<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-----------------
FORM 10-KSB
(Mark One)
/X/ ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934.
For the fiscal year ended December 31, 1998
-----------------------
OR
/ / TRANSITION REPORT UNDER SECTION 13 OR 15(d) O THE SECURITIES EXCHANGE
ACT OF 1934.
For the transition period from __________ to __________.
Commission file number 000-24167
EBS Building, L.L.C.
-------------------------------------------------------------------------------
(Name of Small Business Issuer in Its Charter)
Delaware 43-1794872
---------------------------------------- --------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
c/o PricewaterhouseCoopers LLP
800 Market Street
St. Louis, Missouri 63101-2695
----------------------------------------- ----------------------
(Address of Principal Executive Offices) (Zip Code)
(314) 206-8500
-------------------------------------------------------------------------------
(Issuer's Telephone Number)
Securities registered under Section 12(b) of the Exchange Act:
Name of Each Exchange
Title of Each Class on Which Registered
---------------------- ---------------------------
N/A N/A
- --------------------------------- ---------------------------
Securities registered under Section 12(g) of the Exchange Act:
Class A Membership Units
-------------------------------------------------------------------------------
(Title of Class)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for past 90 days.
Yes /X/ No / /
<PAGE> 2
Check if there are no disclosure of delinquent filers in response to
Item 405 of Regulation S-B is not contained in this form, and no disclosure will
be contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. / /
State the issuer's revenues for its most recent fiscal year. $3,356,043
----------
State the aggregate market value of the voting and non-voting common
equity held by non-affiliates computed by reference to the price at which the
common equity was sold, or the average bid and asked price of such common
equity, as of a specified date within the past 60 days. (See definition of
affiliate in Rule 12b-2 of the Exchange Act.) $18,544,670 FN1
Note. If determining whether a person is an affiliate will involve an
unreasonable effort and expense, the issuer may calculate the aggregate
market value of the common equity held by non-affiliates of the basis
of reasonable assumptions, if the assumptions are stated.
ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PAST FIVE YEARS
Check whether the issuer has filed all documents and reports required
to be filed by Section 12, 13 or 15(d) of the Exchange Act after the
distribution of securities under a plan confirmed by a court.
Yes /X/ No / /
APPLICABLE ONLY TO CORPORATE REGISTRANTS
State the number of shares outstanding of each of the issuer's classes
of common equity, as of the latest practicable date. As of December 31, 1998,
there were 10,000,000 Class A Membership Units outstanding.
Transitional Small Business Disclosure Format (check one):
Yes / / No /X/
DOCUMENTS INCORPORATED BY REFERENCE
If the following documents are incorporated by reference, briefly
describe them and identify the part of the Form 10-KSB (e.g. Part I, Part II,
etc.) into which the document is incorporated: (1) any annual report to security
holders; (2) any proxy or information statement; and (3) any prospectus filed
pursuant to Rule 424(b) or (c) of the Securities Act of 1933 ("Securities Act").
The listed documents should be clearly described for identification purposes
(e.g. annual report to security holders for fiscal year ended December 24,
1990).
None.
PART I
ITEM 1. DESCRIPTION OF BUSINESS.
EBS Building, L.L.C. (the "Company") is a limited liability company
organized on September 26, 1997 under the Delaware Limited Liability Company
Act. The Company is governed by a Members Agreement, dated as of September 26,
1997 (the "Members Agreement"). The Company was formed in connection with the
reorganization proceedings (the "Chapter 11 Proceedings") of Edison Brothers
Stores, Inc. ("Edison") under Chapter 11 of the United States Bankruptcy Code.
Pursuant to Edison's Chapter 11 plan of reorganization (the "Plan of
Reorganization"), Edison transferred title to its land and building at 501 North
Broadway in downtown St. Louis, Missouri, known as Corporate Headquarters
Building (the "Building"), to the Company on September 26, 1997 in exchange for
10,000,000 Class B Membership Units of the Company, which represented all of the
outstanding Membership Units
FN1/ Based on book value, as there is no public trading market for the
Class A Membership Units. This number may or may not reflect the true market
value of such units.
<PAGE> 3
of the Company. On December 12, 1997, in accordance with the Company's Members
Agreement and the Plan of Reorganization, Edison canceled 9,058,041 Class B
Membership Units and simultaneously issued 9,058,041 Class A Membership Units of
the Company to holders of Allowed General Unsecured Claims (as defined in the
Plan of Reorganization). All outstanding Class B Units were to eventually be
canceled and an equivalent number of Class A Units issued to the holders of
Allowed General Unsecured Claims as required by the Members Agreement and the
Plan of Reorganization. As of December 31, 1998, all Class B Units held by
Edison were canceled and an equivalent number of Class A Units had been issued
to holders of Allowed General Unsecured Claims.
Pursuant to the Members Agreement, the Company is organized for the
exclusive purposes of acquiring, owning, managing, maintaining, repairing,
leasing, selling, hypothecating, mortgaging or otherwise dealing with the
Building, and for receiving, administering and distributing any disposition
proceeds relating thereto. It primarily derives income from the rental of office
space. The proceeds from the eventual sale of the Building will be distributed
along with any other Company assets to the appropriate holders of Membership
Units (the "Members") in accordance with the Members Agreement.
The Members Agreement contemplates that the Company will sell the
Building by September 26, 2000, or if not by then, within the four year period
immediately following such date. Upon the sale of the Building, the Company will
distribute the sale proceeds to the Class A Members in accordance with the terms
of the Members Agreement. During 1999, the Company intends to actively market
the Building for sale.
The business in which the Company is engaged is highly competitive, in
terms of both leasing available office space and potentially selling the
Building. The Building is located in downtown St. Louis and is subject to
leasing competition from other similar types of properties in downtown St. Louis
and throughout the St. Louis area. The Company competes for tenants for the
Building with numerous other individuals and entities engaged in real estate
leasing activities. Such competition is based on such factors as location, rent
schedules and services and amenities provided. In addition to leasing
competition, there is competition in the Company's business of disposing of the
Building considering the competition in the institutional real estate market for
attractive real estate investment properties.
The Building is considered Class A property for real estate investment
purposes. According to Insignia ESG, Inc., the vacancy rate in downtown St.
Louis for Class A properties was less than ten percent as of December 1998.
Market concerns include both actual and potential departures of major St. Louis
companies and/or divisions of such companies.
The Company has no employees. The operations of the Company are the
responsibility of the Manager. (See Item 9 below).
The Company entered into a commercial property management and leasing
agreement, effective January 1, 1998, (the "Insignia Agreement") with Insignia
Commercial Group, Inc. (the "Property Manager"). The Insignia Agreement granted
the Property Manager the exclusive right
<PAGE> 4
to lease office space located within the Building commencing January 1, 1998.
The Property Manager receives certain commissions for its leasing work, which
commissions range from 1.5% to 5% of gross rentals, depending on the presence or
absence of certain variables. The Insignia Agreement also engaged the Property
Manager to manage and operate the Building commencing on February 1, 1998 in
consideration of certain management fees. Additionally, the Property Manager
receives a construction management fee with respect to non-routine capital
improvements in the Building. The Company reimburses the Property Manager for
its on-site employee salaries, bonuses and benefits and its out of pocket costs
incurred in connection with its services. The Property Manager is also provided
with free rental of furnished office space in the Building. In fiscal 1998, the
Property Manager earned $730,628 in fees, commissions and expense
reimbursements.
Year 2000 Compliance
The Company, through its Property Manager, utilizes computer software
for its corporate and real property accounting records and to prepare its
financial statements, as well as for internal accounting purposes. The current
principal accounting system software is not Year 2000 compliant. The Property
Manager has informed the Company that plans have been made to update the
accounting systems during 1999. The cost of such update will be borne by the
Property Manager. However, in the event that such systems should fail, as a
contingency plan, the Company could prepare all required accounting entries
manually, without incurring material additional operating expenses.
The Property Manager has also informed the Company that it has budgeted
funds for and plans to review the major date-sensitive non-information
technology systems (such as the elevators, heating, ventilating, air
conditioning and cooling ("HVAC") systems, locks, and other like systems) in the
Building in early 1999 to determine if such systems are materially Year 2000
compliant. The Property Manager plans to internally make such determinations.
The Company expects to incur an estimated $100,000 in costs associated with
upgrading the current systems. In the most reasonably likely worst case
scenario, the failure of the non-information technology systems in the Building
could lead tenants to withhold their rent payments, which could have a material
adverse effect on the Company's business, results of operations and financial
condition. However, the Company does not believe that the Year 2000 issue will
pose significant problems to the Company's information technology and
non-information technology systems, or that resolution of any potential problems
with respect to such systems will have a material adverse effect on the
Company's financial condition or results of operations.
