1
EXHIBIT 6.6
-----------------------------------------------------------------
-----------------------------------------------------------------
LOAN AGREEMENT
EBS BUILDING, L.L.C.
AND
FIRST BANK
MARCH 16, 1998
-----------------------------------------------------------------
-----------------------------------------------------------------
2
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND RULES OF INTERPRETATION..................................-1-
1.1. Definitions...................................................-1-
1.2. Rules of Interpretation.......................................-4-
2. AGREEMENT TO MAKE ADVANCES; LIMITATIONS..................................-5-
2.1. Line of Credit................................................-5-
2.2. Amount of Advances............................................-5-
2.3. Requests for Advances.........................................-5-
3. THE NOTE; INTEREST; MATURITY AND PREPAYMENT..............................-5-
3.1. The Note......................................................-5-
3.2. Funds for Payments............................................-5-
3.3. Computations..................................................-5-
3.4. The Record....................................................-6-
3.5. Payments......................................................-6-
3.6. Interest on Overdue Amounts...................................-6-
3.7. Prepayment....................................................-6-
3.8. Alienation....................................................-6-
4. CONDITIONS TO FIRST ADVANCE AND CLOSING..................................-6-
4.1. Loan Documents................................................-6-
4.2. Certified Copies of Organization Documents....................-7-
4.3. Contracts.....................................................-7-
4.4. Deliveries....................................................-7-
4.5. Legal Opinions................................................-7-
4.6. Fees and Expenses.............................................-7-
4.7. Performance; No Default.......................................-8-
4.8. Truth of Representations and Warranties.......................-8-
4.9. Waiver of Requirements........................................-8-
4.10. Certain Events...............................................-8-
5. CONDITIONS OF SUBSEQUENT ADVANCES........................................-8-
5.1. Prior Conditions Satisfied....................................-8-
5.2. Performance; No Default.......................................-8-
5.3. No Damage.....................................................-8-
5.4. Receipt of Documents by the Lender............................-9-
6. REPRESENTATIONS AND WARRANTIES...........................................-9-
6.1. Organization; Authority; Etc..................................-9-
6.2. Title to Property............................................-10-
6.3. Litigation...................................................-10-
6.4. No Materially Adverse Contracts, Etc.........................-10-
6.5. Compliance With Other Instruments, Laws, Etc.................-10-
3
6.6. Tax Status...................................................-10-
6.7. No Event of Default..........................................-10-
6.8. Investment Company Act.......................................-11-
6.9. Absence of Financing Statements, Etc.........................-11-
6.10. Setoff, Etc.................................................-11-
6.11. Manager.....................................................-11-
6.12. Condition of Property.......................................-11-
6.13. Other Contracts.............................................-11-
6.14. Real Property Taxes; Special Assessments....................-11-
6.15. Effect of Requests for Advance..............................-11-
7. AFFIRMATIVE COVENANTS OF THE BORROWER...................................-12-
7.1. Punctual Payment.............................................-12-
7.2. Maintenance of Office........................................-12-
7.3. Records and Accounts.........................................-12-
7.4. Financial Statements, Certificates and Information...........-12-
7.5. Notices......................................................-12-
7.6. Existence; Maintenance of Properties.........................-13-
7.7. Insurance....................................................-13-
7.8. Taxes........................................................-15-
7.9. Inspection of Property, Other Properties and Books...........-15-
7.10. Compliance with Laws, Contracts, Licenses, and Permits......-15-
7.11. Leases......................................................-16-
8. NEGATIVE COVENANTS OF THE BORROWER......................................-16-
9. EVENTS OF DEFAULT AND REMEDIES..........................................-16-
9.1. Events of Default............................................-16-
9.2. Acceleration.................................................-18-
9.3. Other Remedies...............................................-19-
9.4. Distribution of Collateral Proceeds..........................-20-
9.5. Power of Attorney............................................-20-
9.6. Waivers......................................................-20-
10. MISCELLANEOUS AND GENERAL..............................................-21-
10.1. Setoff......................................................-21-
10.2. Expenses....................................................-21-
10.3. Indemnification.............................................-21-
10.4. Rights of Third Parties.....................................-22-
10.5. Survival of Covenants, Etc..................................-22-
10.6. Participations..............................................-22-
10.7. Relationship................................................-22-
10.8. Notices.....................................................-22-
10.9. Governing Law...............................................-23-
10.10. Consent to Jurisdiction; Waivers...........................-24-
10.11. Headings...................................................-24-
-ii-
4
10.12. Counterparts...............................................-24-
10.13. Entire Agreement, Etc......................................-24-
10.14. Consents, Amendments, Waivers, Etc.........................-25-
10.15. Time of the Essence........................................-25-
10.16. Severability...............................................-25-
10.17. Assignments................................................-25-
10.18. Waiver and Release by Borrower.............................-26-
10.19. Construction...............................................-26-
10.20. Further Assurance..........................................-26-
10.21. Binding Effect.............................................-26-
10.22. Exhibits...................................................-26-
10.23. Termination................................................-26-
10.24. Loan Documents.............................................-26-
10.25. Leases.....................................................-26-
iii
5
CREDIT AGREEMENT
THIS AGREEMENT made and entered into as of the 16th day of March, 1998,
by and between EBS BUILDING, L.L.C., a Delaware limited liability company, with
an address at c/o Price Waterhouse LLP (hereinafter referred to as "Borrower")
and FIRST BANK, a Missouri banking corporation (hereinafter referred to as
"Lender").
WITNESSETH:
WHEREAS, the Borrower desires to borrow up to Two Million Dollars
($2,000,000.00), (hereinafter referred to as the "Credit"); and
WHEREAS, the Lender is willing to lend such sum, or a lesser amount as
may be desired by the Borrower, to the Borrower on the basis of the
representations, warranties, conditions, and agreements herein set forth,
NOW, THEREFORE, in consideration of the promises herein contained,
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and each intending to be legally bound hereby, the parties
agree as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set forth
in this Section or elsewhere in the provisions of this Agreement or other Loan
Documents referred to below:
Advance. Any disbursement of the proceeds of the Loan made or to be
made by the Lender pursuant to the terms of this Agreement.
Affiliate. With respect to any Person (the "Specified Person") means
any Person (1) who directly or indirectly controls, or is controlled by, or is
under common control with such Specified Person; (2) who directly or indirectly
beneficially owns or controls ten percent (10%) or more of the beneficial
ownership (voting stock, general partnership interests, or otherwise) of such
Specified Person; (3) ten percent (10%) or more of the beneficial ownership
(voting stock, general partnership interests, or otherwise) of whom is owned,
directly or indirectly, by the Specified Person; (4) who is an officer,
director, partner, member, or trustee of the Specified Person; or (5) in whom
the Specified Person is an officer, director, partner, member, or trustee. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
through the ownership of voting securities, partnership interests, membership
interests or otherwise, by contract or otherwise.
Agreement. This Agreement, including any Schedules and Exhibits
hereto.
Assignment of Leases. The Assignment of Leases and Rents, dated or to
be dated on or prior to the Closing Date, made by the Borrower in favor of the
Lender, pursuant to which the Borrower assigns its right, title and interest as
landlord in and to the Leases and the rents, issues and profits of the Property,
such Assignment of Leases and Rents to be in form and substance
6
satisfactory to the Lender.
Business Day. Any day on which Lender is open for the transaction of
banking business.
Closing Date. The first date on which the conditions set forth in
Section 4 have been satisfied.
Collateral. All of the property, rights and interests of the Borrower
that are or are intended to be subject to the security interests, assignments,
and mortgage liens created by the Loan Documents, including, without limitation,
the Property, and the Personal Property.
Default. A condition or event which would, with the giving of notice or
lapse of time or both, constitute an Event of Default.
Default Rate. The default rate of interest set forth in the Note.
Event of Default. See Section 9.
Financial Statements. Those items required pursuant to Section 7.4
hereof.
Financing Statements. Uniform Commercial Code Form 1 Financing
Statement(s) from the Borrower in favor of the Lender giving notice of a
security interest in the Collateral, such financing statements to be in form and
substance satisfactory to the Lender.
