NORTH SECOND MORTGAGE NOTE
$4,000,000.00 St. Louis, Missouri
August 31, 1995
FOR VALUE RECEIVED, THE UNDERSIGNED EDJ LEASING CO., L.P.,
a Missouri limited partnership (the "Maker") promises to pay
to the order of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, its successors and assigns (the "Holder") the
principal sum of Four Million and 00/100 Dollars
($4,000,000.00), together with interest on the principal
balance of this North Second Mortgage Note (the "Note"), from
time to time remaining unpaid, from the date of disbursement
by Holder hereof at the applicable interest rate hereinafter
set forth, together with all other sums due hereunder or under
the terms of the North Second Mortgage (as hereinafter
defined) in lawful money of the United States of America which
shall be legal tender in payment of all debts at the time of
such payment. Both principal and interest and all other sums
due hereunder shall be payable at the office of Holder at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention: Real Estate
Investment Department, or at such other place either within or
without the State of Ohio, as Holder hereof may from time to
time designate. Said principal and interest shall be paid
over a term, at the times, and in the manner set forth below,
to wit:
Payment Provision:
(i) Interest accrued on the unpaid principal balance of
this Note, from the date of disbursement hereof at the rate of
seven and fifty-nine one hundredths percent (7.59%) per annum,
shall be due and payable on September 5, 1995.
(ii) Thereafter, installments of principal and interest on
the unpaid principal balance of this Note at the rate of seven
and fifty-nine one hundredths percent (7.59%) per annum shall
be due and payable in thirty-six (36) consecutive monthly
installments commencing on October 5, 1995, and continuing on
the 5th day of each calendar month thereafter, with each such
installment to be in the sum of Fifty-Seven Thousand Twenty-
Five and 88/100 Dollars ($57,025.88).
(iii) On or about May 5, 1998, Xxxxxx shall notify Maker
in writing of the interest rate which is Xxxxxx's current
prevailing interest rate for loans with a term of three (3)
years being originated by Holder on properties comparable to
the North Property (as hereinafter defined). Such new
interest rate shall hereinafter be referred to as the
"Modified Rate."
(iv) Maker shall have thirty (30) days from the date of
receipt of such notification from Holder to accept or reject
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the Modified Rate. If Maker shall fail to notify Holder of
the acceptance or rejection of the Modified Rate within such
thirty (30) day period such failure by Maker shall be deemed
to be an acceptance of the Modified Rate. If the Modified
Rate is rejected by Maker, the entire unpaid principal
balance, all accrued and unpaid interest thereon, and any
other amounts payable hereunder or under the other Loan
Documents (as hereinafter defined) shall be due and payable in
full, at par, on or before September 5, 1998.
(v) If Maker accepts the Modified Rate in order to extend
the term of this Note an additional thirty-six (36) months,
the Modified Rate shall become effective on September 5, 1998
(the "Modified Rate Effective Date") and monthly installments
of principal and interest, based on a fifty-seven (57) month
amortization schedule, at the Modified Rate, shall then be due
and payable in an amount to be determined.
(vi) Installments of principal and interest at the
Modified Rate in the amount thus calculated shall be due and
payable in thirty-six (36) consecutive monthly installments
commencing on October 5, 1998, and continuing on the 5th day
of each calendar month thereafter, to and including the
monthly installment of principal and interest due and payable
September 5, 2001.
(vii) On or about May 5, 2001, Xxxxxx shall notify Maker
in writing of the interest rate which is Xxxxxx's current
prevailing interest rate for loans with a term of two (2)
years being originated by Holder on properties comparable to
the North Property (as hereinafter defined). Such new
interest rate shall hereinafter be referred to as the "Second
Modified Rate."
(viii) Maker shall have thirty (30) days from the date of
receipt of such notification from Holder to accept or reject
the Second Modified Rate. If Maker shall fail to notify
Holder of the acceptance or rejection of the Second Modified
Rate within such thirty (30) day period such failure by Maker
shall be deemed to be an acceptance of the Second Modified
Rate. If the Second Modified Rate is rejected by Maker, the
entire unpaid principal balance, all accrued and unpaid
interest thereon, and any other amounts payable hereunder or
under the other Loan Documents (as hereinafter defined) shall
be due and payable in full, at par, on or before September 5,
2001.
(ix) If Maker accepts the Second Modified Rate in order to
extend the term of this Note to June 5, 2003, the Second
Modified Rate shall become effective on September 5, 2001 (the
"Second Modified Rate Effective Date") and monthly
installments of principal and interest, based on a twenty-one
month amortization schedule, at the Second Modified Rate,
shall then be due and payable in an amount to be determined.
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(x) Installments of principal and interest at the Second
Modified Rate in the amount thus calculated shall be due and
payable in twenty-one (21) consecutive monthly installments
commencing on October 5, 2001, and continuing on the 5th day
of each calendar month thereafter, to and including the
monthly installment of principal and interest due and payable
June 5, 2003.
Maturity:
The unpaid principal balance of this Note and all accrued
unpaid interest thereon, if not sooner paid, shall be due and
payable in full on June 5, 2003 (the "Maturity Date").
Application of Payments:
All payments shall be applied first to the payment of
accrued unpaid interest on this Note and the balance, if any,
shall be applied to the reduction of the outstanding principal
balance of this Note. Interest due hereunder shall be
calculated on the basis of a 360-day year composed of twelve
30-day months; provided however in no event shall such
calculation cause the interest payable under the terms of this
Note to exceed the maximum rate of interest permitted under
applicable law.
Late Payment Charge:
The Holder of this Note may collect a late payment charge,
prior to the acceleration of this Note, in an amount equal to
five percent (5%) of the aggregate monthly installment which
is not paid on the due date, for the purpose of covering the
extra expenses involved in handling delinquent installments.
Any full payment of principal and/or interest which is
correctly addressed, bears adequate first class postage and is
postmarked by the United States Postal Service on or before
the due date shall not be considered delinquent and a late
payment charge shall not be assessed.
Prepayment:
(A) Except as herein provided, Maker shall not have the
right to prepay all or any part of the obligation evidenced by
this Note at any time. Maker shall have the right to prepay,
in full but not in part, the obligation evidenced by this Note
upon giving (i) not less than thirty (30) days' prior written
notice to Holder of Maker's intention to so prepay this Note,
and (ii) payment to Holder of the Prepayment Premium (as
hereinafter defined), if any, then due to Holder as
hereinafter provided. As used herein, the term "Prepayment
Premium" shall mean an amount equal to the sum of (a) the
present value of the scheduled monthly payments on this Note
from the date of prepayment to the Maturity Date and (b) the
present value of the amount of principal and interest of this
Note due on the Maturity Date (assuming all scheduled monthly
payments due prior to the Maturity Date were made when due),
minus (c) the outstanding principal balance of this Note as of
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the date of prepayment. The present values described in (a)
and (b) shall be computed on a monthly basis as of the date of
prepayment discounted at the yield-to-maturity plus fifty (50)
basis points of the U.S. Treasury Note or Bond closest in
maturity to the Maturity Date of this Note as reported in the
Wall Street Journal (or, if the Wall Street Journal is no
longer published, as reported in such other daily financial
publication of national circulation which shall be designated
by Holder) on the fifth (5th) business day preceding the date
of prepayment, expressed as a decimal equivalent. Maker shall
be obligated to prepay this Note on the date set forth in the
notice to Holder required hereinabove, after such notice has
been delivered to Holder. Notwithstanding the foregoing or
any other provision herein to the contrary, if Holder elects
to apply insurance proceeds, condemnation awards, or any
escrowed amounts, if applicable, to the reduction of the
principal balance of this Note in the manner provided in the
North Second Mortgage (as hereinafter defined), no Prepayment
Premium shall be due or payable as a result of such
application and the monthly installments due and payable
hereunder shall be reduced accordingly.
(B) In the event the Maturity Date of the indebtedness
evidenced by this Note is accelerated by Holder hereof at any
time due to a default, continuing beyond the expiration of any
applicable cure periods, by Maker in the terms, covenants or
conditions contained in this Note, the North Second Mortgage
or any of the other Loan Documents (as hereinafter defined),
then a tender of payment in an amount necessary to satisfy the
entire outstanding principal balance and all accrued unpaid
interest on this Note made by Maker, or by anyone on behalf of
Maker, at any time prior to, at, or as a result of, a
foreclosure sale or sale pursuant to power of sale, shall
constitute a voluntary prepayment hereunder prior to the
contracted Maturity Date of this Note thus requiring the
payment to Holder of a Prepayment Premium equal to the
applicable Prepayment Premium as set forth in paragraph (A)
above; provided, however, that in the event such Prepayment
Premium is construed to be interest under the laws of the
State of Missouri in any circumstance, such payment shall not
be required to the extent that the amount thereof, together
with other interest payable hereunder, exceeds the maximum
rate of interest that may be lawfully charged under applicable
law.
(C) Maker shall have the right, from time to time, to
obtain releases of portions of the North Property from the
lien of the North Second Mortgage and to partially prepay the
obligation evidenced by this Note on the following terms and
conditions: (i) Maker shall give not less than thirty (30)
days' prior written notice to Holder of Maker's request for a
release and Maker's intention to partially prepay this Note,
such notice to contain a complete legal description and street
address of the portion of the North Property proposed to be
released, a calculation of the Release Price for the portion
of the North Property proposed to be released, a calculation
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of the remaining principal balance of the Note following the
proposed release and partial prepayment, and a calculation of
the Minimum Principal Balance of the Note following the
proposed release and partial prepayment; (ii) Maker shall pay
to Holder the Release Price for the portion of the North
Property to be released; (iii) Maker shall pay to Holder a
prepayment premium equal to the Prepayment Premium (calculated
in accordance with (A) above) times the Applicable Percentage
for the portion of the North Property to be released; and (iv)
no default or Event of Default shall have occurred (and be
continuing upon the expiration of any applicable cure period,
if any, expressly provided therein) hereunder, under the North
Second Mortgage, or under any other document securing this
Note or executed in connection herewith. Maker shall be
obligated to partially prepay this Note on the date set forth
in the notice to Holder required hereinabove, after such
notice has been delivered to Holder.
The term "Release Price" shall mean the Applicable
Percentage for the portion of the North Property to be
released times the Amortized Principal Balance on the date of
any partial prepayment and release.
The term "Amortized Principal Balance" shall mean an amount
equal to Four Million and 00/100 Dollars ($4,000,000.00) less
the principal portion of all regular monthly payments due
hereunder and actually made on or prior to the date of any
partial prepayment and release.
The term "Applicable Percentage" for each portion of the
North Property is as follows:
STREET ADDRESS APPLICABLE PERCENTAGE
100 Progress Parkway 22.66%
115 Progress Parkway and
20 American Industrial Drive 5.47%
120 Progress Parkway 3.40%
135 Progress Parkway 2.74%
141 Progress Parkway 3.75%
158 Progress Parkway 5.36%
201 Progress Parkway 24.79%
5 American Industrial Drive 11.60%
9 American Industrial Drive 2.79%
75 Worthington Access Drive and
44 Xxxxxx Drive 9.01%
41 Xxxxxx Drive 4.76%
145 Xxxxxx Parkway 3.67%
(D) Notwithstanding anything contained herein to the
contrary, during the one hundred and twenty day period
immediately preceding September 5, 1998, and September 5,
2001, the entire outstanding principal balance and all accrued
unpaid interest on this Note may be prepaid in whole, but not
in part, without incurring a Prepayment Premium.
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(E) Notwithstanding anything contained herein to the
contrary, during the ninety (90) day period immediately
preceding the Maturity Date, the entire outstanding principal
balance and all accrued unpaid interest on this Note may be
prepaid in whole, but not in part, without incurring a
Prepayment Premium.
(F) Notwithstanding anything herein to the contrary, Maker
shall not have the right to obtain releases of the portions of
the North Property described below prior to September 5, 1998:
100 Progress Parkway
000 Xxxxxxxx Xxxxxxx
0 Xxxxxxxx Xxxxxxxxxx Xxxxx
Additional Conditions:
This Note is secured by a Second Deed of Trust and Security
Agreement containing provisions for future advances and future
obligations governed by Section 443.055 X.X.Xx. (as amended)
and which is a lien on the property therein described executed
of even date herewith (hereinafter referred to as the "North
Second Mortgage") and by a Second Assignment of Leases, Rents
and Profits (hereinafter referred to as the "North Second
Assignment") of even date herewith each encumbering certain
real property located in St. Louis County, Missouri and other
property as more particularly described on Exhibit A, attached
hereto and incorporated herein (hereinafter collectively
referred to as the "North Property"). This Note is also
secured by a Deed of Trust and Security Agreement containing
provisions for future advances and future obligations governed
by Section 443.055 X.X.Xx. (as amended) and which is a lien on
the property therein described executed on April 6, 1994, and
recorded at Book 10155 at Page 2432 in the Recorder's Office
of St. Louis County, Missouri, and amended by North Loan
Modification Agreement executed of even date herewith
(hereinafter referred to as the "North First Mortgage") and by
an Assignment of Leases, Rents and Profits executed on April
6, 1994, and recorded at Book 10155 at Page 2478 in the
Recorder's Office of St. Louis County, Missouri, and amended
by North Loan Modification Agreement executed of even date
herewith (hereinafter referred to as the "North First
Assignment") each encumbering the North Property. Until
September 5, 1998, this Note is also secured by a Second Deed
of Trust and Security Agreement containing provisions for
future advances and future obligations governed by Section
443.055 X.X.Xx. (as amended) and which is a lien on the
property therein described executed of even date herewith
(hereinafter referred to as the "South Second Mortgage") and
by a Second Assignment of Leases, Rents and Profits
(hereinafter referred to as the "South Second Assignment") of
even date herewith each encumbering certain real property
located in St. Louis County, Missouri and other property as
more particularly described on Exhibit B, attached hereto and
incorporated herein (hereinafter collectively referred to as
the "South Property"). Until September 5, 1998, this Note is
also secured by a Deed of Trust and Security Agreement
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containing provisions for future advances and future
obligations governed by Section 443.055 X.X.Xx. (as amended)
and which is a lien on the property therein described executed
on March 9, 1993, and recorded at Book 9634 at Page 2171 in
the Recorder's Office of St. Louis County, Missouri, and
amended by Amendment to Deed of Trust executed as of March 9,
1994, and recorded at Book 10122 at Page 2388 in the
Recorder's Office of St. Louis County, Missouri, and further
amended by South Loan Modification Agreement executed of even
date herewith (hereinafter collectively referred to as the
"South First Mortgage") and by an Assignment of Leases, Rents
and Profits executed on March 9, 1994, and recorded at Book
10122 at Page 2398 in the Recorder's Office of St. Louis
County, Missouri, and amended by South Loan Modification
Agreement executed of even date herewith (hereinafter referred
to as the "South First Assignment") each encumbering the South
Property. The North First Mortgage and the North First
Assignment and the North Second Mortgage and the North Second
Assignment, and for and only during the period of time
commencing with the date hereof and continuing up to and
including September 5, 1998, the South First Mortgage and the
South First Assignment and the South Second Mortgage and the
South Second Assignment, are hereinafter collectively referred
to as the "Security Documents." The Security Documents
contain terms and provisions which provide grounds for
acceleration of the indebtedness evidenced by this Note
together with additional remedies in the event of default
hereunder or thereunder. Failure on the part of Holder hereof
to exercise any right granted herein or in the aforesaid
Security Documents shall not constitute a waiver of such right
or preclude the subsequent exercise and enforcement thereof.
This Note, the Security Documents and all other documents and
instruments executed as further evidence of, as additional
security for, or executed in connection with the indebtedness
evidenced by this Note are hereinafter collectively referred
to as the "Loan Documents." Notwithstanding any provision to
the contrary contained in this Note, from and after September
5, 1998, the term "Loan Documents" as defined in this Note
shall not include the South Note, the South First Note (as
such terms are defined in the North Second Mortgage) or any
other documents or instruments executed as evidence of or as
security for the repayment of the indebtedness represented by
the South Note or the South First Note, or both (the "South
Loan Documents") and, from and after September 5, 1998, any
default by Maker under any one or more of the South Loan
Documents shall not constitute a default under this Note.
Except as herein otherwise provided, all parties to this
Note, including endorsers, sureties and guarantors, hereby
jointly and severally waive presentment for payment, demand,
protest, notice of protest, notice of demand and of nonpayment
or dishonor and of protest, and any and all other notices and
demands whatsoever, and agree to remain bound hereby until the
principal and interest of this Note are paid in full,
notwithstanding any extensions of time for payment which may
be granted by Xxxxxx, even though the period of extension be
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indefinite, and notwithstanding any inaction by, or failure to
assert any legal rights available to the Holder of this Note.
If the obligations evidenced by this Note, or any part
thereof, are placed in the hands of an attorney for
collection, whether by suit or otherwise, at any time, or from
time to time, Maker shall be liable to Holder, in each
instance, for all costs and expenses incurred in connection
therewith, including, without limitation, Reasonable
Attorneys' Fees (as hereinafter defined).
Default:
If default shall be made in the payment of principal and/or
interest as stipulated above (and it is hereby understood that
if such payment is postmarked by the United States Postal
Service on or before the due date for such payment, is
correctly addressed and bears adequate first class postage,
Maker shall not be considered to have defaulted in making such
payment) or in the payment of any other sums due hereunder or
under any of the other Loan Documents, or should any default
be made in the performance of any of the terms, covenants and
conditions contained herein or in any of the other Loan
Documents, then in any or all of such events, at the option of
Holder, the entire outstanding principal balance of this Note,
together with all accrued unpaid interest thereon and all
other sums advanced by Holder on behalf of Maker shall become
and be immediately due and payable then or thereafter as
Holder may elect, regardless of the Maturity Date hereof. All
such amounts shall bear interest after maturity, by
acceleration or otherwise, at the lesser of either (i) the
highest rate of interest then allowed by the laws of the State
of Missouri or, if controlling, the laws of the United States,
or (ii) the then applicable interest rate of this Note plus
five hundred (500) basis points.
During the existence of any default, Holder may apply any
sums received, including but not limited to, insurance
proceeds or condemnation awards, to any amount then due and
owing hereunder or under the terms of any of the other Loan
Documents as Holder may determine. Neither the right nor the
exercise of the right herein granted unto Holder to apply such
proceeds as aforesaid shall preclude Holder from exercising
its option to cause the entire indebtedness evidenced by this
Note to become immediately due and payable by reason of
Maker's default under the terms of this Note or any of the
other Loan Documents.
Notwithstanding any provisions herein to the contrary,
Xxxxxx's right, power and privilege to accelerate the maturity
of the indebtedness evidenced hereby shall be conditioned
upon, with respect to any Non-Monetary Default (as hereinafter
defined), Holder giving Maker written notice of such Non-
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Monetary Default and a thirty (30) day period after the date
of such notice within which to cure such Non-Monetary Default,
unless such Non-Monetary Default cannot reasonably be cured
within said thirty (30) day period, in which event Maker shall
have an extended period of time to complete cure, provided
that action to cure such Non-Monetary Default is commenced
within said thirty (30) day period and Maker is not
substantially diminishing or impairing the value of the North
Property, and is diligently pursuing a cure to completion.
Any notice required hereunder shall be given as provided in
the North Second Mortgage. Holder shall have no obligation to
give Maker notice of, or any period to cure any Monetary
Default (as hereinafter defined) or any Incurable Default (as
hereinafter defined) prior to exercising its right, power and
privilege to accelerate the maturity of the indebtedness
evidenced hereby and to declare the same to be immediately due
and payable and exercise all other rights and remedies herein
granted or otherwise available to Holder at law or in equity.
As used herein, the term "Monetary Default" shall mean any
default which can be cured by the payment of money including,
but not limited to, the payment of principal and interest due
under this Note and the payment of taxes, assessments and
insurance premiums when due as provided in the North Second
Mortgage. As used herein, the term "Non-Monetary Default"
shall mean any default which is not a Monetary Default or an
Incurable Default. As used herein, the term "Incurable
Default" shall mean (i) any voluntary or involuntary sale,
assignment, mortgaging or transfer in violation of the
covenants of the North Second Mortgage; or (ii) if Maker, or
any person or entity comprising Maker, should make an
assignment for the benefit of creditors, become insolvent, or
file a petition in bankruptcy (including but not limited to, a
petition seeking a rearrangement or reorganization).
Savings Clause; Severability:
Notwithstanding any provisions herein or in the North
Second Mortgage to the contrary, the total liability for
payments in the nature of interest including but not limited
to Prepayment Premiums, default interest and late fees shall
not exceed the limits imposed by the laws of the State of
Missouri or the United States of America relating to maximum
allowable charges of interest. Holder shall not be entitled
to receive, collect or apply, as interest on the indebtedness
evidenced hereby, any amount in excess of the maximum lawful
rate of interest permitted to be charged by applicable law or
regulations, as amended or enacted from time to time. In the
event Holder ever receives, collects or applies, as interest,
any such excess, such amount which would be excessive interest
shall be applied to reduce the unpaid principal balance of the
indebtedness evidenced by this Note. If the unpaid principal
balance of such indebtedness is paid in full, any remaining
excess shall be forthwith paid to Maker.