The Company has not endeavored to determine whether or not its tenants
are Year 2000 compliant. The most reasonably likely worst case scenario facing
the Company as a result of a failure of its tenant's (or their financial service
providers') computer systems would be such tenant's inability to pay rent on
time. Such delays in payment could have a material adverse effect on the
Company's financial condition or results of operations.
The Company files annual and periodic reports with the Securities and
Exchange Commission ("SEC"). You may read and copy any materials filed by the
Company with the
<PAGE> 5
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may obtain information on the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet
site (http://www.sec.gov) which contains reports, proxy and information
statements, and other information regarding issuers that file electronically
with the SEC.
ITEM 2. DESCRIPTION OF PROPERTY.
The Building is a twelve-floor office building with 434,136 square feet
of rentable space, which square footage includes 9,393 square feet of meeting
rooms and 13,008 square feet of mezzanine space, and which also has a
subterranean parking garage containing 159 parking spaces. The Building is
located at 501 N. Broadway, St. Louis, Missouri. The Building is the
headquarters building of Edison and was deeded to the Company by quit claim deed
on September 26, 1997. The Building was built in 1985.
The Company does not own any real estate other than the Building, and
will not otherwise invest in interests in real estate or real estate mortgages.
The Building is the only property in which the Company has an interest.
The Company believes that the Building is adequately insured. Allendale
Mutual Insurance Company provided the property insurance for the Building
through January 31, 1998. As of February 1, 1998, Travelers Indemnity of
Illinois provides the property insurance for the Building.
There are only two tenants leasing greater than 10% of the rentable
space in the Building. The leases of such tenants are described below:
On September 30, 1998, the Company entered into a new two-year lease
with Edison for 206,450 square feet of rentable office space, or approximately
48% of total rentable space (the "Edison Lease"). The Edison Lease provides for
annual rent of $1,740,978 and expires in September 2000 with an option to renew
for one year at $12 per square foot or for seven years at prevailing market
rates. This Edison Lease replaced the prior lease agreement between Edison and
the Company under which Edison occupied 273,068 square feet of rentable office
space, or approximately 63% of total rentable space. In connection with the
Edison Lease, the Company incurred lease restructuring costs of $912,742, which
have been capitalized and will be amortized over the term of the Edison Lease.
On March 9, 1999, Edison, together with seven of its affiliates, filed
for Chapter 11 bankruptcy in the U.S. Bankruptcy court in Delaware. The ultimate
effects of the bankruptcy on the financial condition and results of operations
are not known at this time. See, Management's Discussion and Analysis, below.
In addition to the Edison Lease, on September 30, 1998, the Company
entered into a twelve-year lease with Stifel Financial Corp. and Stifel,
Nicolaus & Company, Incorporated ("Stifel") for 91,763 square feet of rentable
office space, or approximately 21% of total rentable space. The
<PAGE> 6
Stifel lease, which commenced on February 1, 1999, provides annual rent ranging
from $1,376,445 to $1,651,734 and expires in April 2011 with two options to
renew for five year renewal terms at then prevailing market rental rates.
Pursuant to the Stifel lease, the name of the Building has changed to "One
Financial Plaza". In addition, the Company incurred lease commission costs of
approximately $768,930 and expects to incur tenant improvement costs of
approximately $2,362,897 in connection with the Stifel lease. Lease commissions
have been capitalized and will be amortized over the term of the Stifel lease.
Tenant improvement costs will be capitalized upon the completion of construction
plans.
As of December 31, 1998, the annual average rental rate of all tenants,
including Edison, is $11.08 per square foot. The annual average rental rate of
all tenants, excluding Edison, is $16.88 per square foot. The Building's total
occupancy as of December 31, 1998 was 64%. Upon commencement of the Stifel lease
in February 1999, the Building's total occupancy increased to approximately 85%.
The following table sets forth certain information with respect to the
leases in the Building as of December 31, 1998:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
CURRENT % OF
NUMBER OF ANNUAL RENT AS GROSS ANNUAL
YEAR EXPIRATIONS SQUARE FOOTAGE OF 12/31/98 RENT
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 1 5,559 $86,164 3%
- ----------------------------------------------------------------------------------------------------------------------
2000 2 220,057 $1,945,083 67%
- ----------------------------------------------------------------------------------------------------------------------
2001 3 26,946 $548,653 19%
- ----------------------------------------------------------------------------------------------------------------------
2003 1 2,835 $51,030 2%
- ----------------------------------------------------------------------------------------------------------------------
2008 1 20,280 $278,911 10%
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
In March 1998, the Company entered into a $2,000,000 revolving line of
credit with First Bank (the "Line of Credit") to cover any shortfalls in cash
flows. The Line of Credit is secured by a mortgage on the Building and matured
on March 15, 1999. As of December 31, 1998, the Company had fully drawn upon
the Line of Credit. On March 15, 1999, a First Extension and Modification
Agreement was entered into thereby extending the maturity date of the Line of
Credit to April 15, 1999. On March 23, 1999 the Company entered into a new
5,200,000 line of credit with First Bank which replaces the existing Line of
Credit.
The net federal tax basis of the Building approximates $17,523,301
(gross cost of $20,000,000 less accumulated depreciation of $2,476,699).
Included in the net federal tax basis is land cost of $1,222,815. The
depreciation allowance is calculated using the federal method of depreciation
and recovery periods applicable for the year the assets were placed into
service. However, due to the fact that the Company has made a Section 754 tax
election on its 1998 tax return, the 1998 calculation of the Building's basis
pursuant to Section 743 is still being finalized with the preparation of the
1998 tax returns. Therefore, the final gross cost and accumulated depreciation
numbers could deviate from the amounts listed.
Real estate taxes for the Building for calendar year 1998 were
$381,971.
ITEM 3. LEGAL PROCEEDINGS.
<PAGE> 7
The Company is not a party to any material pending legal proceedings.
The Company is not aware of any legal proceeding against the Company being
contemplated by any governmental authority.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matters have been submitted to a vote of the Class A Members during
the fiscal year ended December 31, 1998.
PART II
ITEM 5. MARKET PRICE FOR COMMON EQUITY AND OTHER SHAREHOLDER MATTERS.
As of March 22, 1999, there were 2,051 record holders of Class A Units
and no holders of Class B Units of the Company. The Company is not aware of any
price quotations for the Class A Units.
The Company has not declared or paid any cash distributions on any of
its Class A Units or Class B Units during the fiscal year ended December 31,
1998. The Members Agreement provides that the Manager will distribute the net
profits of the Company to the Class A Members in proportion to their respective
Class A Sharing Percentages (as defined in the Members Agreement), subject to
the payment of taxes, expenses, advisors fees, tax distributions to Edison, and
payment of outstanding loans. In addition, all distributions are subject to a
determination by the Manager that the Company will have sufficient reserves to
meet its current and anticipated needs to fulfill its business purpose.
All of the Class B Units have been exchanged by Edison for Class A
Units, and such Class A Units have been distributed by Edison to the holders of
Allowed General Unsecured Claims of Edison in accordance with the provisions of
the Member's Agreement.
All Class A Units are freely tradable by persons other than
"affiliates" of the Company without restriction under the Securities Act of
1933, as amended (the "Securities Act"). The Class A Units held by affiliates
may not be sold unless registered under the Securities Act or unless an
exemption from registration, such as Rule 144, is available. In general, under
Rule 144 each affiliate may sell within any period of three months a number of
Class A Units equal to the greater of 1% of the then outstanding Class A Units
and the average weekly trading volume of Class A Units reported through the
automated quotation system of a registered securities association during the
four calendar weeks preceding the sale. The Company does not know whether any
sales of Class A Units will be so reported. Sales under Rule 144 are also
subject to certain restrictions relating to manner of sale, notice and the
availability of current public information about the Company.
ITEM 6. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION.
It should be noted that this Annual Report on Form 10-KSB contains
forward looking information (as defined in the Private Securities Litigation
Reform Act of 1995) that involves risk and uncertainty, including trends in the
real estate investment market, projected leasing and sales, and the future
prospects for the Company. Actual results could differ materially from those
contemplated by such statements.
<PAGE> 8
During the forthcoming twelve months of operations, the Company intends
to continue owning, managing, maintaining, repairing, leasing, selling,
hypothecating, mortgaging or otherwise dealing with the Building. Further, the
Company intends to actively market the Building for sale during the forthcoming
twelve months as well as to continue to secure additional tenant leasing
agreements.
