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EXHIBIT 10.1
LOAN AGREEMENT
DATED
MAY 31, 2001
BETWEEN
COMMERCE BANK, N.A.
AND
EBS BUILDING, L.L.C.
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THIS LOAN AGREEMENT is made and entered into as of the 31 day of
May, 2001, by and between EBS BUILDING, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("BORROWER"), and COMMERCE BANK, N.A., A NATIONAL BANKING ASSOCIATION
("LENDER").
W I T N E S S E T H:
WHEREAS, Borrower is the owner in fee simple of the real estate and
improvements commonly referred to as One Financial Plaza and located at 000
Xxxxx Xxxxxxxx in the City of St. Louis, Missouri; and
WHEREAS, Borrower is also the owner of a leasehold interest as assignee
in the garage adjoining the Building pursuant to a lease with the Land Clearance
Redevelopment Authority of the City of St. Louis; and
WHEREAS, Borrower desires to refinance its existing mortgage loan
encumbering the Building and its leasehold interest in the Garage and obtain
funds for Improvements, interest carry and other working capital needs; and
WHEREAS, Lender is willing to make a Loan to Borrower for the above
stated purposes upon the terms and conditions hereinafter set forth in this
Agreement.
NOW, THEREFORE, in consideration of good and valuable consideration,
the receipt of which is hereby acknowledged, Lender and Borrower hereby covenant
and agree as follows:
1. DEFINITIONS: All terms as used in this Agreement shall, unless
otherwise defined in the body of this Agreement, have the meaning given to such
terms in Exhibit A to this Agreement or in the Note.
2. THE LOAN:
(a) The Loan shall be evidenced by the Note and shall be secured by
the Mortgage covering the fee simple estate of Borrower in the Building and by
the Leasehold Mortgage covering the leasehold interest in the Garage, and the
proceeds of the Loan shall be advanced in accordance with the provisions of this
Agreement.
(b) The term of the Loan shall be thirty-six (36) months commencing
on the date of this Agreement.
(c) Interest on the Loan shall be at the rate of one hundred ninety
(190) basis points in excess of the ninety (90) day Libor Rate as set forth in
the Note.
(d) In consideration of Lender's making of the Loan to Borrower,
Borrower shall pay to Lender a commitment fee of One Hundred Thousand Dollars
($100,000.00) which, to the extent same has not been paid as of the Closing may
be a deducted by Lender from the initial Advance hereunder. Borrower shall also
pay to Lender the Servicing Fee until the Building reaches the Target Occupancy
under leases which have been approved by Lender. The
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Servicing Fee shall be payable quarterly, in advance, commencing July 1, 2001
and shall not be prorated for the quarter in which the Target Occupancy is
achieved.
3. LOAN ADVANCES; LOAN AMOUNT:
(a) Subject to compliance by Borrower with the terms and conditions of
this Agreement, Lender shall make advances of the Loan to Borrower ("ADVANCES",
and each an "ADVANCE") as follows:
(1)For the purposes set forth in and generally in accordance
with the Cash Flow Budget and specifically in accordance with the Draw
Request Form. If Borrower or Lender becomes aware of any circumstance
which will (i) result in a decrease in the projected Net Operating
Income of more than $100,000 (cumulative), (ii) require an increase in
an expense line item in the Cash Flow Budget of more than $100,000
(cumulative), or (iii) require an expenditure out of sequence with the
projected expenditure in the Cash Flow Budget which will materially
adversely affect the Borrower's ability to meet its obligations under
this Agreement, the party with such knowledge will notify the other
party and Borrower shall prepare a revised Cash Flow Budget for
Lender's review within thirty (30) days of such notice. Lender shall
not be obligated to make any further Advance until Borrower submits
and Lender approves a revised Cash Flow Budget. Items (i) through
(iii) above shall each be deemed to adversely affect the Cash Flow
Budget. Lender's approval of any revised Cash Flow Budget shall not be
unreasonably withheld. In the event Lender disapproves of any proposed
Cash Flow Budget, Lender shall so advise Borrower promptly in writing,
which writing shall identify such portions of the Cash Flow Budget
which are not acceptable to Lender.
(2)Each request by Borrower to Lender for an Advance shall be
made in accordance with, and shall include the documents and items
required by, Lender's disbursement procedures described in Exhibit D
to this Loan Agreement, and shall be delivered to Lender not less than
seven (7) business days prior to the date upon which the Advance is to
be disbursed. All requests and requisitions for payment shall be
approved by Borrower and shall be subject to the review and approval
(not to be unreasonably withheld) by Lender's Consultant. In the event
Lender's Consultant has not responded to Borrower's request for an
Advance within the seven (7) business day notice period described
above, such request shall be deemed approved.
(b) Each Advance shall be made, in whole or in part, (i) by crediting
the amount thereof to an account of Borrower to be maintained with Lender, (ii)
at the discretion of Lender at any time that an Event of Default shall have
occurred and be continuing under the Loan Documents, by paying the contractor or
a subcontractor or materialman engaged in the construction of the Improvements,
or (iii) in such other manner as shall be mutually agreed upon by Borrower and
Lender.
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(c) Lender shall not be obligated to make Advances more frequently
than once every thirty (30) calendar days. Lender shall not be obligated to make
an Advance unless the conditions precedent to the making of such Advance have
been satisfied by Borrower.
(d) Notwithstanding anything set forth in this Agreement to the
contrary, the maximum total of Advances which Lender shall be obligated to make
under the Loan and this Agreement shall be the Maximum Loan Amount.
(e) Notwithstanding anything to the contrary, Lender shall have the
irrevocable right at any time and from time to time, upon prior written notice
to Borrower, to apply funds which it has committed to advance hereunder (other
than in response to a written request for an Advance) to pay interest on the
Note as and when interest becomes due, and to pay any and all reasonable actual
costs of Lender in connection with the Loan which shall include, but not be
limited to, all abstracting and recording fees, site inspection expenses,
reasonable attorneys' fees for preparation and review of documents, and expenses
related to the closing of the Loan.
0.XXXX PAYMENTS: All payments on the Loan shall be made pursuant to
Section 3 of the Note. Following the Rent Commencement Date or such later date
as Lender consents to in its sole discretion, all Excess Cash Flow shall be paid
by Borrower to Lender and applied by Lender, at Lender's discretion, to all
reasonable costs incurred by Lender in connection with the Loan, accrued
interest, and principal in respect of the Loan. The Loan may be prepaid in whole
or in part by Borrower at any time without penalty or premium.
5. CONDITIONS TO INITIAL ADVANCE: The obligation of Lender to make the
initial Advance pursuant to this Agreement is Lender's receipt and approval of
the following, in addition to all other conditions set forth herein, from
Borrower on or before the date of the initial Advance hereunder:
(a) The Commitment Fee shall be paid in full to Lender;
(b) The Note, duly executed by Borrower;
(c) The Mortgage, duly executed by Borrower;
(d) The Leasehold Mortgage, duly executed by Borrower;
(e) The Assignment of Rents, duly executed by Borrower;
(f) Subordination, Non-Disturbance and Attornment Agreements in
form and substance satisfactory to Lender duly executed by Xxxxxx Engineering
Group Inc., Xxxxxx Xxxxxxxx, Inc., Xxxxx Xxxxx and Xxxxxx, and such other
tenants of the Building as are required by Lender;
(g) Estoppel Certificates from tenants of the Building in the
form previously approved by Lender;
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(h) Uniform Commercial Code financing statements, in form and
substance satisfactory to Lender, duly executed and describing the personal
property and fixtures covered by the Mortgage and the Leasehold Mortgage;
(i) The Lessor's Lease Estoppel Certificate regarding the Garage
Lease, duly executed by the LCRA;
(j) Conditional Assignment of Management Agreements executed by
Borrower, the consent to which has been duly executed by each of the Managers;
(k) As a condition precedent to the obligation of Lender to make
the initial advance of the Loan, Borrower shall deliver to Lender, at Borrower's
expense, a mortgagee's title policy on the current ALTA form (the "TITLE
POLICY") from the Title Company in form reasonably satisfactory to Lender
including deletion of the creditors rights exception, with authorization for the
Title Company to insure all mortgage disbursements by endorsements to the Title
Policy at the time said disbursements are made covering the Mortgaged Property
and, interim mechanics lien endorsements. The Title Policy shall insure the lien
of the Mortgage on the Mortgaged Property in the amount of the Loan that the
Mortgage is a valid and subsisting first mortgage lien on the Mortgaged Property
and all appurtenant easements, if any, subject only to exceptions acceptable to
Lender, and containing any endorsements reasonably required by Lender.
(l) A duly certified ALTA/ACSM (1999) Class A Urban Survey
showing the boundaries of the land upon which the Building is situated and all
thereon, with flood zone and wetlands certification, in form and of date
satisfactory to Lender (the "SURVEY");
(m) Evidence of zoning and copies of applicable permits relating
to the occupancy of the Building and the Garage;
(n) Financial statements on Form 10-K, as filed with the
Securities and Exchange Commission;
(o) Copies of all existing leases of the Building, including
amendments and side-letters;
(p) A copy of the Garage Lease;
(q) An appraisal of the Building, which includes the value of
Borrower's leasehold interest in the Garage, in an amount acceptable to Lender,
such appraisal to be in form and content satisfactory to Lender, in its sole
discretion;
(r) An environmental assessment of the Building in form and
content satisfactory to Lender, in Lender's sole discretion;
(s) A satisfactory site inspection of the Mortgaged Property by
Lender;
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(t) Opinion of Borrower's counsel, in form and substance
satisfactory to Lender;
(u) A pay-off letter from the existing mortgagee of the
Mortgaged Property;
(v) Copies of all easement agreements necessary to provide
adequate ingress and egress to and from the Mortgaged Property and any
development agreements or contracts between Borrower and any Governmental
Authorities or other bodies with respect to the development of the Mortgaged
Property, if any;
(w) A copy of the Cash Flow Budget (including contingency,
reserve and retainage provisions, along with draw schedules), in form and
substance satisfactory to Lender;
(x) A copy of Borrower's Articles of Organization, certified by
the Secretary of State of Delaware, and Borrower's Operating Agreement,
certified by the Manager of Borrower;
(y) A certificate of good standing of Borrower issued by the
Secretary of State of Delaware;
(z) A certificate of good standing of Borrower issued by the
Secretary of State of Missouri;
(aa) Such other organizational documents of Borrower as Lender
may request;
(bb) Any applicable development agreement(s), if any;
(cc) Evidence satisfactory to Lender (which may include the
survey required by paragraph (l) above) that the Mortgaged Property does not lie
within a flood plain or an area designated as wetlands;
(dd) Evidence satisfactory to Lender that Borrower is in
compliance with the terms and conditions of Section 8(l) with respect to
insurance; and
(ee) Such other papers and documents as may be required by this
Agreement or as Lender may reasonably require.