Indemnity Agreement. The Indemnity Agreement dated or to be dated on or
prior to the Closing Date, made by the Borrower in favor of the Lender, pursuant
to which the Borrower agrees to indemnify the Lender with respect to Hazardous
Materials, Environmental Laws, and Accessibility Laws, such Indemnity Agreement
to be in form and substance satisfactory to the Lender.
Leases. Leases, licenses, and agreements, whether written or oral,
relating to the use or occupation of space in the improvements on the Property
by Persons other than the Borrower.
Loan. The loan which is the subject of this Agreement.
Loan Amount. Two Million Dollars ($2,000,000.00).
Loan Documents. This Agreement, the Note, the Indemnity Agreement, the
Mortgage, the Financing Statements, the Assignment of Leases, and all other
agreements, documents and instruments now or hereafter evidencing, securing or
otherwise relating to the Loan.
Maturity Date. March 15, 1999.
Mortgage. That certain Deed of Trust and Security Agreement (with
assignment of leases and rents provision) encumbering the Property, executed and
delivered by Borrower in favor of Lender in connection with the Loan.
-2-
7
Obligations. The obligations of Borrower to:
(A) To repay all indebtedness, obligations and liabilities of
the Borrower to the Lender, individually or collectively, existing on the date
of this Agreement or arising thereafter, including any extensions, amendments,
modifications, renewals, refinancings, refundings thereof and substitutions
therefor, whether direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Agreement, any of the other Loan Documents, or the Note or other instruments at
any time evidencing any thereof, or otherwise.
(B) To repay to Lender all amounts advanced by Lender
hereunder or otherwise on behalf of Borrower, including, but without limitation,
advances for principal or interest payments to prior secured parties, mortgagee,
or lienors, or for taxes, levies, insurance, rent, repairs to or maintenance or
storage of any of the Collateral; and
(C) Except as hereinafter specifically provided, to reimburse
Lender, on demand, for all of Lender's expenses and costs, including without
limitation the reasonable fees and expenses of its counsel, in connection with
the enforcement of this Agreement, the preparation of the documents required
hereunder, and the closing of the Loan, and including without limitation, any
proceeding brought or threatened to enforce payment of any of the obligations
referred to in the foregoing paragraphs (A) and (B).
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Personal Property. All goods, materials, supplies, inventory,
furnishings, fixtures, furniture, machinery, equipment, all other items of
tangible personal property, all general intangibles, all drawings, designs,
specifications, blue prints, plans, promotional brochures, mailing lists,
records, customer lists, all instruments, chattel paper, documents and accounts,
and all proceeds, substitutes, replacements, accretions, accessions and products
of any of the foregoing now or hereafter owned or acquired by the Borrower,
wherever located, and to be used in connection with the ownership, operation, or
maintenance of the Property.
Property. The real property described on Exhibit A, attached hereto and
incorporated herein located in the City of St. Louis, Missouri, together with
all improvements thereon and appurtenances thereto and more fully described in
the Mortgage.
Record. Any record, including computer records, maintained by any
Lender with respect to any Advance pursuant to the Note.
Survey. An ALTA/ACSM survey of the Property prepared by a registered
land surveyor certified to Lender and the Title Company, which survey is to show
the same by metes and bounds together with all easements as actually located
(referring to same by book and page number of recordation or if the same cannot
be located then, indicating the same), set back lines,
-3-
8
improvements, walks, alleys, drives, former streets and alleys, if vacated,
adjoining public roads, streets, or other thoroughfares, and all appurtenant
easements, the proposed location of the buildings, a legal description of the
Property and the area of the Property in square feet, dimensions, area, and
locations of improvements, ingress and egress to and from the Property; parking
area; easements, including all appurtenant easements, the location of adjacent
streets, and such additional details as Lender may reasonably request, together
with satisfactory evidence that the improvements on the Property do not and will
not encroach upon any property line, building set-back line or easement.
Taking. Any condemnation for public use of, or damage by reason of, the
action of any Governmental Authority, or any transfer by private sale in lieu
thereof, either temporarily or permanently.
Title Insurance Company. Chicago Title Insurance company, with a usual
place of business at 000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
Title Policy. An ALTA standard form title insurance policy issued by
the Title Insurance Company (with such reinsurance or co-insurance as the Lender
may require, any such reinsurance to be with direct access endorsements) in an
amount not less than the Loan Amount insuring the priority of the Mortgage and
that the Borrower holds marketable fee simple title to the Property, subject
only to such exceptions as the Lender may approve and which shall not contain
exceptions for mechanics liens, persons in occupancy or matters which would be
shown by a survey, shall not insure over any matter except to the extent that
any such affirmative insurance is acceptable to the Lender in its sole
discretion, and shall contain such endorsements and affirmative insurance as the
Lender in its discretion may require, including but not limited to (a) a
comprehensive endorsement, (b) a variable rate of interest endorsement, (c) a
future advance endorsement, and (d) an ALTA form 3.1 zoning endorsement.
1.2. Rules of Interpretation.
(a) The singular includes the plural and the plural includes
the singular.
(b) A reference to any law includes any amendment or
modification to such law.
(c) A reference to any Person includes its permitted
successors and permitted assigns.
(d) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking approval
after full and fair disclosure to the party giving approval of all material
facts necessary in order to determine whether approval should be granted.
2. AGREEMENT TO MAKE ADVANCES; LIMITATIONS.
2.1. Line of Credit. The Lender agrees, on the terms and conditions of
this Agreement, to make funds available to the Borrower in the aggregate
principal amount at any time
-4-
9
outstanding up to but not exceeding the Loan Amount. Within such limit, the
Borrower may borrow and reborrow at any time and from time to time up to and
including March 15, 1999, or the termination of the commitment of the Lender,
whichever is earlier.
2.2. Amount of Advances. Each principal Advance shall be in a minimum
amount of One Thousand Dollars ($1,000.00). Each Request for Advance hereunder
shall constitute a representation and warranty by the Borrower that the
conditions set forth in Section 4, in the case of the initial Advance and
Section 5, in the case of all other Advances have been satisfied on the date
of such Request for Advance.
2.3. Requests for Advances. Each request for an advancement of
principal shall be in writing, the form of which shall be substantially as
shown in Exhibit B, attached hereto and incorporated herein (hereinafter
referred to as the "Request for Advance"). The Borrower shall provide the
Lender with written verification (substantially in the form as shown in Exhibit
C, attached hereto and incorporated herein) of the party or parties other than
those specified above who are authorized to endorse the Note or execute a
Request for Advance. Such authorization shall remain in full force and effect
until written notice of amendment to rescission shall have been received by the
Lender.
3. THE NOTE; INTEREST; MATURITY AND PREPAYMENT.
3.1. The Note. The Loan shall be evidenced by a promissory note of the
Borrower in substantially the form of Exhibit D, attached hereto and
incorporated herein (the "Note"), dated as of the Closing Date and completed
with appropriate insertions. The Note shall be payable to the order of Lender in
a principal amount equal to the Loan Amount.
3.2. Funds for Payments.
(a) All payments of principal, interest, fees and any other
amounts due under the Note or under any of the other Loan Documents shall be
made to the Lender, at its office at 00000 Xxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx
00000, or at such other location that the Lender may from time to time
designate, in each case not later than 2:00 p.m. (St. Louis, Missouri time) on
the day when due in immediately available funds in lawful money of the United
States.
(b) All payments by the Borrower under the Note and under any
of the other Loan Documents shall be made without setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein
3.3. Computations. Interest on the Note shall be calculated on a daily
basis by dividing the annual rate of interest by 360 to obtain the daily
interest rate. All interest due hereunder shall be paid for the actual number of
days elapsed. Whenever a payment hereunder or under any of the other Loan
Documents becomes due on a day that is not a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and interest
shall accrue during such extension.