On September 30, 1998, the Company entered into a new two-year lease
with Edison for 206,450 square feet of rentable office space, or approximately
48% of total rentable space. Edison's previously occupied 273,068 square feet of
rentable space. In addition, during the fiscal year ended December 31, 1998, the
Company entered into lease agreements with three new tenants, including a lease
with Stifel for 91,763 square feet of rentable office space, or approximately
21% of the total rentable space of the Building, commencing February 1, 1999.
Management anticipates that Stifel will fully occupy its leased space by April
1, 1999.
These leasing agreements, including the new Edison lease, resulted in a
total occupancy rate of 64%, as of December 31, 1998, versus an occupancy rate
of 74% as of December 31, 1997. Upon commencement of the Stifel lease in
February 1999, the Building's total occupancy rate increased to approximately
85%. During 1998, the Company incurred lease commission costs of approximately
$895,041, tenant improvement costs of approximately $392,491 and lease
restructuring costs of $912,742 in connection with the aforementioned leases.
In addition, the Company expects to incur an additional $2,348,000 in tenant
improvements related to the Stifel lease during 1999.
During the fiscal year ended December 31, 1998, the Company had a net
decrease in cash of $403,407. This decline was caused primarily by commissions
paid to leasing agents, tenant improvement costs, lease restructuring costs
related to the lease renegotiations with Edison as well as various corporate
costs incurred associated with the registration of the Class A Membership Units
under the Securities Exchange Act of 1934, as amended. In March 1998, the
Company entered into the $2,000,000 Line of Credit with First Bank to cover any
shortfalls in cash flows. As of December 31, 1998, the Company had fully drawn
upon its Line of Credit. Such funds were primarily used to finance lease
commissions, tenant improvements and lease restructuring costs incurred related
to the aforementioned leases entered into during 1998. On March 23, 1999, the
Company entered into a new $5,200,000 revolving line of credit to fund present
and anticipated financing needs related to tenant improvement costs and lease
commissions on new leasing arrangements. This line of credit replaces the
existing Line of Credit with First Bank.
As of December 31, 1998, the Company had committed to the payment of
$2,362,897 in tenant improvement costs and an additional $417,807 in lease
commissions associated with the Stifel lease. These amounts will be paid during
fiscal 1999. Management is not aware of any other commitments or contingencies
affecting the Company.
On March 9, 1999, Edison, the Building's largest tenant, filed,
together with seven of its affiliates, for Chapter 11 bankruptcy in the U.S.
Bankruptcy court in Delaware. As of March 31, 1999, the Company had an account
receivable from Edison in an amount equal to $157,106.50, which is the amount of
the monthly rental payment that was due on March 1, 1999. The ultimate
<PAGE> 9
effect of the bankruptcy filing of Edison on the operating results of the
Company and its ability to sell the Building is not known at this time.
ITEM 7. FINANCIAL STATEMENTS.
The financial statements of the Company are submitted as a
separate section of this report on Form 10-KSB on pages F-1 through F-10.
ITEM 8. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
There have been no changes in the Company's independent public
accountants since the formation of the Company, and no disagreements with such
accountants on any matter of accounting principles, practices or financial
statement disclosure.
PART III
ITEM 9. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS; COMPLIANCE
WITH SECTION 16(A) OF THE EXCHANGE ACT.
PricewaterhouseCoopers LLP (the "Manager") has served as the Manager of
the Company since its inception. In accordance with the terms of Article III of
the Members Agreement, the Manager of the Company is responsible for all aspects
of the Company's operations, subject to the requirement that the Manager obtain
the approval of either the holders of a majority of the Class A Units (the
"Requisite Holders") or the Designation Members (as defined below) before taking
certain actions, which actions are specified in Section 3.5.2 of the Members
Agreement. The Manager will serve as the Manager of the Company until its
resignation or removal in accordance with Section 3.8 of the Members Agreement.
The Members Agreement defines "Designation Members" as "the three
[M]embers who, as of the date that any action is to be taken [under the Members
Agreement] by the Designation Members, hold at least 5% of the total Class A
Units and constitute the holders of record of the three largest amounts of Class
A Units (based on such Members' Class A Sharing Percentages); provided, however,
that (i) any [p]erson and its affiliates will be treated as a single [p]erson
for such purpose; (ii) no [p]erson who is an affiliate of Edison may be a
Designation Member, and (iii) any person who notifies the Company that such
[p]erson does not wish to be a Designation Member shall be disregarded in
determining the [p]ersons entitled to be a Designation Member.
As of December 31, 1998, the Manager believes that the following
entities are the Designation Members of the Company:
Swiss Bank Corporation
222 Broadway, 20th Floor
New York, NY 10038
<PAGE> 10
Citibank, N.A.
599 Lexington Avenue, 21st Floor
New York, NY 10043
Contrarian Capital Management, L.L.C.
(on behalf of funds for which it acts as general partner)
411 West Putnam Ave., Suite 225
Greenwich, CT 06830
The Designation Members or Requisite Holders have the power to remove
the Manager of the Company with or without cause. In addition, the Designation
Members have the power to call meetings of Members. Further, the approval of
either the Designation Members or the Requisite Holders is required prior to the
Manager (i) adopting any annual budget for the Company, (ii) entering into any
lease agreement for more than 20,000 square feet and (iii) making or committing
to make an expenditure in an aggregate amount exceeding $1,000,000 for additions
to the Company's property, plant or equipment. The approval of the Designation
Members or the Requisite Holders is also required before the Manager causes the
Company to enter into any contract for sale of the Building.
As indicated above, the Manager of the Company is
PricewaterhouseCoopers LLP, 800 Market Street, St. Louis, Missouri 63101-2695.
Keith F. Cooper, a partner of PricewaterhouseCoopers LLP, is the primary contact
for the Manager with respect to the Company.
The background and experience of Keith F. Cooper are as follows:
Keith F. Cooper is a Certified Public Accountant and a Partner of
PricewaterhouseCoopers LLP. He has been with PricewaterhouseCoopers LLP and its
predecessors for fifteen (15) years. He has provided extensive services to
debtors and creditors in reorganization and bankruptcy related matters, both
in-court and out-of-court. These services have included providing operational
and financial due diligence services , appointment as the Receiver in connection
with foreclosure actions and assistance in the liquidation of several companies.
He has also provided turnaround and crisis management services to
underperforming companies in a number of industries. These services involve the
development and implementation of measures to improve the operations and
financial condition of these companies. In this role, Mr. Cooper has served in
the capacity of interim management in the Chief Executive and Chief Operating
Officer roles in both public and private companies. In addition, he has also
provided extensive services to businesses and law firms in the resolution of
disputes including consulting and testimony on economic, financial and forensic
accounting issues.
Section 16(a) Beneficial Ownership Reporting Compliance:
Except as set forth below, to the best knowledge of the Company, all
reports required to be filed under Section 16 by any officer, director,
beneficial owner of more than 10% of any class of securities registered
<PAGE> 11
pursuant to Section 12 of the Exchange Act or any other person subject to the
reporting requirements of Section 16 have been timely filed with the
Commission: The Company believes that Citicorp North America has not timely
filed a report on Form 4 with respect to a reportable transaction which
occurred in December of 1998. The Company understands that such a report is
being prepared and will be filed shortly. In addition, to the best knowledge
of the Company, Swiss Bank Corporation has not filed any Section 16(a) filings.
ITEM 10. EXECUTIVE COMPENSATION.
The Company does not have a Board of Directors or any corporate
officers. The Designation Members are not compensated by the Company in
connection with their service as Designation Members. The Manager is compensated
based upon the actual hours devoted to Company business by each staff member of
the Manager multiplied by the hourly billing rates of each such staff member.
The Manager was paid $277,619 for fees and expenses incurred in connection with
its services as Manager for fiscal year 1998 as well as tax consulting services
and preparation of the Company's annual and periodic reports. In addition, as of
December 31, 1998, the Company owed the Manager $10,016 for unpaid fees and
expenses incurred during 1998.
