇▇▇▇▇▇ having a principal balance in excess
of $500,000.00 (other than the
16
Obligations) which continues unremedied beyond any applicable grace or cure
period or acceleration of any other indebtedness of Mortgagor prior to the
stated maturity thereof.
9.4. REPRESENTATIONS AND WARRANTIES. Any representation or warranty
made by Mortgagor herein, in any Document, or in any other agreement, instrument
or other paper delivered to Mortgagee proves to have been untrue or misleading
in any material respect at the time when made or deemed to be made.
9.5. DISPOSAL OF COLLATERAL. After the date hereof, any conveyance,
further encumbrance, exchange, lease or other transfer or disposal, title
encumbrance, or agreement to transfer, lease or dispose, of any Collateral; or a
change of Mortgagor's manager other than to a similarly situated institutional
manager, without Mortgagee's prior written consent.
9.6. LOSS OF COLLATERAL. Uninsured loss, theft, damage or destruction
to or of any item of the Collateral resulting in an uninsured loss in excess of
$500,000.00.
9.7. BANKRUPTCY, INSOLVENCY, ETC. Mortgagor (i) fails to pay or admits
in writing Mortgagor's inability to pay, ▇▇▇▇▇▇▇▇▇'s debts as they become due or
otherwise become insolvent (however evidenced); (ii) makes an assignment for the
benefit of creditors; (iii) is adjudicated insolvent or bankrupt, (iv) petitions
or applies to any tribunal for a receiver or trustee of Mortgagor or any
substantial part of Mortgagor's property, or allows any such receivership or
trusteeship imposed without ▇▇▇▇▇▇▇▇▇'s consent to continue undischarged for a
period of sixty (60) days; (v) files a petition in bankruptcy or commences any
other proceeding relating to Mortgagor under any reorganization, arrangement,
adjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect; (vi) has commenced against it
any such proceeding which remains undismissed for a period of sixty (60) days;
or (vii) by any act authorizes, consents to or acquiesces in any of the
foregoing.
9.8. JUDGMENTS, ATTACHMENT, ETC. Any one or more judgments or orders
against ▇▇▇▇▇▇▇▇▇ in excess of $100,000 or any attachment or other levy against
any of the Collateral remains unpaid, unstayed on appeal, undischarged, unbonded
or undismissed for a period of thirty (30) days.
9.9. LIQUIDATION OR DISSOLUTION. Mortgagor, if other than an
individual, is liquidated or dissolved or Mortgagor otherwise fails to maintain
its corporate or partnership existence, as the case may be, in good standing in
its state of organization or its authority to transact business is revoked,
suspended or relinquished in any state where the nature of its business or
properties requires it to be so authorized. Mortgagor, if an individual, dies or
is adjudicated incompetent.
9.10. MATERIAL CHANGE. The dissolution, termination or failure to
maintain the corporate existence of Borrower or Guarantor (if an entity).
9.11. COVENANTS, TERMS OR AGREEMENTS. A default by Mortgagor in the due
observance or performance of any covenant, term or agreement contained herein or
in any Document (other than a breach which would constitute a Default under
Sections 9.1 through 9.11 hereof) which default is not remedied within thirty
(30) days after the date on which Bank gives written notice of such default to
Borrower or such longer period as may be reasonably necessary to effect such
remedy.
10. REMEDIES UPON DEFAULT. If a Default occurs, Mortgagee shall have the right
to do one or more of the following:
17
10.1. Mortgagee may, at its option and without notice or demand to
Mortgagor except as otherwise required by applicable law, declare all of the
Obligations immediately due and payable regardless of maturity.
10.2. Mortgagee may, at its option and without notice or demand to
Mortgagor except as otherwise required by applicable law, take immediate
possession of some or all of the Collateral, with or without appointment of a
receiver or application therefor, and lease or rent the same either in its own
name or in the name of Mortgagor, and receive the rents, income, issues, profits
and any other revenues thereof and apply the same, after payment of (to the
extent permitted by law) all costs and expenses incurred by Mortgagee in doing
the foregoing, including, but not limited to, reasonable attorneys' fees and
disbursements, to the Obligations. Mortgagor hereby irrevocably appoints
Mortgagee as ▇▇▇▇▇▇▇▇▇'s attorney-in-fact to manage, repair, maintain, lease and
rent the Collateral and collect all rents, income, issues, profits and any other
revenues thereof, with full power and authority to bring suit to collect the
same and to give receipts therefor; provided, however, that Mortgagee shall not
be obligated to do so. This power granted Mortgagee shall be deemed coupled with
an interest and shall be irrevocable.