-5-
10
3.4. The Record. The Borrower irrevocably authorizes Lender to make or
cause to be made, at or about the time of any Advance or at the time of receipt
of any payment of the principal of such Note, an appropriate notation on
Lender's Record reflecting the making of such Advance or (as the case may be)
the receipt of such payment. The outstanding amount of the Advances set forth on
Lender's Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to Lender, but the failure to record, or any error in so
recording, any such amount on Lender's Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under the Note to make
payments of principal of or interest on the Note when due.
3.5. Payments. The from time to time outstanding principal balance of
the Note shall bear prematurity interest at the rate set forth in the Note.
Principal and interest shall be repaid as set forth in the Note and interest
shall be payable monthly on the 1st day of each month commencing on 1st day of
each month thereafter until maturity, whether by acceleration or otherwise.
3.6. Interest on Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest and all other overdue amounts payable
hereunder or under any of the other Loan Documents shall bear interest payable
on demand at the Default Rate until such amount shall be paid in full (whether
before or after judgment).
3.7. Prepayment. The Borrower shall have the right, at its election, to
repay the outstanding amount principal balance of the Loan, as a whole or in
part, at any time without penalty or premium. Each such partial prepayment shall
be in an integral multiple of One Thousand Dollars ($1,000.00), on the principal
repaid to the date of payment.
3.8. Alienation. It is agreed, and the Mortgage and the Note shall so
provide, except as permitted hereunder, that all indebtedness evidenced by the
Note shall at the option of the holder of the Note become forthwith due and
payable upon any assignment, sale, voluntary encumbrance, or other attempted
alienation of the Property.
4. CONDITIONS TO FIRST ADVANCE AND CLOSING. The obligation of the Lender to make
the initial Advance hereunder and to close shall be subject to the satisfaction
of the following conditions precedent:
4.1. Loan Documents. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to the Lender. Lender
shall have received a fully executed copy of each such document.
4.2. Certified Copies of Organization Documents. The Lender shall have
received certified copies of (i) the Articles of Organization and all amendments
thereto of Borrower certified by the Secretary of the State of Delaware; (ii)
the Member's Agreement of Borrower and all amendments thereto of Borrower; (iii)
certified copies of any required consent of Borrower's members; (iv) a certified
order designating Price Waterhouse LLP as manager of
-6-
11
Borrower; and (v) a certificate of good standing of Borrower under the laws of
the States of Delaware and Missouri.
4.3. Contracts. The Borrower shall have delivered to the Lender correct
and complete photocopies of all requested contracts relating to the Property and
the Personal Property.
4.4. Deliveries. The following items or documents shall have been
delivered to the Lender by the Borrower and shall be in form and substance
satisfactory to the Lender:
4.4.1. Title Policy. The Title Policy, together with proof of
payment of all fees and premiums for such policy and true and accurate copies of
all documents listed as exceptions under such policy.
4.4.2. Insurance. Duplicate originals or certified copies of
all policies of insurance required by the Mortgage to be obtained and maintained
by the Borrower and certificates of insurance evidencing the insurance required
by Section 7.7 to be obtained and maintained by the Borrower.
4.4.3. Survey. A Survey of the Property (and any existing
improvements thereon).
4.4.4. Taxes. Evidence of payment of all real estate taxes and
municipal charges on the Property (and any existing improvements thereon) which
were due and payable prior to the Closing Date.
4.4.5. Financial Statements. Financial Statements as required
pursuant to Section 7.4 hereof.
4.4.6. Flood Plain. Evidence satisfactory to Lender the
Property is not in a federally designated flood plain zone or, in lieu thereof,
a federally subsidized policy of flood insurance naming Lender as mortgagee.
4.5. Legal Opinions. The Lender shall have received favorable opinions
in form and substance satisfactory to the Lender, addressed to the Lender and
dated as of the Closing Date, from Borrower's counsel relating to such matters
as the Lender shall reasonably request.
4.6. Fees and Expenses. The Borrower shall have paid to Lender:
4.6.1. Attorneys' Fees. Lender's attorneys' fees and expenses;
and
4.6.2. Other Fees. All other fees and expenses of Lender
incurred in connection with the Loan.
4.7. Performance; No Default. The Borrower shall have performed and
complied with all terms and conditions herein required to be performed or
complied with by it on or prior to the date of the initial Advance, and on the
date of the initial Advance, there shall exist no Default or
-7-
12
Event of Default.
4.8. Truth of Representations and Warranties. The representations and
warranties made by the Borrower in the Loan Documents or otherwise made by or on
behalf of the Borrower in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the date of the initial Advance.
4.9. Waiver of Requirements. Lender in its sole and absolute
discretion, may temporarily waive the requirements to deliver one or more of the
items or documents required in this Section 4 with respect to one or more
Advances under the Loan, however, at the sole and absolute discretion of
Lender, such items or documents must be delivered to Lender prior to any
further Advances of the Loan unless Lender otherwise agrees in writing.
4.10. Certain Events. At the time of the initial Advance:
4.10.1. No Default. No Default or Event of Default shall have
occurred and be continuing;
4.10.2. Adverse Change. No material adverse change shall have
occurred in the financial condition of Borrower since the submission of
Financial Statements of Borrower on or about the date of this Agreement; and
4.10.3. Loan Documents. All of the Loan Documents shall be in
full force and effect.
5. CONDITIONS OF SUBSEQUENT ADVANCES. The obligation of the Lender to make any
Advance after the initial Advance shall be subject to the satisfaction of the
following conditions precedent:
5.1. Prior Conditions Satisfied. All conditions precedent to the
initial Advance and any prior Advance shall continue to be satisfied as of the
date of such subsequent Advance.
5.2. Performance; No Default. The Borrower shall have performed and
complied with all terms and conditions herein required to be performed or
complied with by it on or prior to the date of such Advance, and on the date of
such Advance there shall exist no Default or Event of Default.
5.3. No Damage. The Improvements shall not have been injured or damaged
by fire, explosion, accident, flood or other casualty, unless the Lender shall
have received insurance proceeds sufficient in the reasonable judgment of Lender
to effect the satisfactory restoration of the Improvements and to permit the
completion thereof on or prior to the Completion Date.
5.4. Receipt of Documents by the Lender. The Lender shall have received
the following items or documents which shall be in form and substance
satisfactory to the Lender:
-8-
13
5.4.1. Request for Advance. A Request for Advance complying
with the requirements hereof, including those set forth in Section 4 hereof;
5.4.2. Endorsement to Title Policy. If any of the Loan
proceeds are expended for improvement of the Property or for any other
expenditure which could give rise to a lien against the Property, a "date down"
endorsement to the Title Policy indicating no change in the state of title and
containing no survey exceptions not approved by the Lender, which endorsement
shall, expressly or by virtue of a proper "pending disbursements" clause or
endorsement in the Title Policy, increase the coverage of the Title Policy to
the aggregate amount of all proceeds of the Loan advanced on or before the
effective date of such endorsement;
6. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the
Lender as follows:
6.1. Organization; Authority; Etc.
6.1.1. Organization; Good Standing.
(i) Borrower is and shall continue to be a limited
liability company organized and validly existing under the laws of the
State of Delaware and authorized to do business in the State of
Missouri; and Borrower has and shall continue to have the lawful power
to own its properties and to engage in the business it conducts;
(ii) Each of the Borrower and the manager of Borrower
(a) has all requisite power to own its property and conduct its
business as now conducted and as presently contemplated, and (b) is in
good standing as a foreign entity and is duly authorized to do business
in the jurisdiction where the Property is located and in each other
jurisdiction where such qualification is necessary except where a
failure to be so qualified in such other jurisdiction would not have a
materially adverse effect on its business, assets or financial
condition.
6.1.2. Authorization. The execution, delivery and performance
of this Agreement and the other Loan Documents to which the Borrower is or is to
become a party and the transactions contemplated hereby and thereby (i) are
within the authority of such Person, (ii) have been duly authorized by all
necessary proceedings on the part of such Person, (iii) do not conflict with or
result in any breach or contravention of any provision of law, statute, rule or
regulation to which such Person is subject or any judgment, order, writ,
injunction, license or permit applicable to such Person, and (iv) do not
conflict with any provision of the articles of organization or members agreement
of, or any agreement or other instrument binding upon, such Person, and (v) do
not require the approval or consent of, or filing with, any governmental agency
or authority other than those already obtained and the filing of the Mortgage,
the Assignment of Leases and the Financing Statements in the appropriate public
records with respect thereto.