If any clauses or provisions herein contained operate or
would prospectively operate to invalidate this Note, then such
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clauses or provisions only shall be held for naught, as though
not herein contained and the remainder of this Note shall
remain operative and in full force and effect.
Exculpation:
The liability of Maker and the general partner of Maker,
LHC, Inc., and any other current or future general partner of
Maker ("General Partner") with respect to the payment of
principal and interest hereunder shall be "non-recourse" and,
accordingly, Xxxxxx's source of satisfaction of said
indebtedness and Maker's other obligations hereunder and under
the other Loan Documents shall be limited to the North
Property and, for and only during the period of time
commencing with the date hereof and continuing up to and
including September 5, 1998, the South Property, and Xxxxxx's
receipt of the rents, issues, and profits from the North
Property and until September 5, 1998, the South Property and
Holder shall not seek to procure payment out of any other
assets of Maker, or any person or entity comprising Maker, or
to seek judgment for any sums which are or may be payable
under this Note or under any of the other Loan Documents, as
well as any claim or judgment (except as hereafter provided)
for any deficiency remaining after foreclosure of the Security
Documents. Notwithstanding the above, nothing herein
contained shall be deemed to be a release or impairment of the
indebtedness evidenced by this Note or the security therefor
intended by the other Loan Documents or be deemed to preclude
Holder from exercising its rights to foreclose any of the
Security Documents or to enforce any of its other rights or
remedies under the Loan Documents.
Notwithstanding the foregoing, it is expressly understood
and agreed that the aforesaid limitation on liability shall in
no way affect or apply to Maker's and General Partner's
continued personal liability for all sums due to:
(1) fraud or misrepresentation made in or in connection
with this Note or any of the other Loan Documents;
(2) failure to pay taxes or assessments prior to
delinquency, or to pay charges for labor, materials or other
charges which can create liens on any portion of the North
Property;
(3) the misapplication of (i) proceeds of insurance
covering any portion of the North Property; or (ii) proceeds
of the sale or condemnation of any portion of the North
Property; or (iii) rentals received by or on behalf of Maker
subsequent to the date on which Xxxxxx makes written demand
therefor pursuant to any Loan Document;
(4) causing or permitting waste to occur in, on or about
the North Property and failure to maintain the North Property,
excepting ordinary wear and tear;
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(5) the return to Holder of all unearned advance rentals
and security deposits paid by tenants of the North Property
and not refunded to or forfeited by such tenants;
(6) the return to Holder of any and all fees paid to Maker
by tenants of the Property which fees permit tenants to
terminate their leases;
(7) loss by fire or casualty to the extent not compensated
by insurance proceeds collected by Xxxxxx;
(8) the return of, or reimbursement for, all Fixtures and
Personal Property (as defined in the North Second Mortgage)
owned by Maker taken from the North Property by or on behalf
of Maker, out of the ordinary course of business, and not
replaced by items of equal or greater value than the original
value of the Fixtures and Personal Property so removed;
(9) all court costs and Reasonable Attorneys' Fees (as
hereinafter defined) actually incurred which are provided for
in this Note or in any other Loan Documents;
(10) (i) the removal of any chemical, material or
substance, in excess of legal limits to which exposure is
prohibited, limited, or regulated by any Federal, State,
County, Regional or Local Authority which may or could pose a
hazard to the health and safety of the occupants of the North
Property, regardless of the source of origination; (ii) the
restoration of the North Property to comply with all
governmental regulations pertaining to hazardous waste found
in, on or under the North Property, regardless of the source
of origination; and (iii) any indemnity or other agreement to
hold the Holder harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses of any and
every kind arising under paragraph 3 of the North Second
Mortgage and/or the Indemnity Agreement of even date herewith
executed by Maker and General Partner. Maker shall not be
liable hereunder if the North Property becomes contaminated
subsequent to Holder's acquisition of the North Property by
foreclosure or acceptance of a deed in lieu thereof or
subsequent to any transfer of ownership which was approved or
authorized by Holder pursuant to the North Second Mortgage,
provided that such transferee assumes in writing all
obligations pertaining to Hazardous Materials (as defined in
the North Second Mortgage) pursuant to the Loan Documents.
Liability under this subparagraph shall extend beyond
repayment of this Note and compliance with the terms of the
North Second Mortgage and, if not terminated pursuant to the
foregoing, beyond Holder's acquisition of the North Property
by foreclosure or acceptance of a deed in lieu thereof or
subsequent to any transfer of ownership which was approved or
authorized by Holder pursuant to the North Second Mortgage
unless at such time Maker provides Holder with an
environmental assessment report acceptable to Holder showing
the North Property to be free of Hazardous Materials and not
in violation of Hazardous Waste Laws (as defined in the North
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Second Mortgage). The burden of proof under this subparagraph
with regard to establishing the date upon which such chemical,
material or substance was placed or appeared in, on or under
the North Property shall be upon Maker.
(11) (i) any and all costs incurred in order to cause the
North Property to comply with the Accessibility Laws (as
defined in the North Second Mortgage) and (ii) any indemnity
or other agreement to hold Holder harmless from and against
any and all losses, liabilities, damages, injuries, costs or
expenses of any kind arising under Paragraph 3 of the North
Second Mortgage regarding accessibility for the disabled or
handicapped, or under the separate Indemnity Agreement
executed by Maker and General Partner. Maker shall not be
liable hereunder for compliance with any Accessibility Laws
that first become effective, or for any violation of any
Accessibility Laws resulting from alterations or improvements
to the North Property that are performed subsequent to
Holder's acquisition of the North Property by foreclosure or
acceptance of a deed in lieu thereof or subsequent to any
transfer of ownership which was approved or authorized by
Holder pursuant to the North Second Mortgage, provided that
such transferee assumes in writing all obligations pertaining
to Accessibility Laws pursuant to the Loan Documents;
The obligations of Maker in subparagraphs (1) through (11),
except as specifically provided in subparagraphs (10( and
(11), shall survive the repayment and satisfaction of this
Note.
As used herein, the phrase "Reasonable Attorneys' Fees"
shall mean fees charged by attorneys selected by Holder based
upon such attorneys' then prevailing hourly rates as opposed
to any statutory presumption specified by any statute then in
effect in the State of Missouri.
THE PROVISIONS of this Note shall be governed by and
construed in accordance with the laws of the State of Missouri
and if controlling, by the laws of the United States and shall
be binding upon Maker, its heirs, personal representatives,
successors and assigns and shall inure to the benefit of
Xxxxxx.
IN WITNESS WHEREOF, Xxxxx has executed this Note as of the
day and year first above written.
EDJ LEASING CO., L.P., a Missouri
By: LHC, Inc.
By:_________________________________
Xxxxxx Xxxxx,
Treasurer
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SECOND DEED OF TRUST AND SECURITY AGREEMENT
(With Future Advances and Future Obligations
Governed by Section 443.055 X.X.Xx.)
THIS SECOND DEED OF TRUST AND SECURITY AGREEMENT
(hereinafter referred to as the "Mortgage") is made and
executed as of the __ day of August, 1995, by and among EDJ
LEASING CO., L.P., a Missouri limited partnership having its
principal address at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx Xxxxx (hereinafter referred
to as "Mortgagor"), and Xxxxxx X. Xxxxxx XXX of the County of
St. Louis, Missouri hereinafter referred to as "Trustee"), and
NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its
successors and assigns, having its principal office at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention: Real
Estate Investments, or at such other place either within or
without the State of Ohio, as it may from time to time
designate (hereinafter referred to as "Mortgagee");
W I T N E S S E T H:
WHEREAS, Mortgagor is justly indebted to Mortgagee in the
principal sum of Four Million and 00/100 Dollars
($4,000,000.00) with interest thereon, which indebtedness is
evidenced and represented by a certain North Second Mortgage
Note dated of even date herewith, in the sum of Four Million
and 00/100 Dollars ($4,000,000.00) payable to Nationwide Life
Insurance Company (said North Second Mortgage Note being
hereinafter referred to as the "Note"), which Note shall be
due and payable on June 5, 2003, and all other notes given in
substitution therefor or in modification, increase, renewal or
extension thereof, in whole or in part; and
WHEREAS, Mortgagor is justly indebted to Mortgagee in the
principal sum of Eleven Million and 00/100 Dollars
($11,000,000.00) with interest thereon, which indebtedness is
evidenced and represented by a certain South Second Mortgage
Note dated of even date herewith, in the sum of Eleven Million
and 00/100 Dollars ($11,000,000.00) payable to Nationwide Life
Insurance Company (said South Second Mortgage Note being
hereinafter referred to as the "South Note"), which Note shall
be due and payable on April 5, 2008, and all other notes given
in substitution therefor or in modification, increase, renewal
or extension thereof, in whole or in part; and
WHEREAS, Xxxxxxxxx is justly indebted to Mortgagee in the
original principal sum of Twenty-One Million Seven Hundred
Fifty-Nine Thousand Eighty-One and 29/100 Dollars
($21,759,081.29) with interest thereon, which indebtedness is
evidenced and represented by a certain Mortgage Note dated
April 6, 1994, in the sum of Twenty-One Million Seven Hundred
Fifty-Nine Thousand Eighty-One and 29/100 Dollars
($21,759,081.29) payable to Nationwide Life Insurance Company
which Mortgage Note was amended by Note Modification Agreement
dated November 8, 1994 (said Mortgage Note and such Note
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Modification Agreement being hereinafter collectively referred
to as the "North First Note"), which North First Note is due
and payable on June 5, 2003, and all other notes given in
substitution therefor or in modification, increase, renewal or
extension thereof, in whole or in part; and
WHEREAS, Mortgagor is justly indebted to Mortgagee in the
original principal sum of Fourteen Million Nine Hundred
Thousand and 00/100 Dollars ($14,900,000.00) with interest
thereon, which indebtedness is evidenced and represented by a
certain Mortgage Note dated March 9, 1994, in the sum of
Fourteen Million Nine Hundred Thousand and 00/100 Dollars
($14,900,000.00) payable to Nationwide Life Insurance Company
(said Mortgage Note being hereinafter referred to as the
"South First Note"), which South First Note is due and payable
on April 5, 2008, and all other notes given in substitution
therefor or in modification, increase, renewal or extension
thereof, in whole or in part; and
WHEREAS, Mortgagee, as a condition precedent to the
extension of credit and the making of the loan evidenced by
the Note and the South Note, has required that Mortgagor
provide Mortgagee with security for the repayment of the
indebtedness evidenced by the Note and, for and only during
the period of time commencing with the date hereof and
continuing up to and including September 5, 1998, the South
Note and additional security for the North First Note and, for
and only during the period of time commencing with the date
hereof and continuing up to and including September 5, 1998,
the South First Note as well as for the performance,
observance and discharge by Mortgagor of various covenants,
conditions and agreements made by Xxxxxxxxx to, with, in favor
of and for the benefit of Mortgagee with respect to said
indebtedness and such security;
NOW THEREFORE, in consideration of and in order to secure
the repayment of the indebtedness evidenced and represented by
the Note and the North First Note, together with interest on
such indebtedness, as well as the payment of all other sums of
money secured hereby, as hereinafter provided; and, for and
only during the period of time commencing with the date hereof
and continuing up to and including September 5, 1998, to
secure the repayment of the indebtedness evidenced and
represented by the South Note and the South First Note,
together with interest on such indebtedness; and to secure the
observance, performance and discharge by Mortgagor of all
covenants, conditions and agreements set forth in the Note,
the North First Note, this Mortgage and in all other documents
and instruments executed and delivered by Xxxxxxxxx to and in
favor of Mortgagee for the purpose of further securing the
repayment of the indebtedness evidenced and represented by the
Note and the North First Note; and, for and only during the
period of time commencing with the date hereof and continuing
up to and including September 5, 1998, to secure the
observance, performance and discharge by Mortgagor of all
covenants, conditions and agreements set forth in the South
Note, the South First Note, and in all other documents and
V:\106\10670\EDNO2.NTE
instruments executed and delivered by Xxxxxxxxx to and in
favor of Mortgagee for the purpose of securing the repayment
of the indebtedness evidenced and represented by the South
Note and the South First Note; and in order to charge the
properties, interests and rights hereinafter described with
such payment, observance, performance and discharge; and in
consideration of the sum of One Dollar paid by Trustee to
Mortgagor and the trust hereinafter mentioned and other good
and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, Xxxxxxxxx does hereby Grant,
Bargain and Sell, Convey and Confirm, and alien, remise,
release, assign, transfer, pledge, deliver, set over,
hypothecate, and warrant unto Trustee forever, all of
Mortgagor's right, title and interest in and to the following
described properties, rights and interests and all
replacements of, substitutions for, and additions thereto (all
of which are hereinafter together referred to as the
"Property"), to wit:
ALL THAT certain piece, parcel or tract of land or real
property of which Xxxxxxxxx is now seized and in actual or
constructive possession, situate in St. Louis County,
Missouri, more particularly described on Exhibit A attached
hereto and by this reference made a part hereof (hereinafter
referred to as the "Real Property");
TOGETHER WITH all buildings, structures and other
improvements of any kind, nature or description now or
hereafter erected, constructed, placed or located upon said
Real Property (which buildings, structures and other
improvements are hereinafter sometimes together referred to as
the "Improvements"), including, without limitation, any and
all additions to, substitutions for or replacements of such
Improvements;
TOGETHER WITH all minerals, royalties, gas rights, water,
water rights, water stock, flowers, shrubs, lawn plants,
crops, trees, timber and other emblements now or hereafter
located on, under or above all or any part of the Real
Property;
TOGETHER WITH all and singular, the tenements,
hereditaments, strips and gores, rights-of-way, easements,
privileges and other appurtenances now or hereafter belonging
or in any way appertaining to the Real Property, including,
without limitation, all right, title and interest of the
Mortgagor in any after-acquired right, title, interest,
remainder or reversion, in and to the beds of any ways,
streets, avenues, roads, alleys, passages and public places,
open or proposed, in front of, running through, adjoining or
adjacent to said Real Property (hereinafter sometimes together
referred to as "Appurtenances");
TOGETHER WITH any and all leases, contracts, rents,
royalties, issues, revenues, profits, proceeds, income and
other benefits, including accounts receivable, of, accruing to
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or derived from said Real Property, Improvements and
Appurtenances and any business or enterprise presently
situated or hereafter operated thereon and therewith;
TOGETHER WITH any and all awards or payments, including
interest thereon, and the right to receive the same, as a
result of (a) the exercise of the right of eminent domain, (b)
the alteration of the grade of any street, or (c) any other
injury to, taking of, or decrease in the value of, the
Property, to the extent of all amounts which may be secured by
this Mortgage at the date of any such award or payment
including but not limited to the Reasonable Attorneys' Fees
(as hereinafter defined), costs and disbursements incurred by
the Mortgagee in connection with the collection of such award
or payment.
AS WELL AS all of the right, title and interest of
Mortgagor in and to all fixtures, goods, inventory, chattels,
construction supplies and materials, fittings, furniture,
furnishings, equipment, machinery, apparatus, appliances, and
other items of personal property, whether tangible or
intangible, of any kind, nature or description, whether now
owned or hereafter acquired by Mortgagor, including, without
limitation, all signs and displays, all heating, air
conditioning, water, gas, lighting, incinerating and power
equipment; all engines, compressors, pipes, pumps, tanks,
motors, conduits, wiring, and switchboards; all plumbing,
lifting, cleaning, fire prevention, fire extinguishing,
sprinkling, refrigerating, ventilating, waste removal and
communications equipment and apparatus; all boilers,
furnaces, oil burners, vacuum cleaning systems, elevators, and
escalators; all stoves, ovens, ranges, disposal units,
dishwashers, water heaters, exhaust systems, refrigerators,
cabinets and partitions; all rugs, attached floor coverings,
curtains, rods, draperies, and carpets; all building
materials, tools, shades, awnings, blinds, screens, storm
doors and windows; and all other general intangibles,
contract rights, accounts receivable, chattel paper, documents
and business records, of every kind, including, without
limitation, any and all licenses, permits, or franchises; any
of which is, are or shall hereafter be, attached, affixed to
or used or useful, either directly or indirectly, in
connection with the complete and comfortable use, occupancy
and operation of the Real Property and Improvements and
Appurtenances as office buildings, or any other business,
enterprise or operation as may hereafter be conducted upon or
within said Real Property, Improvements and Appurtenances, as
well as the proceeds thereof or therefrom regardless of form
(hereinafter sometimes together referred to as the "Fixtures
and Personal Property," which term expressly excludes any
toxic wastes or substances deemed hazardous under federal,
state, regional or local laws). Mortgagor hereby expressly
grants to Mortgagee a present security interest in and a lien
and encumbrance upon the Fixtures and Personal Property
(Notwithstanding anything herein to the contrary, nothing
contained herein shall be deemed to grant Mortgagee a security
V:\106\10670\EDNO2.NTE
interest in any furnishings, furniture, or equipment
(including computer equipment) owned by any tenant including,
but without limitation, Xxxxx [as herein defined], under any
lease affecting the Property and used by such tenant, with
respect to the conduct of its business on the Property and the
term Fixtures and Personal Property shall not be deemed to
include any such furnishings, fixtures or equipment (including
computer equipment), and further notwithstanding anything
herein to the contrary the following Fixtures and Personal
Property are hereby expressly excluded from the security
interest herein granted:
(A) All Genicom Laser Printers located at the following
locations:
00000 Xxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000
000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
00 Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000
000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
0 Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000
0 Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000
00 Xxxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000
00 Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
00 Xxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
000 Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000); and
(B) Any tangible personal property now or hereafter
acquired by Mortgagor, including any replacement parts,
repairs, additions, and accessories incorporated therein,
affixed thereto, and/or substitutions therefor and any
proceeds therefrom (including any insurance proceeds), which
have been or will be purchased with the proceeds of a loan
evidenced by a certain Line of Credit Promissory Note executed
by Mortgagor in favor of South Trust Bank of Alabama, N.A. and
dated October 26, 1994, a loan evidenced by a certain Term
Note executed by Xxxxxxxxx in favor of Enterprise Bank and
dated December 6, 1994, or a loan evidenced by a certain
Promissory Note executed by Xxxxxxxxx in favor of Commerce
Bank, National Association and dated April 5, 1994
(collectively the "Equipment"). In addition, Mortgagee claims
no security or other interest in any lease of the Equipment
from Mortgagor to Xxxxxx X. Xxxxx & Co. or any renewals
thereof, or any general intangibles, chattel paper, accounts
and proceeds arising therefrom.
TO HAVE AND TO HOLD the foregoing Property and the rights
hereby granted for the use and benefit of the Trustee and the
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Xxxxxxx's successors and assigns forever in trust, for the
uses and purposes set forth, possession of the Property being
hereby granted and conveyed to the Trustee;
AND Mortgagor covenants and warrants with and to Mortgagee
that Mortgagor is indefeasibly seized of the Property and has
good right, full power, and lawful authority to convey and
encumber all of the same as aforesaid; that Mortgagor hereby
fully warrants the title to the Property and will defend the
same and the validity and priority of the lien and encumbrance
of this Mortgage against the lawful claims of all persons
whomsoever; and Mortgagor further warrants that the Property
is free and clear of all liens and encumbrances of any kind,
nature or description, save and except only (with respect to
said Real Property, Improvements and Appurtenances) for real
property taxes for years subsequent to 1994 (which are not yet
due and payable), those matters set forth in the title
insurance policy issued to Mortgagee insuring the second lien
priority of this Mortgage, and those matters described in the
surveys of the Real Property prepared by Sterling Co. during
March of 1994 and July of 1995, and certified to Mortgagee to
the extent such matters are disclosed in the title insurance
policy or, if not disclosed therein, insured over thereby
(hereinafter referred to as the "Permitted Exceptions");
PROVIDED ALWAYS, however, that if Mortgagor shall pay unto
Mortgagee the indebtedness evidenced by the Note, and, for and
only during the period of time commencing with the date hereof
and continuing up to and including September 5, 1998, the
indebtedness evidenced by the South Note and the South First
Note, and if Mortgagor shall duly, promptly and fully perform,
discharge, execute, effect, complete and comply with and abide
by each and every one of the agreements, conditions and
covenants of the Note, this Mortgage, and all other documents
and instruments executed as further evidence of or as security
for the indebtedness secured hereby, and, for and only during
the period of time commencing with the date hereof and
continuing up to and including September 5, 1998, if Mortgagor
shall duly, promptly and fully perform, discharge, execute,
effect, complete and comply with and abide by each and every
one of the agreements, conditions and covenants of the South
Note, the South First Note, and all documents and instruments
executed as further evidence of or as security for the
indebtedness evidenced by the South Note and/or the South
First Note, then this Mortgage and the estates and interests
hereby granted and created shall cease, terminate and be null
and void, and shall be discharged of record by a proper deed
of release furnished by the Mortgagee and executed in
recordable form, at the request and expense of Mortgagor,
which expense Mortgagor agrees to pay;
AND Xxxxxxxxx, for the benefit of Mortgagee and Trustee
does hereby expressly covenant and agree:
PAYMENT OF PRINCIPAL AND INTEREST
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1. To pay the principal of the indebtedness evidenced by
the Note, together with all interest thereon, in accordance
with the terms of the Note, promptly at the times, at the
place and in the manner that said principal and interest shall
become due, and to promptly and punctually pay all other sums
required to be paid by Xxxxxxxxx pursuant to the terms of the
Note, this Mortgage, and all other documents and instruments
executed as further evidence of, as additional security for or
in connection with the indebtedness evidenced by the Note and
secured by this Mortgage (hereinafter together referred to as
the "Loan Documents").