10.3. Mortgagee may direct Trustee to sell the Mortgaged Property as
provided herein or to institute an action of foreclosure on this instrument or
to institute other proceedings according to law for foreclosure, and prosecute
the same to judgment, execution and sale, for the collection of the Obligations
and (to the extent permitted by law) all costs and expenses of such proceedings,
including, but not limited to, reasonable attorneys' fees and disbursements.
Mortgagee shall have the continuing right to control and direct the time and
manner in which Trustee effects and completes the foregoing.
10.4. Mortgagee may exercise in respect of the Personal Property
Collateral all of the rights and remedies available to a secured party upon
default under the applicable provisions of the Uniform Commercial Code then in
effect where the Personal Property Collateral is located.
10.5. Mortgagee may setoff and apply all net balances in any and all
bank and deposit accounts of Borrower held by Bank against any sums due under
the Note or under any of the other Loan Documents.
11. APPOINTMENT OF RECEIVER. In any action or proceeding for foreclosure, or
upon actual or threatened waste to any part of the Collateral, Mortgagee shall
be entitled, to the extent permitted by applicable law, to the appointment of a
receiver to take possession of, and to operate, maintain, and manage the
Collateral and to collect the rents, income, issues, profits and revenues from
the Collateral and pay the same over to Mortgagee for application to the
Obligations. Mortgagee shall be entitled to the appointment of such a receiver
as a matter of right without regard to the value of the Collateral as security
for the Obligations or the solvency of Mortgagor or anyone else who may be
liable for the payment or performance of the Obligations.
12. SALE BY TRUSTEE UNDER POWER OF SALE.
12.1. If Mortgagee so directs Trustee after a Default occurs, Trustee
shall sell the Mortgaged Property as a single parcel or in separate parcels at
one or more sales (each a "Non-Judicial Sale").
12.2. Each Non-Judicial Sale shall be a public sale to the highest
bidder and shall be conducted at the door of the court house or other location
then customarily employed for that purpose in the county where the Mortgaged
Property is located. Trustee shall give notice of the time and place of each
Non-Judicial Sale and a description of the property to be sold as is then
required by the laws of the state where the Mortgaged Property is located, or if
there is no such requirement, as Trustee may deem appropriate;
18
provided, however, that by announcement by Trustee at the original time and
place set therefor, a Non-Judicial Sale may be adjourned to another time and
place in the city where the Mortgaged Property is located, and thereafter may be
similarly adjourned from time to time, each without further notice (unless
otherwise required by law), and may be made at any time or place to which the
same is so adjourned.
12.3. Trustee's power of sale under this instrument shall not be
exhausted by any Non-Judicial Sale if any part of the Mortgaged Property remains
unsold, but shall continue unimpaired until the earlier of the time that all of
the Mortgaged Property has been sold or the Obligations have been paid in full.
13. OTHER MATTERS RELATING TO ENFORCEMENT OF REMEDIES. The term "Sale" in this
Section 13 refers to a Non-Judicial Sale or a Sale of an item of the Collateral
made pursuant to judicial proceedings for foreclosure (a "Judicial Sale"), as
applicable under the circumstances. The term "Selling Official" in this Section
13 refers to Trustee (in the case of a Non-Judicial Sale) and to the public
officer who conducts the sale under execution or order of the court (in the case
of a Judicial Sale).
13.1. Upon any Sale of any item of the Collateral, it shall not be
necessary for the Selling Official to have present or constructively in his
possession any of the Collateral.
13.2. Upon the completion of every Sale, the Selling Official shall
execute and deliver to each purchaser a bill of sale or deed of conveyance, as
appropriate, for the items of the Collateral that are sold. Mortgagor hereby
grants every such Selling Official the power as the attorney-in-fact of
▇▇▇▇▇▇▇▇▇ to execute and deliver in ▇▇▇▇▇▇▇▇▇'s name all deeds, bills of sale
and conveyances necessary to convey and transfer to the purchaser all of
▇▇▇▇▇▇▇▇▇'s rights, title and interest in the items of the Collateral that are
sold. Mortgagor hereby ratifies and confirms all that its said attorney-in-fact
lawfully does pursuant to such power. Nevertheless, Mortgagor, if so requested
by Selling Official or by any purchaser, shall ratify any such sale by executing
and delivering to such Selling Official or to such purchaser, as applicable,
such deeds, bills of sale or other instruments of conveyance and transfer as may
be specified in any such request.