6.2. Title to Property. The Borrower holds good clear record and
marketable fee simple absolute title to the Property, and owns the Personal
Property, subject to no rights of others,
-9-
14
including any mortgages, leases, conditional sale agreements, title retention
agreements, liens or other encumbrances except for current leases already
provided to Lender.
6.3. Litigation. There are no actions, suits, proceedings or
investigations of any kind pending or, to the best of Borrower's knowledge,
threatened against the Borrower before any court, tribunal or administrative
agency or board that, if adversely determined, might, either in any case or in
the aggregate, adversely affect the properties, assets, financial condition or
business of such Person or materially impair the right of such Person to carry
on business substantially as now conducted by it, or result in any liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the balance sheet of such Person, or which question the validity
of this Agreement or any of the other Loan Documents, any action taken or to be
taken pursuant hereto or thereto, or any lien or security interest created or
intended to be created pursuant hereto or thereto, or which will adversely
affect the ability of the Borrower to construct, use and occupy the Property or
to pay and perform the Obligations in the manner contemplated by this Agreement
and the other Loan Documents.
6.4. No Materially Adverse Contracts, Etc. Borrower is not subject to
any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation that has or is expected in the future to have a
material adverse effect on the business, assets or financial condition of the
Borrower. Borrower is not a party to any contract or agreement that has or is
expected, in the judgment of the Borrower's officers, to have any material
adverse affect on the business of the Borrower.
6.5. Compliance With Other Instruments, Laws, Etc. Borrower is not in
violation of any provision of its organizational documents, by-laws, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment, statute, license, rule
or regulation, in any of the foregoing cases in a manner that could result in
the imposition of penalties or adversely affect the financial condition,
properties or business of the Borrower.
6.6. Tax Status. The Borrower (a) has made or filed all federal and
state income and all other tax returns, reports and declarations required by any
jurisdiction to which any of them is subject and (b) have paid all taxes and
other governmental assessments and charges shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith
and by appropriate proceedings.
6.7. No Event of Default. No Default or Event of Default has occurred
and is continuing.
6.8. Investment Company Act. Borrower is not an "investment company",
or an "affiliated company" or a "principal underwriter" of an "investment
company", as such terms are defined in the Investment Company Act of 1940.
6.9. Absence of Financing Statements, Etc. There is no financing
statement, security agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records, registry, or other public
office, that purports to cover, affect or give notice of any
-10-
15
present or possible future lien on, or security interest in, (a) any Collateral
or (b) any other assets or property of the Borrower or any rights relating
thereto.
6.10. Setoff, Etc. The Collateral and the rights of the Lender with
respect to the Collateral are not subject to any setoff, claims, withholdings or
other defenses. The Borrower is the owner of the Collateral free from any lien,
security interest, encumbrance and any other claim or demand.
6.11. Manager. Price Waterhouse LLP is the only manager of the
Borrower.
6.12. Condition of Property. Neither the Property nor any part thereof
is now damaged or injured as result of any fire, explosion, accident, flood or
other casualty or has been the subject of any Taking, and to the knowledge of
the Borrower, no Taking is pending or contemplated.
6.13. Other Contracts. Other than improvements in the ordinary course
of business or the engagement agreement with Price Waterhouse LLP or the
Management Agreement with Insignia Management Group, the Borrower has made no
contract or arrangement of any kind or type whatsoever (whether oral or written,
formal or informal), the performance of which by the other party thereto could
give rise to a lien or encumbrance on the Property.
6.14. Real Property Taxes; Special Assessments. There are no unpaid or
outstanding real estate or other taxes or assessments on or against the Property
or any part thereof which are payable by the Borrower (except only real estate
taxes not yet due and payable). The Borrower has delivered to the Lender true
and correct copies of real estate tax bills for the Property for the past fiscal
tax year. No abatement proceedings are pending with reference to any real estate
taxes assessed against the Property. There are no betterment assessments or
other special assessments presently pending with respect to any part of the
Property, and the Borrower has received no notice of any such special assessment
being contemplated.
6.15. Effect of Requests for Advance. Each Request for Funds submitted
to the Lender shall constitute an affirmation that the representations and
warranties contained in Section 6 of this Agreement and in the other Loan
Documents remain true and correct as of the date thereof (except to the extent
of changes resulting from transactions contemplated or permitted by the Loan
Documents and changes occurring in the ordinary course of business that singly
or in the aggregate are not adverse); and, unless the Lender is notified to the
contrary, in writing, prior to the date of the requested Advance or any portion
thereof, shall constitute an affirmation that the same remain true and correct
on the date of such Advance.
7. AFFIRMATIVE COVENANTS OF THE BORROWER. The Borrower covenants and agrees
that, so long as any Obligations are outstanding:
7.1. Punctual Payment. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loan and all other amounts
provided for in the Note, this Agreement and the other Loan Documents to which
the Borrower is a party, all in accordance with the terms of the Note, this
Agreement and such other Loan Documents.
-11-
16
7.2. Maintenance of Office. The Borrower will maintain its chief
executive office at the primary place of business of Manager, or at such other
place in the United States of America as the Borrower shall designate upon
written notice to the Lender, where notices, presentations and demands to or
upon the Borrower in respect of the Loan Documents may be given or made.
7.3. Records and Accounts. The Borrower will (a) keep true and accurate
records and books of account in which full, true and correct entries will be
made in accordance with generally accepted accounting principles and (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation and amortization of its properties, contingencies, and other
reserves.
7.4. Financial Statements, Certificates and Information. The Borrower
will deliver or cause to be delivered to the Lender:
7.4.1. As soon as practicable, but in any event not later than
one hundred and twenty (120) days after the end of each fiscal year of the
Property, the operating statement for the Property at the end of such year, and
the related statement of income for such year, each setting forth in comparative
form the figures for the previous year and all such statements to be in
reasonable detail, prepared in accordance with generally accepted accounting
principles;
7.4.2. As soon as practicable, but in any event not later than
sixty (60) days after the end of each of the first three (3) fiscal quarters of
the Property for any fiscal year, the operating statement for the Property at
the end of such quarter, and the related statement of income for such quarter,
each setting forth in comparative form the figures for the previous quarter and
all such statements to be in reasonable detail;
7.4.3. From time to time such other financial data and
information as the Lender may reasonably request.
7.5. Notices.
7.5.1. Notification of Claims Against Collateral. The Borrower
will, immediately upon becoming aware thereof, notify the Lender in writing of
any setoff, claims, withholdings or other defenses to which any of the
Collateral, or the rights of the Lender with respect to the Collateral, are
subject.
7.5.2. Notice of Litigation and Judgments. The Borrower will
give notice to the Lender in writing within fifteen (15) days of becoming aware
of any litigation or proceedings threatened in writing or any pending litigation
and proceedings affecting the Property or affecting the Borrower or to which the
Borrower is or is to become a party involving an uninsured claim against the
Borrower that could reasonably be expected to have a material adverse effect on
the Borrower and stating the nature and status of such litigation or
proceedings. The Borrower will give notice to the Lender, in writing, in form
and detail satisfactory to the Lender, within ten (10) days of any judgment not
covered by insurance, final or otherwise, against the Borrower in an amount in
excess of Fifty Thousand Dollars ($50,000.00).
-12-
17
7.5.3. Notice of Occupancy of Tenants. The Borrower will give
written notice to the Lender at least ten (10) days prior to the commencement
of, and again on the date of, occupancy of the improvements on the Property by
any new tenant under a Lease, stating the name of the tenant, the date of
occupancy, and the area so occupied.