PERFORMANCE OF OTHER OBLIGATIONS
2. To perform, comply with and abide by each and every one
of the covenants, agreements and conditions contained and set
forth in the Note, this Mortgage and the other Loan Documents
and to comply with all laws, ordinances, rules, regulations
and orders of governmental authorities now or hereafter
affecting the Property or requiring any alterations or
improvements to be made thereon, and perform all of its
obligations under any covenant, condition, restriction or
agreement of record affecting the Property and to insure that
at all times the Property constitutes one or more legal lots
capable of being conveyed without violation of any subdivision
or platting laws, ordinances, rules or regulations, or other
laws relating to the division or separation of real property.
PRESERVATION AND MAINTENANCE OF PROPERTY; ACCESSIBILITY;
HAZARDOUS WASTE
3. To keep all Improvements now existing or hereafter
erected on the Real Property in good order and repair and not
to do or permit any waste, impairment or deterioration thereof
or thereon, nor to alter, remove or demolish any of the
Improvements or any Fixtures and Personal Property attached or
appertaining thereto, without the prior written consent of
Mortgagee (provided, however, this provision shall not apply
to any repair, remodeling or renovation work, structural or
otherwise), nor to initiate, join in or consent to any change
in any private restrictive covenant, zoning ordinance or other
public or private restrictions limiting or defining the uses
which may be made of the Property or any part thereof, nor to
do or permit any other act whereby the Property shall become
less valuable, be used for purposes contrary to applicable law
or used in any manner which will increase the premium for or
result in a termination or cancellation of the insurance
hereinafter required to be kept and maintained on the
Property. In furtherance of, and not by way of limitation
upon the foregoing covenant, Mortgagor shall effect such
repairs as Mortgagee may reasonably require, and from time to
time make all needful and proper replacements so that the
Improvements, Appurtenances, and Fixtures and Personal
Property will, at all times, be in good condition, fit and
proper for the respective purposes for which they were
originally erected or installed. Mortgagor at all times shall
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maintain the Property in full compliance with all federal,
state or municipal laws, ordinances, rules and regulations
currently in existence or hereinafter enacted or rendered
governing accessibility for the disabled, including but not
limited to The Architectural Barriers Act of 1968, The
Rehabilitation Act of 1973, The Fair Housing Act of 1988, and
The Americans with Disabilities Act (hereinafter collectively
called the "Accessibility Laws"). Mortgagor at all times
shall keep the Property and ground water of the Property free
of Hazardous Materials (as hereinafter defined) in excess of
limits prescribed by Hazardous Waste Laws (hereinafter
defined). Mortgagor shall not knowingly permit its tenants or
any third party requiring the consent of Mortgagor to enter
the Property, to use, generate, manufacture, treat, store,
release, threaten release, or dispose of Hazardous Materials
in, on or about the Property or the ground water of the
Property in violation of any federal, state or municipal law,
decision, statute, rule, ordinance or regulation currently in
existence or hereinafter enacted or rendered (hereinafter
collectively referred to as "Hazardous Waste Laws").
Mortgagor shall give Mortgagee prompt written notice of any
claim by any person, entity, or governmental agency that a
significant release or disposal of Hazardous Materials has
occurred on the Property. Mortgagor, through its professional
engineers and at its cost, shall promptly and thoroughly
investigate suspected Hazardous Materials contamination of the
Property. Mortgagor shall forthwith remove, repair, clean up,
and/or detoxify any Hazardous Materials in excess of limits
prescribed by Hazardous Waste Laws from the Property or the
ground water of the Property whether or not such actions are
required by law, and whether or not Mortgagor was responsible
for the existence of the Hazardous Materials in, on or about
the Property or the ground water of the Property. Hazardous
Materials shall include but not be limited to substances
defined as "hazardous substances," "hazardous materials," or
"toxic substances" in The Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
by The Superfund Amendments and Reauthorization Act of 1986,
The Hazardous Materials Transportation Act, The Resource
Conservation and Recovery Act of 1976, as amended by The Used
Oils Recycling Act of 1980, The Solid Waste Disposal Act
amendment of 1984, The Toxic Substances Control Act, The Clean
Air Act, The Clean Water Act, the Missouri Hazardous Waste
Management Law (Mo. Rev. Stat. SS 260.350-260.434), the
Missouri Abandoned or Uncontrolled Sites Law (Mo. Rev. Stat.
SS 260.435-260.546), the Missouri Air Conservation Law (Mo.
Rev. Stat. Chapter 643), the Missouri Clean Water Law (Mo.
Rev. Stat. Chapter 644), the Missouri Underground Storage Tank
Law (Mo. Rev. Stat. SS 319.100-319.137) or in any other
Hazardous Waste Laws.
Xxxxxxxxx and the general partner of Xxxxxxxxx, LHC, Inc.,
and any other current or future general partner of Mortgagor
("General Partner") hereby agree to indemnify Mortgagee and
Trustee and hold Mortgagee and Trustee harmless from and
against any and all losses, liabilities, damages, injuries,
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costs, expenses and claims of any and every kind whatsoever
paid, incurred or suffered by, or asserted against Mortgagee
or Trustee for, with respect to, or as a direct or indirect
result of, the non-compliance of the Property with the
Accessibility Laws and/or the presence in, on or under, or the
escape, seepage, leakage, spillage, discharge, emission,
discharging or release from, the Property of any Hazardous
Materials in excess of limits prescribed by Hazardous Waste
Laws (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or
arising under any Hazardous Waste Laws), regardless of the
source of origination and whether or not caused by, or within
the control of, Xxxxxxxxx.
Mortgagee, and/or its agents, shall have the right and
shall be permitted, but shall not be required, at all
reasonable times, to enter upon and inspect the Property to
insure compliance with the foregoing covenants and any and all
other covenants, agreements and conditions set forth in this
Mortgage.
Liability under this Paragraph shall extend beyond
repayment of the Note and compliance with the terms of this
Mortgage; provided, however, Mortgagor and General Partner
shall have no liability under this Paragraph 3 regarding: (1)
Hazardous Materials if (a) the Property becomes contaminated
subsequent to Mortgagee's acquisition of the Property by
foreclosure, acceptance by Mortgagee of a deed in lieu
thereof, or subsequent to any transfer of ownership of the
Property which was approved or authorized by Mortgagee in
writing, provided that such transferee assumes all obligations
of Mortgagor with respect to Hazardous Materials or (b) at
such time Mortgagor provides Mortgagee with an environmental
assessment report acceptable to Mortgagee, in its sole
discretion, showing the Property to be free of Hazardous
Materials and not in violation of any Hazardous Waste Laws, or
(2) Accessibility Laws that first become effective, or for any
violation of any Accessibility Laws resulting from alterations
or improvements to the Property that are performed subsequent
to Mortgagee's acquisition of the Property by foreclosure or
acceptance of a deed in lieu thereof or subsequent to any
transfer of ownership which was approved or authorized by
Mortgagee pursuant to this Mortgage, provided that such
transferee assumes all obligations pertaining to Accessibility
Laws pursuant to the Loan Documents.
The burden of proof under this paragraph with regard to
establishing the date upon which any Hazardous Material was
placed or appeared in, on or under the Property shall be upon
Mortgagor.
PAYMENT OF TAXES, ASSESSMENTS AND OTHER CHARGES
4. To pay all and singular such taxes, assessments and
public charges as already levied or assessed or that may be
hereafter levied or assessed upon or against the Property,
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when the same shall become due and payable according to law,
before the same become delinquent, and before any interest or
penalty shall attach thereto, and to deliver official receipts
evidencing the payment of the same to Mortgagee not later than
thirty (30) days following the payment of the same. Mortgagor
shall have the right to contest, in good faith, the proposed
assessment of ad valorem taxes or special assessments by
governmental authorities having jurisdiction over the
Property; provided, however, Mortgagor shall give written
notice thereof to Mortgagee and Mortgagee may, in its sole
discretion, require Mortgagor to post a bond or other
collateral satisfactory to Mortgagee in connection with any
such action by Mortgagor.
PAYMENT OF LIENS, CHARGES AND ENCUMBRANCES
5. To immediately pay and discharge from time to time when
the same shall become due all lawful claims and demands of
mechanics, materialmen, laborers and others which, if unpaid,
might result in, or permit the creation of, a lien, charge or
encumbrance upon the Property or any part thereof, or on the
rents, issues, income, revenues, profits and proceeds arising
therefrom and, in general, to do or cause to be done
everything necessary so that the lien of this Mortgage shall
be fully preserved, at the cost of Mortgagor, without expense
to Mortgagee. Mortgagor shall have the right to contest, in
good faith and in accordance with applicable laws and
procedures, mechanics' and materialmens' liens filed against
the Property; provided however, that Mortgagor shall give
written notice thereof to Mortgagee, and Mortgagee may, in its
sole discretion, require Mortgagor to post a bond or other
collateral satisfactory to Mortgagee (and acceptable to the
title company insuring the Mortgage) in connection with any
such action by Mortgagor.
PAYMENT OF JUNIOR ENCUMBRANCES
6. To permit no default or delinquency under any other
lien, imposition, charge or encumbrance against the Property,
even though junior and inferior to the lien of this Mortgage;
provided however, the foregoing shall not be construed to
permit any other lien or encumbrance against the Property.
PAYMENT OF MORTGAGE TAXES
7. To pay any and all taxes which may be levied or assessed
directly or indirectly upon the Note and this Mortgage (except
for income taxes payable by Mortgagee) or the debt secured
hereby, without regard to any law which may be hereafter
enacted imposing payment of the whole or any part thereof upon
Mortgagee, its successors or assigns. Upon violation of this
agreement to pay such taxes levied or assessed upon the Note
and this Mortgage, or upon the rendering by any court of
competent jurisdiction of a decision that such an agreement by
Xxxxxxxxx is legally inoperative, or if any court of competent
jurisdiction shall render a decision that the rate of said tax
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when added to the rate of interest provided for in the Note
exceeds the then maximum rate of interest allowed by law,
then, and in any such event, the debt hereby secured shall, at
the option of Mortgagee, its successors or assigns, become
immediately due and payable, anything contained in this
Mortgage or in the Note secured hereby notwithstanding,
without the imposition of a Prepayment Premium (as defined in
the Note). The additional amounts which may become due and
payable hereunder shall be part of the debt secured by this
Mortgage.
HAZARD INSURANCE
8. To continuously, during the term hereof, keep the
Improvements, and the Fixtures and Personal Property, now or
hereafter existing, erected, installed and located in or upon
the Real Property, insured with extended coverage insurance
against loss or damage resulting from fire, windstorm, flood,
earthquake, sinkhole and such other hazards, casualties,
contingencies and perils including, without limitation, other
risks insured against by persons operating like properties in
the locality of the Property, or otherwise deemed necessary by
Mortgagee, on such forms as may be required by Mortgagee,
covering the Property in the amount of the full replacement
cost thereof, less excavating and foundation costs (provided
however, in no case shall the amount of insurance be less than
the difference between the amount of the Note and the North
First Note and eighty percent (80%) of the appraised value of
the Real Property) and covering loss by flood (if the
Property lies in a specified Flood Hazard Area as designated
on the Department of Housing and Urban Development Maps, or
other flood prone designation) in an amount equal to the
outstanding principal balance of the indebtedness secured
hereby or such other amount as approved by Mortgagee. All
such insurance shall be carried with a company or companies
acceptable to Mortgagee, which company or companies shall have
a rating at the time this Mortgage is executed equivalent to
at least A:VIII as shown in the most recent Best's Key Rating
Guide, and the original policy or policies and renewals
thereof (or, at the sole option of Mortgagee, duplicate
originals or certified copies thereof), together with receipts
evidencing payment of the premium therefor, shall be deposited
with, held by and are hereby assigned to Mortgagee as
additional security for the indebtedness secured hereby. Each
such policy of insurance shall contain a non-contributing loss
payable clause in favor of and in form acceptable to Mortgagee
and shall provide for not less than thirty (30) days' prior
written notice to Mortgagee of any intent to modify, cancel or
terminate the policy or policies, or the expiration of, such
policies of insurance. If the insurance required under this
Paragraph 8 or any portion thereof is maintained pursuant to a
blanket policy, Mortgagor shall furnish to Mortgagee a
certified copy of such policy, together with an original
certificate indicating that Mortgagee is an insured under such
policy in regard to the Property and showing the amount of
coverage apportioned to the Property which coverage shall be
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in an amount sufficient to satisfy the requirements hereof.
Not less than fifteen (15) days prior to the expiration dates
of each policy required of Mortgagor hereunder, Xxxxxxxxx will
deliver to Mortgagee a renewal policy or policies marked
"premium paid" or accompanied by other evidence of payment and
renewal satisfactory to Mortgagee; and in the event of
foreclosure of this Mortgage, any purchaser or purchasers of
the Property shall succeed to all rights of Mortgagor,
including any rights to unearned premiums, in and to all
insurance policies assigned and delivered to Mortgagee
pursuant to the provisions of this Paragraph 8.
In the event of loss by reason of hazards, casualties,
contingencies and perils for which insurance has been required
by Mortgagee hereunder, Mortgagor shall give immediate notice
thereof to Mortgagee, and Mortgagee is hereby irrevocably
appointed attorney-in-fact coupled with an interest, for
Mortgagee to, at its option, make proof of loss if not made
promptly by Xxxxxxxxx, and each insurance company concerned is
hereby notified, authorized and directed to make payment for
such loss directly to Mortgagee, instead of to Mortgagor and
Mortgagee jointly. Provided Mortgagor is not in default
hereunder or under any other Loan Documents, Mortgagor and
Mortgagee shall jointly adjust and compromise any losses for
which insurance proceeds are payable under any of the
aforesaid insurance policies; provided that if Mortgagor and
Mortgagee cannot agree on such adjustment within thirty (30)
days, Mortgagee shall adjust and compromise any losses in its
sole discretion, which Mortgagor authorizes Mortgagee to do.
Xxxxxxxxx authorizes Mortgagee, after deducting the costs of
collection, to apply the proceeds of such insurance, at its
option, as follows: (a) to the restoration or repair of the
insured Improvements and the Fixtures and Personal Property,
provided that, in the opinion and sole discretion of
Mortgagee, such restoration or repair is reasonably practical
and, provided further, that, in the opinion and sole
discretion of Mortgagee, either: (i) the insurance proceeds
so collected are sufficient to cover the cost of such
restoration or repair of the damage or destruction with
respect to which such proceeds were paid, or (ii) the
insurance proceeds so collected are not sufficient alone to
cover the cost of such restoration or repair, but are
sufficient therefor when taken together with funds provided
and made available by Mortgagor from other sources; in which
event Mortgagee shall make such insurance proceeds available
to Mortgagor for the purpose of effecting such restoration or
repair; but Mortgagee shall not be obligated to see to the
proper application of such insurance proceeds nor shall the
amount of funds so released or used be deemed to be payment of
or on account of the indebtedness secured hereby, or (b) to
the reduction of the indebtedness secured hereby,
notwithstanding the fact that the amount owing thereon may not
then be due and payable or that said indebtedness is otherwise
adequately secured, in which event such proceeds shall be
applied at par against the indebtedness secured hereby and the
monthly payment due on account of such indebtedness shall be
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reduced accordingly. None of such actions taken by Mortgagee
shall be deemed to be or result in a waiver or impairment of
any equity, lien or right of Mortgagee under and by virtue of
this Mortgage, nor will the application of such insurance
proceeds to the reduction of the indebtedness serve to cure
any default in the payment thereof. In the event of
foreclosure of this Mortgage or other transfer of title to the
Property in extinguishment of the indebtedness secured hereby,
all right, title and interest of Mortgagor in and to any
insurance policies then in force and insurance proceeds then
payable shall pass to the purchaser or grantee.
In case of Mortgagor's failure to keep the Property so
insured, Mortgagee or its assigns, may, at its option (but
shall not be required to) effect such insurance at Mortgagor's
expense.
Notwithstanding anything set forth in this Paragraph 8 to
the contrary, in the event of loss or damage to the Property
by fire or other casualty for which insurance has been
required by Mortgagee and provided by Xxxxxxxxx, Mortgagee
hereby agrees to allow the proceeds of insurance to be used
for the restoration of the Property and to release such
insurance proceeds to Mortgagor as such restoration
progresses, provided:
(a) Mortgagor is not in default under any of the terms,
covenants and conditions of this Mortgage, the Note or any of
the other Loan Documents;
(b) The plans and specifications for the restoration of
the Property are approved in writing by Mortgagee, such
approval not to be unreasonably withheld;
(c) Xxxxxxxxx has deposited with Mortgagee funds which,
when added to insurance proceeds received by Mortgagee, are
sufficient to complete the restoration of the Property in
accordance with the approved plans and specifications, all
applicable building codes, zoning ordinances and regulations,
and further, that the funds retained by Mortgagee are
sufficient to complete the restoration of the Property as
certified to Mortgagee by Mortgagee's inspecting
architect/engineer;
(d) Mortgagor provides completion, payment and
performance bonds and builders' all risk insurance for such
restoration in form and amount acceptable to Mortgagee
(provided, however, that Mortgagor may guarantee completion of
construction to Mortgagee in lieu of completion and
performance bonds);
(e) The insurer under such policies of fire or other
casualty insurance does not assert any defense to payment
under such policies against Mortgagee, Mortgagor or any tenant
of the Property;
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(f) Mortgagee shall have the option, upon the
completion of such restoration of the Property, to apply any
surplus insurance proceeds remaining after the completion of
such restoration, at par, to the reduction of the outstanding
principal balance of the Note; notwithstanding the fact that
the amount owing thereon may not then be due and payable or
that said indebtedness is otherwise adequately secured;
(g) The funds held by Mortgagee shall be disbursed no
more often than once per month and in amounts of not less than
Fifty Thousand and No/100 Dollars ($50,000.00) each (except
the final disbursement of such funds which may be in
an amount less than Fifty Thousand and No/100 Dollars
($50,000.00);
(h) Mortgagee's obligation to make any such
disbursement shall be conditioned upon Mortgagee's receipt of
written certification from Mortgagee's inspecting
architect/engineer (whose fees shall be paid by Xxxxxxxxx)
that all construction and work for which such disbursement is
requested has been completed in accordance with the approved
plans and specifications and in accordance with all applicable
building codes, zoning ordinances and all other local or
federal governmental regulations, and, further, that Mortgagor
has deposited with Mortgagee sufficient funds to complete such
restoration in accordance with subparagraph 8(d) above; and
(i) Mortgagee shall be entitled to require and to
impose such other conditions to the release of such funds as
would be customarily or reasonably required and imposed by
local construction lenders for a project of similar nature and
cost.
LIABILITY INSURANCE
9. To carry and maintain such comprehensive general
liability insurance as may from time to time be required by
Mortgagee, taking into consideration the type of property
being insured and the corresponding liability exposure, on
forms, in amounts and with such company or companies as may be
acceptable to Mortgagee. All such comprehensive general
liability insurance shall be carried with a company or
companies which have a rating at the time this Mortgage is
executed equivalent to at least A:VIII as shown in the most
recent Best's Key Rating Guide. Such policy or policies of
insurance shall name Mortgagee as an additional insured and
shall provide for not less than thirty (30) days' prior
written notice to Mortgagee of the intent to modify, cancel,
or terminate the policy or policies or the expiration of such
policy or policies of insurance. Not less than fifteen (15)
days prior to the expiration dates of such policy or policies,
Mortgagor will deliver to Mortgagee a renewal policy or
policies marked "premium paid" or accompanied by other
evidence of payment and renewal satisfactory to Mortgagee.
The original policy or policies and all renewals thereof (or,
at the sole option of Mortgagee, duplicate originals or
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certified copies thereof), together with receipts evidencing
payment of the premium therefor, shall be deposited with, held
by and are hereby assigned to Mortgagee as additional security
for the indebtedness secured hereby.
COMPLIANCE WITH LAWS
10. To observe, abide by and comply with all statutes,
ordinances, laws, orders, requirements or decrees relating to
the Property enacted, promulgated or issued by any federal,
state, county or municipal authority or any agency or
subdivision thereof having jurisdiction over Mortgagor or the
Property, and to observe and comply with all conditions and
requirements necessary to preserve and extend any and all
rights, licenses, permits (including, but not limited to,
zoning, variances, special exceptions and nonconforming uses),
privileges, franchises and concessions which are applicable to
the Property or which have been granted to or contracted for
by Mortgagor in connection with any existing, presently
contemplated or future use of the Property.
MAINTENANCE OF PERMITS
11. To obtain, keep and constantly maintain in full force
and effect during the entire term of this Mortgage, all
certificates, licenses and permits necessary to keep the
Property operating as office buildings and, except as
specifically provided for in this Mortgage, not to assign,
transfer or in any manner change such certificates, licenses
or permits without first receiving the written consent of
Mortgagee.