ITEM 11. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The Manager is not the beneficial owner, directly or indirectly, of any
Class A Units or of any of the Class B Units. As of December 31, 1998, all of
the issued and outstanding Class B Units had been canceled in accordance with
the terms of the Members Agreement and, therefore, Edison no longer holds any
Class B Units. As of December 31, 1998, the following entities were the
beneficial owners of greater than 5% of the Class A Units.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
NUMBER OF
NAME AND ADDRESS OF CLASS A UNITS PERCENTAGE OF
TITLE OF CLASS BENEFICIAL OWNER BENEFICIALLY OWNED CLASS
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Class A Membership Units Citicorp North America 1,597,451 (1) 16.0%
599 Lexington Ave.
21st Floor New York, NY 10043
- ----------------------------------------------------------------------------------------------------------------------
Class A Membership Units Contrarian Capital Management, 2,475,757 (2) 24.8%
L.L.C. and/or Contrarian Capital
Advisors, L.L.C.
411 West Putnam Ave.
Suite 225
Greenwich, CT 06830
- ----------------------------------------------------------------------------------------------------------------------
Class A Membership Units Principal Mutual Life Insurance 807,659 (3) 8.1%
Co.
711 High Street
Des Moines, Iowa 50392
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
Based upon a review of the Company's records, Swiss Bank Corporation,
222 Broadway, 20th Floor, New York, NY 10038, is the record owner of 1,582,317
(or 15.8%) Class A Units. The Company does not know if Swiss Bank Corporation
owns any such shares beneficially.
(1) Based on a letter from Citicorp North America to the Company dated
March 29, 1999.
(2) Based on a letter from Contrarian Capital Management, L.L.C. to
the Company dated March 22, 1999.
(3) Based on a letter from Principal Mutual Life Insurance to the
Company dated March 30, 1999.
ITEM 12. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
During January 1998, the Company employed Edison as the property
manager of the Building. As property manager, the Company paid Edison management
fees and reimbursed
<PAGE> 12
Edison for employee salaries totaling $30,017 for the month of January 1998.
During January 1998, Edison leased 273,068 rentable square feet in the Building,
which represents 63% of the Building's total rentable square footage.
ITEM 13. EXHIBITS, LIST AND REPORTS ON FORM 8-K.
(a) INDEX TO EXHIBITS.
3.1: Articles of Organization of the Issuer filed with the
Delaware Secretary of State on September 24, 1997
incorporated by reference to the Issuer's Registration
Statement on Form 10-SB filed on April 30, 1998, Exhibit
2.1.
3.2: Members Agreement of EBS Building, L.L.C. a Limited
Liability Company, dated as of September 26, 1997
incorporated by reference to the Issuer's Registration
Statement on Form 10-SB filed on April 30, 1998, Exhibit
2.2.
4: See the Members Agreement, referenced as Exhibit 3.2.
10.6: Lease by and among EBS Building, L.L.C., Stifel Financial
Corp. and Stifel, Nicolaus & Company, Incorporated, dated
September 30, 1998 incorporated by reference to the
Issuer's Registration Statement on Form 10-QSB filed on
November 13, 1998, Exhibit 10.6.
10.7: Lease by and between EBS Building, L.L.C. and Edison
Brothers Stores, Inc., dated September 30, 1998
incorporated by reference to the Issuer's Registration
Statement on Form 10-QSB filed on November 13, 1998,
Exhibit 10.7.
10.8: Assignment of Lease by and between EBS Building, L.L.C.
and Edison Brothers Stores, Inc., dated September 30, 1998
incorporated by reference to the Issuer's Registration
Statement on Form 10-QSB filed on November 13, 1998,
Exhibit 10.8.
10.9: First Amendment to Lease by and among EBS Building,
L.L.C., Stifel Financial Corp. and Stifel, Nicolaus &
Company, Incorporated, dated December 1, 1998.
10.10: Second Amendment to Lease by and among EBS Building,
L.L.C., Stifel Financial Corp. and Stifel, Nicolaus &
Company, Incorporated, dated February 1, 1999.
10.11: First Extension and Modification Agreement by and between
EBS Building, L.L.C. and First Bank dated March 15, 1999.
<PAGE> 13
10.12: Second Extension and Modification Agreement by and between EBS
Building, L.L.C. and First Bank, dated March 23, 1999.
10.13: Additional Promissory Note by and between EBS Building, L.L.C.
and First Bank, dated March 23, 1999.
10.14: Amendment to Deed of Trust by and among EBS Building, L.L.C.,
First Bank and First Land Trustee Corp., dated March 23, 1999.
10.15: Amendment to Assignment of Leases and Rents by and between EBS
Building, L.L.C. and First Bank, dated March 23, 1999.
11: Statement re: Computation of Earnings
27: Financial Data Schedule.
(b) REPORTS ON FORM 8-K.
The Company did not file any reports on Form 8-K during the last
fiscal quarter covered by this report. The Company did, however, file a report
on Form 8-K on March 11, 1999.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
REGISTRANT:
EBS Building, L.L.C.
By: PricewaterhouseCoopers LLP, as Manager
By: /s/ Keith F. Cooper
------------------------------------
Keith F. Cooper, Partner
Date: March 31, 1999
<PAGE> 14
[Rubin, Grown, Gornstein & Co LLP Letterhead]
INDEPENDENT AUDITORS' REPORT
Members
EBS Building, L.L.C.
St. Louis, Missouri
We have audited the accompanying balance sheet of EBS Building, L.L.C., a
Delaware limited liability company, as of December 31, 1998 and 1997 and the
related statements of operations, changes in members' equity and cash flows for
the year ended December 31, 1998 and the period beginning September 26, 1997 and
ended December 31, 1997. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of EBS Building, L.L.C. as of
December 31, 1998 and 1997, and the results of its operations and its cash flows
for the year ended December 31, 1998 and the period beginning September 26, 1997
and ended December 31, 1997 in conformity with generally accepted accounting
principles.
/s/Rubin, Brown, Gornstein & Co. LLP
February 26, 1999
F-1
<PAGE> 15
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
BALANCE SHEET
<TABLE>
<CAPTION>
Assets
December 31,
----------------------------------------
1998 1997
----------------------------------------
RENTAL PROPERTY $ 19,683,977 $ 19,584,653
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
OTHER ASSETS
Cash 512 403,919
Rents receivable 18,209 7,465
Due from Edison Brothers Stores, Inc. -- 61,398
Prepaid expenses 19,931 61,040
Lease commissions, net 884,766 --
Lease restructuring costs, net 766,703 --
Deposits 202 --
- -------------------------------------------------------------------------------------------------------------------------
TOTAL OTHER ASSETS 1,690,323 533,822
- -------------------------------------------------------------------------------------------------------------------------
$ 21,374,300 $ 20,118,475
=========================================================================================================================
Liabilities And Members' Equity
LIABILITIES
Accounts payable $ 180,061 $ 63,418
Accrued professional fees 73,636 139,297
Accrued utilities 78,695 72,644
Accrued salaries 34,131 45,777
Accrued payable - other 451,845 --
Due to Edison Brothers Stores, Inc. -- 112,022
Note payable 2,000,000 --
Other liabilities 11,262 12,495
- -------------------------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES 2,829,630 445,653
- -------------------------------------------------------------------------------------------------------------------------
MEMBERS' EQUITY
Membership units (Class A - 10,000,000 authorized, 10,000,000 and 9,058,041
issued and outstanding at December 31, 1998 and 1997, respectively Class B - 0
and 941,959 authorized, issued and
outstanding at December 31, 1998 and 1997, respectively) -- --
Paid-in capital 19,810,522 19,810,522
Retained earnings (deficit) (1,265,852) (137,700)
- -------------------------------------------------------------------------------------------------------------------------
TOTAL MEMBERS' EQUITY 18,544,670 19,672,822
- -------------------------------------------------------------------------------------------------------------------------
$ 21,374,300 $ 20,118,475
=========================================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
See the accompanying notes to financial statements.
F-2
<PAGE> 16
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
STATEMENT OF CHANGES IN MEMBERS' EQUITY
FOR THE YEAR ENDED DECEMBER 31, 1998 AND THE PERIOD
BEGINNING SEPTEMBER 26, 1997 AND ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
Class A Class B
Membership Membership Paid-In Retained
Units Units Capital Earnings Total
---------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
BALANCE - SEPTEMBER 26, 1997 -- -- $ -- $ -- $ --
ORIGINAL CAPITAL CONTRIBUTION -- 10,000,000 19,810,522 -- 19,810,522
UNITS TRANSFERRED 9,058,041 (9,058,041) -- -- --
PERIOD LOSS -- -- -- (137,700) (137,700)
- -------------------------------------------------------------------------------------------------------------------------
BALANCE - DECEMBER 31, 1997 9,058,041 941,959 19,810,522 (137,700) 19,672,822
UNITS TRANSFERRED 941,959 (941,959) -- -- --
CURRENT YEAR LOSS -- -- -- (1,128,152) (1,128,152)
- -------------------------------------------------------------------------------------------------------------------------
BALANCE - DECEMBER 31, 1998 10,000,000 -- $ 19,810,522 $ (1,265,852) $ 18,544,670
=========================================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
See the accompanying notes to financial statements.