6. CONDITIONS TO ADDITIONAL LOAN ADVANCES: The obligation of Lender to
make Advances pursuant to this Agreement is subject to the following additional
conditions precedent:
(a) Prior to each Advance, the Title Company shall have issued
(i) an endorsement to the Title Policy reflecting the amount of all previous
advances, insuring the continued priority of the Mortgages over mechanic's liens
and showing no exceptions to the title of the Mortgaged Property other than
those exceptions previously approved by Lender, and (ii) a commitment to issue
an endorsement insuring the priority of the liens of the Mortgages, subject only
to exceptions previously approved by Lender in writing, for the full amount of
each such
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Advance and all previous Advances made by Lender to Borrower pursuant to this
Agreement. Such continuation of title shall contain affirmative insurance that
covenants and restrictions, if any, reported against the fee estate have not
been violated by the Improvements.
(b) Prior to any Advances for Improvements, a copy of any
proposed construction and architect's contracts for completion thereof for
Lender's review and approval and assignments and consents, in form reasonably
satisfactory to Lender, assigning any such construction and architect's
agreements to Lender with the applicable contractor's and architect's consent.
(c) Borrower shall have submitted to Lender a properly completed
and executed Draw Request Form and otherwise be in compliance with the terms and
conditions of Section 3(a)(2) of this Agreement.
(d) Construction of the Improvements shall substantially comply
with all applicable laws, rules, restrictions, orders and regulations of the
Governmental Authorities, and Borrower shall have delivered to Lender all
necessary certificates, authorizations, permits and licenses which are required
to permit the construction and completion of the Improvements, as issued by the
appropriate Governmental Authorities. Borrower, to the extent Borrower may
lawfully do so, hereby assigns to Lender all of Borrower's right, title and
interest in and to such certificates, authorizations, permits and licenses, as
security for the payment of the Note and the observance and performance by
Borrower of the terms, covenants and provisions of the Loan Documents.
(e) Borrower shall make available to Lender, upon request, all
shop and related drawings used in connection with any plans and specifications
for Improvements and the construction of the Improvements at the location where
the same are kept.
(f) Lender shall not be obligated to make an Advance with
respect to any subcontractor or materialman providing work or materials with
respect to the Improvements unless such subcontractor or materialman is
providing such work or materials under a signed contract or purchase order
approved in advance by the Lender.
(g) Lender shall have approved or shall be deemed to have
approved all additional leases of space in the Building in accordance with
Section 30 of this Agreement.
(h) Borrower shall provide additional estoppel certificates
and/or subordination, non-disturbance and attornment agreements executed by
tenants of the Building identified by Lender which were not required to be
delivered by Lender in connection with the initial Advance hereunder.
(i) Borrower shall be in compliance in all material respects
with all Environmental Laws which are applicable to the Mortgaged Property and
its use, and shall have furnished Lender reasonable evidence of such compliance,
if requested by Lender.
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(j) Lender and/or Lender's Consultant shall have made such site
inspections of the Building as Lender may deem necessary.
(k) Borrower shall provide Lender with such other papers and
documents as may be required by this Agreement or as Lender may reasonably
require.
All conditions and requirements of this Agreement relating to the
obligations of Lender to make Advances are for the sole benefit of Lender and no
other person or party (including, without limitation, any contractor and
subcontractors and materialmen engaged in the construction of the Improvements)
shall have the right to rely on the satisfaction of such conditions and
requirements by Borrower as a condition precedent to Lender making an Advance.
Lender shall have the absolute right, in its sole discretion, to waive any such
condition or requirement as a condition precedent to making an Advance.
7. COVENANTS OF BORROWER REGARDING IMPROVEMENTS: Borrower shall comply
with each of the following terms and conditions concerning the Improvements:
(a) Borrower will submit to Lender plans and specifications for all
Improvements to the Building, including, without limitation, plans and
specifications for the Xxxxxx Improvements. Borrower represents and warrants
that all plans and specifications for Improvements will be approved by all
applicable governmental authorities and that Borrower will obtain or cause to be
obtained all necessary permits, certificates, licenses and other approvals
required for the construction of the Improvements. Borrower shall construct and
equip (or cause to be constructed and equipped) the Improvements in accordance
with the applicable plans and specifications free and clear of all liens,
encumbrances and security instruments (other than the Mortgages and the
permitted encumbrances set forth herein or therein). The plans and
specifications as submitted to Lender shall become the property of Lender upon
the occurrence of an Event of Default. The Improvements shall be constructed and
equipped in all material respects in compliance with the requirements of the
Governmental Authorities including, without limitation, zoning, building codes,
and laws relating to disabled persons, endangered species, and environment. Upon
reasonable notice, Lender and Lender's Consultant and their respective agents
and employees shall have the right of entry and free access to the Mortgaged
Property to inspect the Improvements as long as such inspection does not
materially interfere with construction of the Improvements.
(b) Borrower shall have the right to enter into or to authorize the
entering into of change orders with respect to the Improvements without
obtaining Lender's prior written consent. Notwithstanding the foregoing, any
such change order or orders that individually or in the aggregate would
adversely affect the Cash Flow Budget as described in Section 3(a)(1) hereof,
shall be subject to the prior written approval of Lender.
(c) Subject to compliance by the tenant thereunder with the terms
and conditions of the Xxxxxx Lease, including, without limitation, delivery of
plans and specifications in accordance with the terms thereof and payment by the
tenant thereunder of costs in excess of the tenant improvement allowance
thereunder, and subject to the provisions of Section 17 of this Agreement
regarding force majeure, Borrower shall commence or cause to be commenced
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construction of the Jacobs Improvements in accordance with the terms of the
Jacobs Lease, and Borrower covenants to continue with such construction until
the Jacobs Improvements are completed in accordance with the plans and
specifications therefor and the provisions of the Jacobs Lease and this
Agreement. Subject to compliance by the tenants thereunder with the terms and
conditions of the respective Leases and subject to the provisions of Section 17
of this Agreement regarding force majeure, Borrower shall also commence or cause
to be commenced construction of other Improvements under the other Leases in
accordance with the terms thereof.
(d) Subject to compliance by the tenant thereunder with the terms
and conditions of the Xxxxxx Lease, including, without limitation, delivery of
plans and specifications in accordance with the terms thereof and payment by the
tenant thereunder of costs in excess of the tenant improvement allowance
thereunder, subject to the provisions of Section 17 of this Agreement regarding
force majeure, Borrower shall construct, equip and complete the Tenant
Improvements (or cause such Tenant Improvements to be constructed, equipped and
completed) substantially in accordance with the plans and specifications, and
the provisions of this Agreement on or before the respective completion dates
called for under the Xxxxxx Lease in the case of the Xxxxxx Improvements and all
other Leases involving Tenant Improvements. For the purposes of this Agreement,
the Tenant Improvements shall not be deemed to have been completed, and the
completion dates shall not have occurred, until the Tenant Improvements are
accepted or deemed accepted by the respective tenants pursuant to the terms of
their Leases or otherwise deemed completed in accordance with the terms of such
Leases.
(e) Borrower shall furnish to Lender within thirty (30) days after
the completion of any Improvements the originals or copies of all permanent
certificates of occupancy and all other certificates, licenses, consents and
other approvals of the Governmental Authorities, if any, which are obtained in
connection with the use and occupancy of the Improvements; and a certificate of
completion from the architect and contractor certifying that work on the
Improvements has been completed substantially in accordance with the applicable
plans and specifications and any and all change orders as permitted under this
Agreement, and that all labor, services, materials and supplies used in such
work have been paid for and that the completed project conforms in all material
respects with all applicable zoning, land use and planning, building and
environmental laws and regulations of the governmental authorities having
jurisdiction over the Improvements.
(f) Borrower shall furnish to Lender from time to time (i) the names
of all persons with whom Borrower or the particular contractor for any
Improvements then under construction or proposed to be constructed has
contracted or intends to contract for the construction of the Improvements then
under construction or proposed to be constructed or the furnishing of labor or
materials in connection therewith, (ii) a list of all unpaid bills for labor and
materials with respect to construction of such Improvements, (iii) budgets and
revisions thereof showing estimated Direct Construction Costs and other costs
and expenses to be incurred in connection with the completion of construction of
such Improvements, and (iv) such other information relating to Borrower, the
Improvements, the Mortgaged Property, any guarantor or indemnitor or other
person or party connected with Borrower, the Loan, the construction of the
Improvements or any collateral for the Loan or other source of repayment of the
Loan as Lender may reasonably request.
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(g) Borrower shall pay when due all Direct Construction Costs and
other costs and expenses incurred by Borrower in connection with the
construction of the Improvements or any repair and restoration of the
Improvements, subject to Borrower's right to contest the payment of same in good
faith by appropriate proceedings, with, in Lender's reasonable discretion,
adequate title insurance coverage, bonding or reserves therefor having been set
aside on its books.
8. OTHER BORROWER COVENANTS:
(a) Financial Reports. In addition to any other financial
information reasonably required by Lender from time to time, Borrower shall
provide to Lender Borrower's (i) annual audited financial statements on Form
10-K within one hundred twenty (120) days after the end of its fiscal year; (ii)
quarterly unaudited financial statements on Form 10-Q within forty-five (45)
days after the end of each fiscal quarter during the Term; and (iii) monthly
financial statements, if any, generated in the ordinary course of Borrower's
business, including, without limitation, any budgets, budget updates or business
plans, within ten (10) days after said financial statements have been generated.