OBLIGATIONS OF MORTGAGOR AS LESSOR
12. To perform every obligation of Mortgagor (as the
lessor) and enforce every obligation of the lessee in that
certain Master Lease Agreement dated April 6, 1994, and
amended by First Amendment to Lease dated of even date
herewith, between Xxxxxxxxx and Xxxxxx X. Xxxxx & Co., L.P., a
Missouri limited partnership ("Xxxxx"), as tenant (the "Master
Lease") and cause Xxxxx to perform every obligation of the
lessor and enforce every obligation of the lessee in any and
every lease or other occupancy agreement of or affecting the
Property or any part thereof (hereinafter referred to as the
"Occupancy Leases"), and not to modify, alter, waive, or
cancel the Master Lease nor to allow Xxxxx to modify, waive,
or cancel any such Occupancy Leases or any part thereof,
without the prior written consent of Mortgagee (but such
consent shall not be required for such action as to Occupancy
Leases of 10,000 square feet or less if such action is in the
ordinary course of business of owning and operating the
Property in a prudent manner), nor collect for more than
thirty (30) days in advance any rents that may be collectible
under the Master Lease, or allow Xxxxx to do so with respect
to any such Occupancy Leases and, except as provided for in
this Mortgage, not to assign the Master Lease or rents
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thereunder or allow Xxxxx to assign any such Occupancy Lease
or any such rents to any party other than Mortgagee, without
the prior written consent of Mortgagee. In the event of
default under the Master Lease or any such Occupancy Lease by
reason of failure of the Mortgagor or Xxxxx, as the case may
be, to keep or perform one or more of the covenants,
agreements or conditions thereof, Mortgagee is hereby
authorized and empowered, and may, at its sole option, remedy,
remove or cure any such default, and further, Mortgagee may,
at its sole option and in its sole discretion, but without
obligation to do so, pay any sum of money deemed necessary by
it for the performance of said covenants, agreements and
conditions, or for the curing or removal of any such default,
and incur all expenses and obligations which it may consider
necessary or reasonable in connection therewith, and Mortgagor
shall repay on demand all such sums so paid or advanced by
Mortgagee together with interest thereon until paid at the
lesser of either (i) the highest rate of interest then allowed
by the laws of the State of Missouri or, if controlling, the
laws of the United States, or (ii) the then applicable
interest rate of the Note plus five hundred (500) basis
points; all of such sums, if unpaid, shall be added to and
become part of the indebtedness secured hereby. Except as set
forth below, all such Occupancy Leases hereafter made shall be
subject to the approval of Mortgagee and (a) shall be at
competitive market rental rates then prevailing in the
geographic area for office buildings comparable to the
Property, (b) shall have lease terms of not less than three
(3) years, and (c) at Mortgagee's option, shall be superior or
subordinate in all respects to the lien of this Mortgage. The
Master Lease shall, at the option of the Mortgagee, be
subordinated to the lien of this Mortgage by an agreement in
form and content acceptable to the Mortgagee. In the event of
any default by a tenant under any Occupancy Lease under which
the net rentable area, including expansion options, is less
than 10,000 square feet, Mortgagor or Xxxxx shall be entitled
to enforce the terms of such Occupancy Lease (provided such
Occupancy Lease has been approved by the Mortgagee or is not
required to be so approved) against such tenant by any
appropriate action at law or in equity, or as otherwise
permitted thereunder. Mortgagee shall not require approval in
advance of any Occupancy Leases which conform to the
Mortgagor's Form Lease (as hereinafter defined) as previously
approved by Mortgagee, except as set forth below. Neither the
right nor the exercise of the right herein granted unto
Mortgagee to keep or perform any such covenants, agreements or
conditions as aforesaid shall preclude Mortgagee from
exercising its option to cause the whole indebtedness secured
hereby to become immediately due and payable by reason of
Xxxxxxxxx's default under the Master Lease or Xxxxx' default
under the Master Lease with respect to its obligations to
Mortgagor, or Xxxxx' default under any Occupancy Lease (in
each instance, after the expiration of any applicable cure
period, if any) in keeping or performing any such covenants,
agreements or conditions as hereinabove required (except with
respect to any Occupancy Lease under which the net rentable
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area, including expansion options, is less than 10,000 square
feet).
Mortgagee has heretofore approved a form of Occupancy Lease
to be used with respect to subtenants under the Master Lease
in connection with the Property without Mortgagee's prior
consent (hereinafter referred to as the "Form Lease").
Neither Mortgagor nor Xxxxx shall, without the prior written
consent of Mortgagee, modify or alter the Form Lease in any
material respect. In addition, neither Mortgagor nor Xxxxx
shall, without the prior written consent of Mortgagee,
surrender or terminate, either orally or in writing, any
Occupancy Lease now existing or hereafter made with any Major
Tenant (as hereinafter defined) for all or part of the
Property, permit an assignment or sublease (except on account
of the Master Lease) of any such Occupancy Lease, or request
or consent to the subordination of any Occupancy Lease to any
lien subordinate to this Mortgage. Mortgagor shall furnish
Mortgagee with copies of all executed Occupancy Leases of all
or any part of the Property now existing or hereafter made,
and Mortgagor shall assign to Mortgagee the Master Lease and
Xxxxxxxxx and Xxxxx, to the extent of their respective
interests, shall assign, as additional security for the Note,
all Occupancy Leases now existing or hereafter made for all or
any part of the Property (which assignments shall be in form
and content acceptable to Mortgagee).
Notwithstanding the foregoing approval by Mortgagee of
Mortgagor's Form Lease, Mortgagee hereby specifically reserves
the right to approve all prospective tenants under all
Occupancy Leases hereafter proposed to be made if: (i) the
term thereof, excluding options to renew the same, exceeds
five (5) years; or (ii) the net rentable area to be occupied
thereunder, including expansion options, exceeds ten thousand
square feet of the net leasable area of the Improvements (the
tenants under such leases being hereinafter referred to as
"Major Tenants"). Mortgagor shall notify Mortgagee in writing
of all prospective Major Tenants and shall deliver to
Mortgagee, at Xxxxxxxxx's sole cost and expense, a copy of the
prospective Major Tenant's current financial statement and the
most recent Dun & Xxxxxxxxxx credit report on said prospective
Major Xxxxxx. Said financial statement shall be certified as
true and correct by the Major Tenant, or, if available, by a
certified public accountant.
MAINTENANCE OF PARKING AND ACCESS; PROHIBITION AGAINST
ALTERATION
13. To construct, keep and constantly maintain, as the
case may be, all curbs, drives, parking areas and the number
of parking spaces heretofore approved by Mortgagee or
heretofore or hereafter required by any governmental body,
agency or authority having jurisdiction over Mortgagor or the
Property, and as required by the terms of the Occupancy
Leases, and not to alter, erect, build or construct upon any
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portion of the Property, any building or structure of any kind
whatsoever, the erection, building or construction of which
has not been previously approved by Mortgagee in writing,
which approval shall be at the sole discretion of Mortgagee;
provided, however, that this provision does not apply to any
repair, remodeling, or renovation work, structural or
otherwise.
EXECUTION OF ADDITIONAL DOCUMENTS
14. To do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments,
notices of assignments, transfers, assurances and other
instruments, including security agreements and financing
statements, as Mortgagee shall from time to time require for
the purpose of better assuring, conveying, assigning,
transferring and confirming unto Mortgagee the Property and
rights hereby encumbered, created, conveyed, assigned or
intended now or hereafter so to be encumbered, created,
conveyed or assigned or which Mortgagor may now be or may
hereafter become bound to encumber, create, convey, or assign
to Mortgagee, or for the purpose of carrying out the intention
or facilitating the performance of the terms of this Mortgage,
or for filing, registering, or recording this Mortgage, and to
pay all filing, registration, or recording fees and all taxes,
costs and other expenses, including Reasonable Attorneys' Fees
(as defined in Paragraph 40), incident to the preparation,
execution, acknowledgment, delivery, and recordation of any of
the same.
AFTER-ACQUIRED PROPERTY SECURED
15. It is understood and agreed that all right, title and
interest of Mortgagor in and to all extensions, improvements,
betterments, renewals, substitutions and replacements of, and
all additions and appurtenances to, the Property hereinabove
described, hereafter acquired by or released to Mortgagor, or
constructed, assembled or placed by Mortgagor on the Real
Property, and all conversions of the security constituted
thereby, immediately upon such acquisition, release,
construction, assembling, placement or conversion, as the case
may be, and in each such case, without any further mortgage,
encumbrance, conveyance, assignment or other act by Xxxxxxxxx,
shall become subject to the lien of this Mortgage as fully and
completely and with the same effect as though now owned by
Xxxxxxxxx and specifically described herein, but at any and
all times Xxxxxxxxx will execute and deliver to Mortgagee any
and all such further assurances, mortgages, conveyances, or
assignments thereof or security interests therein as Mortgagee
may reasonably require for the purpose of expressly and
specifically subjecting the same to the lien of this Mortgage.
PAYMENTS BY MORTGAGEE ON BEHALF OF XXXXXXXXX
16. Should Mortgagor or Xxxxx, as the case may be, fail to
make payment of any taxes, assessments or public charges on or
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with respect to the Property before the same shall become
delinquent, or shall Mortgagor or Xxxxx, as the case may be,
fail to make payment of any insurance premiums or other
charges, impositions, or liens herein or elsewhere required to
be paid by Mortgagor, then Mortgagee, at its sole option, but
without obligation to do so, may make payment or payments of
the same and also may redeem the Property from tax sale
without any obligation to inquire into the validity of such
taxes, assessments and tax sales. In the case of any such
payment by Mortgagee, Xxxxxxxxx agrees to reimburse Mortgagee,
upon demand therefor, the amount of such payment and of any
fees and expenses attendant in making the same, together with
interest thereon at the lesser of either (i) the highest rate
of interest then allowed by the laws of the State of Missouri
or, if controlling, the laws of the United States, or (ii) the
then applicable interest rate of the Note plus five hundred
(500) basis points; and until paid such amounts and interest
shall be added to and become part of the debt secured hereby
to the same extent that this Mortgage secures the repayment of
the indebtedness evidenced by the Note. In making payments
hereby authorized by the provisions of this Paragraph 16,
Mortgagee may do so whenever, in its sole judgment and
discretion, such advance or advances are necessary or
desirable to protect the full security intended to be afforded
by this instrument. Neither the right nor the exercise of the
right herein granted unto Mortgagee to make any such payments
as aforesaid shall preclude Mortgagee from exercising its
option to cause the whole indebtedness secured hereby to
become immediately due and payable by reason of Xxxxxxxxx's
default in making such payments as hereinabove required.
FUNDS HELD BY MORTGAGEE FOR TAXES, ASSESSMENTS, INSURANCE
PREMIUMS, AND OTHER CHARGES
17. In order to more fully protect the security of this
Mortgage, Mortgagor shall deposit with Mortgagee, together
with and in addition to each monthly payment due on account of
the indebtedness evidenced by the Note, an amount equal to
one-twelfth (1/12) of the annual total of such taxes,
assessments, insurance premiums, and other charges (all as
estimated by Mortgagee in its sole discretion) so that, at
least thirty (30) days prior to the due date thereof,
Mortgagee shall be able to pay in full all such taxes,
assessments, insurance premiums, and other charges as the same
shall become due, and Mortgagee may hold without paying
interest and commingle with its general funds the sums so
deposited and apply the same to the payment of said taxes,
assessments, insurance premiums, or other charges as they
become due and payable. If at any time the funds so held by
Mortgagee are insufficient to pay such taxes, assessments,
insurance premiums, or other charges as they become due and
payable Mortgagor shall immediately, upon notice and demand by
Mortgagee, deposit with Mortgagee the amount of such
deficiency, and the failure on the part of Mortgagor to do so
shall entitle Mortgagee, at its sole option, to make such
payments in accordance with its right and pursuant to the
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conditions elsewhere provided in this Mortgage. Whenever any
default exists under this Mortgage, Mortgagee may, at its sole
option but without an obligation so to do, apply any funds so
held by it pursuant to this Paragraph 17 toward the payment of
the indebtedness secured hereby, notwithstanding the fact that
the amount owing thereon may not then be due and payable or
that said indebtedness may otherwise be adequately secured in
such order and manner of application as Mortgagee may elect.
CONDEMNATION; EMINENT DOMAIN
18. All awards and other compensation heretofore or
hereafter made to Mortgagor and all subsequent owners of the
Property in any taking by eminent domain or recovery for
inverse condemnation, either permanent or temporary, of all or
any part of the Property or any easement or any appurtenance
thereto, including severance and consequential damages and
change in grade of any street, are hereby assigned to
Mortgagee. Provided Mortgagor is not in default hereunder or
under any of the other Loan Documents, Mortgagor and Mortgagee
shall jointly adjust and compromise the claim for any such
award, provided that if Mortgagor and Mortgagee cannot agree
on such adjustment within thirty (30) days, Mortgagee shall
adjust and compromise the claim for any such award in its sole
discretion. Subject to the foregoing, Xxxxxxxxx hereby
irrevocably appoints Mortgagee as its attorney-in-fact,
coupled with an interest, and authorizes, directs and empowers
such attorney, at the option of said attorney, on behalf of
Xxxxxxxxx, its successors and assigns, to adjust or compromise
the claim for any such award and alone to collect and receive
the proceeds thereof, to give proper receipts and acquittances
therefor and, after deducting any expenses of collection, at
its sole option:
(i) to apply the net proceeds as a credit upon any
portion of the indebtedness secured hereby, as selected by
Mortgagee, notwithstanding the fact that the amount owing
thereon may not then be due and payable or that said
indebtedness is otherwise adequately secured. In the event
Mortgagee applies such awards to the reduction of the
outstanding indebtedness evidenced by the Note, such proceeds
shall be applied at par and the monthly installments due and
payable under the Note shall be reduced accordingly; however
no such application shall serve to cure an existing default in
the payment of the Note;
or
(ii) to hold said proceeds without any allowance of
interest and make the same available for restoration or
rebuilding the Improvements. In the event that Mortgagee
elects to make said proceeds available to reimburse Mortgagor
for the cost of the restoration or rebuilding of the buildings
or improvements on the Property, such proceeds shall be made
available in the manner and under the conditions that
Mortgagee may require as provided under Paragraph 8 hereof.
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If the proceeds are made available by Mortgagee to reimburse
Mortgagor for the cost of said restoration or rebuilding, any
surplus which may remain out of said award after payment of
such cost of restoration or rebuilding shall be applied on
account of the indebtedness secured hereby at par
notwithstanding the fact that the amount owing thereon may not
then be due and payable or that said indebtedness may
otherwise be adequately secured.
Mortgagor further covenants and agrees to give Xxxxxxxxx
immediate notice of the actual or threatened commencement of
any proceedings under eminent domain and to deliver to
Mortgagee copies of any and all papers served in connection
with any proceedings. Mortgagor further covenants and agrees
to make, execute and deliver to Mortgagee, at any time or
times, upon request, free, clear and discharged of any
encumbrance of any kind whatsoever, any and all further
assignments and/or other instruments deemed necessary by
Mortgagee for the purpose of validly and sufficiently
assigning all such awards and other compensation heretofore or
hereafter made to Mortgagee (including the assignment of any
award from the United States government at any time after the
allowance of the claim therefor, the ascertainment of the
amount thereof and the issuance of the warrant for payment
thereof).
It shall be a default hereunder if any part of any of the
Improvements situated on the Property shall be condemned by
any governmental authority having jurisdiction, or if lands
constituting a portion of the Property shall be condemned by
any governmental authority having jurisdiction, such that the
Property is in violation of applicable parking, zoning,
platting, or other ordinances, or fails to comply with the
terms of the Master Lease or the Occupancy Leases with Major
Tenants, and in either of said events, Mortgagee shall be
entitled to exercise any or all remedies provided or
referenced in this Mortgage, including the application of
condemnation proceeds to the outstanding principal balance of
the Note at par and the right to accelerate the maturity date
of the Note and require payment in full without the imposition
of a Prepayment Premium.
COSTS OF COLLECTION
19. In the event that the Note secured hereby is placed in
the hands of an attorney for collection, or in the event that
Mortgagee shall become a party either as plaintiff or as
defendant, in any action, suit, appeal or legal proceeding
(including, without limitation, foreclosure, condemnation,
bankruptcy, administrative proceedings or any proceeding
wherein proof of claim is by law required to be filed),
hearing, motion or application before any court or
administrative body in relation to the Property or the lien
and security interest granted or created hereby or herein, or
for the recovery or protection of said indebtedness or the
Property, or for the foreclosure of this Mortgage, Mortgagor
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shall save and hold Mortgagee harmless from and against any
and all costs and expenses incurred by Mortgagee on account
thereof, including, but not limited to, Reasonable Attorneys'
Fees, title searches and abstract and survey charges, at all
trial and appellate levels, and Xxxxxxxxx shall repay, on
demand, all such costs and expenses, together with interest
thereon until paid at the lesser of either (i) the highest
rate of interest then allowed by the laws of the State of
Missouri, or, if controlling, the laws of the United States,
or (ii) the then applicable rate of interest of the Note plus
five hundred (500) basis points; all of which sums, if unpaid,
shall be added to and become a part of the indebtedness
secured hereby.
DEFAULT RATE
20. Any sums not paid when due, whether maturing by lapse
of time or by reason of acceleration under the provisions of
the Note or this Mortgage, and whether principal, interest or
money owing for advancements pursuant to the terms of this
Mortgage or any other Loan Document, shall bear interest until
paid at the lesser of either (i) the highest rate of interest
then allowed by the laws of the State of Missouri or, if
controlling, the laws of the United States, or (ii) the then
applicable rate of interest of the Note plus five hundred
(500) basis points; all of which sums shall be added to and
become a part of the indebtedness secured hereby.
SAVINGS CLAUSE; SEVERABILITY
21. Notwithstanding any provisions in the Note or in this
Mortgage to the contrary, the total liability for payments in
the nature of interest including but not limited to Prepayment
Premiums, default interest and late fees shall not exceed the
limits imposed by the laws of the State of Missouri or, if
controlling, the United States of America relating to maximum
allowable charges of interest. Mortgagee shall not be
entitled to receive, collect or apply, as interest on the
indebtedness evidenced by the Note, any amount in excess of
the maximum lawful rate of interest permitted to be charged by
applicable law. In the event Mortgagee ever receives,
collects or applies as interest any such excess, such amount
which would be excessive interest shall be applied to reduce
the unpaid principal balance of the indebtedness evidenced by
the Note. If the unpaid principal balance of such
indebtedness is paid in full, any remaining excess shall be
forthwith paid to Mortgagor.
If any clauses or provisions herein contained shall operate
or would prospectively operate to invalidate this Mortgage,
then such clauses or provisions only shall be held for naught,
as though not herein contained and the remainder of this
Mortgage shall remain operative and in full force and effect.
BANKRUPTCY, REORGANIZATION OR ASSIGNMENT
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22. It shall be a default hereunder if Mortgagor or
General Partner shall: (a) elect to dissolve and liquidate
its business organization and windup its business affairs
without prior written approval of Mortgagee, or (b) consent to
the appointment of a receiver, trustee or liquidator of all or
a substantial part of Mortgagor's assets, or General Partner's
assets, or (c) be adjudicated as bankrupt or insolvent, or
file a voluntary petition in bankruptcy, or admit in writing
its inability to pay its debts as they become due, or (d) make
a general assignment for the benefit of creditors, or (e) file
a petition under or take advantage of any insolvency law, or
(f) file an answer admitting the material allegations of a
petition filed against Mortgagor or General Partner in any
bankruptcy, reorganization or insolvency proceeding or fail to
cause the dismissal of such petition within thirty (30) days
after the filing of said petition, or (g) take action for the
purpose of effecting any of the foregoing, or (h) if any
order, judgment or decree shall be entered upon an application
of a creditor of Mortgagor or General Partner by a court of
competent jurisdiction approving a petition seeking
appointment of a receiver or trustee of all or a substantial
part of Xxxxxxxxx's assets or General Partner's assets and
such order, judgment or decree shall continue unstayed and in
effect for a period of thirty (30) days.
TIME IS OF THE ESSENCE; MONETARY AND NON-MONETARY DEFAULTS
23. It is understood by Xxxxxxxxx that time is of the
essence hereof in connection with all obligations of Mortgagor
herein, in the Note, the Assignment (as defined in Paragraph
34) and any of the other Loan Documents evidencing or securing
the Note.