13.3. The recitals contained in any instrument of conveyance or
transfer made by a Selling Official to any purchaser at any Sale shall, to the
extent permitted by law, conclusively establish the truth and accuracy of the
matters stated therein, including, but not limited to, the amount of the
Obligations, the occurrence of a Default, and the advertisement and conduct of
such Sale in the manner provided herein or under applicable law. All
prerequisites to such Sale shall be presumed from such recitals to have been
satisfied and performed.
13.4. To the extent permitted by applicable law, every Sale, or sale
made as contemplated by Section 10.4, shall operate to divest all rights, title
and interest of Mortgagor in and to the items of the Collateral that are sold,
and shall be a perpetual bar, both at law and in equity, against Mortgagor and
▇▇▇▇▇▇▇▇▇'s heirs, executors, administrators, personal representatives,
successors and assigns, and against everyone else claiming the item sold either
from, through or under Mortgagor or ▇▇▇▇▇▇▇▇▇'s heirs, executors,
administrators, personal representatives, successors or assigns.
13.5. A receipt from any person authorized to receive the purchase
money paid at any Sale, or sale made as contemplated by Section 10.4, shall be
sufficient discharge therefor to the purchaser. After paying such purchase money
and receiving such receipt, neither such purchaser nor such purchaser's heirs,
executors, administrators, personal representatives, successors or assigns shall
have any responsibility or liability respecting the application of such purchase
money or any loss, misapplication or non-application of any of such purchase
money, or to inquire as to the authorization, necessity, expediency or
regularity of any such sale.
19
13.6. In any Sale or sale made as contemplated by Section 10.4, the
Mortgagee may bid for and purchase any of the Collateral being sold, and shall
be entitled, upon presentment of the relevant Documents and documents evidencing
the same, to apply the amount of the Obligations held by it against the purchase
price for the items of the Collateral so purchased. The amount so applied shall
be credited against the Documents and other Obligations in the same order as
provided in Section 14.
14. APPLICATION OF SALE PROCEEDS. The proceeds of any Non-Judicial Sale,
Judicial Sale or other sale or realization from the Collateral pursuant to this
instrument, and all other monies received by Mortgagee in any proceedings for
the enforcement hereof, shall be paid and applied as follows:
First, (to the extent permitted by law) to the payment of the
costs and expenses of so realizing on the Collateral, including, but
not limited to, (i) reasonable compensation to the Trustee, his agents
and attorneys, and (ii) all costs and expenses incurred by Mortgagee in
connection therewith, including, but not limited to, reasonable
attorneys' fees and disbursements, together with interest thereon at
the Default Rate from the date incurred;
Second, to the portion of the Obligations that constitute
interest accrued but unpaid;
Third, to the remainder of the Obligations; and
Fourth, the balance, if any, to the Mortgagor or its heirs,
executors, administrators, personal representatives, successors or
assigns or to whosoever else may be lawfully entitled to receive the
same or as a court of competent jurisdiction may direct.
15. PARTIAL RELEASE. Any part of the Collateral may be released by Mortgagee
from the lien and security interest created by this instrument. Any such partial
release shall be at the sole option of Mortgagee; Mortgagee shall not be
obligated to grant partial releases. Any such partial release shall not affect
the lien and security interest created by this instrument as to the remainder of
the Collateral.
16. FULL RELEASE. When the Obligations are paid in full and all of Mortgagor's
covenants and agreements in this instrument are fully performed, this instrument
shall be released of record at the cost of Mortgagor.
17. LEASE TO MORTGAGOR. The Mortgaged Property is hereby leased to Mortgagor,
for a term ending at the earlier of the time when this instrument is released
and satisfied or the Mortgaged Property is sold as provided in this instrument,
for a rental of one cent ($.01) per month, payable monthly upon demand.
Mortgagor shall, without notice or demand therefor, immediately surrender
peaceable possession of the Mortgaged Property to the purchaser thereof at a
Non-Judicial Sale or Judicial Sale. The purchaser shall be entitled to institute
summary proceedings for possession of the Mortgaged Property if possession is
not so surrendered.