Borrower shall provide to Lender a copy of Borrower's annual filed federal tax
return each year during the term of the Loan. Lender shall keep such monthly
financial information and tax return confidential. Borrower shall also furnish
to Lender copies of all of its other filings with the Securities and Exchange
Commission.
(b) No Transfer. Borrower shall not encumber, pledge, mortgage,
lease, grant a security interest in, assign, sell or otherwise transfer, by
operation of law or otherwise, directly or indirectly, all or any portion of the
Mortgaged Property (other than the Mortgage and the permitted encumbrances
identified therein) or any legal or equitable interest therein or in Borrower,
without the prior written consent of Lender. Borrower also will not terminate,
without just cause, any of its agreements for the management and leasing of the
Building with Xxxxxxx Capital Management, LLC, Colliers Xxxxxx Xxxxxx Xxxxxx,
Inc. or Insignia Commercial Group Inc., (the "Asset Managers" or singly a "Asset
Manager") without first obtaining Lender's approval, which approval shall not be
unreasonably withheld, so long as an adequate replacement or replacements, in
Lender's opinion, for the Asset Manager or Asset Managers which Borrower desires
to terminate has or have been proposed by Borrower.
(c) Payment of Taxes. Borrower will pay or cause to be paid when due
all taxes, assessments, and charges or levies imposed on it or on the Mortgaged
Property that it is required to withhold and pay over, except when contested in
good faith by appropriate proceedings, with adequate reserves therefor having
been set aside on its books, but Borrower shall pay or cause to be paid all such
taxes, assessments, charges, or levies promptly when foreclosure on any lien
that has attached (or security therefor) appears imminent.
(d) Lender's Inspection of Books. Borrower, within a reasonable time
after written request therefor, will make available for inspection by authorized
representatives of Lender any of its books and records, and will make available
to Lender or will reasonably furnish to Lender any information requested by
Lender regarding the business affairs and financial condition of Borrower.
Borrower will maintain its records regarding the Mortgaged Property at the
following office: 000 X. Xxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx, at which
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Lender may inspect such records. Such records shall include without limitation,
all leases and other agreements with respect to the Building or Borrower's
leasehold interest in the Garage, lien waivers, rent rolls, construction budgets
and schedules, operating statements and other financial information.
(e) Notice to Lender of Litigation. Borrower will give prompt notice
to the Lender (i) of any litigation or proceeding in which it is a party which
would require it to pay over more than Twenty Five Thousand Dollars ($25,000.00)
or deliver assets, the value of which exceeds such sum, provided such claim is
not covered by insurance or is defended by an insurance company under a
reservation of rights or exceeds the limits of coverage of any insurance policy,
and (ii) of the institution of any other suit or proceeding involving any of
Borrower that might materially and adversely affect its operations, financial
condition, property or business.
(f) Copies of Tax Returns. Borrower will make available to Lender
for inspection at Borrower's place of business copies of federal income tax
returns filed by Borrower.
(g) Pay Other Obligations. Borrower will pay when due (or within
applicable grace periods) all indebtedness due third persons, except when the
amount is being contested in good faith by appropriate proceedings and with
adequate reserves therefor being set aside. If Borrower defaults in the payment
of any principal (or installment thereof) of, or interest on, any such
indebtedness, Lender shall have the right, with contemporaneous notice to
Borrower and in Lender's discretion, to pay such interest or principal for the
account of Borrower and be reimbursed by Borrower on demand with interest
calculated at the Default Rate from the date paid by Lender.
(h) Notify Lender of Default. Borrower will notify Lender promptly
if it becomes aware of the occurrence of any Event of Default or becomes aware
of any fact, condition, or event that, with the giving of notice or passage of
time, or both, could become an Event of Default, or of the failure of Borrower
to observe any of its undertakings under this Agreement or the Loan Documents.
(i) Notify Lender of Change of Address. Borrower will notify Lender
thirty (30) days in advance of any change in the location of any of its place of
business or of the establishment of any new, or the discontinuance of any
existing, place of business, and shall promptly execute any additional financing
statements requested by Lender in this regard.
(j) Maintain Accounts at Lender. Borrower shall keep and maintain
all of Borrower's deposit accounts with the Lender and shall deposit all income
and revenue from whatever source derived in such deposit accounts.
(k) Fundamental Changes. Borrower shall not amend its operating
agreement without the prior written consent of Lender, which consent shall not
be unreasonably withheld, conditioned, or delayed.
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(l) Insurance. The Borrower will maintain at all times in full force
and effect insurance, including worker's compensation insurance, liability
insurance, builder's risk insurance with respect to any Improvements, all-risk
property insurance (including rent insurance) for the Building, and, where
applicable, flood insurance, all in such amounts, covering such risks and
liabilities and with such deductibles (or self-insurance retentions) as are in
accordance with normal industry practice and acceptable to Lender in its
reasonable discretion. The Lender shall be named as an additional insured on all
such liability policies and shall be named as loss payee with a mortgagee
endorsement satisfactory to Lender, for any property insurance. Borrower agrees
to pay to Lender, on a monthly basis, one-twelfth (1/12) of the estimated amount
of the insurance premiums for the aforesaid insurance coverage and any balance
which shall be required to pay the insurance premiums when due. These payments
shall be held by Lender in an account with Lender for the benefit of Borrower,
shall bear interest, and shall be applied for the payment of the foregoing when
due. Until such time as an Event of Default shall have occurred and be
continuing, Lender shall invest such funds upon Borrower's instructions in
United States treasury bills and notes with maturities of twelve (12) months or
less, institutional money market funds, and demand or time deposits and
certificates of deposit with commercial banks organized under the laws of the
United States, or any state thereof, having primary capital of not less than
$500,000,000.
(m) No Name Change or Merger. Borrower will not change its name or
enter into any merger, consolidation, reorganization or recapitalization,
without Lender's prior written consent not to be unreasonably withheld.
(n) No Sale of Assets out of Ordinary Course. Borrower will not
sell, transfer, lease or otherwise dispose of all, or any material part of, its
assets by operation of law or otherwise.
(o) No Pledge of Assets. Borrower will not mortgage, pledge, grant,
or permit to exist a security interest in or Lien on any of its assets of any
kind, now owned or hereafter acquired, except for unfiled mechanics liens
incurred in connection with the construction of any Improvements.
(p) No Guarantees. Borrower will not become liable, directly or
indirectly, as guarantor or otherwise, for any obligation of any other person
except as required hereunder or under the other Loan Documents.
(q) No Debt. Borrower will not incur, create, assume, or permit to
exist any indebtedness except (i) the Loan; or (ii) trade payables and other
payables and accruals relating to obligations incurred in the ordinary course of
business.
(r) No New Subsidiaries. Borrower will not form any Subsidiary or
make any investment in, or make an investment to, a person without the prior
written approval of Lender.
(s) No Loans. Borrower will not make any loan or advance to any
person or entity, including without limitation, any members or employees of
Borrower.
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(t) No Lease Financing. Borrower will not enter into any leases or
make payments on account of the purchase or lease financing of assets except as
set forth in the Cash Flow Budget unless expressly approved by Lender, which
approval shall not be unreasonably conditioned, delayed or withheld.
(u) Fees. Borrower shall pay all reasonable fees and charges
incurred in the procuring and making of the Loan, including, without limitation,
reasonable legal fees and fees of Lender's Consultants, appraisal fees, and fees
and expenses relating to examination of title, title insurance premiums
(including any premiums for date down endorsements and mechanic's liens
coverage)for date down endorsements and mechanic's liens coverage), and surveys.
(v) ADA Compliance. Borrower shall comply with all laws, regulations
and ordinances with respect to the construction, ownership and operation of the
Improvements (including the Americans with Disabilities Act, 42 U.S.C. ss.
12101, and the Occupational Safety and Health Act, 29 U.S.C. ss. 651), and shall
pay all taxes and assessments, general and special, and all other levies or
impositions on the Mortgaged Property prior to delinquency; provided, however,
that Borrower may contest the amount or validity of any taxes, assessments,
levies or impositions on the Mortgaged Property by appropriate legal
proceedings, diligently pursued, provided that (i) Borrower shall first make all
contested payments, under protest if it desires, but if payment under protest is
not permitted by the taxing authority, such contested payment need not be made,
(ii) neither the Mortgaged Property, any part thereof, nor any interest therein
shall be, in Lender's reasonable determination, in any danger of being sold,
forfeited, lost or interfered with, (iii) Borrower shall have furnished such
security, if any, as may be required in the proceedings or reasonably requested
by Lender, and (iv) all expenses incurred in connection with such proceedings
shall be paid by Borrower.