7.6. Existence; Maintenance of Properties. The Borrower will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence as a Delaware limited liability company authorized to do
business in the Sate of Missouri. The Borrower will do or cause to be done all
things reasonably necessary to preserve and keep in full force all of its rights
and franchises. The Borrower (a) will cause all of its properties used or useful
in the conduct of its business to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment, (b) will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times, and (c) will continue to engage primarily
in the businesses now conducted by it and in related businesses.
7.7. Insurance.
7.7.1. Borrower's Insurance. The Borrower will obtain and
maintain insurance with respect to the Property as required by the Mortgage
including but not limited to:
(1) hazard insurance, covering such hazards as Lender
may reasonably require, including without limitation, fire, earthquake,
and tornado insurance, together with an ordinance or law coverage
endorsement (form CP 04 05 or its equivalent), and insurance for
vandalism and malicious mischief with respect to the Property with such
insurance companies and in an amount not less than the greater of: (a)
the "full insurable value" of the Property or (b) such other amounts as
may from time to time be required by Lender, with no co-insurance
clauses in the policies of insurance unless Lender shall consent
thereto in writing. The "full insurable value" shall mean the actual
replacement (excluding foundation and excavation costs and costs of
underground flues, pipes, drains, and all uninsurable items) after
deduction for physical depreciation and shall be determined from time
to time at the request of Lender, not more frequently than once every
five (5) years by an architect, contractor or appraisal company, or one
of the insurers, and in any case, selected by and paid for by Borrower
and approved by the Lender;
(2) comprehensive general liability and property
damage with bodily injury coverage with broad form coverage or with
broad form coverage endorsement with such companies and in such amounts
as Lender may reasonably require;
(3) business interruption or rent loss insurance in
an amount of not less than a sum equal to twelve (12) months rental or
other income from all Leases or other uses, together with an ordinance
or law - increased period of restoration endorsement (form CP 15 31 or
its equivalent);
-13-
18
(4) in the event any part of the Property is located
in a flood plain, flood insurance in an amount reasonably acceptable to
Lender;
(5) during the period of any construction, a
Contractor's All Risk Policy form, for the full insurable value of the
Property; and
(6) such other insurance from time to time reasonably
required by Lender, all with such coverages, in such forms and with
such insurers as may be required by Lender.
All insurance policies shall not be cancelable or modifiable without at
least thirty (30) days' written notice to Lender. All property insurance shall
include the standard non-contributory mortgagee's clause or its equivalent in
favor of Lender naming Lender as mortgagee with loss payable to Lender as such
mortgagee. All other policies shall name Lender as an additional named insured.
Borrower will deliver to Lender such policies marked "PAID", and new
policies as replacement for any existing policies at least thirty (30) days
before the date of expiration. Borrower shall pay or cause to be paid, as and
when due, all premiums for all insurance policies.
Borrower hereby agrees that, in the event Borrower fails to pay or
cause to be paid the premium on any such insurance when due, Lender may do so
and be reimbursed by Borrower therefor together with interest at the Default
Rate. All amounts recoverable under any such policies are hereby assigned to
Lender. Borrower shall keep all such policies of insurance constantly assigned,
pledged, and delivered to Lender for further securing the Obligations. In the
event of a loss, each insurance company is authorized and directed to make
payment for such loss directly to Lender, and Lender is authorized to adjust and
compromise such loss proceeds without the consent of Borrower and to collect,
receive, and receipt for such proceeds in the name of Borrower and Lender, and
to endorse Borrower's name upon any check in payment of loss; provided, however,
that prior to the occurrence of a Default or Event of Default hereunder Borrower
shall be entitled to participate in all negotiations and settlement conferences
regarding the same and shall have the right to approve the amount of all such
settlements or compromises, which approval shall not be unreasonably withheld or
delayed. This power shall be coupled with an interest and shall be irrevocable.
All insurance proceeds shall be applied by Lender in accordance with the
provisions of the Mortgage or if none, shall be applied to the Obligations
whether or not the same are then due and payable. The Borrower will maintain
with respect to its other properties and business insurance with financially
sound and reputable insurers against such casualties and contingencies as shall
be in accordance with the general practices of businesses engaged in similar
activities in similar geographic areas and in amounts, containing such terms, in
such forms and for such periods as may be reasonable and prudent.
7.8. Taxes.
7.8.1. The Borrower will pay all taxes, assessments and other
governmental charges imposed upon it with respect to the Property or imposed
upon the Property at the time
-14-
19
and in the manner required by the Mortgage. The Borrower will promptly pay and
discharge (by bonding or otherwise) all claims for labor, material or supplies
that if unpaid might by law become a lien or charge against the Property or any
part thereof or might affect the priority of the lien created by the Mortgage.
7.8.2. The Borrower will duly pay and discharge, or cause to
be paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges imposed upon it and its other real
properties, sales and activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor, materials, or supplies that
if unpaid might by law become a lien or charge upon any of its property;
provided that any such tax, assessment, charge, levy or claim with respect to
properties other than the Property need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower shall have set aside on its books adequate reserves with
respect thereto; and provided further that the Borrower will pay all such taxes,
assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security therefor.
7.9. Inspection of Property, Other Properties and Books.
7.9.1. The Borrower shall permit the Lender to visit and
inspect the Property and will cooperate with the Lender during such inspections.
7.9.2. The Borrower shall permit the Lender to examine the
books of account of the Borrower (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the Borrower
with, and to be advised as to the same by, its officers, all at such reasonable
times and intervals as the Lender may reasonably request.
7.10. Compliance with Laws, Contracts, Licenses, and Permits. The
Borrower will comply with, (a) the applicable laws and regulations wherever its
business is conducted, including all Environmental Laws, (b) the provisions of
its organizational documents, and other charter documents and by-laws, (c) all
agreements and instruments by which it or any of its properties may be bound,
including, in the case of the Borrower all restrictions, covenants and easements
affecting the Property, (d) all applicable decrees, orders and judgments, and
(e) all licenses and permits required by applicable laws and regulations for the
conduct of its business or the ownership, use or operation of its properties.
7.11. Leases. The Borrower will take or cause to be taken all steps
within the power of the Borrower to market and lease the leasable area of the
Property.
8. NEGATIVE COVENANTS OF THE BORROWER. The Borrower covenants and agrees that,
so long as any Obligation is outstanding, the Borrower will not create or allow
to be created or to exist any easement, right of way, restriction, covenant,
condition, license or other right in favor of any Person which affects or might
affect title to the Property or the use and occupancy of the Property or any
part thereof without (i) submitting to the Lender the proposed instrument
creating such easement, right of way, covenant, condition, license or other
right, accompanied by a survey showing the exact proposed location thereof and
such other information as the Lender
-15-
20
may reasonably request, and (ii) obtaining the prior approval of the Lender.