If: (1) default be made in the payment of any installment
of the Note or the North First Note, or, for and only during
the period of time commencing with the date hereof and
continuing up to and including September 5, 1998, the South
Note or the South First Note, whether of principal or
interest, or both (and it is hereby understood that if such
payment is postmarked by the United States Postal Service on
or before the due date for such payment, is correctly
addressed and bears adequate first class postage, Mortgagor
shall not be considered to have defaulted in making such
payment), or (2) default be made in the payment of any other
sums of money referred to herein, in the North First Mortgage,
in the Note or in the North First Note or, for and only during
the period of time commencing with the date hereof and
continuing up to and including September 5, 1998, in the
payment of any other sums of money referred to in the South
Note or in the South First Note, or in any other documents or
instruments evidencing or securing the South Note or the South
First Note promptly and fully when the same shall be due
without notice or demand from Mortgagee to Mortgagor in regard
to such Monetary Default (as hereinafter defined), or (3) in
the event a breach or default be made by Mortgagor in any one
of the agreements, conditions and covenants of the Note, this
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Mortgage, the Assignment or any other Loan Documents or in the
event that each and every one of said agreements, conditions
and covenants are not otherwise duly, promptly and fully
discharged or performed, and any such Non-Monetary Default (as
hereinafter defined) remains uncured for a period of thirty
(30) days after written notice thereof from Mortgagee to
Mortgagor, has been delivered in the manner prescribed in
Paragraph 41 hereof, unless such Non-Monetary Default cannot
reasonably be cured within said thirty (30) day period, in
which event Mortgagor shall have an extended period of time to
complete cure, provided that action to cure such Non-Monetary
Default is commenced within said thirty (30) day period, and
Mortgagor is not substantially diminishing or impairing the
value of the Property, and is diligently pursuing a cure to
completion, or (4) in the event a breach or default be made by
Mortgagor in any one of the agreements, conditions and
covenants of the North First Note, the North First Mortgage,
or any other documents or instruments evidencing or securing
the indebtedness evidenced by the North First Note, and in the
event that each and every one of said agreements, conditions
and covenants are not otherwise duly, promptly and fully
discharged or performed, and any such Non-Monetary Default
remains uncured after the expiration of any applicable cure
periods set forth therein, or (5) for and only during the
period of time commencing with the date hereof and, continuing
up to and including September 5, 1998, in the event a breach
or default be made by Mortgagor in any one of the agreements,
conditions and covenants of the South Note, the South First
Note or any other documents or instruments evidencing or
securing the South Note or the South First Note, and in the
event that each and every one of said agreements, conditions
and covenants are not otherwise duly, promptly and fully
discharged or performed, and any such Non-Monetary Default
remains uncured after the expiration of any applicable cure
periods set forth therein, Mortgagee, at its sole option, may
thereupon or thereafter declare the indebtedness evidenced by
the Note, as well as all other monies secured hereby,
including, without limitation, all Prepayment Premiums (to the
extent permitted by the laws of the State of Missouri) and
late payment charges, to be forthwith due and payable,
whereupon the principal of and the interest accrued on the
indebtedness evidenced by the Note and all other sums secured
by this Mortgage, at the option of Mortgagee, shall
immediately become due and payable as if all of said sums of
money were originally stipulated to be paid on such day, and
thereupon, Mortgagee may avail itself of all rights and
remedies provided by law and may foreclose or prosecute a suit
at law or in equity as if all monies secured hereby had
matured prior to its institution, anything in this Mortgage or
in the Note to the contrary notwithstanding. Mortgagee shall
have no obligation to give Mortgagor notice of, or any period
to cure, any Monetary Default or any Incurable Default (as
hereinafter defined) prior to exercising its right, power and
privilege to accelerate the maturity of the indebtedness
secured hereby.
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As used herein, the term "Monetary Default" shall mean any
default which can be cured by the payment of money such as,
but not limited to, the payment of principal and interest due
under the Note, taxes, assessments and insurance premiums when
due as provided in this Mortgage. As used herein, the term
"Non-Monetary Default" shall mean any default which is not a
Monetary Default or an Incurable Default. As used herein, the
term "Incurable Default" shall mean (i) any voluntary or
involuntary sale, assignment, mortgaging, encumbering or
transfer in violation of the covenants contained herein; or
(ii) if Mortgagor, or any person or entity comprising
Mortgagor, should make an assignment for the benefit of
creditors, become insolvent, or file a petition in bankruptcy
(including but not limited to, a petition seeking a
rearrangement or reorganization).
Mortgagee may institute an action to foreclose this
Mortgage as to the amount so declared due and payable, and
this Mortgage shall remain in force, and thereupon the Trustee
shall, after receiving notice of the election and demand for
sale from the Mortgagee, proceed to sell the Property as one
parcel in its entirety or any part thereof, either in mass or
in parcels, at the absolute discretion of the Trustee, at
public vendue at the door of the Court House or other location
then customarily employed for the purpose, in the County where
the Property is located, to the highest bidder for cash, first
making or causing to be made or given such demands or notices
of the time, terms, and place of sale, and a description of
the property to be sold, by advertisement published and as is
provided by the laws of the State of Missouri then in effect,
and upon sale, the Trustee shall (subject to any applicable
statutory periods and rights of redemption) execute and
deliver a deed of conveyance of the property sold to the
purchaser or purchasers thereof, and any statement or recital
of fact in such deed, in relation to the non-payment of the
indebtedness secured hereby, existence of the indebtedness
secured hereby, notice of advertisement, sale, and receipt of
the proceeds of sale, shall be presumptive evidence of the
truth of such statements or recitals, and the Trustee shall
receive the proceeds of such sale out of which the Trustee
shall pay the following in any order Mortgagee shall elect:
(1) the costs and expenses of executing this trust, including
compensation to the Trustee for services as provided by law
and Reasonable Attorneys' Fees to any attorneys employed by
the Trustee or the Mortgagee for their services; (2) upon the
usual vouchers therefor, all amounts paid by the Mortgagee for
insurance, taxes, lien claims, and other payments made by
Mortgagee as provided herein, with interest thereon until paid
at the lesser of either (i) the highest rate of interest then
allowed by the laws of the State of Missouri or, if
controlling, the laws of the United States, or (ii) the then
applicable rate of interest of the Note plus five hundred
(500) basis points; (3) the amount due on the indebtedness
secured hereby then due and unpaid; (4) the amount due on any
junior encumbrances, with interest. The remainder of such
proceeds, if any, shall be paid to Mortgagor. The Mortgagee
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may bid and become purchaser at any sale under this Mortgage.
Any sale of the Property under this Mortgage shall, without
further notice, create the relation of landlord and tenant at
sufferance between the purchaser and Mortgagor or any person
holding possession of the Property through Mortgagor, and upon
failure of Mortgagor or such person to surrender possession
thereof immediately, Mortgagor or such person may be removed
by a writ of possession of the purchaser in any Court having
venue.
The Trustee or Substitute Trustee covenants to faithfully
to perform the trust herein created.
The Trustee may sell and convey the Property under the
power aforesaid, although the Trustee has been, may now be or
may hereafter be attorney or agent of the Mortgagee in respect
to the loan made by the Mortgagee evidenced by the Note or any
part thereof or this Mortgage or in respect to any matter of
business whatsoever.
The Trustee hereby lets the Property to the Mortgagor until
a sale be had under the foregoing provisions, upon the
following terms and conditions, such letting being to-wit: The
Mortgagor and every and all persons claiming or possessing the
Property, or any part thereof, by, through or under Xxxxxxxxx
shall pay rent therefor during said term at the rate of one
cent per month, payable monthly upon demand, and without
notice or demand shall surrender immediate peaceable
possession of said premises, to the purchaser thereof, under
such sale. Should possession not be surrendered as provided
for herein the purchaser shall be entitled to institute
proceedings for possession as aforesaid.
Except to the extent contrary to law, Mortgagor waives the
benefit of all laws now existing or that hereafter may be
enacted providing for (i) any appraisement before sale of any
portion of the Property, (ii) any exemption, under and by
virtue of any statute of the State of Missouri, and (iii) the
benefit of all laws that may be hereafter enacted in any way
extending the time for the enforcement and collection of the
indebtedness secured hereby or creating or extending a period
of redemption from any sale made in collecting the
indebtedness secured hereby.
In any action or proceeding to foreclose this Mortgage,
Mortgagee shall be at liberty to apply, without notice, for
the appointment of a receiver for the rents and profits of the
Property, and shall be entitled to the appointment of such a
receiver as a matter of right without regard to the value of
the Property as security for the indebtedness due Mortgagee or
the solvency of any person, or corporation, liable for the
payment of such indebtedness.
If the indebtedness secured hereby is paid after the
beginning of publication of notice of sale, as herein
provided, or in the event the Mortgagee shall, at its sole
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option, permit Mortgagor to pay any part of the indebtedness
secured hereby after the beginning of publication of notice of
sale, as herein provided, then Xxxxxxxxx shall pay on demand
all expenses incurred by the Trustee and Mortgagee in
connection with said publication, including fees to the
attorneys for the Trustee and for the Mortgagee, and a
reasonable fee to the Trustee, and this Mortgage shall be
security for all such expenses and fees.
The failure or omission on the part of Mortgagee to
exercise the option for acceleration of maturity of the Note
and foreclosure of this Mortgage following any default as
aforesaid or to exercise any other option or remedy granted
hereunder to Mortgagee when entitled to do so in any one or
more instances, or the acceptance by Mortgagee of partial
payment of the indebtedness secured hereby, whether before or
subsequent to Mortgagor's default hereunder, shall not
constitute a waiver of any such default or the right to
exercise any such option or remedy, but such option or remedy
shall remain continuously in force. Acceleration of maturity
of the Note, once claimed hereunder by Xxxxxxxxx, at the
option of Mortgagee, may be rescinded by written
acknowledgment to that effect by Mortgagee, but the tender and
acceptance of partial payments alone shall not in any way
affect or rescind such acceleration of maturity.
PROTECTION OF MORTGAGEE'S SECURITY
24. At any time after default hereunder and the expiration
of the applicable cure periods, if any, expressly provided for
herein, Mortgagee is authorized, without notice and in its
sole discretion, to enter upon and take possession of the
Property or any part thereof and to perform any acts which
Mortgagee deems necessary or proper to conserve the security
herein intended to be provided by the Property, to operate any
business or businesses conducted thereon and to collect and
receive all rents, issues and profits thereof and therefrom,
including those past due as well as those accruing thereafter.
APPOINTMENT OF RECEIVER
25. If, at any time after a default hereunder and the
expiration of the applicable cure periods, if any, expressly
provided for herein, in the sole discretion of Mortgagee, a
receivership may be necessary to protect the Property or its
rents, issues, revenue, profits or proceeds, whether before or
after maturity of the Note and whether before or at the time
of or after the institution of foreclosure or suit to collect
such indebtedness, or to enforce this Mortgage, Mortgagee, as
a matter of strict right and regardless of the value of the
Property or the amounts due hereunder or secured hereby, or of
the solvency of any party bound for the payment of such
indebtedness, shall have the right, upon ex parte application
and without notice to anyone, and by any court having
jurisdiction, to the appointment of a receiver to take charge
of, manage, preserve, protect and operate the Property, to
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collect the rents, issues, revenues, profits, proceeds and
income thereof, to make all necessary and needful repairs, and
to pay all taxes, assessments and charges against the Property
and all premiums for insurance thereon, and to do such other
acts as may by such court be authorized and directed, and
after payment of the expenses of the receivership and the
management of the Property, to apply the net proceeds of such
receivership in reduction of the indebtedness secured hereby
or in such other manner as the said court shall direct
notwithstanding the fact that the amount owing thereon may not
then be due and payable or the said indebtedness is otherwise
adequately secured. Such receivership shall, at the option of
Mortgagee, continue until full payment of all sums hereby
secured or until title to the Property shall have passed by
sale under this Mortgage. Mortgagor hereby specifically
waives its right to object to the appointment of a receiver as
aforesaid and hereby expressly agrees that such appointment
shall be made as an admitted equity and as a matter of
absolute right to Mortgagee.
RIGHTS AND REMEDIES CUMULATIVE; FORBEARANCE NOT A WAIVER
26. The rights and remedies herein provided are cumulative
and Mortgagee, as the holder of the Note and of every other
obligation secured hereby, may recover judgment thereon, issue
execution therefor and resort to every other right or remedy
available at law or in equity, without first exhausting any
right or remedy available to Mortgagee and without affecting
or impairing the security of any right or remedy afforded
hereby, and no enumeration of special rights or powers by any
provisions hereof shall be construed to limit any grant of
general rights or powers, or to take away or limit any and all
rights granted to or vested in Mortgagee by law, and Xxxxxxxxx
further agrees that no delay or omission on the part of
Mortgagee to exercise any rights or powers accruing to it
hereunder shall impair any such right or power or shall be
construed to be a waiver of any such event of default
hereunder or an acquiescence therein; and every right, power
and remedy granted herein or by law to Mortgagee may be
exercised from time to time as often as may be deemed
expedient by Mortgagee.
MODIFICATION NOT AN IMPAIRMENT OF SECURITY
27. Mortgagee, without notice and without regard to the
consideration, if any, paid therefor, and notwithstanding the
existence at that time of any inferior mortgages or other
liens thereon, may release any part of the security described
herein or may release any person or entity liable for any
indebtedness secured hereby without in any way affecting the
priority of this Mortgage, to the full extent of the
indebtedness remaining unpaid hereunder, upon any part of the
security not expressly released. Mortgagee may, at its option
and within its sole discretion, also agree with any party
obligated on said indebtedness, or having any interest in the
security described herein, to extend the time for payment of
any part or all of the indebtedness secured hereby, and such
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agreement shall not, in any way, release or impair this
Mortgage, but shall extend the same as against the title of
all parties having any interest in said security, which
interest is subject to this Mortgage.
PROPERTY MANAGEMENT AND LEASING
28. The exclusive manager of the Property shall be
Mortgagor or such other manager as may be first approved in
writing by Mortgagee (and Mortgagee hereby approves Xxxxxx
Xxxxxx Company as such manager). The exclusive leasing agent
of the Property, if other than the foregoing party, shall be
first approved in writing by Mortgagee. The governing
management and leasing contracts (or in the absence of any
such written contract, a letter so stating and further
identifying the name of the person or entity charged with the
responsibility for managing and/or leasing the Property) shall
be subordinate to this Mortgage and satisfactory to and
subject to the written approval of Mortgagee throughout the
term of the indebtedness secured hereby. Upon default in
either of these requirements after the expiration of
applicable cure periods, if any, then the whole of the
indebtedness hereby secured shall, at the election of
Mortgagee, become immediately due and payable, together with
any default premium and late payment charges required by the
Note, and Mortgagee shall be entitled to exercise any or all
remedies provided for or referenced in this Mortgage.
MODIFICATION NOT A WAIVER
29. In the event Mortgagee: (a) releases, as aforesaid,
any part of the security described herein or any person or
entity liable for any indebtedness secured hereby, or (b)
grants an extension of time for the payment of the Note, or
(c) takes other or additional security for the payment of the
Note, or (d) waives or fails to exercise any rights granted
herein, in the Note, or any of the other Loan Documents, any
said act or omission shall not release Mortgagor, subsequent
purchasers of the Property or any part thereof, or makers,
sureties, endorsers or guarantors of the Note, if any, from
any obligation or any covenant of this Mortgage, the Note, or
any of the other Loan Documents, nor preclude Mortgagee from
exercising any right, power or privilege herein granted or
intended to be granted in the event of any other default then
made, or any subsequent default.
TRANSFER OF PROPERTY OR CONTROLLING INTEREST IN MORTGAGOR;
ASSUMPTION
30. Except as set forth in Paragraph 36(b) hereof, without
the prior written consent of Mortgagee, the sale, transfer,
assignment or conveyance of all or any portion of the Property
or the transfer, assignment or conveyance of a controlling
interest in Mortgagor, whether voluntarily or by operation of
law, without the prior written consent of Mortgagee, shall
constitute a default under the terms of this Mortgage and
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entitle Mortgagee, at its sole option, to accelerate all sums
due on the Note together with any Prepayment Premiums (to the
extent permitted by the laws of the State of Missouri), late
payment charges, or any other amounts secured hereby
(provided, however, that said prohibitions shall not apply to
changes among partners of The Xxxxx Financial Companies, a
Limited Partnership). Mortgagee may, however, elect to waive
the option to accelerate granted hereunder if, prior to any
such sale, transfer, assignment or conveyance of the Property,
the following conditions shall be fully satisfied: (a)
Mortgagee acknowledges in writing that, in its sole
discretion, the creditworthiness of the proposed transferee
and the ability and experience of the proposed transferee to
operate the Property are satisfactory to Mortgagee, and (b)
Mortgagee and the proposed transferee shall enter into an
agreement in writing that (i) the interest payable on the
indebtedness secured hereby shall be at such rate as Mortgagee
shall determine, (ii) the repayment schedule as set forth in
the Note shall be modified by Mortgagee, in its sole
discretion, to initiate amortization or modify the existing
amortization schedule in order to amortize the then remaining
unpaid principal balance of the Note secured hereby over a
period of time as determined by Mortgagee in its sole
discretion without a change in the maturity date of the Note,
and (iii) the proposed transferee shall assume all obligations
under the Note, this Mortgage and the other Loan Documents and
an assumption fee equal to one percent (1%) of the outstanding
principal balance of the Note shall be charged by Mortgagee in
its sole discretion, (c) Mortgagee shall receive for its
review and approval copies of all transfer documents, and (d)
Mortgagor or the transferee shall pay all costs and expenses
in connection with such transfer and assumption, including,
without limitation, all fees and expenses incurred by
Mortgagee. Xxxxxxxxx and any subsequent owner of the Property
or any portion thereof shall do all things necessary to
preserve and keep in full force and effect its and their
existence, franchises, rights and privileges as a corporation
or partnership, as the case may be, under the laws of the
state of its formation and its right to own property and
transact business in the State of Missouri.
It shall be a default hereunder if Mortgagor or any
subsequent owner of the Property or any portion thereof shall
amend, modify, transfer, assign or terminate the partnership
agreement, certificate of partnership or articles of
incorporation, as the case may be, of Mortgagor or such
subsequent owner and, in the reasonable determination of
Mortgagee, such amendment, modification, transfer, assignment
or termination shall have a material adverse effect on
Mortgagee, the Property or the security value thereof. Any
amendment, modification, transfer, assignment or termination
of Xxxxxxxxx's partnership agreement or any other action
pursuant to which LHC, Inc. shall (A) cease to be the managing
general partner of Mortgagor, or (B) except to the extent
permitted herein, cease to own or maintain a partnership
interest in Mortgagor equal to or greater than its partnership
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interest at the time this Mortgage is executed shall be a
default hereunder. Notwithstanding the foregoing, nothing
herein shall restrict or limit the right of Mortgagor or
General Partner or any other underlying entities comprising
Mortgagor to amend or modify Mortgagor's or General Partner's
partnership agreement, partnership certificate, articles of
incorporation, or other organizational documents provided that
General Partner is at all times the managing general partner
of Xxxxxxxxx and General Partner maintains a partnership
interest in Mortgagor equal to or greater than its partnership
interest on the date hereof. In the event of any such
amendment or modification, transfer or assignment, Mortgagor
shall provide Mortgagee with copies of any documents or
instruments evidencing the same.
In the event the ownership of the Property, or any part
thereof, shall become vested in a person or entity other than
Mortgagor, whether with or without the prior written consent
of Mortgagee, Mortgagee may, without notice to Mortgagor, deal
with such successor or successors in interest with reference
to the Property, this Mortgage and the Note in the same manner
and to the same extent as with Mortgagor without in any way
vitiating or discharging Mortgagor's liability hereunder or
under the Note. No sale, transfer or conveyance of the
Property, no forbearance on the part of Mortgagee and no
extension of the time for the payment of the Note hereby
secured given by Mortgagee to Mortgagor shall operate to
release, discharge, modify, change, or affect the original
liability of Mortgagor, either in whole or in part, unless
expressly set forth in writing executed by Mortgagee.
Notwithstanding anything contained herein to the contrary,
Mortgagor hereby waives any right it now has or may hereafter
have to require Mortgagee to prove an impairment of its
security as a condition to exercise Mortgagee's rights under
this Paragraph 30.
FURTHER ENCUMBRANCE PROHIBITED; SUBROGATION
31. So long as the Note remains unpaid, Xxxxxxxxx shall
neither voluntarily nor involuntarily permit the Property or
any part thereof to become subject to any secondary lien,
mortgage, security interest or encumbrance of any kind
whatsoever without the prior written consent of Mortgagee, and
the imposition of any such secondary lien, mortgage, security
interest or encumbrance without the approval of Mortgagee
shall constitute an event of default hereunder and entitle
Mortgagee, at its sole option, to declare all sums due in
accordance with the terms of the Note to be and become
immediately due and payable. In the event that Mortgagee
shall hereafter give its written consent to the imposition of
any such secondary lien, mortgage, security interest or other
encumbrance upon the Property, Mortgagee, at its sole option,
shall be entitled to accelerate the maturity of the Note and
exercise any and all remedies provided and available to
Mortgagee hereunder in the event that the holder of any
such secondary lien or encumbrance shall institute foreclosure
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or other proceedings to enforce the same; it being understood
and agreed that a default under any instrument or document
evidencing, securing or secured by any such secondary lien or
encumbrance shall be and constitute an event of default
hereunder. In the event all or any portion of the proceeds of
the loan secured hereby are used for the purpose of retiring
debt or debts secured by prior liens on the Property,
Mortgagee shall be subrogated to the rights and lien priority
of the holder of the lien so discharged.