9. EVENTS OF DEFAULT: The term "EVENT OF DEFAULT" as used in this
Agreement shall mean the occurrence of any one or more of the following events:
(a) If Borrower (i) fails to pay any payment of principal or
interest due and payable under the Note or any other Loan Document within five
(5) days of the date such payment shall be due and payable including the date
such payment is due; and (ii) fails to pay any other payment or sum of money due
and payable under the Note or any other Loan Document within ten (10) days of
the date of Borrower's receipt of Lender's invoice therefor; or
(b) If a default shall occur in the performance of any non-monetary
covenant or agreement under this Agreement, the Note, the Mortgages, or any of
the other Loan Documents not specifically set forth in this Section 9(b), and
shall continue for thirty (30) days after Lender has given notice thereof to
Borrower and such default is of a nature that adversely affects the Cash Flow
Budget as provided in Section 3(a)(1) hereof and Borrower and Lender shall have
failed to agree upon a revised Cash Flow Budget within thirty (30) days after
Borrower's receipt of such notice; provided, however, that the period to cure
such default may be extended for such additional period of time as may be
reasonably necessary to effect such cure if Borrower has commenced and is
diligently pursuing such cure; or
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(c) If any Improvements to be constructed by or on behalf of
Borrower are not completed in substantial accordance with the plans and
specifications therefore and accepted by the particular tenant on or prior to
the completion date required by any Lease unless a tenant extends such
completion date or such completion date is deemed extended by virtue of force
majeure or tenant delays, provided such extension or delay does not adversely
affect the Cash Flow Budget as provided in Section 3(a)(1), unless a revised
Cash Flow Budget is submitted to and approved by Lender pursuant to the terms of
Section 3(a)(1) within thirty (30) days after Borrower obtains knowledge of such
adverse effect; or
(d) A monetary default occurs under any of the Xxxxxx Lease, the
Stifel Lease, the BKD Lease, the Milliman Lease, or the Seabury and Xxxxx Lease
and is not cured within applicable cure periods and such monetary default is of
a nature that adversely affects the Cash Flow Budget as provided in Section
3(a)(1), unless a revised Cash Flow Budget is submitted to and approved by
Lender pursuant to the terms of Section 3(a)(1) within thirty (30) days after
Borrower obtains knowledge of such adverse effect; or
(e) A default occurs under the Garage Lease that is not cured within
the applicable cure period and such default is of a nature that adversely
affects the Cash Flow Budget as provided in Section 3(a)(1), unless a revised
Cash Flow Budget is submitted to and approved by Lender pursuant to the terms of
Section 3(a)(1) within thirty (30) days after Borrower obtains knowledge of such
adverse effect; or
(f) Any material representation or warranty made by Borrower in any
Loan Document shall be false at the time when made; or
(g) If Borrower: (i) files a petition under any chapters of the
Bankruptcy Code or upon the filing of an involuntary petition with respect to
the Borrower under the Bankruptcy Code; (ii) is unable, or admits in writing its
inability to pay its debts as they become due; (iii) makes an assignment for the
benefit of creditors; (iv) fails to have vacated or set aside within sixty (60)
days of its entry any order of a court appointing a receiver or trustee for all
or a substantial part of its property; (v) is adjudicated a bankrupt; or (vi)
becomes insolvent however otherwise evidenced; or
(h) Any other variations in the Cash Flow Budget which have not been
approved by Lender which adversely affect the Cash Flow Budget as provided in
Section 3(a)(1), unless a revised Cash Flow Budget is submitted to and approved
by Lender pursuant to the terms of Section 3(a)(1) within thirty (30) days after
Borrower obtains knowledge of such adverse effect; or
(i) Borrower shall be in default under any other obligation due or
owing to Lender by Borrower, including any other indebtedness of Borrower to
Lender.
Upon the occurrence of an Event of Default, Lender (i) may, at its
option and in its sole discretion, declare the Debt immediately due and payable,
(ii) may, at its option and in its sole discretion, cease to make advances of
the Loan, and (iii) may pursue any and all remedies provided for in the Loan
Documents, or otherwise available.
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10. OTHER REMEDIES: Upon the occurrence of an Event of Default,
whether or not the Debt shall be or shall have been declared due and payable or
Lender shall have instituted any foreclosure or other action for the enforcement
of the Loan Documents, Lender may, in addition to any other remedies which
Lender may have under the Loan Documents, and in Lender's sole and absolute
discretion:
(a) Enter upon the Mortgaged Property and complete the
Improvements to be constructed pursuant to any Leases approved or deemed
approved by Lender prior to the occurrence of such Event of Default in
accordance with the applicable plans and specifications with such changes
therein as Lender may deem appropriate and employ watchmen to protect the
Mortgaged Property, all at the risk, cost and expense of Borrower;
(b) At any time discontinue any work commenced in respect of the
Improvements or change any course of action undertaken by it and not be bound by
any limitations or requirements of time whether set forth herein or otherwise;
(c) Assume any construction contract made by Borrower in any way
relating to the Improvements and take over and use all or any part of the labor,
materials, equipment, fixtures and articles of personal property contracted for
by Borrower, whether or not previously incorporated into the Improvements; and
(d) In connection with any construction of the Improvements
undertaken by Lender pursuant to the provisions of this paragraph:
(1) Engage builders, contractors, architects, engineers and
others for the purpose of furnishing labor, materials, equipment,
fixtures and articles of personal property in connection with the
construction of the Improvements;
(2) Pay, settle or compromise all bills or claims which may
become liens against the Mortgaged Property, or any portion
thereof, or which have been or may be incurred in any manner in
connection with completing construction of the Improvements or for
the discharge of liens, encumbrances or defects in the title of
the Mortgaged Property, or any portion thereof; and
(3) Take or refrain from taking such action hereunder as
Lender may from time to time determine in its sole discretion.
Borrower shall be liable to Lender for all sums paid or incurred by
Lender to construct and equip the Improvements, including Tenant Improvements,
to be constructed pursuant to any Leases approved or deemed approved by Lender,
prior to the occurrence of such Event of Default whether the same shall be paid
or incurred pursuant to the provisions of this paragraph or otherwise, and all
payments made or liabilities incurred by Lender hereunder of any kind whatsoever
shall be paid by Borrower to Lender upon demand with interest at the Default
Rate from the date of payment by Lender to the date of payment to Lender, which
sums and interest shall be secured by the Mortgage. For the purpose of
exercising the rights granted by this paragraph, Borrower hereby irrevocably
constitutes and appoints Lender its true and lawful
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attorney-in-fact to execute, acknowledge and deliver any instruments and to do
and perform any acts in the name and on behalf of Borrower which Lender
reasonably determines is necessary.
11. HAZARDOUS SUBSTANCES:
(a) Definitions. "HAZARDOUS SUBSTANCES" means and includes all
regulated, hazardous and toxic substances (including without limitation
petroleum and petroleum products), pesticides, metals or heavy metals,
infectious wastes, solid, liquid or gaseous wastes or materials, any pollutants
or contaminants (including, without limitation, PCBs, asbestos and materials or
components which include hazardous constituents), or any other similar
substances, or materials which are included under or regulated by any now
existing or hereafter enacted or promulgated local, state or federal law,
statute, ordinance, rule or regulation pertaining to environmental protection,
regulation, contamination or clean-up, toxic waste, underground storage tanks
and hazardous substance or material handling, treatment, storage, use,
transportation or disposal, including without limitation the Comprehensive
Environmental Response Compensation and Liability Act ("CERCLA"), the Resource
Conservation and Recovery Act ("RCRA"), state lien or environmental clean-up
statutes, all as exist from time to time (all such laws, statutes, ordinances,
rules and regulations being referred to collectively as "ENVIRONMENTAL LAWS").
(b) Representations and Warranties. Borrower represents and
warrants to Lender as follows:
(1) To the best of Borrower's knowledge, except as set forth
in the environmental report prepared by ATC Associates, Inc.,
dated May 14, 2001, and except as otherwise disclosed in writing
to Lender by Borrower, the Mortgaged Property has never been used
as either a sanitary landfill or as a disposal site for Hazardous
Substances and no Hazardous Substances or underground storage
tanks have been deposited or are located in, under or upon the
Mortgaged Property and no part of the Mortgaged Property is
presently contaminated by Hazardous Substances.
(2) To the best of Borrower's knowledge, except as set forth
in the environmental report prepared by ATC Associates, Inc.,
dated May 14, 2001, and except as otherwise disclosed in writing
to Lender by Borrower, no parcel adjacent to the Mortgaged
Property has ever been used as either a sanitary landfill or as a
disposal site for Hazardous Substances, and no Hazardous
Substances or underground storage tanks have been deposited or are
located in, under or upon any parcel adjacent to the Mortgaged
Property and no part of any parcel adjacent to the Mortgaged
Property is presently contaminated by Hazardous Substances.
(3) Borrower has not received and does not have actual
notice of any violation or claimed or threatened violation of any
Environmental Laws with respect to the Mortgaged Property and
Borrower. Borrower agrees to promptly notify Lender of any such
notice and/or violation or claim of violation, however evidenced.
Borrower hereby covenants and agrees to comply with, operate and
at all times use, keep and maintain the Mortgaged Property and
every part thereof
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(whether or not such property constitutes a "facility," as defined
in CERCLA) in conformance with all applicable Environmental Laws.
Without limiting the generality of the foregoing, Borrower will
not use, generate, treat, store, dispose of or otherwise introduce
any Hazardous Substance into, under or on the Mortgaged Property
or any part thereof nor cause, suffer, allow or permit anyone else
to do so except in substantial accordance with all Environmental
Laws.
(c) Default. Upon the occurrence and during the continuance of an
Event of Default, Lender shall have the right to inspect the Mortgaged Property
and the option to obtain environmental assessments of the Mortgaged Property,
including the right, at its option, to perform or cause to be performed
intrusive borings and testing of soils and/or groundwater. The Loan Documents
shall also secure the reasonable cost of such environmental assessments, and all
money so paid, with interest thereon from the date of such payment at a rate
equivalent to the Default Rate shall be a Secured Obligation, and shall be
repaid by Borrower on demand. Borrower agrees that Lender shall not be
responsible for liability caused by the presence or release of Hazardous
Substances during such inspection and/or any environmental assessments except
such resulting from the gross negligence or willful misconduct of Lender, its
contractors, agents or employees.
(d) Indemnification. Borrower covenants and agrees to indemnify,
reimburse and hold Lender, it affiliates, shareholders, officers, directors,
agents, contractors, servants and employees harmless from and against any or all
liability, loss, injury, damage, liens or costs (including reasonable attorneys'
and paralegals' fees, costs and expenses) whatsoever caused by or relating to
any (i) violation or claimed violation of any of the foregoing representations,
warranties or covenants or any Environmental Laws which relate to the Mortgaged
Property; or, (ii) arising out of the presence or release of any Hazardous
Substances onto, under, into or in the Mortgaged Property. This indemnification
provision shall survive the satisfaction or release of the lien of the
Mortgages, foreclosure, or transfer of title by deed in lieu of foreclosure, or
otherwise.
12. REPRESENTATIONS AND WARRANTIES: Borrower represents and warrants
to Lender as follows:
(a) Compliance with Laws. To the best of Borrower's knowledge, the
Building and the Improvements will, upon completion in accordance with the
applicable plans and specifications, comply in all material respects with all
applicable zoning regulations, building codes, environmental and other
applicable laws, rules and regulations, including, without limitation, those
relating to disabled persons.