F-3
<PAGE> 17
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
For The Period
Beginning
For The September 26, 1997
Year Ended And Ended
December 31, 1998 December 31, 1997
------------------------------------------------------
INCOME
<S> <C> <C>
Rent $ 3,255,117 $ 822,477
Other 100,926 25,455
- -------------------------------------------------------------------------------------------------------------------------
TOTAL INCOME 3,356,043 847,932
- -------------------------------------------------------------------------------------------------------------------------
EXPENSES
Maintenance 1,199,400 274,034
Professional fees 829,829 157,918
Utilities 719,450 153,478
General and administrative 524,511 131,329
Taxes (including real estate taxes) 382,173 101,340
Other operating expenses 173,050 41,664
Depreciation and amortization 655,782 125,869
- -------------------------------------------------------------------------------------------------------------------------
TOTAL EXPENSES 4,484,195 985,632
- -------------------------------------------------------------------------------------------------------------------------
NET LOSS $ (1,128,152) $ (137,700)
=========================================================================================================================
</TABLE>
- --------------------------------------------------------------------------------
See the accompanying notes to financial statements.
F-4
<PAGE> 18
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
For The Period
Beginning
For The September 26, 1997
Year Ended And Ended
December 31, 1998 December 31, 1997
-----------------------------------------------------
CASH FLOWS FROM OPERATING ACTIVITIES
<S> <C> <C>
Net loss $ (1,128,152) $ (137,700)
Reconciliation of net loss to cash flows
provided by operating activities:
Depreciation and amortization 655,782 125,869
Change in assets and liabilities:
(Increase) decrease in rent receivable, due
from Edison Brothers Stores, Inc.,
prepaid expenses and other assets 91,561 (129,903)
Increase in liabilities, excluding note
payable 383,977 445,653
- -------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED BY OPERATING ACTIVITIES 3,168 303,919
- -------------------------------------------------------------------------------------------------------------------------
CASH FLOWS FROM INVESTMENT ACTIVITIES
Additions to rental property (598,792) --
Payments for lease commissions (895,041) --
Payments for lease restructuring costs (912,742) --
- -------------------------------------------------------------------------------------------------------------------------
NET CASH USED IN INVESTMENT ACTIVITIES (2,406,575) --
- -------------------------------------------------------------------------------------------------------------------------
CASH FLOWS FROM FINANCING ACTIVITIES
Capital contribution -- 100,000
Proceeds from note payable 2,000,000 --
- -------------------------------------------------------------------------------------------------------------------------
NET CASH PROVIDED BY FINANCING ACTIVITIES 2,000,000 100,000
- -------------------------------------------------------------------------------------------------------------------------
NET INCREASE (DECREASE) IN CASH (403,407) 403,919
CASH - BEGINNING OF PERIOD 403,919 --
- -------------------------------------------------------------------------------------------------------------------------
CASH - END OF PERIOD $ 512 $ 403,919
=========================================================================================================================
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Contribution of land and building $ -- $ 19,710,522
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------------------------------------------------------------------------------
See the accompanying notes to financial statements.
F-5
<PAGE> 19
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1998 AND 1997
1. DESCRIPTION OF BUSINESS
EBS Building, L.L.C. (the "Company") is a limited liability company
organized on September 26, 1997 under the Delaware Limited Liability
Company Act. The Company is governed by a Members Agreement, dated as
of September 26, 1997 (the "Members Agreement"). The Company was formed
in connection with the reorganization proceedings of Edison Brothers
Stores, Inc. ("Edison") under Chapter 11 of the United States
Bankruptcy Code. Pursuant to Edison's Chapter 11 plan of reorganization
(the "Plan of Reorganization"), Edison transferred title to its land
and building at 501 North Broadway in downtown St. Louis, Missouri (the
"Building") to the Company on September 26, 1997 as a part of the
overall distribution to holders of Allowed General Unsecured Claims
against Edison (as defined in the Plan of Reorganization), who received
Membership Units in the Company (as more fully described below in Note
4).
Pursuant to the Members Agreement, the Company is organized for the
exclusive purposes of acquiring, owning, managing, maintaining,
repairing, leasing, selling, hypothecating, mortgaging or otherwise
dealing with the Building, and for receiving, administering and
distributing any disposition proceeds relating thereto. It primarily
derives income from the rental of office space. The proceeds from the
eventual sale of the Building will be distributed along with any other
Company assets to the appropriate holders of Membership Units (the
"Members") in accordance with the Members Agreement.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
This summary of significant accounting policies is presented to assist
in evaluating the Company's financial statements included in this
report. These principles conform to generally accepted accounting
principles. The preparation of financial statements in conformity with
generally accepted accounting principles requires that management make
estimates and assumptions which impact the reported amounts of assets
and liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
BASIS OF PRESENTATION
These financial statements include the accounts of EBS Building, L.L.C.
for the year ended December 31, 1998 and the period beginning September
26, 1997 and ended
- --------------------------------------------------------------------------------
F-6
<PAGE> 20
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
Notes to Financial Statements (Continued)
December 31, 1997.
CASH
Cash consists of an amount held in a demand deposit account in the
Company's name at a highly-rated financial institution.
RENTAL PROPERTY
Rental property includes land, building, building improvements and
tenant improvements. Land and building were recorded at their carryover
basis from Edison (i.e., Edison's historical book value) at September
26, 1997. Such carryover basis reflects a review in accordance with
Financial Accounting Standards Board Statement of Financial Accounting
Standards No. 121, Accounting for the Impairment of Long-Lived Assets
and for Long-Lived Assets to be Disposed of. Maintenance, repairs and
minor improvements are expensed as incurred. The Building and building
improvements are depreciated using the straight-line method over its
estimated useful life of 38 years and 39 years, respectively. Tenant
improvements are depreciated over the term of the tenant's lease.
LEASE COMMISSIONS AND LEASE RESTRUCTURING COSTS
Lease commissions and lease restructuring costs are capitalized and
amortized over the term of the lease.
RENTAL INCOME AND OPERATING EXPENSES
Rental income and operating expenses are recorded on the accrual basis
of accounting.
INCOME TAXES
The Company is not subject to income taxes. Instead, the members report
their distributive share of the Company's profits and losses on their
respective income tax returns.
- --------------------------------------------------------------------------------
F-7
<PAGE> 21
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
Notes to Financial Statements (Continued)
3. RENTAL PROPERTY
Rental property includes the following:
<TABLE>
<CAPTION>
December 31,
---------------------------------------
1998 1997
---------------------------------------
<S> <C> <C>
Land $ 2,250,520 $ 2,250,520
Building 17,765,629 17,765,629
Building improvements 161,259 --
Tenant improvements 377,657 --
Construction in progress 59,876 --
-----------------------------------------------------------------------------------------------
20,614,941 20,016,149
Less: Accumulated depreciation and
amortization 930,964 431,496
-----------------------------------------------------------------------------------------------
$ 19,683,977 $ 19,584,653
===============================================================================================
</TABLE>
The Building is located in downtown St. Louis, Missouri and is
primarily leased to various businesses for office space. The Building
has 434,136 square feet of rentable space. At December 31, 1997, the
Building had six tenants leasing 319,180 square feet for an occupancy
rate of 74%. At December 31, 1998, the Building had eight tenants
leasing 275,677 square feet for an occupancy rate of 64%.
At December 31, 1998, there is one tenant which occupies greater than
10% of the leasable space. Edison occupies 206,450 square feet or 48%
of total leasable space.
On September 30, 1998, the Company entered into a twelve-year lease
with Stifel Financial Corp. and Stifel, Nicolaus & Company, Inc. (the
"Stifel lease") for 91,763 square feet of rentable office space. Upon
commencement of the Stifel lease in February 1999, the occupancy rate
of the Building increased to approximately 85%.