CONVEYANCE OF MINERAL RIGHTS PROHIBITED
32. Xxxxxxxxx agrees that the making of any oil, gas or
mineral lease or the sale or conveyance of any mineral
interest or right to explore for minerals under, through or
upon the Property would impair the value of the Property
securing the Note; and that Mortgagor shall have no right,
power or authority to lease the Property, or any part thereof,
for oil, gas or other mineral purposes, or to grant, assign or
convey any mineral interest of any nature, or the right to
explore for oil, gas and other minerals, without first
obtaining from Mortgagee express written permission therefor,
which permission shall not be valid until recorded among the
Public Records of St. Louis County, Missouri. Xxxxxxxxx
further agrees that if Xxxxxxxxx shall make, execute, or enter
into any such lease or attempt to grant any such mineral
rights without such prior written permission of Mortgagee,
then Mortgagee shall have the option, without notice, to
declare the same to be a default hereunder and to declare the
indebtedness hereby secured immediately due and payable.
Whether or not Mortgagee shall consent to such lease or grant
of mineral rights, Mortgagee shall receive the entire
consideration to be paid for such lease or grant of mineral
rights, with the same to be applied to the indebtedness hereby
secured notwithstanding the fact that the amount owing thereon
may not then be due and payable or the said indebtedness is
otherwise adequately secured; provided, however, that the
acceptance of such consideration shall in no way impair the
lien of this Mortgage on the Property.
ESTOPPEL CERTIFICATION BY XXXXXXXXX
33. Mortgagor, upon request therefor made either
personally or by mail, shall certify in writing to Mortgagee
(or any party designated by Mortgagee) in form satisfactory to
Mortgagee the amount of principal and interest then
outstanding under the terms of the Note and any other sums due
and owing under this Mortgage or any of the other Loan
Documents and whether any offsets or defenses exist against
the Mortgage debt. Such certification shall be made by
Mortgagor within ten (10) days if the request is made
personally, or within twenty (20) days if the request is made
by mail.
CROSS-DEFAULT
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34. The Note is also secured by the terms, conditions and
provisions of an Assignment of Leases, Rents and Profits
(hereinafter referred to as the "Assignment") recorded among
the Public Records of St. Louis County, Missouri and,
additionally, may be secured by contracts or agreements of
guaranty or other security instruments. The terms, conditions
and provisions of each security instrument shall be considered
a part hereof as fully as if set forth herein verbatim. Any
default under this Mortgage or the Note secured hereby shall
constitute an event of default under the Assignment and any of
the other Loan Documents, and any default under the Assignment
or other Loan Documents shall likewise constitute a default
hereunder and under the Note. Notwithstanding the foregoing,
the enforcement or attempted enforcement of this Mortgage or
any of the other Loan Documents now or hereafter held by
Mortgagee shall not prejudice or in any manner affect the
right of Mortgagee to enforce any other Loan Document; it
being understood and agreed that Mortgagee shall be entitled
to enforce this Mortgage and any of the other Loan Documents
now or hereafter held by it in such order and manner as
Mortgagee, in its sole discretion, shall determine.
EXAMINATION OF MORTGAGOR'S RECORDS
35. Mortgagor will maintain complete and accurate books
and records showing in detail the income and expenses of the
Property, and will permit Mortgagee and its representatives to
examine said books and records and all supporting vouchers and
data during normal business hours and from time to time upon
request by Mortgagee, in such place as such books and records
are customarily kept, and will furnish to Mortgagee, within
one hundred twenty (120) days after the close of each fiscal
year of Mortgagor, a balance sheet and profit and loss
statement for Xxxxxxxxx, Xxxxx, General Partner, and the
Property, which shall also include a rent roll, certified by
Mortgagor to be true and correct and showing in detail all
income derived from and expenses incurred in connection with
the ownership of the Property. In the event Mortgagor fails
to provide such statements to Mortgagee within the time
prescribed above, Mortgagor shall pay Mortgagee the sum of Two
Hundred and No/100 Dollars ($200.00) for each successive month
for which statements are delinquent. In the event of default
hereunder, Mortgagee shall have the right to require that said
financial statements be audited and certified by a certified
public accountant acceptable to Mortgagee, at the sole cost
and expense of Mortgagor.
ALTERATION, REMOVAL AND CHANGE IN USE OF PROPERTY
PROHIBITED
36. Mortgagor covenants and agrees to permit or suffer
none of the following without the prior written consent of
Mortgagee:
(a) Any structural alteration of, or addition to, the
Improvements now or hereafter situated upon the Real Property
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or the addition of any new buildings or other structure(s)
thereto, other than erection or removal of non-load bearing
interior walls (provided, however, this provision shall not
apply to any repair, remodeling or renovation work, structural
or otherwise); or
(b) The removal, transfer, sale or lease of the
Property, except that the renewal, replacement or substitution
of fixtures, equipment, machinery, apparatus and articles of
personal property (replacement or substituted items must be of
like or better quality than the removed items in their
original condition) encumbered hereby may be made in the
normal course of business; or
(c) The use of any of the Improvements now or hereafter
situated on the Real Property for any purpose other than as
office buildings and related facilities.
FUTURE ADVANCES SECURED
37. This Mortgage shall secure not only existing
indebtedness, but also future advances, whether such advances
are obligatory or to be made at the option of Mortgagee. Upon
request of Xxxxxxxxx, and at Mortgagee's option prior to
release of this Mortgage, Mortgagee may make future advances
to Mortgagor. All future advances with interest thereon shall
be secured by this Mortgage to the same extent as if such
future advances were made on the date of the execution of this
Mortgage unless the parties shall agree otherwise in writing.
Any advances or disbursements made for the benefit or
protection of or the payment of taxes, assessments, levies or
insurance upon the Property, with interest on such
disbursements as provided herein, shall be added to the
principal balance of the Note and collected as a part thereof.
To the extent that this Mortgage may secure more than one
mortgage note, a default in the payment of any such mortgage
note shall constitute a default in the payment of all such
mortgage notes.
The total amount outstanding at any one time which is
secured by this Mortgage, excluding any interest and any
amounts advanced by Mortgagee for the protection of the
security interest herein granted or amounts advanced or
obligations incurred for the completion of a contemplated
improvement under a construction loan agreement, shall not
exceed Fifty-Two Million Dollars ($52,000,000.00). This
Mortgage shall be governed by all provisions of Section
443.055 of the Revised Statutes of Missouri.
EFFECT OF SECURITY AGREEMENT
38. Xxxxxxxxx does hereby grant and this Mortgage is and
shall be deemed to create, grant, give and convey a mortgage
of, a lien and encumbrance upon, and a present security
interest in both real and personal property, including all
improvements, goods, chattels, furniture, furnishings,
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fixtures, equipment, apparatus, appliances and other items of
tangible or intangible personal property, hereinabove
particularly or generally described and conveyed, whether now
or hereafter affixed to, located upon, necessary for or used
or useful, either directly or indirectly, in connection with
the operation of the Property as office buildings, and this
Mortgage shall also serve as a "security agreement" within the
meaning of that term as used in the Uniform Commercial Code as
adopted and in force from time to time in the State of
Missouri, and shall be operative and effective as a security
agreement in addition to, and not in substitution for, any
other security agreement executed by Xxxxxxxxx in connection
with the extension of credit transaction secured hereby
(Notwithstanding anything herein to the contrary, nothing
herein shall be deemed to grant or create a security interest
in any furnishings, furniture or computer equipment owned by
any tenant [including, without limitation, Xxxxx] under the
Master Lease affecting the Property and used by such tenant
with respect to the conduct of its business on the Property).
Xxxxxxxxx agrees to and shall, upon the request of Mortgagee,
execute and deliver to Mortgagee, in form and content
satisfactory to Mortgagee, such financing statements,
descriptions of property and such further assurances as
Mortgagee, in its sole discretion, may from time to time
consider necessary to create, perfect, continue and preserve
the lien and encumbrances hereof and the security interest
granted herein upon and in such real and personal property and
fixtures described herein, including all buildings,
improvements, goods, chattels, furniture, furnishings,
fixtures, equipment, apparatus, appliances, and other items of
tangible and intangible personal property herein specifically
or generally described and intended to be the subject of the
security interest, lien and encumbrance hereby created,
granted and conveyed. Without the prior written consent of
Mortgagee, Xxxxxxxxx shall not create or suffer to be created,
pursuant to the Uniform Commercial Code, any other security
interest in such real and personal property and fixtures
described herein. Upon the occurrence of a default hereunder
and the expiration of the applicable cure periods, if any, or
Mortgagor's breach of any other covenants or agreements
between the parties entered into in conjunction herewith,
Mortgagee shall have the remedies of a secured party under the
Uniform Commercial Code and, at Mortgagee's option, the
remedies provided for in this Mortgage. Mortgagee, at the
expense of Xxxxxxxxx, may or shall cause such statements,
descriptions and assurances, as herein provided in this
Paragraph 38, and this Mortgage to be recorded and re-
recorded, filed and refiled, at such times and in such places
as may be required or permitted by law to so create, perfect
and preserve the lien and encumbrance hereof upon all of the
Property.
Upon the occurrence of a default hereunder Mortgagee shall,
at its option and without notice or demand, be entitled to
enter upon the Real Property to take immediate possession of
the Fixtures and Personal Property. Upon request, Mortgagor
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shall assemble and make the Fixtures and Personal Property
available to Mortgagee at a place designated by Mortgagee
which is reasonably convenient to both parties. Mortgagee may
sell all or any portion of the Fixtures and Personal Property
at public or private sale in accordance with the Uniform
Commercial Code as adopted in the State of Missouri or in
accordance with the foreclosure advertisement and sale
provisions under this Mortgage. Xxxxxxxxx agrees that a
commercially reasonable manner of disposition of the Fixtures
and Personal Property upon the occurrence of a default shall
include, without limitation and at the option of Mortgagee,
the sale of the Fixtures and Personal Property, in whole or in
part, concurrently with a foreclosure sale of the Real
Property in accordance with the provisions of this Mortgage.
In the event the Mortgagee shall dispose of any or all of the
Fixtures and Personal Property after the occurrence of a
default, the proceeds of disposition shall be applied in the
following order: (a) to the expenses of retaking, holding,
preparing for sale, selling, and the like; (b) to the
attorneys' fees and legal expenses incurred by Mortgagee; (c)
to the satisfaction of the indebtedness secured hereby; and
(d) the balance, if any to subordinate lien holders and
Mortgagor as their interests may appear. Mortgagor hereby
waives any right of redeeming the Fixtures and Personal
Property.
TERMS OF CONTRACT SURVIVE CLOSING
39. The terms and provisions of the Application/Contract
for Mortgage Loan dated May 30, 1995, and any subsequent
amendments thereto (hereinafter referred to as the
"Contract"), executed by and between Mortgagor as Applicant
and Mortgagee as Nationwide are incorporated herein by
reference. All terms and conditions of the Contract not
expressly set forth in this Mortgage, the Note, the Assignment
and any other Loan Documents additionally securing the Note
shall survive the closing hereof and remain in full force and
effect. In the event any conflict exists between the terms,
conditions and provisions of the Contract and the Loan
Documents, the terms, conditions and provisions of the Loan
Documents shall prevail.
SUCCESSORS AND ASSIGNS; TERMINOLOGY
40. The provisions hereof shall be binding upon Xxxxxxxxx
and the heirs, personal representatives, successors and
assigns of Xxxxxxxxx, and shall inure to the benefit of
Mortgagee and its successors and assigns. Where more than one
Mortgagor is named herein, the obligations and liabilities of
said Xxxxxxxxx shall be joint and several.
Wherever used in this Mortgage, unless the context clearly
indicates a contrary intent or unless otherwise specifically
provided herein, the word "Mortgagor" shall mean Mortgagor
and/or any subsequent owner or owners of the Property, the
word "Mortgagee" shall mean Mortgagee or any subsequent holder
or holders of this Mortgage, the word "Note" shall mean
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Note(s) secured by this Mortgage, and the word "person" shall
mean an individual, trustee, trust, corporation, partnership
or unincorporated association. As used herein, the phrase
"Reasonable Attorneys' Fees" shall mean fees charged by
attorneys selected by Mortgagee based upon such attorneys'
then prevailing hourly rates as opposed to any statutory
presumption specified by any statute then in effect in the
State of Missouri.
NOTICES
41. All notices hereunder shall be deemed to have been
duly given if mailed by United States registered or certified
mail, with return receipt requested, postage prepaid, to the
parties at the following addresses (or at such other addresses
as shall be given in writing by any party to the others), and
shall be deemed complete three (3) days after any such
mailing:
TO MORTGAGOR: EDJ Leasing Co., L.P.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
TO MORTGAGEE: NATIONWIDE LIFE INSURANCE COMPANY
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-1559
Attention: Real Estate Investments
TO TRUSTEE: Xxxxxx X. Xxxxxx XXX
Xxxxxxxxx, Teasdale, Schlafly & Xxxxx
0 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000-2740
GOVERNING LAW
42. This Mortgage is to be governed by and construed in
accordance with the laws of the State of Missouri and, if
controlling, by the laws of the United States and shall be
binding upon Mortgagor and shall inure to the benefit of
Mortgagee.
RIGHTS OF MORTGAGEE CUMULATIVE
43. The rights of Mortgagee arising under the clauses and
covenants contained in this Mortgage shall be separate,
distinct and cumulative and none of them shall be in exclusion
of the others; and no act of Mortgagee shall be construed as
an election to proceed under any one provision herein to the
exclusion of any other provisions, anything herein or
otherwise to the contrary notwithstanding.
MODIFICATIONS
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44. This Mortgage cannot be changed, altered, amended or
modified except by an agreement in writing and in recordable
form, executed by both Xxxxxxxxx and Mortgagee.
EXCULPATION
45. The liability of Mortgagor and General Partner with
respect to the payment of principal and interest under the
Note shall be "non-recourse" and, accordingly, Mortgagee's
source of satisfaction of said indebtedness and Xxxxxxxxx's
other obligations hereunder and under the other Loan Documents
shall be limited to the Property and, for and only during the
period of time commencing with the date hereof and continuing
up to and including September 5, 1998, the South Property (as
such term is defined in the Note) and Mortgagee's receipt of
the rents, issues and profits from the Property, and, for and
only during the period of time commencing with the date hereof
and continuing up to and including September 5, 1998, the
South Property, and Mortgagee shall not seek to procure
payment out of any other assets of Mortgagor or any person or
entity comprising Mortgagor, or to seek judgment for any sums
which are or may be payable under the Note, this Mortgage or
any of the other Loan Documents, as well as any claim or
judgment (except as hereafter provided) for any deficiency
remaining after foreclosure of this Mortgage. Notwithstanding
the above, nothing herein contained shall be deemed to be a
release or impairment of the indebtedness evidenced by the
Note or the security therefor intended by this Mortgage and
the other Loan Documents, or be deemed to preclude Mortgagee
from exercising its rights to foreclose this Mortgage or to
enforce any of its other rights or remedies under the Loan
Documents.
Notwithstanding the foregoing, it is expressly understood
and agreed that the aforesaid limitation on liability shall in
no way affect or apply to Xxxxxxxxx's and General Partner's
continued personal liability for all sums due to:
(1) fraud or misrepresentation made in or in connection
with the Note or any of the other Loan Documents;
(2) failure to pay taxes, or assessments prior to
delinquency, or to pay charges for labor, materials or other
charges which can create liens on any portion of the Property;
(3) the misapplication of (i) proceeds of insurance
covering any portion of the Property; or (ii) proceeds of the
sale or condemnation of any portion of the Property; or (iii)
rentals received by or on behalf of Xxxxxxxxx subsequent to
the date on which Mortgagee makes written demand therefor
pursuant to any Loan Document;
(4) causing or permitting waste to occur in, on or about
the Property and failure to maintain the Property, excepting
ordinary wear and tear;
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(5) the return to Mortgagee of all unearned advance
rentals and security deposits paid by tenants of the Property
and not refunded to or forfeited by such tenants;
(6) the return to Mortgagee of any and all fees paid to
Mortgagor by tenants of the Property which fees permit tenants
to terminate their leases;
(7) loss by fire or casualty to the extent not
compensated by insurance proceeds collected by Mortgagee;
(8) the return of, or reimbursement for, all Fixtures and
Personal Property owned by Xxxxxxxxx taken from the Property
by or on behalf of Xxxxxxxxx, out of the ordinary course of
business, and not replaced by items of equal or greater value
than the original value of the Fixtures and Personal Property
so removed;
(9) all court costs and Reasonable Attorneys' Fees
actually incurred which are provided for in the Note or in any
other Loan Document;
(10) (i) the removal of any chemical, material or
substance, in excess of legal limits to which exposure is
prohibited, limited or regulated by any Federal, State,
County, Regional or Local Authority which may or could pose a
hazard to the health and safety of the occupants of the
Property, regardless of the source of origination; (ii) the
restoration of the Property to comply with all governmental
regulations pertaining to hazardous waste found in, on or
under the Property, regardless of the source of origination;
and (iii) any indemnity or other agreement to hold the
Mortgagee and Trustee harmless from and against any and all
losses, liabilities, damages, injuries, costs, expenses of any
and every kind arising under paragraph 3 of this Mortgage
and/or the Indemnity Agreement of even date herewith executed
by Xxxxxxxxx and General Partner. Mortgagor shall not be
liable hereunder if the Property becomes contaminated
subsequent to Mortgagee's acquisition of the Property by
foreclosure or acceptance of a deed in lieu thereof or
subsequent to any transfer of ownership which was approved or
authorized by Mortgagee pursuant to this Mortgage, provided
that such transferee assumes all obligations pertaining to
Hazardous Materials pursuant to the Loan Documents. Liability
under this subparagraph shall extend beyond repayment of the
Note and compliance with the terms of this Mortgage and, if
not terminated pursuant to the foregoing, beyond Mortgagee's
acquisition of the Property by foreclosure or acceptance of a
deed in lieu thereof or subsequent to any transfer of
ownership which was approved or authorized by Mortgagee
pursuant to this Mortgage unless at such time Mortgagor
provides Mortgagee with an environmental assessment report
acceptable to Mortgagee showing the Property to be free of
Hazardous Materials and not in violation of Hazardous Waste
Laws. The burden of proof under this subparagraph with regard
to establishing the date upon which such chemical, material or
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substance was placed or appeared in, on or under the Property
shall be upon Mortgagor.
(11) (i) any and all costs incurred in order to cause the
Property to comply with the Accessibility Laws, and (ii) any
indemnity or other agreement to hold Mortgagee and Trustee
harmless from and against any and all losses, liabilities,
damages, injuries, costs or expenses of any kind arising under
Paragraph 3 of this Mortgage regarding accessibility for the
disabled or handicapped, or under the separate Indemnity
Agreement from Mortgagor and General Partner to Mortgagee.
Mortgagor shall not be liable hereunder for compliance with
any Accessibility Laws that first become effective, or for any
violation of any Accessibility Laws resulting from alterations
or improvements to the Property that are performed subsequent
to Mortgagee's acquisition of the Property by foreclosure or
acceptance of a deed in lieu thereof or subsequent to any
transfer of ownership which was approved or authorized by
Mortgagee pursuant to this Mortgage, provided that such
transferee assumes in writing all obligations
The obligations of Mortgagor in subparagraphs (1) through
(11) above, except as specifically provided in subparagraphs
(10) and (11), shall survive the repayment of the Note and
satisfaction of this Mortgage.
TRUSTEE
46. Xxxxxxxxx agrees that the Trustee and any successor or
substitute trustee may be an officer, agent, attorney, or
employee of the Mortgagee and any objections to such fact
which might be made by the Mortgagor, its heirs, successors,
or assigns, are hereby waived.
SUBSTITUTE TRUSTEE
47. In case of the death, inability, refusal to act,
resignation, or absence of the Trustee from the State of
Missouri, or in case the holder of the Note shall desire for
any reason to remove the Trustee or any substitute trustee
hereunder and to appoint a new trustee in his place and stead,
the holder of the Note is hereby granted full power to appoint
in writing a substitute trustee for said Trustee, and the
substitute trustee shall, when appointed, become successor to
the title to the Property and the same shall become vested in
him in trust for the purpose and objects of this Mortgage with
all the powers, duties, and obligations herein conferred on
the Trustee. In the event any foreclosure advertisement is
running or has run at the time of such appointment of a
substitute Trustee, the substitute Trustee may consummate the
advertised sale without the necessity of republishing such
advertisement. The making of oath or giving of bond by Trustee
or any successor Trustee is expressly waived.
CAPTIONS
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48. The captions set forth at the beginning of the various
Paragraphs of this Mortgage are for convenience only and shall
not be used to interpret or construe the provisions of this
Mortgage.
ORAL COMMITMENTS
49. The following is added pursuant to Section 432.045
X.X.Xx.; as used below "borrower(s)" shall mean Mortgagor and
"creditor" shall mean Mortgagee:
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.