(b) Casualty. Neither the Building nor the Garage is presently
damaged or injured in any material respect as a result of any fire, explosion,
accident, flood or other casualty.
(c) No Condemnation. No condemnation or eminent domain proceeding
has been commenced or, to the best knowledge of Borrower, is about to be
commenced against the Mortgaged Property or any portion thereof.
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(d) Violations. Borrower has no knowledge of any notices of
violations of Federal law or municipal ordinances or orders or requirements of
the state in which the Mortgaged Property are located or any municipal
department or other Governmental Authority.
(e) Due Formation. Borrower is a limited liability company duly
organized and validly existing under the laws of the State of Delaware, and has
the power to own and/or lease the Mortgaged Property and to carry on its
business, and is qualified to do business in the states of Delaware and
Missouri.
(f) Power and Authority. Borrower has the full power and authority
to execute and deliver the Loan Documents and the same constitute the binding
and enforceable obligations of Borrower in accordance with their terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
(g) Litigation. There are no actions, suits or proceedings pending
or, to the best knowledge of Borrower, threatened, or any basis therefor,
against or affecting Borrower at law or in equity, in any court or before any
governmental department or agency, which may result in any material adverse
change in the properties, assets, business or condition, financial or otherwise,
of Borrower or the ability of Borrower to perform the obligations under this
Agreement and/or the other Loan Documents.
(h) No Conflict. There are no provisions contained in any
organizational document of Borrower and no provision of any existing mortgage,
indenture, contract or agreement binding on Borrower or affecting its property
(which is not to be paid or discharged upon the closing of this Loan), which
would conflict with or in any way prevent the execution, delivery, or carrying
out of the terms of this Agreement and the Loan Documents.
(i) Tax Returns. Borrower has filed all Federal, state and other
tax and similar returns and has paid or provided for the payment of all taxes
and assessments due thereunder through the date of this Agreement, including
without limitation, all withholding, FICA and franchise taxes.
(j) Financial Statements. Any financial statements of Borrower
which have been furnished to Lender in connection with the Loan are complete and
correct and fairly and accurately present the financial condition of Borrower as
at such date and the results of the operations of Borrower for the period
covered by such statements, all in accordance with generally accepted accounting
principles consistently applied, and there has been no material adverse change
in the condition (financial or otherwise), business or operations of Borrower
subsequent to March 31, 2001.
(k) Cash Flow Budget. The Cash Flow Budget is true, correct and
complete and represents Borrower's current estimate of projected revenues and
expenses for the Mortgaged Property during the term of the Loan; provided,
however, the Cash Flow Budget is not to be viewed as facts and actual results
during the period or periods covered by the Cash Flow Budget may differ from
such Cash Flow Budget and the differences may be material. Notwithstanding
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the foregoing, Borrower acknowledges that a variation in the Cash Flow Budget
which has not been approved by Lender which is deemed to adversely affect the
Cash Flow Budget as provided in Section 3(a)(1) hereof constitutes and Event of
Default under this Loan Agreement, unless a revised Cash Flow Budget is
submitted to and approved by Lender pursuant to the terms of Section 3(a)(1). In
the event the Borrower submits and Lender approves a revised Cash Flow Budget
pursuant to paragraph 3(a)(1), the revised Cash Flow Budget shall be the Cash
Flow Budget for all purposes hereunder.
(l) Representations and Warranties. All statements by Borrower
contained in any certificate, statement, document or other instrument delivered
by or on behalf of Borrower at any time pursuant to this Agreement or the other
Loan Documents shall constitute representations and warranties made by Borrower
hereunder.
(m) No Margin Stock. No part of the proceeds of any Loan hereunder
will be used to purchase or carry any margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock or to reduce or
retire any indebtedness incurred for any such purpose. If requested by Lender,
Borrower will furnish to Lender a statement in conformity with the requirements
of Federal Reserve Form U-1 referred to in Regulation U to the foregoing effect.
(n) No Omissions. No representation or warranty by Borrower
contained herein or in any certificate or other document furnished by Borrower
pursuant hereto contains any untrue statement of material fact or omits a
material fact necessary to make such representation or warranty not misleading
in light of the circumstances under which it was made.
(o) No Commissions. Other than the commission in the amount of
$186,000 payable to NorthMarq Capital, Borrower has not made and will not make
any agreement or take any action that may cause anyone to become entitled to a
commission or finder's fee as a result of the making of any advances under the
Loan currently existing or hereafter extended pursuant to the terms hereof.
(p) Investment Company Act; Public Utility Holding Company Act.
Borrower is (i) an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (ii) a "holding company" as defined
in, or subject to regulation under, the Public Utility Holding Company Act of
1935.
(q) Pension Plan. Any pension plan maintained by Borrower is in
full compliance in all material respects with applicable governmental laws and
regulations (including, without limitation, ERISA) and there are no current
enforcement or investigative actions or proceedings associated with such pension
plans, if any.
(r) Availability of Utilities. All utility services necessary and
sufficient for the operation of the Building and Garage for their intended
purposes are available.
(s) Access. To the best of Borrower's actual knowledge, all roads
necessary for the full utilization of the Building and Garage for their intended
purposes have either been
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completed or all necessary steps have been taken by the Borrower and the
appropriate governmental authority to assure the complete construction,
installation and acceptance of such roads and the necessary rights-of-way for
such roads have either been acquired by the appropriate governmental authority
or have been dedicated to the public use and accepted by such governmental
authority.
(t) Leases. There are no outstanding Leases affecting the
Mortgaged Property except as have been disclosed to Lender on the Rent Roll
attached hereto as Exhibit B and all such Leases are in full force and effect
and no material defaults have occurred under any of their Leases. All Leases
shall contain an express provision that the Leases will be subordinate to the
Loan Documents, unless Lender requires otherwise.
(u) Title. Title to all the Mortgaged Property (excepting personal
property owned by any tenant of the Building or personal property leased by
Borrower) is (or in the case of Improvements and personal property not now
located on the land will be) owned by the Borrower, free and clear of all liens,
encumbrances, claims, security interests or rights of others (other than the
Permitted Exceptions) and are (or in the case of Improvements and personal
property not now located on the land will be) fully paid for. The Mortgage
constitutes a first deed of trust lien against the Mortgaged Property.
(v) Separate Taxation. The Building is taxed separate from any
other property.
(w) Proper Subdivision. The Building may be owned, operated,
maintained, mortgaged, conveyed and otherwise dealt with separate from any other
property.
(x) Survival. All of the representations and warranties set forth
in Sections 11(b) and 12 shall survive and be continuing representations and
warranties until all obligations under this Agreement and the Loan Documents are
satisfied in full.
13. INDEMNIFICATION: Borrower agrees to protect, defend, indemnify and
hold Lender harmless from and against any and all loss, liability, damage, suit,
claim, expense, fees and costs (including without limitation, court costs and
attorney's fees) arising out of or relating to Lender's entering into and/or
carrying out the terms of this Agreement or being the holder of the Note or the
Mortgage resulting from Borrower's default hereunder or the completion of the
Improvements, including, without limitation, any injury or damage to person
and/or property occurring on or about the Mortgaged Property and Improvements,
except to the extent such loss or damage is attributable to out of Lender's
gross negligence or willful misconduct. The obligations of the Borrower under
this Section 13 shall survive payment of the Note. This paragraph shall not
serve to limit any indemnification provided in Section 11 herein, titled
"Hazardous Substances."
14. INCORPORATION OF PROVISIONS: The Note and the Mortgage are subject
to the conditions, stipulations, agreements and covenants contained herein to
the same extent and effect as if fully set forth therein until this Agreement is
terminated by payment in full of the Debt.
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15. FURTHER ASSURANCES: Borrower shall on demand of Lender do any act
or execute any additional documents reasonably required by Lender to evidence or
secure the Loan.
16. CONSTRUCTION OF AGREEMENT: The titles and headings of the
paragraphs of this Agreement have been inserted for convenience of reference
only and are not intended to summarize or otherwise describe the subject matter
of such paragraphs and shall not be given any consideration in the construction
of this Agreement.
17. FORCE MAJEURE: If permitted by the applicable lease, the completion
dates for Improvements shall be extended for a period of time equal to the
number of days during which Borrower is prevented from proceeding with the
construction of the Improvements by reason of force majeure, provided that such
extension does not have a material adverse effect on the Cash Flow Budget and
Borrower notifies Lender of the events constituting such force majeure within
fifteen (15) days after they occur. The term "force majeure" as used in this
paragraph shall include strikes, lockouts or other labor trouble, fire or other
casualty, acts of God, governmental preemption in connection with a national
emergency, any rule, order or regulation of any governmental agency or any
department or subdivision thereof, or inability to secure materials or labor
because of any such emergency, rule, order, regulation, war, civil disturbance
or other emergency, cause or event beyond the reasonable control of Borrower.
18. PARTIES BOUND, ETC.: The provisions of this Agreement shall be
binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns (except as otherwise prohibited by this
Agreement).
19. NO JOINT VENTURE: This Agreement and the other Loan Documents do
not create, and shall not be construed as creating a joint venture or
partnership between Lender and Borrower, and nothing herein contained shall be
deemed to constitute Borrower as the agent or representative of Lender for any
purpose.
20. NO ASSUMPTION: Assumption of the Loan will not be permitted by
Lender.
21. WAIVERS: Lender may at any time and from time to time waive any one
or more of the conditions contained herein, and any such waiver in any instance
or under any particular circumstance shall not be considered a waiver of such
condition in any other instance or circumstance.
22. GOVERNING LAW: This Agreement is and shall be deemed to be a
contract entered into pursuant to the laws of the State of Missouri and shall in
all respects be governed, construed, applied and enforced in accordance with the
laws of the State of Missouri.
23.SEVERABILITY: If any term, covenant or provision of this Agreement
shall be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such term, covenant or provision.