At December 31, 1998, minimum payments due to the Company under
noncancellable operating lease agreements, including the Stifel lease,
are as follows:
<TABLE>
<CAPTION>
YEAR AMOUNT
---------------------------------------------------------
<S> <C>
1999 $ 3,864,092
2000 3,664,500
2001 1,987,784
2002 1,824,528
2003 1,848,878
Thereafter 13,268,634
---------------------------------------------------------
$ 26,458,416
=========================================================
</TABLE>
4. MEMBERS' EQUITY
- --------------------------------------------------------------------------------
F-8
<PAGE> 22
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
Notes to Financial Statements (Continued)
On September 26, 1997, Edison transferred the title of the Building to
the Company in exchange for 10,000,000 Class B Membership Units of the
Company, which represented all of the outstanding Membership Units of
the Company. On December 12, 1997, in accordance with the Company's
Members Agreement and the Plan of Reorganization, Edison exchanged
9,058,041 Class B Membership Units for 9,058,041 Class A Membership
Units of the Company and simultaneously distributed such units to
holders of Allowed General Unsecured Claims. At December 31, 1997,
Edison held 941,959 Class B Membership Units.
During 1998, Edison exchanged the remaining Class B Membership Units
for an equal number of Class A Membership Units and simultaneously
distributed such units to holders of Allowed General Unsecured Claims.
At December 31, 1998, Edison holds no Class B Membership Units.
5. NOTE PAYABLE
Effective March 16, 1998, the Company entered into a $2,000,000
revolving line of credit agreement. The note bears interest at an
annual rate equal to the LIBOR rate plus 2.25%. There was no commitment
fee. This note payable is secured by a first lien on the rental
property and an assignment of leases and rental income. Payments are
for interest only until maturity on March 15, 1999, when all
outstanding principal and interest is due and payable. As of December
31, 1998, the Company had outstanding borrowings of $2,000,000.
6. RELATED PARTY TRANSACTIONS
During 1997, Edison was employed by the Company as the property manager
of the Building. As property manager, the Company paid Edison
management fees and reimbursed Edison for employee salaries totalling
$104,150 for the period from September 26, 1997 through December 31,
1997. As of December 31, 1997, the Company was due $61,398 from Edison,
relating primarily to overpayment of payroll costs. The Company owed
$112,022 as of December 31, 1997 primarily for property taxes paid by
Edison on behalf of the Company.
One of Edison's six board members is an employee of a Member of the
Company.
- --------------------------------------------------------------------------------
F-9
<PAGE> 23
EBS BUILDING, L.L.C.
- --------------------------------------------------------------------------------
Notes to Financial Statements (Continued)
7. SUBSEQUENT EVENTS
EDISON FILES BANKRUPTCY
On March 9, 1999, Edison filed bankruptcy under Chapter 11 of the
Bankruptcy Code. It is unknown at this time how this will affect the
lease agreement between Edison and the Company.
EXTENSION OF MATURITY OF NOTE PAYABLE
On March 15, 1999, the Company entered into an agreement to extend the
maturity date of Note Payable (Note 5) from March 15, 1999 to April 15,
1999. On March 23, 1999, the Company entered into a new $5,200,000
revolving line of credit with First Bank which replaces the existing
$2,000,000 line of credit.
- --------------------------------------------------------------------------------
F-10
<PAGE> 1
EXHIBIT 10.9
FIRST AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (hereinafter called "First Amendment") is
made and entered into as of the 1st day of December, 1998 by and between EBS
BUILDING, L.L.C., a Delaware limited liability company ("Landlord"), and STIFEL
FINANCIAL CORP., a Delaware corporation, and STIFEL, NICOLAUS & COMPANY,
INCORPORATED, a Missouri corporation (collectively referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a certain Standard Office
Lease dated September 30, 1998 (the "Lease") for certain premises located in the
building known and numbered as 500 Washington Avenue, St. Louis, Missouri; and
WHEREAS, words and phrases having defined meanings in the Lease shall
have the same respective meanings when used herein, unless otherwise expressly
defined herein; and
WHEREAS, Landlord and Tenant desire to amend said Lease as hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 1.4 of the Lease is hereby amended in its entirety to read
as follows:
1.4. DATE OF PRELIMINARY SPACE PLAN: November 13, 1998
DATE OF FINAL SPACE PLAN: December 2, 1998 (12:00 Noon)
TENANT'S PLAN SUBMITTAL DATE
FOR INITIAL PREMISES: December 14, 1998
LANDLORD'S PLAN APPROVAL DATE
FOR INITIAL PREMISES: December 24, 1998
TENANT'S PLAN SUBMITTAL DATE
FOR SUBSEQUENTLY DELIVERED
PREMISES: December 14, 1998
LANDLORD'S PLAN APPROVAL DATE
FOR SUBSEQUENTLY DELIVERED
PREMISES: December 24, 1998
<PAGE> 2
2. Section 1.5 of the Lease is hereby amended in its entirety
to read as follows:
1.5 LEASE COMMENCEMENT DATE: February 1, 1999
RENT COMMENCEMENT DATE: February 1, 1999
LEASE EXPIRATION DATE: April 30, 2011
3. Section 1.6 of the Lease is hereby amended in its entirety to read
as follows:
1.6 TERM: Twelve (12) years and three (3) months
4. Section 1.8 of the Lease is hereby amended in its entirety to read
as follows:
1.8 PREMISES: approximately 91,763 rentable square feet in the
Building as depicted in Exhibit A of this Lease and as improved in
accordance with the provisions of Exhibit C of this Lease.
5. Section 1.11 of the Lease is hereby deleted in its entirety and
replaced with the following:
1.11. ANNUAL BASE RENT AND MONTHLY BASE RENT INSTALLMENT:
From 02/01/1999 - 4/30/1999; Annually $150,000.00; Monthly $12,500.00,
based upon a base rental rate of $15.00 per rentable
square foot.
From 05/01/1999 - 04/30/2000; Annually $1,376,445.00; Monthly
$114,703.75, based upon a base rental rate of $15.00 per rentable
square foot.
From 05/01/2000 - 04/30/2001; Annually $1,422,326.50; Monthly
$118,527.21, based upon a base rental rate of $15.50 per rentable
square foot.
From 05/01/2001 - 04/30/2002; Annually $1,468,208.00; Monthly
$122,350.67, based upon a base rental rate of $16.00 per rentable
square foot.
From 05/01/2002 - 04/30/2003; Annually $1,468,208.00; Monthly
$122,350.67, based upon a base rental rate of $16.00 per rentable
square foot.
From 05/01/2003 - 04/30/2004; Annually $1,514,089.50; Monthly
$126,174.13, based upon a base rental rate of $16.50 per rentable
square foot.
From 05/01/2004 - 04/30/2005; Annually $1,514,089.50; Monthly
$126,174.13, based upon a base rental rate of $16.50 per rentable
square foot.
From 05/01/2005 - 04/30/2006; Annually $1,559,971.00; Monthly
$129,997.58, based upon a base rental rate of $17.00 per rentable
square foot.
From 05/01/2006 - 04/30/2007; Annually $1,605,852.50; Monthly
$133,821.04, based upon a base rental rate of $17.50 per rentable
square foot.
From 05/01/2007 - 04/30/2008; Annually $1,651,734.00; Monthly
$137,644.50, based upon a base rental rate of $18.00 per rentable
square foot.
2
<PAGE> 3
From 05/01/2008 - 04/30/2009; Annually $1,697,615.50; Monthly
$141.467.96, based upon a base rental rate of $18.50 per rentable
square foot.
From 05/01/2009 through 04/30/2010, Annual Base Rent due under this
Lease shall be that amount equal to the number of rentable square feet
constituting the Premises, as acknowledged pursuant to Section 1.8 above,
times the product obtained by multiplying $16.50 by a fraction, the
numerator of which shall be the CPI-U (as hereinafter defined) for April 30,
2009, and the denominator of which shall be the CPI-U (as hereinafter
defined) for February l, 1999, which Annual Base Rent shall not exceed
$22.17 per rentable square foot. The Monthly Base Rent Installment shall be
the amount of Annual Base Rent divided by twelve.
From 05/01/2010 through 04/30/2011, Annual Base Rent due under this
Lease shall be that amount equal to the number of rentable square feet
constituting the Premises, as acknowledged pursuant to Section 1.8 above,
times the product obtained by multiplying the Annual Base Rent for the
immediately prior lease year by a fraction, the numerator of which shall be
the CPI-U (as hereinafter defined) for April 30, 2010, and the denominator
of which shall be the CPI-U for April 30, 2009, which Annual Base Rent shall
not exceed $22.84 per rentable square foot. The Monthly Base Rent
Installment shall be the amount of Annual Base Rent divided by twelve.
As used herein, the term "Consumer Price Index" shall mean The Consumer
Price Index for All Urban Consumers (CPI-U), All Items, U.S. City Average
(1982-1984 = 100) published by the United States Department of Labor, Bureau
of Labor Statistics. In the event the Consumer Price Index is not published
effective as of the date(s) referred to above, then the adjustment shall be
measured from the date most immediately preceding the date(s) in question.