PARTIAL RELEASES
50. The Mortgagor shall be entitled to obtain releases of
portions of the Real Property (and any personal property
associated with such portion of the Real Property being
released) from the lien hereof in accordance with the terms of
the Note. In the event that the terms of the Note have been
complied with in the event of a requested release of a portion
of the Real Property, Mortgagee agrees to execute appropriate
deeds of release and personal property releases with respect
to such portion of the Real Property in order to effectuate
such release. Xxxxxxxxx agrees to pay all costs and expenses
of Mortgagee associated with the preparation and filing of
such releases, and, if requested by Mortgagee, Mortgagor shall
provide Mortgagee with an endorsement to Mortgagee's policy of
title insurance bringing the effective date of such policy to
the date of the filing of any partial release.
DEFAULT/COLLATERALIZATION TERMINATION
51. Notwithstanding any provision to the contrary contained
in this Mortgage, from and after September 5, 1998, the term
"Loan Documents" as defined in this Mortgage shall not include
the South Note, the South First Note or any other documents or
instruments executed as evidence of or as security for the
repayment of the indebtedness represented by the South Note or
the South First Note, or both (the "South Loan Documents")
and, from and after September 5, 1998, any default by
Mortgagor under any one or more of the South Loan Documents
shall not constitute a default under this Mortgage. Provided
that Mortgagor is not then in default under this Mortgage, the
Note, or the Assignment beyond the expiration of any
applicable cure periods, at any time on or after September 5,
1998, then, within thirty (30) days after Mortgagee's receipt
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of Xxxxxxxxx's written request therefor labeled with or
accompanied by the following statement: "TIME SENSITIVE -
RESPONSE REQUIRED WITHIN THIRTY DAYS OF ACTUAL RECEIPT"),
Mortgagee shall execute and deliver to Mortgagor, an
appropriate instrument in form reasonably satisfactory to the
Mortgagor and Mortgagee stating that this Mortgage no longer
serves as security for the indebtedness represented by the
South Note or the South First Note.
IN WITNESS WHEREOF, the undersigned have executed this
Mortgage the day and year first above written.
EDJ LEASING CO., L.P., a Missouri
By: LHC, Inc.
By:________________________________
Xxxxxx Xxxxx, Treasurer
STATE OF MISSOURI )
) SS.
COUNTY OF ST. XXXXX )
On this ____ day of _________________________, 1995, before
me appeared Xxxxxx Xxxxx, to me personally known, who, by me
being duly sworn did say that he is the Treasurer of LHC,
Inc., a corporation, and the said corporation is the general
partner of EDJ Leasing Co., L.P., a limited partnership and
said Xxxxxx Xxxxx acknowledged that he executed the same in
behalf of said corporation and said limited partnership by
authority of the Board of Directors of the corporation and
said Xxxxxx Xxxxx acknowledged said instrument to be the free
act and deed of said corporation and said limited partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal at my office in the county or city
and state aforesaid, the day and year last above written.
___________________________________
Notary Public
My Term Expires: __________________
NORTH LOAN MODIFICATION AGREEMENT
THIS AGREEMENT, made and entered into as of the ____
day of August, 1995, by and between EDJ LEASING CO., L.P., a
Missouri limited partnership, having its principal place of
business at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx
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63043 (hereinafter referred to as "Borrower" whether one or
more persons) and NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, its successors and assigns, with its office at
Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000, Attention: Real
Estate Investment Department (hereinafter referred to as
"Lender").
WITNESSETH:
WHEREAS, Xxxxxx extended certain financing to Borrower
in the amount of Twenty-One Million Seven Hundred and Fifty-
Nine Thousand Eighty-One and 29/100 Dollars ($21,759,081.29)
(the "North Loan");
WHEREAS, Xxxxxxxx executed and delivered a certain
Mortgage Note for the sum of Twenty-One Million Seven
Hundred and Fifty-Nine Thousand Eighty-One and 29/100
Dollars ($21,759,081.29) dated April 6, 1994, which Mortgage
Note was modified by a Note Modification Agreement dated
November 8, 1994 (hereinafter collectively referred to as
the "North Note");
WHEREAS, the North Note is secured by, among other
things, a certain Deed of Trust and Security Agreement
executed by Xxxxxxxx dated April 6, 1994, and recorded in
Book 10155 at Page 2432 in the Recorder's office of St.
Louis County, Missouri (hereinafter referred to as the
"North Mortgage") constituting a lien on the real estate
described in Exhibit A, attached hereto and incorporated
herein (hereinafter referred to as the "North Property");
and
WHEREAS, the North Note is secured by, among other
things, a certain Assignment of Xxxxxx, Rents and Profits
executed by Xxxxxxxx dated April 6, 1994, and recorded in
Book 10155 at Page 2478 in the Recorder's office of St.
Louis County, Missouri (hereinafter referred to as the
"North Assignment") constituting a lien on the North
Property; and
WHEREAS, Lender extended certain financing to Borrower
in the amount of Four Million and 00/100 Dollars
($4,000,000.00) (the "North Second Loan");
WHEREAS, Xxxxxxxx executed and delivered a certain
North Second Mortgage Note for the sum of Four Million and
00/100 Dollars ($4,000,000.00) dated of even date herewith
(hereinafter referred to as the "North Second Note");
WHEREAS, the North Second Note is secured by, among
other things, a certain Second Deed of Trust and Security
Agreement executed by Xxxxxxxx of even date herewith, and
recorded in Book _____ at Page _____ in the Recorder's
office of St. Louis County, Missouri (hereinafter referred
to as the "North Second Mortgage") constituting a lien on
the North Property; and
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WHEREAS, the North Second Note is secured by, among
other things, a certain Assignment of Leases, Rents and
Profits executed by Xxxxxxxx dated of even date herewith,
and recorded in Book ______ at Page ____ in the Recorder's
office of St. Louis County, Missouri (hereinafter referred
to as the "North Second Assignment") constituting a lien on
the North Property; and
WHEREAS, Xxxxxx extended certain financing to Borrower
in the amount of Fourteen Million Nine Hundred Thousand and
00/100 Dollars ($14,900,000.00) (the "South Loan");
WHEREAS, Xxxxxxxx executed and delivered a certain
Mortgage Note for the sum of Fourteen Million Nine Hundred
Thousand and 00/100 Dollars ($14,900,000.00) dated March 9,
1994 (hereinafter referred to as the "South Note");
WHEREAS, the South Note is secured by, among other
things, a certain Deed of Trust and Security Agreement
executed by Xxxxxxxx on March 9, 1993, and recorded in Book
9634 at Page 2171 in the Recorder's office of St. Louis
County, Missouri, as amended by Amendment to Deed of Trust
executed by the Borrower on March 9, 1994, and recorded in
Book 10122 at Page 2388 in the Recorder's office of St.
Louis County, Missouri (hereinafter collectively referred to
as the "South Mortgage") constituting a lien on the real
estate described in Exhibit B, attached hereto and
incorporated herein (hereinafter referred to as the "South
Property"); and
WHEREAS, the South Note is secured by, among other
things, a certain Assignment of Xxxxxx, Rents and Profits
executed by Xxxxxxxx on March 9, 1994, and recorded in Book
10122 at Page 2398 in the Recorder's office of St. Louis
County, Missouri (hereinafter referred to as the "South
Assignment") constituting a lien on the South Property; and
WHEREAS, Xxxxxx extended certain financing to Borrower
in the amount of Eleven Million and 00/100 Dollars
($11,000,000.00) (the "South Second Loan");
WHEREAS, Xxxxxxxx executed and delivered a certain
South Second Mortgage Note for the sum of Eleven Million and
00/100 Dollars ($11,000,000.00) dated of even date herewith
(hereinafter referred to as the "South Second Note");
WHEREAS, the South Second Note is secured by, among
other things, a certain Second Deed of Trust and Security
Agreement executed by Xxxxxxxx of even date herewith, and
recorded in Book _____ at Page _____ in the Recorder's
office of St. Louis County, Missouri (hereinafter referred
to as the "South Second Mortgage") constituting a lien on
the South Property; and
WHEREAS, the South Second Note is secured by, among
other things, a certain Assignment of Leases, Rents and
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Profits executed by Xxxxxxxx dated of even date herewith,
and recorded in Book ______ at Page ____ in the Recorder's
office of St. Louis County, Missouri (hereinafter referred
to as the "South Second Assignment") constituting a lien on
the South Property; and
WHEREAS, as a condition precedent to the extension of
the North Second Loan and the South Second Loan Lender
required that the North Loan and the North Second Loan be
cross-defaulted and cross-collateralized with each other and
that the South Loan and the South Second Loan be cross-
defaulted and cross-collateralized with each other; and
WHEREAS, as a further condition precedent to the
extension of the North Second Loan and the South Second Loan
Lender required that, for and only during the period of time
commencing with the date hereof and continuing up to and
including September 5, 1998, each of the North Loan and the
North Second Loan be cross-defaulted and cross-
collateralized with each of the South Loan and the South
Second Loan; and
WHEREAS, in order to accomplish the forgoing, the
Borrower and the Lender desire to modify and amend the North
Note, the North Mortgage, and the North Assignment.
NOW, THEREFORE, in consideration of the sum of One
Dollar ($1.00) and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, but
subject to all the conditions and provisions contained in
the North Note, the North Mortgage, the North Assignment and
all other documents evidencing or securing the North Loan
(hereinafter referred to as the "North Loan Documents"),
except as herein modified, Borrower hereby agrees to and
with Lender and its successors and assigns as follows:
NORTH NOTE
The North Note is hereby modified by deleting the
first paragraph under the heading thereof entitled
"Additional Conditions" and inserting the following in lieu
thereof:
This Note is secured by a Deed of Trust and
Security Agreement containing provisions for
future advances and future obligations governed by
Section 443.055 X.X.Xx. (as amended) and which is
a lien on the property therein described executed
on April 6, 1994, and amended by this North Loan
Modification Agreement executed August __, 1995
(hereinafter referred to as the "Mortgage") and by
an Assignment of Leases, Rents and Profits
executed on April 6, 1994, and amended by this
North Loan Modification Agreement executed August
__, 1995 (hereinafter referred to as the
"Assignment") each encumbering certain real
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property located in St. Louis County, Missouri and
other property as more particularly described on
Exhibit A, attached hereto and incorporated herein
(hereinafter collectively referred to as the
"Property"). This Note is also secured by a
Second Deed of Trust and Security Agreement
containing provisions for future advances and
future obligations governed by Section 443.055
X.X.Xx. (as amended) and which is a lien on the
property therein described executed on August __,
1995 (hereinafter referred to as the "North Second
Mortgage") and by a Second Assignment of Leases,
Rents and Profits (hereinafter referred to as the
"North Second Assignment") dated August __, 1995,
each encumbering the Property. Until September 5,
1998, this Note is also secured by a Second Deed
of Trust and Security Agreement containing
provisions for future advances and future
obligations governed by Section 443.055 X.X.Xx.
(as amended) and which is a lien on the property
therein described executed on August __, 1995
(hereinafter referred to as the "South Second
Mortgage") and by a Second Assignment of Leases,
Rents and Profits (hereinafter referred to as the
"South Second Assignment") dated August __, 1995,
each encumbering certain real property located in
St. Louis County, Missouri and other property as
more particularly described on Exhibit B, attached
hereto and incorporated herein (hereinafter
collectively referred to as the "South Property").
Until September 5, 1998, this Note is also secured
by a Deed of Trust and Security Agreement
containing provisions for future advances and
future obligations governed by Section 443.055
X.X.Xx. (as amended) and which is a lien on the
property therein described executed on March 9,
1993, and amended by Amendment to Deed of Trust
executed as of March 9, 1994, and further amended
by South Loan Modification Agreement executed
August __, 1995 (hereinafter collectively referred
to as the "South First Mortgage") and by an
Assignment of Leases, Rents and Profits executed
on March 9, 1994, and amended by South Loan
Modification Agreement executed August __, 1995
(hereinafter referred to as the "South First
Assignment") each encumbering the South Property.
The Mortgage and the Assignment and the North
Second Mortgage and the North Second Assignment,
and, for and only during the period of time
commencing with the date hereof and continuing up
to and including September 5, 1998, the South
First Mortgage and the South First Assignment and
the South Second Mortgage and the South Second
Assignment, are hereinafter collectively referred
to as the "Security Documents." The Security
Documents contain terms and provisions which
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provide grounds for acceleration of the
indebtedness evidenced by this Note together with
additional remedies in the event of default
hereunder or thereunder. Failure on the part of
Holder hereof to exercise any right granted herein
or in the aforesaid Security Documents shall not
constitute a waiver of such right or preclude the
subsequent exercise and enforcement thereof. This
Note, the Security Documents and all other
documents and instruments executed as further
evidence of, as additional security for, or
executed in connection with the indebtedness
evidenced by this Note are hereinafter
collectively referred to as the "Loan Documents."
Notwithstanding any provision to the contrary
contained in this Note, from and after September
5, 1998, the term "Loan Documents" as defined in
this Note shall not include the South Note, the
South Second Note or any other documents or
instruments executed as evidence of or as security
for the repayment of the indebtedness represented
by the South Note or the South Second Note, or
both (the "South Loan Documents") and, from and
after September 5, 1998, any default by Maker
under any one or more of the South Loan Documents
shall not constitute a default under this Note.
The North Note is hereby further modified by deleting
the first paragraph under the heading thereof entitled
"Exculpation" and inserting the following in lieu thereof:
The liability of Maker and the general
partner of Maker, LHC, Inc., and any other current
or future general partner of Maker ("General
Partner") with respect to the payment of principal
and interest hereunder shall be "non-recourse"
and, accordingly, Xxxxxx's source of satisfaction
of said indebtedness and Maker's other obligations
hereunder and under the other Loan Documents shall
be limited to the Property and, for and only
during the period of time commencing with the date
hereof and continuing up to and including
September 5, 1998, the South Property, and
Xxxxxx's receipt of the rents, issues, and profits
from the Property and, for and only during the
period of time commencing with the date hereof and
continuing up to and including September 5, 1998,
the South Property and Holder shall not seek to
procure payment out of any other assets of Maker,
or any person or entity comprising Maker, or to
seek judgment for any sums which are or may be
payable under this Note or under any of the other
Loan Documents, as well as any claim or judgment
(except as hereafter provided) for any deficiency
remaining after foreclosure of the Security
Documents. Notwithstanding the above, nothing
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herein contained shall be deemed to be a release
or impairment of the indebtedness evidenced by
this Note or the security therefor intended by the
other Loan Documents or be deemed to preclude
Holder from exercising its rights to foreclose any
of the Security Documents or to enforce any of its
other rights or remedies under the Loan Documents.
The North Note is hereby further modified by
inserting Exhibit A hereto and Exhibit B hereto at the end
thereof.
NORTH MORTGAGE
The North Mortgage is hereby modified by deleting the
paragraph thereof beginning with the words "NOW THEREFORE"
and ending with the words "to wit:" and inserting the
following in lieu thereof:
NOW THEREFORE, in consideration of and in
order to secure the repayment of the indebtedness
evidenced and represented by the Note and the
North Second Note, together with interest on such
indebtedness, as well as the payment of all other
sums of money secured hereby, as hereinafter
provided; and, for and during only the period of
time commencing with the date hereof and
continuing up to and including September 5, 1998,
to secure the repayment of the indebtedness
evidenced and represented by the South Note and
the South Second Note, together with interest on
such indebtedness; and to secure the observance,
performance and discharge by Mortgagor of all
covenants, conditions and agreements set forth in
the Note, the North Second Note, this Mortgage and
in all other documents and instruments executed
and delivered by Xxxxxxxxx to and in favor of
Mortgagee for the purpose of further securing the
repayment of the indebtedness evidenced and
represented by the Note and the North Second Note;
and, for and during only the period of time
commencing with the date hereof and continuing up
to and including September 5, 1998, to secure the
observance, performance and discharge by Mortgagor
of all covenants, conditions and agreements set
forth in the South Note, the South Second Note,
and in all other documents and instruments
executed and delivered by Xxxxxxxxx to and in
favor of Mortgagee for the purpose of securing the
repayment of the indebtedness evidenced and
represented by the South Note and the South Second
Note; and in order to charge the properties,
interests and rights hereinafter described with
such payment, observance, performance and
discharge; and in consideration of the sum of One
Dollar paid by Trustee to Mortgagor and the trust
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hereinafter mentioned and other good and valuable
considerations, the receipt and sufficiency of
which are hereby acknowledged, Xxxxxxxxx does
hereby Grant, Bargain and Sell, Convey and
Confirm, and alien, remise, release, assign,
transfer, pledge, deliver, set over, hypothecate,
and warrant unto Trustee forever, all of
Mortgagor's right, title and interest in and to
the following described properties, rights and
interests and all replacements of, substitutions
for, and additions thereto (all of which are
hereinafter together referred to as the
"Property"), to wit:
The North Mortgage is hereby further modified by
deleting the paragraph thereof beginning with the words
"PROVIDED ALWAYS" and ending with the words "agrees to pay;"
and inserting the following in lieu thereof:
PROVIDED ALWAYS, however, that if Mortgagor
shall pay unto Mortgagee the indebtedness
evidenced by the Note, and, for and during only
the period of time commencing with the date hereof
and continuing up to and including September 5,
1998, the indebtedness evidenced by the South Note
and the South Second Note, and if Mortgagor shall
duly, promptly and fully perform, discharge,
execute, effect, complete and comply with and
abide by each and every one of the agreements,
conditions and covenants of the Note, this
Mortgage, and all other documents and instruments
executed as further evidence of or as security for
the indebtedness secured hereby, and, for and
during only the period of time commencing with the
date hereof and continuing up to and including
September 5, 1998, if Mortgagor shall duly,
promptly and fully perform, discharge, execute,
effect, complete and comply with and abide by each
and every one of the agreements, conditions and
covenants of the South Note, the South Second
Note, and all documents and instruments executed
as further evidence of or as security for the
indebtedness evidenced by the South Note and/or
the South Second Note, then this Mortgage and the
estates and interests hereby granted and created
shall cease, terminate and be null and void, and
shall be discharged of record by a proper deed of
release furnished by the Mortgagee and executed in
recordable form, at the request and expense of
Mortgagor, which expense Mortgagor agrees to pay;
The North Mortgage is hereby further modified by
deleting the second paragraph of Paragraph 23 thereof and
inserting the following in lieu thereof:
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If: (1) default be made in the payment of any
installment of the Note or the North Second Note,
or, for and during only the period of time
commencing with the date hereof and continuing up
to and including September 5, 1998, the South Note
or the South Second Note, whether of principal or
interest, or both (and it is hereby understood
that if such payment is postmarked by the United
States Postal Service on or before the due date
for such payment, is correctly addressed and bears
adequate first class postage, Mortgagor shall not
be considered to have defaulted in making such
payment), or (2) default be made in the payment of
any other sums of money referred to herein, in the
North Second Mortgage, in the Note or in the North
Second Note or, for and during only the period of
time commencing with the date hereof and
continuing up to and including September 5, 1998,
in the payment of any other sums of money referred
to in the South Note or in the South Second Note,
or in any other documents or instruments
evidencing or securing the South Note or the South
Second Note promptly and fully when the same shall
be due without notice or demand from Mortgagee to
Mortgagor in regard to such Monetary Default (as
hereinafter defined), or (3) in the event a breach
or default be made by Mortgagor in any one of the
agreements, conditions and covenants of the Note,
this Mortgage, the Assignment or any other Loan
Documents or in the event that each and every one
of said agreements, conditions and covenants are
not otherwise duly, promptly and fully discharged
or performed, and any such Non-Monetary Default
(as hereinafter defined) remains uncured for a
period of thirty (30) days after written notice
thereof from Mortgagee to Mortgagor, has been
delivered in the manner prescribed in Paragraph 41
hereof, unless such Non-Monetary Default cannot
reasonably be cured within said thirty (30) day
period, in which event Mortgagor shall have an
extended period of time to complete cure, provided
that action to cure such Non-Monetary Default is
commenced within said thirty (30) day period, and
Mortgagor is not substantially diminishing or
impairing the value of the Property, and is
diligently pursuing a cure to completion, or (4)
in the event a breach or default be made by
Mortgagor in any one of the agreements, conditions
and covenants of the North Second Note, the North
Second Mortgage, or any other documents or
instruments evidencing or securing the
indebtedness evidenced by the North Second Note,
and in the event that each and every one of said
agreements, conditions and covenants are not
otherwise duly, promptly and fully discharged or
performed, and any such Non-Monetary Default
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remains uncured after the expiration of any
applicable cure periods set forth therein, or (5)
for and during only the period of time commencing
with the date hereof and continuing up to and
including September 5, 1998, in the event a breach
or default be made by Mortgagor in any one of the
agreements, conditions and covenants of the South
Note, the South Second Note or any other documents
or instruments evidencing or securing the South
Note or the South Second Note, and in the event
that each and every one of said agreements,
conditions and covenants are not otherwise duly,
promptly and fully discharged or performed, and
any such Non-Monetary Default remains uncured
after the expiration of any applicable cure
periods set forth therein, Mortgagee, at its sole
option, may thereupon or thereafter declare the
indebtedness evidenced by the Note, as well as all
other monies secured hereby, including, without
limitation, all Prepayment Premiums (to the extent
permitted by the laws of the State of Missouri)
and late payment charges, to be forthwith due and
payable, whereupon the principal of and the
interest accrued on the indebtedness evidenced by
the Note and all other sums secured by this
Mortgage, at the option of Mortgagee, shall
immediately become due and payable as if all of
said sums of money were originally stipulated to
be paid on such day, and thereupon, Mortgagee may
avail itself of all rights and remedies provided
by law and may foreclose or prosecute a suit at
law or in equity as if all monies secured hereby
had matured prior to its institution, anything in
this Mortgage or in the Note to the contrary
notwithstanding. Mortgagee shall have no
obligation to give Mortgagor notice of, or any
period to cure, any Monetary Default or any
Incurable Default (as hereinafter defined) prior
to exercising its right, power and privilege to
accelerate the maturity of the indebtedness
secured hereby.