24. NOTICES. All notices required or permitted hereunder shall be in
writing, signed by the party giving such notice, and shall be deemed given when
delivered personally one (1)
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business day after delivery to a reputable overnight delivery service providing
a receipt, or two (2) business days after deposit in the United States mail,
postage prepaid, certified with return receipt requested, at the address set
forth below, or at such other address as may have been given in accordance with
this provision:
Borrower: EBS Building, L.L.C.
c/o PricewaterhouseCoopers LLP
00 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Partner
and
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxx Xxxx LLP
Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Lender: Commerce Bank, N.A.
0000 Xxxxxxx Xxxxxxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
and
J. Xxxx Xxxxx, Xx., Esq.
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx, LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
25. FEES AND EXPENSES: Borrower shall be responsible for paying all
reasonable out-of-pocket expenses of Lender associated with underwriting,
closing, the Loan funding process and any and all other out-of-pocket third
party costs, expenses and fees in connection with the Loan (whether or not the
Loan is closed), including $1,500.00 per month for fees for Lender's Consultant
for monitoring the construction of the Improvements until the completion of the
Jacobs Improvements. These fees include construction and environmental
consultants, and any other costs, expenses and fees incurred by Lender in
connection with this transaction, including appraisal costs and fees, the fees
of Lender's counsel for the documentation, preparation, due diligence or closing
of the Loan, and the Lender's Consultant. Borrower shall pay to Lender, upon
demand, all expenses incurred by Lender in connection with the collection of the
Debt after an Event of Default, the enforcement of the Loan Documents, and in
curing any defaults under the Loan Documents (including, without limitation,
reasonable attorneys' fees), with interest thereon at the Default Rate from the
date incurred by Lender to the date of repayment to Lender, which sums and
interest shall be secured by the Mortgage.
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26. MODIFICATION: This Agreement may not be modified, amended or
terminated, except by an agreement in writing executed by the parties hereto.
27. COUNTERPARTS: This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an
original, but such counterparts shall together constitute one and the same
instrument.
28. RIGHT TO INSPECT: Lender and/or its representatives shall have the
right to inspect the Mortgaged Property at any time during the term of the Loan,
upon reasonable notice.
29. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. If after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of or credit extended by or shall impose on Lender any other condition
affecting this Agreement, and the result of any of the foregoing shall be to
increase the cost to Lender of making or maintaining the Loan or to reduce the
amount of any sum received or receivable by Lender hereunder (whether of
principal, interest or otherwise) by an amount deemed by Lender to be material,
then the Borrower will pay to Lender such additional amount or amounts as will
compensate Lender for such additional costs incurred or reduction suffered. If
Lender shall have determined that the adoption after the date hereof any law,
rule, regulation or guideline regarding capital adequacy, or any change after
the date hereof in any of the foregoing or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by Lender (or any lending office of Lender) or the
holding company of Lender with any request or directive given after the date
hereof regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on Lender's capital or on the capital of
Lender's holding company, if any, as a consequence of this Agreement or the Loan
advances made by Lender to a level below that Lender or its holding company
could have achieved but for such adoption, change or compliance (taking into
consideration Lender's policies and the policies of Lender's holding company
with respect to capital adequacy) by an amount deemed by Lender to be material,
then from time to time the Borrower shall pay to Lender such additional amount
or amounts as will compensate Lender or its holding company for any such
reduction suffered. A certificate of Lender setting forth such amount or amounts
as shall be necessary to compensate Lender as specified above (and, in
reasonable detail, the method by which such amounts have been determined), as
the case may be, shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay Lender the amount shown as due on
any such certificate delivered by it within ten (10) Business Days after the
receipt of the same.
30. LEASES: Each lease that is to be used in leasing any of the Mortgaged
Property shall be subject to Lender's prior written approval, which approval
shall not be unreasonably withheld, conditioned or delayed. Lender shall
indicate its approval or disapproval of a proposed lease within ten (10)
Business Days of Borrower's furnishing to Lender of the proposed form of Lease,
financial information regarding the tenant and such other information as Lender
shall
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promptly and reasonably request in writing with respect to such Lease and the
tenant. Lender shall use reasonable efforts to provide such approval or
disapproval of such Lease as soon as practicable after it receives the required
information. Lender's failure to respond within ten (10) Business Days shall be
deemed Lender's approval of such proposed Lease in substantially the form
provided to Lender, subject only to changes consistent with Borrower's customary
leasing practices. In the event that any business term or other substantive
provision of any proposed Lease is materially different from that previously
provided to Lender, Lender shall have an additional ten (10) Business Days after
receipt of such term or provision to disapprove such lease. Lender agrees to
sign a Subordination, Attornment and Non-Disturbance Agreement at Borrower's
request in form substantially identical to the form attached as Exhibit F to
this Agreement, upon delivery to Lender of such form executed by all other
parties thereto, with respect to any approved (or deemed approved) Leases.
31. WAIVER OF JURY TRIAL. BORROWER AND LENDER HEREBY WAIVE ANY RIGHTS
THAT EACH MAY HAVE TO A JURY TRIAL IN ANY CONTROVERSY ARISING UNDER THIS
AGREEMENT OR UNDER ANY OF THE LOAN DOCUMENTS.
32. LOAN STATUTE OF FRAUDS. 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) 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.
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IN WITNESS WHEREOF, Lender and Borrower have duly executed this
Agreement as of the day and year first above written.
COMMERCE BANK, N.A., a national banking
association
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, Its Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Partner
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EXHIBIT A
DEFINITION OF CERTAIN TERMS
1. Agreement: The Loan Agreement by and between the Borrower and Lender.
2. Assignment of Rents. The Assignment of Lessor's Interest in Lease and Rents
of even date herewith from Borrower to Lender.
3. Audit Force Lease: The Lease dated August 14, 1998 as amended between
Borrower and Audit Force, Inc., as amended.
4. BKD Lease: The Lease dated May 28, 1999 between Borrower and Xxxxx, Xxxxx &
Xxxxxx, General Partnership, as amended.
5. Borrowers' Representative: The person named in any certificate to be the
person to make requests for Advances and do any and all of the acts
relating to the Loan, and absent such certificate or authorization, any
employee of Borrower with implied or apparent authority to do such.
6. Building: The building commonly referred to as One Financial Plaza and
located on the Land.
7. Cash Flow Budget: The Cash Flow Budget attached hereto as Exhibit C, as
updated by Borrower with Lender's consent from time to time.
8. Commitment Fee: One Hundred Thousand Dollars ($100,000.00).
9. Debt: All principal, interest and other sums of any nature whatsoever which
shall or may become due and payable by Borrower pursuant to the provisions
of the Loan Documents.
10. Default Rate: The then applicable Interest Rate under the Note, plus three
percent (3%).
11. Direct Construction Costs: Those costs broken out in the form AIA G702 and
G703 with such changes thereon as Lender may reasonably request.
12. Draw Request Form: A draw request form in the form of Exhibit D attached
hereto.
13. Environmental Assessment: A standard "Phase I" environmental site
assessment of the Building and the Land conducted by an engineering or
environmental firm acceptable to Lender, certified to Lender as meeting
ASTM Standard E1527-00.
14. Environmental Laws: All local, state or federal laws, statutes, rules and
regulations, as may exist from time to time, whether now existing or
hereafter enacted or promulgated, pertaining to Hazardous Substances,
underground storage tanks or environmental regulation.
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15. Excess Cash Flow: Net Operating Income for any given month, less the sum of
(x) $100,000 (the "Approved Reserve") for such month (y) such other cash
reserves for accrued or accruing expenses that Lender may deem appropriate
upon written notice from Borrower, and (z) those other expenses designated,
with Lender's approval, as "projected disbursements" in the Cash Flow
Budget which are incurred during such month in owning and operating the
Mortgaged Property. Such expenses shall not include fees paid to Borrower
or any person or entity affiliated with Borrower, non-cash expenses such as
depreciation and amortization, or the costs of Improvements with the useful
life greater than one year. None of PricewaterhouseCoopers LLP (or its
successor as Manager of the Borrower), the Asset Managers or Xxxxx Xxxx LLP
shall be deemed to be affiliates of Borrower.
16. Garage: The garage located adjacent to the Building on City Block 118 in
the City of St. Louis, Missouri.
17. Garage Lease: The Lease dated December 22, 1982, between LCRA and Edison
Brothers Stores, Inc., and subsequently assigned to Borrower, for 250
parking spaces in the Garage.
18. Governmental Authorities: All governmental authorities having jurisdiction
over the Mortgaged Property and Improvements.
19. Improvement Advance: An Advance for Improvements at the Building.
20. Improvements: Capital improvements or Tenant Improvements to the Building
undertaken by or on behalf of Borrower after the initial Advance on the
Loan.
21. Including: Whenever used herein, the term "including" shall mean
"including, without limitation."
22. Jacobs Improvements: The Tenant Improvements required by the Jacobs Lease.
23. Jacobs Lease: The Lease dated February 22, 2001 between Borrower and Xxxxxx
Engineering Group, Inc., as amended from time to time.
24. Land: The real property located at 000 Xxxxx Xxxxxxxx in the City of St.
Louis, Missouri, and more particularly described in Exhibit A to the
Mortgage.
25. LCRA: Land Clearance for Redevelopment Authority of the City of St. Louis.
26. Leasehold Mortgage: The Leasehold Deed of Trust and Security Agreement of
even date herewith, securing the Note and covering the leasehold estate of
Borrower in the Garage.
27. Leases: The leases for tenants in the Building as described in the Rent
Roll.
28. Lender's Consultant: Landmark Contract Management, Inc.
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29. Loan Documents: Collectively, the Note, the Mortgages, this Agreement and
all other documents and instruments of any nature whatsoever executed and
delivered in connection with the Loan and any extensions, modifications,
amendments and renewals thereof.
30. Maximum Loan Amount: Eighteen Million Six Hundred Thousand Dollars
($18,600,000.00).
31. Milliman Lease: The Lease dated February 5, 2000 between Borrower and
Xxxxxxxx & Xxxxxxxxx, Inc., as amended.
32. Mortgage: The Deed of Trust and Security Agreement of even date herewith,
securing the Note and covering the fee simple estate of Borrower in the
Land and Building.