If the Consumer Price Index is changed so that the base year differs from
that referenced above, the Consumer Price Index shall be converted in
accordance with the conversion factor published by the United States
Department of Labor, Bureau of Labor Statistics. If the Consumer Price Index
is discontinued or revised during the Term, such other governmental index or
computation with which it is replaced shall be used in order to obtain
substantially the same result as would be obtained if the Consumer Price
Index had not been discontinued or revised.
6. Section 1.14 of the Lease is hereby amended in its entirety to
read as follows:
1.14 TENANT'S PROPORTIONATE SHARE: On and after the Lease Commencement
Date to the day immediately prior to Landlord's delivery of
possession of the Subsequently Delivered Premises pursuant to
Section 3.2 of this Lease: 2.30%;
On and after the day Landlord delivers possession of the
Subsequently Delivered Premises pursuant to Section 3.2 of this
Lease: 21.14%.
3
<PAGE> 4
7. Section 1.17 of the Lease is hereby amended by (i) changing the
number "21" in the third line to "23"; (ii) changing the number "21" in the
thirteenth line to "19"; (iii) changing the phrase "eleven (11)" in the twenty
first line to "thirteen (13)"; (iv) changing the word "sixteen" in the twenty
fifth line to "eighteen"; and (v) changing the phrase "four (4)" in the twenty
sixth line to "five (5)."
8. Section 1.22 of the Lease is hereby deleted in its entirety.
9. Section 3.2 of the Lease is hereby amended by (i) changing the
word "January" in the first line to "February"; (ii) changing the word "eighth"
in the third line to "seventh"; (iii) changing the word "April" in the third and
tenth lines to "May"; (iv) changing the word "March" in the twelfth line to
"April"; (v) adding after the phrase "or resulting from changes or additions to
Tenant's plans after the initial submission" in the thirty eighth and thirty
ninth lines the phrase ", or resulting from errors, omissions, defects or other
inadequacies in Tenant's plans or the related construction drawings"; and (vi)
deleting the tenth grammatical sentence thereof in its entirety and substituting
the following therefor:
If the Subsequently Delivered Premises are not ready for occupancy
on or prior to May 1, 1999, this Lease shall nevertheless continue in
effect, but (a) Rent with respect to such portion of the Subsequently
Delivered Premises which is not ready for occupancy shall abate, and
(b) the Lease Expiration Date shall be extended for a period
commensurate with such period of Rent abatement, if any, with respect
to the Subsequently Delivered Premises, and Landlord shall have no
other liability whatsoever on account thereof. In addition to the
foregoing Rent abatement and extension of the Term, if the Subsequently
Delivered Premises are not ready for occupancy on or prior to June 1,
1999, Landlord shall reimburse Tenant for any increase in base rent
payable by Tenant in its current premises at 500 North Broadway, St.
Louis, Missouri (which reimbursement obligation shall not, however,
exceed One Thousand Two Hundred Ninety Eight and 63/100 Dollars
($1,298.63) per day), and Landlord shall have no other liability
whatsoever on account thereof.
10. Exhibit A to the Lease is hereby deleted and Exhibit A attached to
this Amendment is substituted therefor.
11. Exhibit C, "Work To Be Performed In The Premises," is hereby
amended as follows:
a. The word "April" appearing in the eighth line of the
introductory paragraph is hereby changed to "May."
b. Subsections 1 and 2 of Section C, "Approval Procedures," are
hereby deleted in there entirety and replaced with the following:
1. Tenant has engaged, with Landlord's approval as to the scope
of
4
<PAGE> 5
work and the cost of work, a design firm to prepare one space plan for
the proposed improvements to the Premises. In the event Tenant shall
have commenced payment of Rent on the entirety of the Premises (91,763
rentable square feet) on or prior to April 1, 1999, Landlord shall pay
the cost of said space plan, in an amount not to exceed Fourteen
Thousand Six Hundred Eighty Two and 09/100 Dollars ($14,689.09).
Otherwise, the cost of said space plan shall be deducted from the
Tenant Improvement Allowance.
2. Based on the space plan to be delivered by Tenant to Landlord
by October 1, 1998 and to be modified by Tenant as reasonably required
by Landlord (and revised to incorporate such modifications) by November
13, 1998 (the "Preliminary Space Plan"), Tenant shall commence the
preparation of the plans and specifications (the "Construction
Documents") necessary to construct the Initial Premises. At or prior to
5:00 p.m. on December 1, 1998, Tenant shall deliver to Landlord a space
plan reflecting changes only to that portion of the Premises on the
seventh floor of the Building, which shall be modified by Tenant as
reasonably required by Landlord (and revised to incorporate such
modifications) by 12:00 Noon on December 2, 1998 (the "Final Space
Plan"), which Final Space Plan shall be substituted for the Initial
Space Plan as the basis for the preparation of the Construction
Documents. Tenant shall deliver the Construction Documents to Landlord
for review and approval no later than December 14, 1998 (the "Tenant's
Plan Submittal Date for Initial Premises"). Landlord shall review the
Construction Documents and shall either return the same to Tenant,
marked approved or with Landlord's necessary changes indicated no later
than December 24, 1998 (the "Landlord's Plan Approval Date for Initial
Premises"). In the event that Landlord indicates changes to the
Construction Documents, Tenant shall promptly make the indicated
changes and return the revised Construction Documents to Landlord for
Landlord's review and approval. Landlord shall have five (5) days after
receipt of the revised Construction Documents to approve and return to
Tenant the Construction Documents. Construction Documents, with
Landlord's requested revisions, must be signed by the Tenant (together
with the Construction Documents so approved for the Subsequently
Delivered Premises, the "Approved Construction Documents") to authorize
Landlord to complete the work to the Initial Premises (work on the
Initial Premises will not begin until such approval is received by
Landlord).
Based on the Final Space Plan, Tenant shall prepare the
Construction Documents necessary to construct the Subsequently
Delivered Premises. Tenant shall deliver the Construction Documents to
Landlord for review and approval no later than December 14, 1998 (the
"Tenant's Plan Submittal Date for Subsequently Delivered Premises").
Landlord shall review the Construction Documents and shall either
return the same to Tenant, marked approved or with Landlord's necessary
changes indicated no later than December 24, 1998 (the "Landlord's Plan
Approval Date for Subsequently Delivered Premises"). In the event that
Landlord indicates changes to the Construction Documents, Tenant
5
<PAGE> 6
shall promptly make the indicated changes and return the revised
Construction Documents to Landlord for Landlord's review and approval.
Landlord shall have five (5) days after receipt of the revised
Construction Documents to approve and return to Tenant the Construction
Documents. Construction Documents, with Landlord's requested revisions,
must be signed by the Tenant (and shall thereafter constitute Approved
Construction Documents) to authorize Landlord to complete the work to
the Subsequently Delivered Premises (work on the Subsequently Delivered
Premises will not begin until such approval is received by Landlord).
Landlord may, at its sole and absolute discretion, engage its own
architect to review the Construction Documents and Landlord shall have
the right to deduct up to $5,000 from the Tenant Improvement Allowance
to cover any fees and expenses associated with such engagement and
review by said architect. Tenant acknowledges that (i) the review and
approval of plans and specifications by Landlord and any
recommendations by Landlord with respect thereto are for the sole
benefit of Landlord and not for the benefit of Tenant or any third
party, and neither Landlord nor any of its representatives or agents
assume any responsibility or liability by reason of such reviews,
approval or recommendations, (ii) Tenant will not rely upon any of such
review, approvals or recommendations for any purpose whatsoever, and
(iii) such reviews, approvals or recommendations will not constitute a
waiver of any of the provisions of this Lease or any other obligations
of Tenant hereunder. Tenant shall not add to, make deletions from, or
otherwise modify any approved plans without Landlord's prior written
approval.
12. Exhibit H to the Lease is hereby amended by replacing the "AREA"
designation of "85,000" with "91,763."
13. Addendum No. 1 to the Lease is hereby amended as follows:
a. Section 23.32 of the Lease is hereby amended in its entirety
to read as follows:
23.32 OPTION TO LEASE STORAGE AREA. Provided that this Lease
is in full force and effect and Tenant is not in default hereunder
beyond any applicable cure period, Tenant shall have the option to
lease from Landlord on or prior to April 30, 2001, approximately 3,500
useable square feet of storage space in the Building, in such location
as Landlord may designate upon receipt of Tenant's notice of exercise
of this option (the "Storage Area"). Tenant may exercise this right
only by giving Landlord at least ninety (90) days prior written notice
and Tenant shall receive possession of the Storage Area on or prior to
the date specified in Tenant's notice (which date shall not be earlier
than ninety (90) days from the date of such notice or later than April
30, 2001). The annual rent for the Storage Area shall be Eight Dollars
($8.00) per useable square foot, payable in equal monthly installments,
and shall be added to Tenant's Annual Base Rent obligations hereunder.