9. EVENTS OF DEFAULT AND REMEDIES.
9.1. Events of Default. The term "Event of Default" as used herein,
shall mean the occurrence of any of the following events:
9.1.1. The failure of Borrower to pay the Obligations, or any
part thereof, as said Obligations become due in accordance with the terms of the
Note or of any other notes, instruments, documents or agreements now or
hereafter evidencing, securing, or related to the Obligations, which failure
shall continue for ten (10) days after the giving of written notice that such
amount is due by Lender or when accelerated pursuant to any provision thereof or
of the Mortgage; or
9.1.2. The failure by Borrower, or any other party thereto, to
punctually and fully perform and observe each term, covenant, agreement, or
condition contained herein or in the Note, the Mortgage, the Loan Documents or
in any other notes, instruments, or agreements now or hereafter evidencing,
securing, or related to the Obligations if such failure shall continue for more
than thirty (30) days after the giving of written notice thereof by Lender or,
if such failure is incapable of being cured within said thirty (30) day period,
Borrower fails to commence to cure said failure within said thirty (30) day
period or fails to diligently prosecute said cure; or
9.1.3. Subject to all applicable cure periods, the default by
Borrower under any other notes, agreements, mortgages, deeds of trust, security
agreements, or any other obligations of such parties to Lender, whether or not
secured by the Collateral; or
9.1.4. Any failure by the Borrower to pay at maturity, or
within any applicable period of grace, any obligation for borrowed money or
credit received, or any failure to observe or perform any material term,
covenant or agreement contained in any agreement by which it is bound,
evidencing or securing borrowed money or credit received for such period of time
as would permit (assuming the giving of appropriate notice if required) the
holder or holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof; or
9.1.5. A sale, transfer, conveyance, lease (other than Leases
to tenants in the ordinary course of business), contract for deed, or other
disposition of all or any part of the Collateral or any interest therein,
including a sale, transfer, conveyance, lease, contract for deed, or other
disposition occasioned by an assignment for the benefit of creditors,
appointment of a receiver, adjudication as a bankrupt, or the filing or
instituting of bankruptcy proceedings by or against Borrower, without prior
written notice to Lender and without Lender's prior written consent, which
consent shall be at Lender's sole option and shall be upon such terms and
conditions as Lender shall, at its sole option, elect; or
9.1.6. Title to the Collateral is or becomes unsatisfactory to
the Lender by reason of any lien not approved or permitted by Lender, charge,
encumbrance, title condition or exception (including without limitation, any
mechanic's, materialman's or similar statutory or common law lien or notice
thereof), and such matter causing title to be or become unsatisfactory
-16-
21
is not cured or removed (including by bonding) within twenty (20) days after
notice thereof from the Lender to the Borrower; or
9.1.7. Borrower shall place or allow the placement of a
mortgage or deed of trust or other lien or encumbrance upon all or any portion
of the Collateral; or
9.1.8. Any party other than Borrower shall assume or enter or
undertake the performance of the obligations of Borrower under the Note, the
Mortgage, or under any of the other Loan Documents; or
9.1.9. The occurrence of any act or omission which would
authorize or permit the holder or owner of an indebtedness or obligation secured
by any superior lien against any of the Collateral to foreclose the superior
lien; or
9.1.10. Any representation or warranty made or deemed to be
made by or on behalf of the Borrower in this Agreement or in any of the other
Loan Documents, or in any report, certificate, financial statement, Request for
Advance, document or other instrument delivered pursuant to or in connection
with this Agreement, any Advance or any of the other Loan Documents, shall prove
to have been false or incorrect in any material respect upon the date when made
or deemed to be made or repeated; or
9.1.11. Any dissolution, termination, partial or complete
liquidation, merger or consolidation of the Borrower, or any sale, transfer or
other disposition of all or substantially all of the assets of the Borrower,
other than as permitted under the terms of this Agreement; or
9.1.12. Any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded otherwise than in accordance with the terms
thereof or with the express prior approval of the Lender, or any action at law,
suit in equity or other legal proceeding to cancel, revoke or rescind any of the
Loan Documents shall be commenced by or on behalf of the Borrower which is a
party thereto or any of their respective stockholders, partners or
beneficiaries, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof; or
9.1.13. Any suit or proceeding shall be filed against the
Borrower or the Property which, if determined, would have a materially adverse
affect on the ability of the Borrower to perform each and every one of their
respective obligations under and by virtue of the Loan Documents; or
9.1.14. Any uninsured final judgment in excess of Fifty
Thousand Dollars ($50,000.00) shall be entered against the Borrower and shall
remain undischarged, unsatisfied and unstayed, for more than thirty (30) days,
whether or not consecutive; or
9.1.15. The Borrower shall: (1) become insolvent, (2) file a
voluntary petition in bankruptcy under Title 11 of the United States Code, or an
order for relief shall be issued against
-17-
22
the Borrower in any involuntary petition in bankruptcy under Title 11 of the
United States Code, or the Borrower shall file any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present or
future federal, state or other law or regulation relating to bankruptcy,
insolvency or other relief of debtors, or the Borrower shall seek or consent to
or acquiesce in the appointment of any custodian, trustee, receiver, conservator
or liquidator of the Borrower, respectively, or of all or any substantial part
of its respective property, or the Borrower shall make an assignment for the
benefit of creditors, or the Borrower shall fail generally to pay its debts as
such debts become due, or the Borrower shall give notice to any governmental
authority or body of insolvency or pending insolvency or suspension of
operations; or
9.1.16. A court of competent jurisdiction shall enter any
order, judgment or decree approving a petition filed against the Borrower
seeking any reorganization, arrangement, composition, readjustment, liquidation
or similar relief under any present or future federal, state or other law or
regulation relating to bankruptcy, insolvency or other relief for debtors, or
appointing any custodian, trustee, receiver, conservator or liquidator of all or
any substantial part of its property and the same is not dismissed within sixty
(60) days after the institution thereof; or
9.1.17. If the Collateral is seized under any writ or process
of court or by any trustee or receiver; or
9.1.18. The Borrower shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any of its assets; or
9.1.19. Any "Event of Default", as defined in any of the other
Loan Documents, shall occur; or
9.2. Acceleration. If any one or more of the Events of Default shall
occur, the Lender may, by notice to the Borrower, declare all unpaid principal
of and accrued interest on the Note, together with all other amounts owing under
the Loan Documents, to be immediately due and payable, whereupon same shall
become and be immediately due and payable, anything in the Loan Documents to the
contrary notwithstanding, and without presentment, protest, demand or other
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided that if any one or more of the Events of Default specified in Section
9.1.15 or Section 9.1.16 shall occur with respect to the Borrower and all
unpaid principal of and accrued interest on the Note, together with all other
amounts owing under the Loan Documents, automatically shall become and be
immediately so due and payable, without any declaration or other act on the
part of the Lender.
9.3. Other Remedies. If any one or more of the Events of Default shall
have occurred, and whether or not the Lender shall have accelerated the maturity
of the Loan pursuant to Section 9.2, the Lender, if owed any amount with respect
to the Loan may proceed to protect and enforce its rights and remedies
under this Agreement, the Note or any of the other Loan Documents by suit in
equity, action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations are
evidenced. Without limiting the generality of
-18-
23
the foregoing, Lender may immediately, without demand of performance and without
other notice (except as specifically required by this Agreement or the Loan
Documents) or demand whatsoever to Borrower, all of which are hereby expressly
waived, sell at public or private sale or otherwise realize upon, the whole or,
from time to time, any part of the Collateral, or any interest which Borrower
may have therein. Any remainder of the proceeds after satisfaction in full of
the Obligations shall be distributed as required by applicable Laws. Notice of
any sale or other disposition of any of the Collateral consisting of personal
property shall be given to Borrower at least ten (10) days before the time of
any intended public sale or of the time after which any intended private sale or
other disposition of the Collateral is to be made, which Borrower hereby agrees
shall be reasonable notice of such sale or other disposition. Borrower agrees to
assemble, or to cause to be assembled, at its own expense, the Collateral at
such place or places as Lender shall designate. At any such sale or other
disposition, Lender may, to the extent permissible under applicable laws,
purchase the whole or any part of the Collateral, free from any right of
redemption on the part of Borrower, which right is hereby waived and released.
With respect to the exercise of Lender's right to nonjudicial foreclosure sale
of the Property pursuant to the terms of the Mortgage, Lender shall be governed
by the terms and conditions of the Mortgage and other applicable law of Missouri
regarding real estate foreclosures. Without limiting the generality of any of
the rights and remedies conferred upon Lender under this Section, Lender may, at
Lender's sole option, to the full extent permitted by applicable Laws:
9.3.1. Enter upon the premises of Borrower, exclude Borrower
therefrom, and take immediate possession of the Collateral, either personally or
by means of a receiver appointed ex parte by a court of competent jurisdiction,
using all necessary force to do so;
9.3.2. Use, operate, manage, and control the Collateral in any
lawful manner;
9.3.3. Collect and receive all rents, income, revenue,
earnings, issues and profits therefrom; and
9.3.4. Maintain, repair, renovate, complete, alter, or remove
the Collateral as Lender may determine in its discretion.
No remedy conferred upon the Lender or the holder of any Note in this
Agreement or in any of the other Loan Documents is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or thereunder or now or hereafter
existing at law or in equity or by statute or any other provision of law.