18. SUBSTITUTION OF TRUSTEE. Mortgagee is hereby granted the power at any time,
for any reason or no reason, to remove the Trustee and appoint a successor. Such
removal and appointment shall be by written instrument duly executed by
▇▇▇▇▇▇▇▇▇ and recorded in the office of the recorder of deeds of the city where
this instrument is recorded. Upon the recording of such instrument, the
successor shall succeed to all of the powers, duties and obligations of the
Trustee under this instrument. Any successor Trustee may be removed and another
successor appointed by ▇▇▇▇▇▇▇▇▇ in the same manner. A successor Trustee shall
not be liable or responsible for any acts or omissions of his predecessors.
20
19. GOVERNING LAW. This instrument and the rights and obligations of the parties
hereunder shall be governed by and construed and interpreted in accordance with
the laws of the State of Missouri, without regard to choice or conflict of laws
rules.
20. ADDITIONAL OR OTHER SECURITY. Mortgagee may take additional security for the
Obligations, and Mortgagee may resort for the payment of the Obligations to any
other security therefor held by Mortgagee in such order and manner as Mortgagee
may elect, without releasing or impairing the lien and security interest created
by this instrument.
21. EFFECT OF EXTENSIONS AND MODIFICATIONS. Mortgagee, at its sole option, may
extend the time for the payment or performance of the Obligations, or reduce the
payments of principal or interest thereof, or accept a modification or renewal
of the Documents or other Obligations (including such as effect an increase in
the interest rate thereof), without the consent of any endorser, guarantor or
other party to the Documents or any other document evidencing any of the
Obligations. Any such extension, reduction, modification or renewal shall not
impair or affect the priority of the lien and security interest created by this
instrument, or limited, release, discharge or affect the liability of Mortgagor,
any endorser, guarantor or other party to the Documents or any other document
evidencing the Obligations, except in accordance with the strict terms and tenor
of any such extension, reduction, modification or renewal, and regardless of
whether Mortgagor consents to any such extension, reduction, modification or
renewal where a subsequent owner of the Mortgaged Property and Mortgagee are the
parties to the extension, reduction, modification or renewal.
22. MORTGAGEE'S RIGHTS NON-EXCLUSIVE. The rights and remedies of Mortgagee under
this instrument are in addition to the rights and remedies of Mortgagee at law
and in equity. The exercise of any of Mortgagee's rights or remedies shall not
be deemed to be an election of one right or remedy over another or to prevent
Mortgagee from exercising any other of Mortgagee's rights or remedies.
23. PARTIAL INVALIDITY. If any provision of this instrument is held to be
invalid or unenforceable, the rest of this instrument shall remain fully valid
and enforceable.
24. WAIVERS AND AMENDMENTS. No failure by Mortgagee to insist upon the strict
and timely performance of any of the provisions of this instrument shall be
deemed a waiver thereof. Mortgagee, notwithstanding any such failure, shall have
the right to insist upon the strict and timely performance by ▇▇▇▇▇▇▇▇▇ of any
and all terms and provisions of this instrument to be performed by ▇▇▇▇▇▇▇▇▇. No
waiver by Mortgagee shall be effective unless it is in writing and signed by an
authorized officer of Mortgagee. No such waiver shall operate as a waiver of any
other matter or of a similar matter at a future time. This instrument may not be
modified or amended except by a duly recorded writing executed by both ▇▇▇▇▇▇▇▇▇
and an authorized officer of Mortgagee.
25. NOTICES. Any communication between the parties shall be deemed given if in
writing and upon (i) receipt, if personally delivered to Mortgagor or Mortgagee,
or (ii) deposit in the U.S. Mail addressed to Mortgagor at Mortgagor's Notice
Address or Mortgagee at Mortgagee's Notice Address, if sent by certified or
registered mail, or (iii) receipt, if sent by facsimile to ▇▇▇▇▇▇▇▇▇'s or
Mortgagee's FAX Number. No communication from or concerning ▇▇▇▇▇▇▇▇▇ shall be
deemed for any purpose to have been received by Mortgagee unless it is in
writing and actually received by an executive officer of Mortgagee. Whenever
applicable provisions of the Uniform Commercial Code or other applicable law
require that notice be reasonable, ten (10) days' notice shall be deemed
reasonable. ▇▇▇▇▇▇▇▇▇'s "Notice Address" is the mailing address shown below
▇▇▇▇▇▇▇▇▇'s signature. ▇▇▇▇▇▇▇▇▇'s FAX Number is the telephone number for
▇▇▇▇▇▇▇▇▇'s facsimile machine shown below ▇▇▇▇▇▇▇▇▇'s signature.