The North Mortgage is hereby further modified by
deleting the first paragraph of Paragraph 45 thereof and
inserting the following in lieu thereof:
45. The liability of Mortgagor and General
Partner with respect to the payment of principal
and interest under the Note shall be "non-
recourse" and, accordingly, Mortgagee's source of
satisfaction of said indebtedness and Xxxxxxxxx's
other obligations hereunder and under the other
Loan Documents shall be limited to the Property
and, for and during only the period of time
commencing with the date hereof and continuing up
to and including September 5, 1998, the real
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estate described on Exhibit B, attached hereto and
incorporated herein (the "South Property") and
Mortgagee's receipt of the rents, issues and
profits from the Property, and, for and during
only the period of time commencing with the date
hereof and continuing up to and including
September 5, 1998, the South Property, and
Mortgagee shall not seek to procure payment out of
any other assets of Mortgagor or any person or
entity comprising Mortgagor, or to seek judgment
for any sums which are or may be payable under the
Note, this Mortgage or any of the other Loan
Documents, as well as any claim or judgment
(except as hereafter provided) for any deficiency
remaining after foreclosure of this Mortgage.
Notwithstanding the above, nothing herein
contained shall be deemed to be a release or
impairment of the indebtedness evidenced by the
Note or the security therefor intended by this
Mortgage and the other Loan Documents, or be
deemed to preclude Mortgagee from exercising its
rights to foreclose this Mortgage or to enforce
any of its other rights or remedies under the Loan
Documents.
The North Mortgage is hereby further modified by
deleting the second paragraph of Paragraph 37 thereof and
inserting the following in lieu thereof:
The total amount outstanding at any one time
which is secured by this Mortgage, excluding any
interest and any amounts advanced by Mortgagee for
the protection of the security interest herein
granted or amounts advanced or obligations
incurred for the completion of a contemplated
improvement under a construction loan agreement,
shall not exceed Fifty-Two Million Dollars
($52,000,000.00). This Mortgage shall be governed
by all provisions of Section 443.055 of the
Revised Statutes of Missouri.
The South Mortgage is hereby further modified by
adding the following paragraph as paragraph 50 thereof:
CROSS DEFAULT/COLLATERALIZATION TERMINATION
50. Notwithstanding any provision to the
contrary contained in this Mortgage, from and
after September 5, 1998, the term "Loan Documents"
as defined in this Mortgage shall not include the
South Note, the South Second Note or any other
documents or instruments executed as evidence of
or as security for the repayment of the
indebtedness represented by the South Note or the
South Second Note, or both (the "South Loan
Documents") and, from and after September 5, 1998,
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any default by Mortgagor under any one or more of
the South Loan Documents shall not constitute a
default under this Mortgage. Provided that
Mortgagor is not then in default under this
Mortgage, the Note, or the Assignment beyond the
expiration of any applicable cure periods, at any
time on or after September 5, 1998, then, within
thirty (30) days after Mortgagee's receipt of
Xxxxxxxxx's written request therefor labeled with
or accompanied by the following statement: "TIME
SENSITIVE - RESPONSE REQUIRED WITHIN THIRTY DAYS
OF ACTUAL RECEIPT"), Mortgagee shall execute and
deliver to Mortgagor, an appropriate instrument in
form reasonably satisfactory to the Mortgagor and
Mortgagee stating that this Mortgage no longer
serves as security for the indebtedness
represented by the South Note or the South Second
Note.
The South Mortgage is hereby further modified by
adding the following paragraph as paragraph 51 thereof:
EQUAL DIGNITY
51. Notwithstanding anything to the contrary
contained herein or in any of the other Loan
Documents, the North Second Mortgage shall have
equal dignity herewith, and shall be considered to
have priority equal hereto.
The North Mortgage is hereby further modified by
inserting Exhibit B hereto at the end thereof.
NORTH ASSIGNMENT
The North Assignment is hereby modified by deleting
paragraph thereof beginning with the words "NOW THEREFORE"
and ending with the words "time request." and inserting the
following in lieu thereof:
NOW THEREFORE, in order to further secure the
payment of the indebtedness of Assignor to
Assignee evidenced and represented by the Note,
and the North Second Note, and, for and during
only the period of time commencing with the date
hereof and continuing up to and including
September 5, 1998, to secure the repayment of the
indebtedness evidenced and represented by the
South Note and the South Second Note, and in
further consideration of the sum of Ten and 00/100
Dollars ($10.00) in hand paid by Assignee to
Assignor, the receipt and sufficiency of which are
hereby acknowledged, Assignor does hereby sell,
assign, transfer and set over unto Assignee all of
the leases, rents, issues, profits and income of,
from or pertaining to the Property. This
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Assignment shall include any and all leases or
rental agreements that may now be in effect, as
well as any future or additional leases or rental
agreements, and any renewals or extensions of the
same, that may be entered into by Assignor.
Assignor xxxxxx agrees to execute and deliver such
further assignments of said leases or rental
agreements as Assignee may from time to time
request.
The North Assignment is hereby further modified by
deleting paragraph thereof beginning with the words
"PROVIDED ALWAYS" and ending with the words "shall
terminate." and inserting the following in lieu thereof:
PROVIDED ALWAYS, however, that if Assignor
shall pay unto Assignee the indebtedness evidenced
by the Note, and, for and during only the period
of time commencing with the date hereof and
continuing up to and including September 5, 1998,
the indebtedness evidenced by the South Note and
the South Second Note, and if Assignor shall duly,
promptly and fully perform, discharge, execute,
effect, complete and comply with and abide by each
and every one of the agreements, conditions and
covenants of the Note, this Assignment, and all
other documents and instruments executed as
further evidence of or as security for the
indebtedness secured hereby, and, for and during
only the period of time commencing with the date
hereof and continuing up to and including
September 5, 1998, if Assignor shall duly,
promptly and fully perform, discharge, execute,
effect, complete and comply with and abide by each
and every one of the agreements, conditions and
covenants of the South Note, the South Second
Note, and all other instruments executed by
Assignor to and in favor of Assignee as further
evidence of or as additional security for the
South Note and/or the South Second Note
(hereinafter together referred to as the "Loan
Documents"), then this Assignment and the estates
and interests hereby granted and created shall
terminate.
The North Assignment is hereby further modified by
deleting Paragraph 7 thereof and inserting the following in
lieu thereof:
7. This Assignment shall remain in full
force and effect as long as the indebtedness
evidenced by the Note, and, for and during only
the period of time commencing with the date hereof
and continuing up to and including September 5,
1998, the indebtedness evidenced and represented
by the South Note and the South Second Note
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remains unpaid in whole or in part. It is
understood and agreed that a complete release or
satisfaction of the aforesaid Mortgage shall
operate as a complete release or satisfaction of
all of Assignee's rights and interest hereunder,
and that satisfaction of the Mortgage shall
operate to satisfy this Assignment.
The North Assignment is hereby further modified by
deleting the first paragraph of Paragraph 8 thereof and
inserting the following in lieu thereof:
8. Except as hereinafter provided, the
liability of Assignor and the general partner of
Assignor, LHC, Inc., and any other current or
future general partner of Assignor ("General
Partner") with respect to the payment of principal
and interest under the Note shall be "non-
recourse" and, accordingly, Assignee's source of
satisfaction of said indebtedness and Assignor's
other obligations hereunder and under the other
Loan Documents shall be limited to the Property
and, for and during only the period of time
commencing with the date hereof and continuing up
to and including September 5, 1998, the real
estate described on Exhibit B, attached hereto and
incorporated herein (the "South Property") and
Assignee's receipt of the rents, issues and
profits from the Property, and, for and during
only the period of time commencing with the date
hereof and continuing up to and including
September 5, 1998, the South Property, and
Assignee shall not seek to procure payment out of
any other assets of Assignor or any person or
entity comprising Assignor, nor to seek judgment
for any sums which are or may be payable under the
Note or under any of the other Loan Documents, as
well as any claim or judgment (except as hereafter
provided) for any deficiency remaining after
foreclosure of the Mortgage. Notwithstanding the
above, nothing herein contained shall be deemed to
be a release or impairment of the indebtedness
evidenced by the Note or the security therefor
intended by this Assignment and the other Loan
Documents or be deemed to preclude Assignee from
exercising its rights to foreclose the Mortgage or
to enforce any of its other rights or remedies
under the Loan Documents.
The South Assignment is hereby further modified by
adding the following paragraph thereto as paragraph 14
thereof:
CROSS DEFAULT/COLLATERALIZATION TERMINATION
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14. Notwithstanding any provision to the
contrary contained in this Assignment, from and
after September 5, 1998, the term "Loan Documents"
as defined in this Assignment shall not include
the South Note, the South Second Note or any other
documents or instruments executed as evidence of
or as security for the repayment of the
indebtedness represented by the South Note or the
South Second Note, or both (the "South Loan
Documents") and, from and after September 5, 1998,
any default by Assignor under any one or more of
the South Loan Documents shall not constitute a
default under this Assignment. Provided that
Assignor is not then in default under this
Assignment, the Note, or the Mortgage beyond the
expiration of any applicable cure periods, at any
time on or after September 5, 1998, then, within
thirty (30) days after Assignee's receipt of
Assignor's written request therefor labeled with
or accompanied by the following statement: "TIME
SENSITIVE - RESPONSE REQUIRED WITHIN THIRTY DAYS
OF ACTUAL RECEIPT"), Assignee shall execute and
deliver to Assignor, an appropriate instrument in
form reasonably satisfactory to the Assignor and
Assignee stating that this Assignment no longer
serves as security for the indebtedness
represented by the South Note or the South Second
Note.
The North Assignment is hereby further modified by
inserting Exhibit B hereto at the end thereof.
GENERAL
Xxxxxxxx specifically understands and agrees that
Xxxxxx is consenting to the foregoing modification of the
North Note in reliance upon all of the security previously
and herewith pledged to Xxxxxx as security for the repayment
of the North Note.
Borrower hereby confirms and ratifies the North Note,
and any agreement securing or related to the North Note as
modified hereby. This is a modification of the North Note
and not a replacement or novation thereof. If for any
reason this Agreement is invalid, the North Note shall be
enforceable according to its original terms as heretofore
amended.
Borrower shall reimburse Lender for all expenses,
including reasonable attorneys' fees incurred by Xxxxxx in
connection with this transaction.
That the lien of the North Mortgage and the North
Assignment and the covenants and agreements therein, and in
the North Note and other obligations secured thereby, except
as herein modified, shall be and remain in full force and
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effect, subject to all the conditions and provisions
contained in the North Note, the North Mortgage, the North
Assignment, or the North Loan Documents.
The effectiveness of this Agreement is expressly
contingent upon Borrower providing the following to the
Lender, in form and substance satisfactory to the Lender, in
Xxxxxx's reasonable discretion, within sixty (60) days after
the date hereof, a title insurance endorsement bringing the
date of the Lender's Loan Policy of Title Insurance #135-00-
291763 forward to the date hereof and specifically insuring
the continuing priority of the North Mortgage.
Borrower represents and warrants to Lender that no
default exists under the North Note, the North Mortgage, the
North Assignment, or the North Loan Documents as of the date
hereof.
This Agreement shall not be deemed to constitute an
alteration, waiver, annulment, or variation of any of the
terms and conditions of the North Note (as heretofore
amended), the North Mortgage, the North Assignment, or the
Loan Documents except as expressly set forth herein. Any
term or condition of the North Note, the North Mortgage, the
North Assignment, or the North Loan Documents that is
inconsistent with this Agreement is deemed modified to be
consistent herewith. If, for any reason, this Agreement is
invalid, the North Note, the North Mortgage, the North
Assignment shall be enforceable in accordance with their
original forms as heretofore amended.
The obligations evidenced in this Agreement are
secured by a Deed of Trust and Security Agreement executed
on the 6th day of April, 1994, containing provisions
regarding future advances and future obligations pursuant to
Section 443.055 RSMo. and which is a lien on the property
therein described (and is secured by other property).
This Agreement may be executed by the parties on any
number of separate counterparts, and all such counterparts
so executed constitute one agreement binding on all the
parties notwithstanding that all the parties are not
signatories to the same counterpart.
This Agreement and the rights and obligations of the
parties hereunder are to be governed by and construed and
interpreted in accordance with the laws of the State of
Missouri applicable to contracts made and to be performed
wholly within Missouri, without regard to choice or conflict
of laws rules.
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
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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.
IN WITNESS WHEREOF, the undersigned have caused this
instrument to be executed as of the day and year first above
written.
EDJ LEASING CO., L.P., a
Missouri limited partnership
By: LHC, Inc.
By:___________________________
Xxxxxx Xxxxx,
Treasurer
Nationwide Life Insurance
Company
By:___________________________
Name:_________________________
Title:________________________
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STATE OF MISSOURI )
) SS.
COUNTY OF ST. XXXXX )
On this ____ day of ___________, 1995, before me
appeared Xxxxxx Xxxxx, to me personally known, who, by me
being duly sworn did say that he is the Treasurer of LHC,
Inc., a corporation, and the said corporation is the general
partner of XXX XXXXXXX CO., L.P., a limited partnership and
said Xxxxxx Xxxxx acknowledged that he executed the same in
behalf of said corporation and said limited partnership by
authority of the Board of Directors of the corporation and
said Xxxxxx Xxxxx acknowledged said instrument to be the
free act and deed of said corporation and said limited
partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal at my office in the county or city
and state aforesaid, the day and year last above written.
___________________________________
Notary Public
My Term Expires: __________________
STATE OF OHIO )
) SS.
COUNTY OF __________)
On this ____ day of ____________________, 1995, before
me appeared _____________________, to me personally known,
who, being by me duly sworn, did say that he is the
________________ of Nationwide Life Insurance Company, an
Ohio corporation, and that the seal affixed to the foregoing
instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed in behalf of said
corporation, by authority of its Board of Directors; and
said ________________ acknowledged said instrument to be the
free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed an official seal at my office in the county or city
and state aforesaid, the day and year last above written.
___________________________________
Notary Public
My Term Expires:________________________
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EXHIBIT A
PARCEL 1: Lot R of the Subdivision of Lots F, K and L of
PROGRESS WEST PLAT NO. 2 as per plat thereof recorded in
Plat Book 122 page 50 of the St. Louis County Records.
PARCEL 2: Lots 36 and 37 of PROGRESS WEST PLAT NO. 3 as per
plat thereof recorded in Plat Book 126 pages 76, 77 and 78
of the St. Louis County Records.
PARCEL 3: Lots T and U of the Resubdivision of Lot J of
PROGRESS WEST PLAT NO. 2 as per plat thereof recorded in
Plat Book 123 page 1 of the St. Louis County Records.
PARCEL 4: Lot 1 of the Resubdivision Plats of Lots P and O
of the Resubdivision of Lots F, K and L of PROGRESS WEST
PLAT NO. 2 as per plat thereof recorded in Plat Book 331
page 93 of the St. Louis County Records.
PARCEL 5: Lot B of PROGRESS WEST PLAT NO. 2 as per plat
thereof recorded in Plat Book 120 page 66 of the St. Louis
County Records.
PARCEL 6: Lot M of the Resubdivision of Lots F, K and L of
PROGRESS WEST PLAT NO. 2 according to the plat thereof
recorded in Plat Book 122 page 50 of the St. Louis County
Records.
PARCEL 7: Lot V of the Resubdivision of Lot J of PROGRESS
WEST PLAT NO. 2 according to the plat thereof recorded in
Plat Book 123 page 1 of the St. Louis County Records.
PARCEL 8: Lot 42 of PROGRESS WEST PLAT NO. 3 according to
the plat thereof recorded in Plat Book 126 page 76 in the
St. Louis County Recorder's Office.
PARCEL 9: Lot 29 of PROGRESS WEST PLAT NO. 3 according to
the plat thereof recorded in Plat Book 126 page 76 of the
St. Louis County Recorder's Office.
PARCEL 10: Lot 1 of the RESUBDIVISION OF LOT "W" OF THE
RESUBDIVISION OF LOT J OF PROGRESS WEST PLAT NO. 2 according
to the plat thereof recorded in Plat Book 188 page 34 in the
St. Louis County Recorder's Office.
PARCEL 11: Lot 27 of PROGRESS WEST PLAT NO. 3 according to
the plat thereof recorded in Plat Book 126 page 76 in the
St. Louis County Recorder's Office.
PARCEL 12: Lot S of RESUBDIVISION OF LOTS F, K AND L OF
PROGRESS WEST PLAT NO. 2 according to the plat thereof
recorded in Plat Book 122 page 50 of the St. Louis County
Recorder's Office.
PARCEL 13: Appurtenant easement for telephone line as set
forth and described in easement granted to Xxxxxx X. Xxxxx
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and Company according to instrument recorded in Book 8242
page 757.
PARCEL 14: Appurtenant easement for ingress and egress
according to xxxx recorded in Plat Book 157 page 50.
PARCEL 15: Appurtenant easement for ingress and egress
according to instrument recorded in Book 6740 page 861.
PARCEL 16: Declaration of Easements executed by EDJ Leasing
Co., L.P., a Missouri Limited Partnership over part of Lots
28 and 29 of Progress West Plat No. 3 according to the plat
thereof recorded in Plat Book 126 page 76 of the St. Louis
County Records as established by instrument recorded August
2, 1991 in Book 9055 page 431.
PARCEL 17: Declaration of Easement executed by EDJ Leasing
Co., L.P., a Missouri Limited Partnership over part of Lots
1 and 2 of the Resubdivision of Lot "W" of the Resubdivision
of Lot J of PROGRESS WEST PLAT NO. 2 according to the plat
thereof recorded in Plat Book 188 page 34 of the St. Louis
County Records as established by instrument recorded August
2, 1991 in Book 9055 page 441.
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EXHIBIT B
A tract of land being Lot 1 of "Community Federal
Subdivision", a subdivision according to the plat thereof
recorded in Plat Book 240 page 75 of the St. Louis County
Records, in Sections 27 and 34, Township 45 North-Range 5
East, St. Louis County, Missouri and being more particularly
described as:
Beginning at the Northwest corner of said Lot 1 of
"Community Federal Subdivision"; said point being also the
Southwest corner of Lot 2 of said subdivision; thence
Eastwardly and Northwardly along the line dividing Lots 1
and 2 South 89 degrees 17 minutes 50 seconds East 1111.06
feet and North 00 degrees 42 minutes 41 seconds East 10.00
feet to a point in the North line of said Lot 1; thence
Eastwardly along said North line of Lot 1 South 89 degrees
15 minutes 08 seconds East 178.36 feet to a point in the
West line of Ballas Road as widened; thence Southwardly
along said West line of Ballas Road South 00 degrees 42
minutes 41 seconds West 380.81 feet to a point in the North
line of property conveyed to Reproco, Inc., as described in
the deed recorded in book 6562, page 2239 of the St. Louis
County Records; thence along the boundary line of said
Reproco, Inc. property North 89 degrees 16 minutes 29
seconds West 288.00 feet, and South 00 degrees 28 minutes 31
seconds West 99.57 feet to a point in the North line of
Manchester Road, as widened; thence along the right-of-way
line of Manchester Road, as widened, the following courses
and distances; North 89 degrees 16 minutes 29 seconds West
178.49 feet, North 88 degrees 18 minutes 59 seconds West
94.01 feet North 30 degrees 34 minutes 38 seconds West
114.69 feet, North 89 degrees 16 minutes 29 seconds West
60.00 feet, South 36 degrees 25 minutes 32 seconds West
117.60 feet, North 89 degrees 16 minutes 29 seconds West
55.47 feet, along a curve to the left whose radius point
bears South 00 degrees 43 minutes 31 seconds West 867.90
feet from the last mentioned point, a distance of 346.38
feet, South 67 degrees 51 minutes 31 seconds West 80.21
feet, North 22 degrees 08 minutes 29 seconds West 61.02
feet, South 88 degrees 12 minutes 27 seconds West 34.28
feet, and South 67 degrees 51 minutes 31 seconds West 17.15
feet to a point in the East line of X. X. Xxxxx Memorial
Drive, 60 feet wide; thence Northwardly along said East
line, being also along the West line of aforesaid Lot 1 of
"Community Federal Subdivision" North 00 degrees 28 minutes
18 seconds East 146.83 feet and North 00 degrees 41 minutes
41 seconds East 370.44 feet to the point of beginning
according to a survey by Xxxx Engineering & Surveying, Inc.
dated July 14, 1992.
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