9.4. Distribution of Collateral Proceeds. In the event that, following
the occurrence or during the continuance of any Default or Event of Default, the
Lender receives any monies in connection with the enforcement of any the Loan
Documents, or otherwise with respect to the realization upon any of the
Collateral, such monies shall be distributed for application as follows:
9.4.1. First, to the payment of or the reimbursement to Lender
for or in respect of all reasonable costs, expenses, disbursements and losses
which shall have been incurred or
-19-
24
sustained by the Lender in connection with the collection of such monies by the
Lender, for the exercise, protection or enforcement by the Lender of all or any
of the rights, remedies, powers and privileges of the Lender under this
Agreement or any of the other Loan Documents or in respect of the Collateral or
in support of any provision of adequate indemnity to the Lender against any
taxes or liens which by law shall have, or may have, priority over the rights of
the Lender to such monies;
9.4.2. Second, to all other Obligations in such manner and
order or preference as the Lender may determine in Lender's sole discretion;
9.4.3. Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Lender of all of the
Obligations, to the payment of any obligations required to be paid pursuant to '
9-504(1)(c) of the Uniform Commercial Code of the State of Missouri; and
9.4.4. Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
9.5. Power of Attorney. For the purposes of carrying out the provisions
and exercising the rights, remedies, powers and privileges granted by or
referred to in this Section 9, the Borrower hereby irrevocably constitutes and
appoints the Lender its true and lawful attorney-in-fact, with full power of
substitution, to execute, acknowledge and deliver any instruments and do and
perform any acts which are referred to in this Section 9, in the name and on
behalf of the Borrower. The power vested in such attorney-in-fact is, and shall
be deemed to be, coupled with an interest and irrevocable.
9.6. Waivers. The Borrower hereby waives to the extent not prohibited
by applicable law (a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by the provisions hereof or of any
of the other Loan Documents), protests and notices of dishonor, (b) any
requirement of diligence or promptness on the part of the Lender in the
enforcement of its rights (but not fulfillment of its obligations) under the
provisions of this Agreement or any of the other Loan Documents, and (c) any and
all notices of every kind and description which may be required to be given by
any statute or rule of law and any defense of any kind which the Borrower may
now or hereafter have with respect to its liability under this Agreement or
under any of the other Loan Documents.
10. MISCELLANEOUS AND GENERAL.
10.1. Setoff. Regardless of the adequacy of any collateral, during the
continuance of any Event of Default, any deposits (general or specific, time or
demand, provisional or final, regardless of currency, maturity, or the branch of
Lender where such deposits are held) or other sums credited by or due from
Lender to the Borrower and any securities or other property of the Borrower in
the possession of Lender may be applied to or set off against the payment of
Obligations and any and all other liabilities, direct, or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of the
Borrower to the Lender.
-20-
25
10.2. Expenses. The Borrower agrees to pay (a) any taxes (including any
interest and penalties in respect thereto) payable by the Lender (other than
taxes based upon the Lender's net income), including any recording, mortgage or
intangibles taxes in connection with the Mortgage, or other taxes payable on or
with respect to the transactions contemplated by this Agreement, including any
taxes payable by the Lender after the Closing Date (the Borrower hereby agreeing
to indemnify the Lender with respect thereto), (b) all title insurance premiums,
(c) the reasonable fees, expenses and disbursements of the Lender's counsel or
any local counsel to the Lender incurred in connection the making of the Loan
and the preparation, review, administration or interpretation of the Loan
Documents and other instruments mentioned herein, and amendments, modifications,
extensions, approvals, consents or waivers hereto or hereunder, (d) the fees,
expenses and disbursements of the Lender incurred by the Lender in connection
with the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein (e) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs and including reasonable
attorneys' fees for representation in proceedings under the Bankruptcy Code) and
other reasonable professional fees and costs incurred by Lender in connection
with (i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or the administration thereof after the
occurrence of a Default or Event of Default and (ii) any litigation, proceeding,
or dispute whether arising hereunder or otherwise, in any way related to the
Lender's relationship with the Borrower, and (f) all reasonable fees, expenses
and disbursements of the Lender incurred in connection with UCC searches, UCC
filings, title rundowns, title searches, or mortgage recordings. The covenants
of this Section 10.2 shall survive payment or satisfaction of payment of all
amounts owing with respect to the Note.
10.3. Indemnification. Except as specifically limited in the Indemnity
Agreement, the Borrower agrees to indemnify, defend, and hold Lender harmless
from and against any and all claims, actions and suits, whether groundless or
otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this Agreement or any of
the other Loan Documents or the transactions contemplated hereby and thereby, in
each case including, without limitation, the reasonable fees and disbursements
of counsel and allocated costs of internal counsel incurred in connection with
any such investigation, litigation or other proceeding. In litigation, or the
preparation therefor, the Lender shall be entitled to select its own counsel
and, in addition to the foregoing indemnity, the Borrower agrees to pay promptly
the reasonable fees and expenses of such counsel. The obligations of the
Borrower under this Section 10.3 shall survive the repayment of the Loan and
shall continue in full force and effect so long as the possibility of such
claim, action or suit exists. If, and to the extent that the obligations of the
Borrower under this Section 10.3 are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law.
10.4. Rights of Third Parties. All conditions to the performance of the
obligations of the Lender under this Agreement are imposed solely and
exclusively for the benefit of the Lender and no other Person shall have
standing to require satisfaction of such conditions in accordance with their
terms and no other Person shall, under any circumstances, be deemed to be a
beneficiary of such conditions, any and all of which may be freely waived in
whole or in part by the Lender at any time if in their sole discretion it deems
it desirable to do so. No third party
-21-
26
shall have any right whatsoever hereunder to compel compliance with any
provision hereof, whether at law or in equity.
10.5. Survival of Covenants, Etc. All covenants, agreements,
representations and warranties made herein, in the Note, in any of the other
Loan Documents or in any documents or other papers delivered by or on behalf of
the Borrower pursuant hereto and thereto shall be deemed to have been relied
upon by the Lender, notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making by the Lender of the Loan, as
herein contemplated, and shall continue in full force and effect so long as any
amount due under this Agreement or the Note or any of the other Loan Documents
remain outstanding. All statements contained in any certificate or other paper
delivered to any Lender or the Lender at any time by or on behalf of the
Borrower pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Borrower
hereunder.
10.6. Participations. Lender may sell participations to one or more
banks or other entities in all or a portion of Lender's rights and obligations
under this Agreement and the other Loan Documents. The Borrower agrees that in
addition to disclosures made in accordance with standard banking practices any
Lender may disclose information obtained by Lender pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder.
10.7. Relationship. The relationship between the Lender and the
Borrower is solely that of a lender and borrower, and nothing contained herein
or in any of the other Loan Documents shall in any manner be construed as making
the parties hereto partners, joint venturers or any other relationship other
than lender and borrower.
10.8. Notices. Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement (hereinafter in this Section
10.8 referred to as "Notice") must be in writing and shall be deemed to have
been properly given or served by personal delivery or by sending same by
overnight courier or by depositing same in the United States Mail, postpaid
and registered or certified, return receipt requested, or by facsimile
transmission or telegraph and addressed as follows:
(A) If to Borrower: EBS Building, L.L.C.
c/o Price Waterhouse LLP
Xxxxx X. Xxxxxx
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Fax Number: 000-000-0000
with a copy to: Xxxxxx X. Xxxxxx III, Esq.
Xxxxx Xxxx LLP
0 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Fax Number: 000-000-0000
-22-
27
(B) If to Lender: First Bank
00000 Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Fax Number: 000-000-0000
Attn: Xxxxxxx X. Whites
with a copy to: Xxxxxx X. Xxxxxx III
Armstrong, Teasdale, Schlafly,
& Xxxxx
Xxx Xxxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
Each Notice shall be effective upon being personally delivered or upon being
sent by overnight courier or by facsimile transmission or telegraph or upon
being deposited in the United States Mail as aforesaid. The time period in which
a response to such Notice must be given or any action taken with respect thereto
(if any), however, shall commence to run from the date of receipt if personally
delivered, sent by overnight courier,or sent by facsimile transmission or
telegraph, or if so deposited in the United States Mail, the earlier of three
(3) Business Days following such deposit or the date of receipt as disclosed on
the return receipt. Rejection or other refusal to accept or the inability to
deliver because of changed address for which no Notice was given shall be deemed
to be receipt of the Notice sent. By giving at least thirty (30) days prior
Notice thereof, the Borrower, the Lender shall have the right from time to time
and at any time during the term of this Agreement to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
10.9. Governing Law. This Agreement and each of the other Loan
Documents, except as otherwise specifically provided therein, are contracts
under the laws of the State of Missouri and shall for all purposes be construed
in accordance with and governed by the laws of said State (excluding the laws
applicable to conflicts or choice of law).