21
26. CAPTIONS. Section captions in this instrument are for convenience only and
shall not affect the interpretation or construction of this instrument.
27. BINDING EFFECT. This instrument shall bind ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇'s heirs,
executors, administrators, personal representatives, successors and assigns, and
shall inure to the benefit of Mortgagee and Mortgagee's successors and assigns.
28. [INTENTIONALLY DELETED]
29. WAIVER OF JURY. In the event any controversy or claim between or among the
parties hereto shall not be resolved as provided above, to the fullest extent
permitted by law, the parties hereto waive the right to trial by jury in
connection with any action, suit or other proceeding arising out of or relating
to this instrument or any other loan Document.
30. REPRESENTATIONS AND COVENANTS RE: LEASE.
A. REPRESENTATIONS.
(i) To Mortgagor's knowledge, the Lease is a valid and
subsisting lease of the property therein described and is in
full force and effect in accordance with its terms, and has
not been further amended or modified in any respect.
(ii) No default has occurred and is continuing under the
Lease and to Mortgagor's knowledge no event has occurred or
is occurring which, with the passage of time or service of
notice or both, would constitute an event of default under
the Lease.
(iii) To ▇▇▇▇▇▇▇▇▇'s knowledge, the Lease is subject to no
liens or encumbrances other than as set forth in the
mortgagee title insurance policy insuring the lien of this
Mortgage, a copy of which has been furnished to Mortgagor.
(iv) ▇▇▇▇▇▇▇▇▇ is the owner of the leasehold estate created
by the Lease and has the right and authority under the Lease
to execute this Mortgage and to encumber the leasehold estate
as provided herein.
B. AFFIRMATIVE AND NEGATIVE COVENANTS.
(v) Mortgagor will promptly perform and observe all the
terms, covenants and conditions required to be
performed and observed by ▇▇▇▇▇▇▇▇▇ as lessee under the
Lease, within the periods (exclusive of grace periods,
if any) provided in the Lease, and will do all things
reasonably necessary to preserve and keep unimpaired
its rights under the Lease. Mortgagor will furnish the
Mortgagee, upon demand, proof of payment of all items
which are required to be paid by the Mortgagor pursuant
to the Lease. Mortgagor shall not waive any of its
material rights under the Lease, or refrain from
exercising any material right or remedy accorded to it
under the Lease on account of any material default by
the lessor thereunder, or release the lessor from any
material economic liability without first
22
obtaining the written consent of Mortgagee which
consent shall not be unreasonably withheld, conditioned
or delayed.
(vi) In the event Mortgagor shall violate any of the
covenants specified in subparagraph (i) above, then Mortgagee
shall have the right (but shall not be obligated) to take any
action, without allowing for expiration of any period of
grace, as Mortgagee may deem necessary or desirable to
prevent or cure any default of Mortgagor under the Lease or
any default of the lessor thereunder, it being agreed that
upon receipt by Mortgagee from the lessor under the Lease of
any notice of default, Mortgagee shall be entitled to rely
thereon and take any of the aforesaid action even though
Mortgagor denies or questions the existence of any such
default, and shall have the immediate right to enter all or
any portion of the Mortgaged Property at such times and in
such manner as Mortgagee deems appropriate in order to
prevent or to cure any such default.
(vii) For the purpose of preventing or curing any default by
Mortgagor under the Lease, Mortgagee may after notice to
Borrower and a reasonable opportunity for Borrower to act
(but shall be under no obligation to) do any act or execute
any document in the name of ▇▇▇▇▇▇▇▇▇ or as its
attorney-in-fact, as well as in the name of Mortgagee. Upon
the occurrence and during the continuance of an Event of
Default, ▇▇▇▇▇▇▇▇▇ hereby irrevocably appoints Mortgagee its
true and lawful attorney-in-fact in its name or otherwise to
do any and all acts and to execute any and all documents
which in the opinion of Mortgagee may be necessary or
desirable to prevent or cure any default under the Lease or
to preserve any rights of Mortgagor in, to or under the
Lease, including the right to effectuate a renewal of the
Lease or to preserve any rights of Mortgagor whatsoever in
respect of any part of the Mortgaged Property.