33. Mortgages: The Mortgage and the Leasehold Mortgage.
34. Mortgaged Property: All the real and personal property described in the
Mortgages.
35. Net Operating Income: All monthly rents and other revenues derived from the
Mortgaged Property less monthly non-capital operating expenses (including
escrowed amounts for real estate taxes and insurance premiums) for the
Mortgaged Property, exclusive of any expenses set forth as "projected
disbursements" in the Cash Flow Budget and except the Approved Reserve.
36. Note: The Loan Promissory Note of even date herewith in the principal
amount of the Loan, bearing interest as set forth therein, in the form of
Exhibit E to this Agreement.
37. Rent Commencement Date: The date when the obligation to pay rent commences
under the Jacobs Lease.
38. Rent Roll: The list of tenants of the Building containing relevant
information concerning the Leases in form satisfactory to Lender.
39. Seabury & Xxxxx Lease: The Lease as amended dated October 18, 2000 between
Borrower and Seabury & Xxxxx, Inc., as amended.
40. Servicing Fee: Sixteen Thousand Dollars ($16,000.00) per annum payable
quarterly in advance commencing July 1, 2001, and not prorated for the
quarter in which Target Occupancy is achieved.
41. Stifel Lease: The lease agreement dated September 30, 1998, among Borrower,
Stifel Financial Corp., and Xxxxxx Xxxxxxxx & Company, Incorporated, as
amended.
42. Survey: A duly certified ALTA/ACSM (1999) Class A Urban Survey, containing
items 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, and 11, as set forth in
Table A of the Minimum Standard Detail Requirements and Classifications for
ALTA/ACSM Land Title Surveys (1999) in form satisfactory to Lender.
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43. Target Occupancy: An occupancy rate for the Building of ninety-five percent
(95%) under leases which have been approved or deemed approved by Lender.
44. Tenant Improvements: Improvements to the Building which are undertaken
pursuant to a Lease to construct and equip space for the Tenant under such
Lease.
45. Title Company: Title Insurers Agency, Inc.
46. White Coleman Lease: The Lease dated November 30, 1994, between Borrower as
successor in interest to Edison Brothers Stores, Inc. and White Coleman &
Associates as successor in interest to White, Ovletrea & Xxxxxx, as
amended.
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EXHIBIT B
(Rent Roll)
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EXHIBIT C
(Cash Flow Budget)
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EXHIBIT D
(Disbursement Procedures)
The terms and conditions of the Loan Agreement prevail. Following is a summary
of the required disbursement procedures.
DOCUMENTATION REQUIRED
A. Borrower's (EBS) Draw Request Form - form attached as Exhibit D-1.
B. Borrower's (EBS) Requisition Summary - Schedule A to Draw Request Form.
C. Listing of Payees (by EBS)
D. Endorsement from title company (Title Insurers Agency, Inc.) to update date
of policy to a current date, increase the face amount of the policy to the
aggregate amount of loan to be currently funded, and update the mechanic
lien endorsement to minimally the cut-off date of the construction activity
billing per the general contractor's Application for Payment.
E. Copies of unconditional, full dollar amount lien waivers from general
contractor's subs and suppliers to evidence payments from prior fundings -
one month lag system - assembled by respective general contractors,
reviewed by Borrower (EBS).
F. General Contractor's (ISC on Jacobs space)) Affidavit and Requisition for
Funds - form attached as Exhibit D-2.
G. General Contractor's (ISC on Jacob's space) Application for Payment,
Certified by the project `architect of record' (Xxxxxx Engineering Group,
Inc.).Use AIA 702/G703 or similar acceptable forms.
H. Copies of invoices from major subs and suppliers to evidence and support
the amounts requested on the Application for Payment - supplied by general
contractor (ISC on Jacobs space).
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PROCEDURE
Note: the following procedure applies to Xxxxxx Engineering / ISC for the Jacobs
tenant improvement interior finishes for its own space as tenant in the EBS
building.
Subsequently, as other office spaces are rented, similar procedures apply with
designated general contractor, architect, etc.
- General Contractor (ISC) prepare Application for Payment for the monthly
period of construction activity. We suggest a preliminary `unofficial'
copy, when nearly ready, be faxed directly to Landmark c/o Xxx Xxxx as a
`heads-up' preview. Also, lien waiver copies go to Landmark c/o Xxx Xxxx on
behalf of the Bank, and to the title company if required by title company.
- General Contractor (ISC) prepare monthly pay request package with
documentation listed above (Affidavit, Application, Certification,
Continuation Sheet, invoice copies and related back-up evidentiary
material) and forward its full package to Borrower (EBS) for review and
approval.
- Borrower (EBS) review and approve the General Contractor's (ISC) pay
request package, then incorporate via a Project Budget Summary, prepare
Borrower's Draw Request Form, Listing of Payees and submit all to the Bank
c/o Xxxxx Xxxxxxx with a full copy, concurrently, to Landmark c/o Xxx Xxxx.
- Landmark to review entire package, then advise the Bank accordingly within
no more than 5 business days of receipt of package from Borrower (EBS),
assuming no significant problems and compliance with the terms and
conditions of the Loan Agreement.
- Bank, upon receipt of title company endorsement hard copy in hand, and once
all of the pay request documentation is in order and approved, - review and
consider Landmark's review of the full pay request package, and the
requirements of the Loan Agreement, proceed to fund by crediting the
appropriate account at the Bank.
BORROWER / LANDLORD IS EBS Building, L.L.C.
BORROWER'S REPRESENTATIVE is Insignia/ESG, Inc.
MAJOR TENANT is Xxxxxx Engineering Group, Inc.
PROJECT `ARCHITECT OF RECORD' for Jacobs space is Xxxxxx Engineering Group, Inc.
BANK'S CONSTRUCTION/FUNDING representative is Landmark Contract Management, Inc.
BANK is Commerce Bank, N.A.
TITLE COMPANY is Title Insurers Agency, Inc.
Note: there is NO PROVISION for payment for off-site stored materials nor
advance payments for items not incorporated with the work.
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EXHIBIT D-1
Draw Request Form
TO: Commerce Bank, N.A.
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
and
Title Insurers Agency, Inc.
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
RE: EBS Building, L.L.C.
a/k/a One Financial Plaza
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx xx Xx. Xxxxx, XX 00000
The undersigned does hereby request and authorize payments totaling
_______________ Dollars ($________.__) as described and itemized on Schedule A,
attached, and does hereby certify that all amounts requested for labor and/or
materials are physically incorporated into the project (except for "stored"
items identified as such) in compliance with the plans and specifications
approved by the addressees above, or for services performed relating to the
subject property. All such payment requests, individually and in total, are in
accordance with the terms of the Loan Agreement, and represent the lesser of
amounts actually due and billed or value of work in place and services
performed.
The undersigned further certifies that all amounts requested are solely
for the named payees and for the purposes indicated and that this requisition
includes all amounts outstanding and payable on subject property through (Date)
except for retentions.
The undersigned further says that no claims have been made to the
affiant by, nor is any suit now pending on behalf of, any contractor,
subcontractor, laborer or materialman and further that no chattel mortgages,
conditional bills of sale, retention of title agreements, security agreements,
financing statements, or personal property leases have been given or are
outstanding as to any fixtures, appliances, or equipment which are now installed
in or upon said real property, or the improvements thereon, excepting those
provided for and permitted under the Loan Agreement.
The undersigned does further certify that: (a) the subcontractors and
material supplies shown on the breakdown submitted to the lender are, in their
opinion, capable of performing their contractual obligations; (b) cost
projections set forth in Schedule A are adequate to complete the work to be
done; and (c) work in place and material furnished to date is in compliance with
those plans and specifications identified at loan closing.
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That the disbursement requested above should be funded by crediting the
account of EBS Building, L.L.C. at Commerce Bank, N.A.
The undersigned hereby acknowledge(s) the dependence others may place
upon the statements contained herein. No obligation on the part of the Lender or
its representative, expressed or implied, is created by this requisition as to
protection of the owner and/or contractors, or assigns from mechanics' or
materialmen's lien claims, and the owner and contractor, as agreed between them,
shall be responsible for the procurement of required lien waivers, paid bills
and releases from both principal payees and all subordinate claimants thereunder
and hereby covenants and agrees to hold Commerce Bank, N.A., and Title Insurer's
Agency, Inc., and their agents harmless against any lien, claim or suit by any
contractors, subcontractors, mechanics or materialmen in connection with the
furnishing of said services, labor and material included in the requisition
hereinabove described and all prior requisitions.
The undersigned agrees to furnish lien waivers from all payees named
herein within two weeks or prior to the next fund request, whichever shall occur
first.
EBS Building, L.L.C.
By ____________________________
Attach copy of current Requisition Summary and List of Xxxxxx
00
00
XXXXXXX X-0
General Contractor's Affidavit and Requisition for Funds
TO: EBS Building, LLC
Commerce Bank, NA
Title Insurers Agency, Inc.
RE: Tenant Finish Improvements for Xxxxxx Group
Floors Number 1 through 4 and 11, EBS Building
One Financial Plaza, 501 North Broadway Street,
City of Xx. Xxxxx, XX 00000
The undersigned does hereby request and authorize payments totaling
_______________ Dollars ( $__________________) as described and itemized on
Schedule A, attached, and does hereby certify that all amounts requested for
labor and/or materials are physically incorporated into the project (except for
"stored" items identified as such) in compliance with the plans and
specifications approved by the addressees above, or for services truly performed
relating to the subject property. All such payment requests, individually and in
total, are in accordance with the terms of the executed Loan Agreement, and
represent the lesser of amounts actually due and billed or value of work in
place and services performed.
The undersigned further certifies that no part of the payments
requested include or contemplate rebates, commission or loans to the
undersigned, their (its) beneficiaries, agents or assigns, and that all amounts
requested are solely for the named payees and for the purposes indicated and
that this requisition includes all amounts outstanding and payable on subject
property through (Date), except for retentions.