10.10. Consent to Jurisdiction; Waivers. THE BORROWER HEREBY
IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO PERSONAL JURISDICTION IN THE
STATE OF MISSOURI OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND (B) WAIVES ANY AND ALL
PERSONAL RIGHTS UNDER THE LAWS OF ANY STATE (I) TO OBJECT TO JURISDICTION WITHIN
THE STATE OF MISSOURI OR VENUE IN ANY PARTICULAR FORUM WITHIN THE STATE OF
MISSOURI, AND (II) TO THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN ACTUAL
DAMAGES. THE BORROWER AGREES THAT, IN ADDITION TO ANY METHODS OF SERVICE OF
PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH
SUIT, ACTION OR PROCEEDING MAY BE MADE BY
-23-
28
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED DIRECTED TO THE BORROWER
AT THE ADDRESS SET FORTH IN SECTION ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE
FIVE (5) DAYS AFTER THE SAME SHALL BE SO MAILED. NOTHING CONTAINED HEREIN,
HOWEVER, SHALL PREVENT THE LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
OR EXERCISING ANY RIGHTS AGAINST ANY COLLATERAL AND AGAINST THE BORROWER, AND
AGAINST ANY PROPERTY OF THE BORROWER, IN ANY OTHER STATE. INITIATING SUCH SUIT,
ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT
CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE STATE
OF MISSOURI SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF THE BORROWER, THE LENDER
HEREUNDER OR THE SUBMISSION HEREIN BY THE BORROWER TO PERSONAL JURISDICTION
WITHIN THE STATE OF MISSOURI.
10.11. Headings. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
10.12. Counterparts. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
10.13. Entire Agreement, Etc. The Loan Documents and any other
documents executed in connection herewith or therewith express the entire
understanding of the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in Section 10.14.
The following is added pursuant to Section 432.045 X.X.Xx.; as used
below "borrower(s)" shall mean Borrower and "creditor" shall mean Lender:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US
(CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
10.14. Consents, Amendments, Waivers, Etc. Except as otherwise
expressly set forth in any particular provision of this Agreement, any consent
or approval required or permitted by this Agreement to be given by the Lender
may be given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
the Borrower of any terms of this Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular
-24-
29
instance and either retroactively or prospectively) with, but only with, the
written consent of the Lender. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Lender in exercising
any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances. All rights and
remedies of Lender are cumulative and concurrent and the exercise of one right
or remedy shall not be deemed a waiver or release of any other right or remedy.
10.15. Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of the Borrower under this
Agreement and the other Loan Documents.
10.16. Severability. The provisions of this Agreement are severable,
and if any term, covenant or condition of this Agreement or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement or the application of such term,
covenant, or condition to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby and each term,
covenant, and condition of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
10.17. Assignments. Borrower may not assign its rights under this
Agreement. Lender may transfer, assign, negotiate, pledge, sell, grant
participations or otherwise hypothecate all or any portion of this Agreement,
and/or the Loan contemplated herein, and any of its rights and security
hereunder to additional parties (the "Additional Parties"). Within fifteen (15)
days after receipt of written request from Lender specifically referring to this
paragraph and indicating that a response must be received within such fifteen
(15) day period, Borrower shall furnish to Lender a statement certifying the
terms and conditions of the Loan. Borrower's failure to effectively respond to
such request shall be conclusively construed as Borrower's consent and approval
of the terms set forth therein, and Lender and all Additional Parties shall be
entitled to rely conclusively upon such consent and approval. Borrower consents
to the review of any loan documents, financial statements and other documents
and information of Borrower for the purpose of evaluation and analysis of
Borrower and the Property by such Additional Parties.
10.18. Waiver and Release by Borrower. To the maximum extent permitted
by applicable Laws, Borrower:
10.18.1. Waives: (1) protest of all commercial paper at any
time held by Lender on which Borrower is any way liable; and (2) notice and
opportunity to be heard, after acceleration in the manner provided in Section 9
before exercise by Lender of the remedies of self-help, set-off, or of other
summary procedures permitted by any applicable Laws or by any agreement with
Borrower and, except where required hereby or by any applicable Laws, notice of
any other action taken by Lender; and
10.18.2. Releases Lender and its officers, attorneys, agents
and employees from all claims for loss or damage caused by any act or omission
on the part of any of them except willful misconduct or gross negligence.
-25-
30
10.19. Construction. The provisions of this Agreement shall be in
addition to those of the Note, the Loan Documents, and each and every other
document delivered pursuant hereto, all of which shall be construed as
complementary to each other. Nothing herein contained shall prevent Lender from
enforcing the Loan Documents in accordance with their respective terms.
10.20. Further Assurance. From time to time, Borrower will execute and
deliver to Lender such additional documents and will provide such additional
information as Lender may reasonably require to carry out the terms of this
Agreement and be informed of Borrower's status and affairs.
10.21. Binding Effect. This Agreement shall inure to the benefit of,
and shall be binding upon the respective successors and permitted assigns of the
parties hereto.
10.22. Exhibits. All exhibits hereto have been fully examined and
approved by Borrower.
10.23. Termination. This Agreement shall continue until all of the
Obligations have been paid in full free of any claims of preference,
disgorgement, or other contest.
10.24. Loan Documents. All of the terms and conditions of the Note and
other Loan Documents are incorporated herein by reference and made a part hereof
as if fully set out at length herein and shall survive the closing of the Loan
except that where such terms and conditions conflict with the terms and
conditions herein, the terms and conditions of this Agreement will control.
10.25. Leases. Rights acquired by any tenant pursuant to any lease of
the Property to be executed after the closing of the Loan, shall, at Lender's
option, be either superior or subordinate to the lien of the Mortgage and all
leases of the Property shall so provide.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EBS BUILDING, L.L.C.
By: Price Waterhouse LLP
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx, Partner
FIRST BANK
By: /s/ Xxxxxxx X. Whites
---------------------------------
Xxxxxxx X. Whites, Vice President
-26-
31
EXHIBIT B
REQUEST FOR ADVANCE
-----------------, -------------
First Bank
00000 Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Gentlemen:
This is to verify that a request for an advance of
__________________________ Dollars ($_________________) under EBS Building,
L.L.C.'s Promissory Note dated ________________________, arising out of that
certain Loan Agreement dated ________________________, was made via the
telephone on _______________________. The individual making the request was
_____________________________. The individual receiving the request was
_________________________________.
The undersigned hereby certifies that no Event of Default, as specified
in the Loan Agreement, has occurred nor do any conditions exist which have not
been remedied which, with the giving of notice or lapse of time, would
constitute an Event of Default hereunder.
Sincerely,
EBS BUILDING, L.L.C.
By_________________________________
32
EXHIBIT C
[DATE]
-----------------, -------------
First Bank
00000 Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Gentlemen:
With reference to the Loan Agreement dated ______________, any of the
following persons are authorized to submit requests for advances of funds or
execute a Request for Advance for and on behalf of EBS Building, L.L.C. in any
amount within the terms of the Loan Agreement:
Printed Name Title/Position Signature
-------------------------------- -----------------------------
-------------------------------- -----------------------------
-------------------------------- -----------------------------
-------------------------------- -----------------------------
You may rely upon this statement of authorization and continue to honor
Requests for Advances by any one of the above until written notice of amendment
or rescission of such authority is received by the Lender.
EBS BUILDING, L.L.C.
By_________________________________