(viii) The curing by Mortgagee of any default by Mortgagor
under the Lease shall not remove or waive, as between
Mortgagor and Mortgagee, the default which occurred hereunder
by virtue of the default by Mortgagor under the Lease, and
all sums expended by Mortgagee in order to cure any such
default and costs and expenses incurred by Mortgagee in
connection with the curing of such default shall be paid by
Mortgagor to Mortgagee upon demand with interest thereon at
the post-Default rate set forth in the Note from the date
paid by Mortgagee.
(ix) Mortgagor covenants and agrees that ▇▇▇▇▇▇▇▇▇ will not
surrender ▇▇▇▇▇▇▇▇▇'s leasehold estate and interest
hereinabove described under the Lease, nor terminate or
cancel the Lease, and that Mortgagor will not without the
express written consent of Mortgagee modify, change,
supplement, alter or amend the Lease in any material respect,
either orally or in writing, and as further security for the
repayment of the indebtedness secured hereby and for the
performance of the covenants herein and in the Lease,
Mortgagor hereby assigns to Mortgagee all of Mortgagor's
rights, privileges and prerogatives as Lessee under the Lease
to terminate, cancel, modify, change, supplement, alter or
amend the Lease, and any such termination, cancellation,
modification, change, supplement, alteration or amendment of
the Lease, without the prior written consent thereto by
Mortgagee, shall be void and of no force and effect. So long
as there is no Event of Default
23
under, any of the covenants or agreements in the Lease,
Mortgagee shall have no right to terminate, cancel, modify,
change, supplement, alter or amend the Lease.
(x) Mortgagor covenants and agrees that no release or
forbearance, except an express written agreement to release,
of any of Mortgagor's obligations under the Lease, pursuant
to the Lease or otherwise, shall release Mortgagor from any
of Mortgagor's obligations hereunder, including ▇▇▇▇▇▇▇▇▇'s
obligations with respect to the payment of rent as provided
for in the Lease and the performance of all of the terms,
provisions, covenants, conditions and agreements contained in
the Lease, to be kept, performed and complied with by the
Lessee therein.
24
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first above written.
MORTGAGOR:
EBS BUILDING, L.L.C., a Delaware limited
liability company
BY: PRICEWATERHOUSECOOPERS LLP,
MANAGER
BY: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, DIRECTOR
Mortgagor's Notice Address: PricewaterhouseCoopers LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Partner
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇ FAX Number: (▇▇▇) ▇▇▇-▇▇▇▇
STATE OF MISSOURI )
) SS.
CITY OF ST. ▇▇▇▇▇ )
On this 16TH day of June, 1999, before me appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
to me personally known, who, being by me duly sworn, did say that he is a
Director of PRICEWATERHOUSECOOPERS LLP, which is the Manager of EBS BUILDING,
L.L.C., a limited liability company of the State of Delaware, and that said
instrument was signed on behalf of said limited liability company, by authority
of its Members; and said ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ acknowledged said instrument to be
the free act and deed of said limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in the City and State aforesaid, the day and year first above
written.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Notary Public
My commission expires: June 4, 2002
25
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first above written.
MORTGAGEE:
FINPRO, L.L.C., a Missouri limited liability
company
BY: /S/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MANAGER
[EBS DEED OF TRUST]
Mortgagee's Notice Address: c/o The Kroenke Group
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: ( ) FAX Number: ( )
STATE OF MISSOURI )
) SS.
CITY OF ST. ▇▇▇▇▇ )
On this 18TH day of June, 1999, before me appeared ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
to me personally known, who, being by me duly sworn, did say that he is the
Manager of FINPRO, L.L.C., a Missouri limited liability company, and that said
instrument was signed on behalf of said limited liability company, by authority
of its Members; and said ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ acknowledged said instrument to be
the free act and deed of said limited ▇▇▇▇▇▇▇▇▇ company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in the County and State aforesaid, the day and year first
above written.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Notary Public
My commission expires: 2/6/2002
--------------------
26
IN WITNESS WHEREOF, this instrument has been executed as of the day and
year first above written.
TRUSTEE:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
STATE OF MISSOURI )
) SS.