The undersigned further says that no claims have been made to the
affiant by, nor is any suit now pending on behalf of, any contractor,
subcontractor, laborer or materialman and further that no chattel mortgages,
conditional bills of sale, retention of title agreements, security agreements,
financing statements, or personal property leases have been given or are
outstanding as to any fixtures, appliances, or equipment which are now installed
in or upon said real property, or the improvements thereon, arising from labor
and materials included in the construction contract.
The undersigned does further certify to their (its) best knowledge and
opinion that: (a) the subcontractors and material supplies shown on the
breakdown submitted to the lender are, in their opinion, capable of performing
their contractual obligations; (b) cost projections made by the contractor are
submitted to the lender are adequate to complete the work to be done; and (c)
all work in place and material furnished to date is in compliance with those
plans and specifications identified at loan closing.
The undersigned hereby acknowledge(s) the dependence others may place
upon the statements contained herein. No obligation on the part of the lender or
its advisor, expressed or
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implied, is created by this requisition as to protection of the owner and/or
contractors, or assigns from mechanics' or materialmen's lien claims, and the
owner and contractor, as agreed between them, shall be responsible for the
procurement of required lien waivers, paid bills and releases from both
principal payees and all subordinate claimants thereunder and hereby covenants
and agrees to hold Commerce Bank, N.A., and Title Insurer's Agency, and their
agents harmless against any lien, claim or suit by any contractors,
subcontractors, mechanics or materialmen in connection with the furnishing of
said services, labor and material included in the requisition hereinabove
described and all prior requisitions.
The undersigned agrees to furnish to EBS Building, L.L.C. lien waivers
from all payees named herein within two weeks or prior to the next fund request,
whichever shall occur first.
----------------------------------
Contractor
Subscribed and sworn to before me this day of , 2001.
-------- ----------------
------------------------------------
Notary Public
My commission expires:
(Attach standard 1987 issue of A.I.A. G702 and G703 or equal, certified by the
architect of record, listing of payees, together with copies of invoices from
subcontractors and major material suppliers, complete with Schedules of Value,
in support of pay request.)
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EXHIBIT E
(Form of Promissory Note)
LOAN PROMISSORY NOTE
$18,600,000.00 May ___, 2001
FOR VALUE RECEIVED, the undersigned EBS BUILDING, L.L.C., a Delaware
limited liability company ("Borrower"), promises to pay to the order of COMMERCE
BANK, N.A., a national banking association ("Lender"), at its office in St.
Louis, Missouri, or at such other place as may be designated in writing by the
holder of this Note, the principal sum of Eighteen Million Six Hundred Thousand
Dollars ($18,600,000.00) or so much thereof as may be advanced and outstanding
from time to time under this Note, together with interest on said principal sum
from the date of each Advance until this Note is paid in full, at the Interest
Rate and at the times hereinafter set forth.
1. DEFINITIONS. As used in this Note, the following terms shall have
the following definitions:
(a) "Advance or Advances" shall mean disbursements or advances of
proceeds of the Loan made by Lender pursuant to, and in accordance with, the
terms and provisions of the Loan Agreement.
(b) "Default Rate" shall mean the then current Interest Rate plus
four percent (4.0%).
(c) "Interest Rate" shall mean a per annum rate of interest equal
to the LIBOR Rate plus one hundred ninety (190) basis points. The Interest Rate
shall change with, and be effective on the date of each change in, the LIBOR
Rate.
(d) "LIBOR Rate" shall mean the Libor interest rates, rounded up
to the nearest 1/100 percent, offered for the three month periods ("90 Day
Rate") as published in The Wall Street Journal on the day preceding the day of
the funding of the applicable Advance, or if not so published on that day then
on the most recent prior day on which the Libor interest rates are so published.
If no Libor Rate is so published for the 90 Day Rate within one (1) week prior
to the applicable Advance date, Borrower shall select another libor period for
which the Libor Rate is so published, or if no Libor Rate is then so published,
Borrower and Lender shall agree on another reference for determining the
applicable Libor Rate.
(e) "Loan Agreement" shall mean that certain Loan Agreement of
even date herewith between Lender and Borrower, pursuant to which Lender has
agreed to make the Loan to Borrower, the terms of which Loan Agreement are
incorporated in this Note by this reference.
(f) "Maturity Date" shall mean the date which shall be the
thirty-six (36) month anniversary of the date of this Note.
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All other capitalized terms used in this Note which are not expressly
defined herein shall have the meaning assigned to such terms in the Loan
Agreement.
2. DISBURSEMENT REQUEST. During the term of the Loan, Borrower shall
make a request for each Advance in accordance with the terms, provisions and
conditions set forth in the Loan Agreement.
3. PAYMENT. The principal sum of the Loan and interest thereon shall
be paid as follows:
(a) Interest at the Interest Rate shall accrue on the principal
amount of each Advance from the date of disbursement and shall be payable on the
twentieth (20th) day of each month, beginning immediately;
(b) Following the Rent Commencement Date, all Excess Positive Cash
Flow for each one month period shall be payable on the twentieth (20th) day of
the following month; and
(c) If not sooner paid, the entire outstanding principal balance
of the Loan, all accrued and unpaid interest thereon, and all other charges and
payments due from Borrower to Lender under the Loan Documents, shall be due and
payable on the Maturity Date.
4. DEFAULT RATE. In the event that (i) an Event of Default shall
occur, or (ii) Borrower shall fail to pay the Loan in full on the Maturity Date,
then in any such event the unpaid principal balance under this Note shall
thereafter bear interest at the Default Rate.
5. PREPAYMENT. The Loan may be prepaid in whole or in part, at any
time and from time to time, without prepayment charge or penalty. All
prepayments shall be applied first to accrued and unpaid interest, and second to
outstanding principal.
6. PAYMENTS AND COMPUTATIONS. All payments on account of
indebtedness evidenced by this Note shall be made not later than 1:00 P.M. (St.
Louis, Missouri time) on the day when due in lawful money of the United States
and shall be first applied to accrued and unpaid interest on the unpaid
principal balance of the Loan and the remainder to principal. All computations
of interest shall be made by Lender on the actual days outstanding on the basis
of a three hundred sixty (360) day calendar year. Said payments are to be made
at such place as Lender or the legal holder of this Note may, from time to time,
in writing appoint, and in the absence of such appointment, then by bank wire to
Lender in St. Louis, Missouri. Unless otherwise specified herein, all interest
payable under this Note is paid in arrears.
7. APPLICABLE LAWS. This Note shall be construed and enforced in
accordance with the laws of the State of Missouri and shall be conclusively
deemed for all purposes to have been executed and delivered in the State of
Missouri for performance therein. This Note is given for an actual loan of money
for business purposes and is not for agricultural, consumer, personal or
residential purposes.
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8. COLLATERAL SECURITY. Borrower and Lender have executed the Loan
Agreement, pursuant to which Lender has agreed to make the Loan to Borrower
evidenced hereby. The payment of this Note and all obligations of Borrower under
the Loan Agreement in connection with the Loan are secured by a Deed of Trust
and Security Agreement and by a Leasehold Deed of Trust and Security Agreement,
each of even date herewith and for the benefit of Lender on certain real estate
in St. Louis, Missouri, and by other Loan Documents of even date herewith, as
described in the Loan Agreement.
9. EVENT OF DEFAULT. An "Event of Default" hereunder shall be deemed
to have occurred upon the occurrence of an "Event of Default" (as defined in the
Loan Agreement). It is agreed that at the election of Lender or the holder or
holders hereof, and in addition to any other rights or remedies set forth
herein, in the Loan Agreement or the other Loan Documents, upon the occurrence
of an Event of Default, the principal sum remaining unpaid hereunder, together
with all accrued and unpaid interest thereon, shall become at once due and
payable at the place of payment aforesaid.
10 WAIVER. Except as expressly provided herein and the Loan
Documents, to the extent permitted by applicable law, Borrower and each surety,
endorser and guarantor hereof, jointly and severally, waive grace, presentment
for payment, notice of nonpayment, demand of payment, protest and notice of
protest, notice of dishonor and diligence in the collection of this Note and in
filing suit hereon and consent and agree that their liability for the payment
hereof shall not be affected or impaired by any release or change in the
security for the payment of this Note or any party hereto, by any extension of
the time of payment, or the addition of any parties hereto, which extension and
addition may be made without notice to any party hereto and without affecting
their liability hereunder.
11. COLLECTION. Borrower and each surety, endorser and guarantor
hereof, jointly and severally, agree that if this Note is not paid promptly in
accordance with its terms and is placed in the hands of an attorney for
collection or if suit be instituted hereon or to foreclose the Mortgage given as
security herefor and as often as this Note is placed in the hands of the
attorney for collection and as often as suit is filed to collect this Note,
they, and each of them, shall pay, in addition to the unpaid principal balance
hereof and all accrued and unpaid interest due hereon, all costs of collection,
including, without limitation, reasonable attorney's fees.
12. RECORDS. Each Advance to Borrower and all other debits and
credits provided in this Note and in the Loan Agreement shall be evidenced by
entries made by Lender on records to be maintained at Lender's office in St.
Louis, Missouri. All payments of principal and interest made by the Borrower
shall be similarly evidenced by entries made by Lender in such records, showing
the date and amount of each such payment and the principal balance remaining
unpaid immediately thereafter. The balance due Lender, as set forth in such
records, shall be conclusive evidence of the amounts due and owing Lender by
Borrower, absent manifest error. Notwithstanding the foregoing, the failure of
Lender to make any such entries shall not limit or otherwise affect the
obligations of Borrower hereunder with respect to payments of principal and
interest.
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13. NOTICE. Any notice, demand, request or other communication which
Lender or Borrower may be required or permitted to give hereunder shall be given
and deemed received in accordance with Section 24 of the Loan Agreement.
14. ACKNOWLEDGMENT OF RECEIPT OF COPY. Borrower hereby acknowledges
receipt of a copy of this Note.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of
the day and year first set forth above.
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, Its Manager
By: Exhibit
------------------------------------------
Xxxxx X. Xxxxxx, Partner
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EXHIBIT F
(Subordination, Non-Disturbance and Attornment Agreement)
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