CITY OF ST. ▇▇▇▇▇ )
On this 18th day of June, 1999, before me personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, to me known to be the person described in and who executed the
foregoing instrument, and acknowledged that he executed the same as his free act
and deed in his capacity as Trustee.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in the County and State aforesaid, the day and year first
above written.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Notary Public
My commission expires: 2/6/2002
------------------
27
EXHIBIT "A"
(LEGAL DESCRIPTION)
All that real property located in the City of St. Louis, State of Missouri, more
particularly described as follows:
A tract of land being Book 119, part of Block 118, that part of St. ▇▇▇▇▇▇▇
Street, 50 feet wide, vacated by Ordinance No. 58574 and that part of a 7.5 foot
wide alley in Block 118 vacated by Ordinance No. 58533, in the City of St.
Louis, Missouri and being further described as follows: Beginning at a point on
the East line of Sixth Street, 60 feet wide, at its intersection with the South
line of vacated St. ▇▇▇▇▇▇▇ Street, 50 feet wide, said point being the Northwest
corner of Block 118, thence North 1 degree 54 minutes 12 seconds East, 49.93
feet across vacated St. ▇▇▇▇▇▇▇ Street to the Southwest corner of Block 119;
thence along the East line of Sixth Street, North 0 degrees 09 minutes 53
seconds West, 150.46 feet to its intersection with the South line of Washington
Avenue, 80 feet wide, said point being the Northwest corner of Block 119; thence
along the South line of Washington Avenue, North 89 degrees 54 minutes 07
seconds East, 270.40 feet to its intersection with the West line of Broadway, 80
feet wide, said point being the Northeast corner of Block 119; thence along the
West line of Broadway, South 0 degrees 11 minutes 45 seconds East, 149.47 feet
to its intersection with the North line of vacated St. ▇▇▇▇▇▇▇ Street, said
point being the Southeast corner of Book 119; thence South 2 degrees 26 minutes
11 seconds West, 50.14 feet across vacated St. ▇▇▇▇▇▇▇ Street to the Northeast
corner of Block 118; thence continuing along the West line of Broadway, South 2
degrees 33 minutes 22 seconds West, 13.64 feet to a point on the East line of
Block 118; thence leaving said point and running North 87 degrees 2 minutes 23
seconds West 269.68 feet to the point of beginning according to survey by The
▇▇▇▇▇▇▇ Engineering Company dated February, 1998.
28
EXHIBIT "B"
(LEGAL DESCRIPTION)
All that real property located in the City of St. Louis, State of Missouri, more
particularly described as follows:
A tract of land being part of Block 118 together with the vacated North and
South Alley and portions of the following vacated streets, Broadway, Locust
Street and Sixth Street, in the City of St. Louis, Missouri, and described as
follows: Beginning at a point on the East line of Sixth Street, 60 feet wide at
its intersection with the South line of former St. ▇▇▇▇▇▇▇ Street, 50 feet wide,
as vacated by Ordinance No. 58574, said point being the Northwest corner of City
Block 118 and the Westernmost corner of property conveyed to Edison Brothers
Redevelopment Corporation by deed recorded in Book 338M page 830 of the St.
Louis City Records; thence leaving said point and running along the line of said
Edison Brothers Property, South 87 degrees 22 minutes 23 seconds East, 269.68
feet to a point on the Eastern line of City Block 118, thence along said Eastern
Block line, North 2 degrees 33 minutes 22 seconds East, 2.00 feet to a point on
the North line of that portion of Broadway as vacated by Ordinance No. 58656;
thence along the North line of said vacated area South 87 degrees 22 minutes 23
seconds East, 13.33 feet to the Northeast corner thereof; thence along the
Eastern line of the portion of Broadway, as vacated, South 2 degrees 33 minutes
22 seconds West, 275.33 feet to an angle point therein; thence South 50 degrees
50 minutes 47 seconds West, 1797 feet to a point on the South line of that
portion of Locust Street as vacated by Ordinance No. 58656; thence along the
South line of said vacated area, North 87 degrees 22 minutes 23 seconds West,
268.51 feet to an angle point therein; thence North 39 degrees 14 minutes 03
seconds West, 20.11 feet to a point on the Western line of that portion of Sixth
Street, as vacated by Ordinance No. 58656; thence along the West line of said
vacated area, North 2 degrees 37 minutes 07 seconds East, 271.67 feet to the
Northwest corner thereof; thence along the North line of said vacated portion of
Sixth Street South 87 degrees 22 minutes 23 seconds East, 12.0 feet to a point
on the East line of Sixth Street; thence along said street line, South 2 degrees
37 minutes 07 seconds West 1.33 feet to the point of beginning, according to
survey executed by ▇▇▇▇▇▇▇ Engineering Company.
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