The Storage Area shall be delivered to Tenant
6
<PAGE> 7
in its "as is" condition and Tenant's rent obligations with respect to
the Storage Area shall commence upon tender of possession thereof by
Landlord to Tenant. Tenant agrees that the Storage Area may be used
only for the storage (and not any use or operation) of furniture,
office equipment, supplies and boxes and may not be used for storage of
any dangerous or noxious materials or the operation of computer
equipment. Tenant's use of the Storage Area shall be in full compliance
with the applicable provisions of the Lease. The term of the lease of
the Storage Area shall expire concurrent with the expiration of the
Term of the Lease, unless otherwise earlier terminated by agreement of
the parties. Landlord reserves the right to relocate the Storage Area
pursuant to Section 3.4 of the Lease. Landlord and Tenant hereby agree
to execute an amendment to the Lease reflecting the addition of Storage
Area and the adjustment to Annual Base Rental described above.
b. A new Section 23.37 is added to the Lease as follows:
23.37. RIGHT OF FIRST OFFER. Provided that this Lease is in full
force and effect and Tenant is not in default hereunder beyond any
applicable cure period, and subject to the prior rights affecting the
following described space held by Bankers Trust Company, its successors
or assigns (collectively, "Bankers Trust Company"), pursuant to its
lease of space in the Building, Tenant shall have right to lease and
occupy additional space on the tenth floor of the Building as follows:
(a) In the event the seventh floor of the Building is fully
leased and not less than 7,750 rentable square feet of the space
located on the tenth floor of the Building depicted on Exhibit J to
this Lease is then available for leasing, Landlord shall so notify
Tenant, which notice shall specify the location and size of, and the
annual base rent for such space (the "First Offer Space") and the
commencement date of the lease of the First Offer Space (the "First
Offer Commencement Date"). Within ten (10) business days after Tenant's
receipt of such notice, Tenant shall give notice to Landlord as to
whether or not it desires to lease the First Offer Space. If Tenant
does not desire to lease the First Offer Space or Tenant fails to
deliver such notice to Landlord within such ten (10) business day
period, Landlord shall have the right to lease and thereafter to re-let
all or any portion of the First Offer Space to a third party or parties
free and clear of any rights of Tenant in such space. Tenant shall not
have the right to take less than all of the First Offer Space in
connection with any exercise by Tenant of its rights hereunder. If
Tenant exercises its right to lease the First Offer Space, Landlord
shall deliver the First Offer Space in its then "as is" condition.
(b) In the event Tenant timely exercises its right to lease the
First Offer Space, then commencing upon the First Offer Commencement
Date, such space shall become part of the Premises, subject to the same
terms and conditions as are contained in the Lease, except that the
Rent for the First Offer Space shall be the rate described in
Landlord's notice to Tenant delivered
7
<PAGE> 8
pursuant to (a) above, which rate shall be then prevailing market rate
as determined by Landlord (which determination shall not be subject to
arbitration) and the term shall commence on the First Offer
Commencement Date and end on the last day of the Term of the Lease.
Landlord and Tenant shall execute an amendment to Lease, which shall
have been prepared by Landlord and shall be in form and substance
reasonably satisfactory to Landlord and Tenant, confirming the
adjustments to the Premises and the Rent.
(c) In the event Bankers Trust Company elects to lease any
of the foregoing space pursuant to rights set forth in its lease,
Tenant shall have no rights whatsoever with respect to any part of such
space as leased by Bankers Trust Company.
14. Certain Stipulations. Landlord and Tenant hereby stipulate and
agree that the Tenant Improvement Allowance shall be Two Million Two Hundred
Ninety Four Thousand Seventy Five Dollars ($2,294,075.00) and the Move Expense
Sub-Allowance shall be One Hundred Eighty Three Thousand Five Hundred Twenty Six
Dollars ($183,526.00).
15. Miscellaneous.
a. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original and all such counterparts, taken together,
shall constitute but one and the same instrument. Facsimile signatures on any
counterpart shall be effective as an original signature, but the parties hereto
agree to deliver to the other original signatures within thirty (30) days after
the date of this Amendment.
b. Except as expressly amended and modified hereby, all of the terms
and provisions of this Lease shall remain unchanged and in full force and effect
and are hereby ratified and confirmed.
c. This Amendment shall inure to the benefit of the parties hereto
and their respective successors and assigns.
8
<PAGE> 9
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this
First Amendment to Indenture of Lease as of the day and year first written
above.
LANDLORD:
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, its Manager
By: /s/Keith F. Cooper
------------------------------------
Name: Keith F. Cooper
Title: Partner
Date:
-----------------
TENANT:
STIFEL FINANCIAL CORP.
By: /s/Charles Hartman
------------------------------------
Name: Charles Hartman
-------------------------------
Title: Secretary
Date:
----------------------------------
STIFEL, NICOLAUS & COMPANY,
INCORPORATED
By: /s/Charles Hartman
------------------------------------
Name: Charles Hartman
-------------------------------
Title: Secretary
Date:
----------------------------------
9
<PAGE> 1
EXHIBIT 10.10
SECOND AMENDMENT TO LEASE
This SECOND AMENDMENT TO LEASE (hereinafter called "Second Amendment")
is made and entered into as of the 1st day of February, 1999 by and between EBS
BUILDING, L.L.C., a Delaware limited liability company ("Landlord"), and STIFEL
FINANCIAL CORP., a Delaware corporation, and STIFEL, NICOLAUS & COMPANY,
INCORPORATED, a Missouri corporation (collectively referred to as "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a certain Standard Office
Lease dated September 30, 1998 for certain premises located in the building
known and numbered as 500 Washington Avenue, St. Louis, Missouri, which Standard
Office Lease was amended by that certain First Amendment to Lease dated as of
December 1, 1998 (hereinafter collectively referred to as the "Lease"); and
WHEREAS, words and phrases having defined meanings in the Lease shall
have the same respective meanings when used herein, unless otherwise expressly
defined herein; and
WHEREAS, Landlord and Tenant desire to amend said Lease as hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Section 23.34.a. of the Lease is hereby amended in its entirety to
read as follows:
a. SEVENTH FLOOR EXPANSION. Tenant shall lease and occupy, on or
before May 1, 2001, the approximately 4,237 rentable square feet of the
seventh floor of the Building and designated as the Seventh Floor
Expansion (the "Seventh Floor Expansion"), all as outlined on the floor
plan attached hereto as Exhibit J, solely for storage or office use.
The term for Tenant's lease of the Seventh Floor Expansion shall expire
conterminously with the Lease. Tenant may commence the lease of all or
a portion of the Seventh Floor Expansion prior to May 1, 2001 only by
giving Landlord at least one hundred twenty (120) days prior written
notice, which written notice shall include (i) the number of square
feet to be occupied (which shall not be less than 500 rentable square
feet); (ii) Tenant's proposed use of said portion of the Seventh Floor
Expansion; and (iii) a representation and warranty that Tenant has not
obligated Landlord for any finders', brokers' or other agents'
commission, fees or other remuneration in connection with the exercise
of the rights granted by this Section 23.34.a. Tenant hereby agrees to
indemnify and hold Landlord harmless from and against any and all
claims for such fees payable to any person or entity other than
Insignia/ESG arising out of any act of Tenant in connection with the
lease of the Seventh Floor Expansion. Annual Base Rent for the Seventh
Floor Expansion shall be charged at the rate per rentable square foot
then in effect for the Premises times the number of rentable square
feet occupied by Tenant in the Seventh Floor Expansion, which rate
shall thereafter be increased pursuant to Section 1.11 of the Lease;
provided, however, that in the event Tenant elects to use any portion
of the Seventh Floor Expansion for storage,
<PAGE> 2
the Annual Base Rent for the portion of the Seventh Floor Expansion
used for storage shall be the rate of $8.00 per square foot until April
30, 2001. From and after May 1, 2001, Annual Base Rent for the entirety
of the Seventh Floor Expansion shall be the rate for such period as set
forth in Section 1.11 of the Lease, whether such space is used for
storage space or office space. Tenant's rent obligations with respect
to the Seventh Floor Expansion (or a portion thereof) shall commence
upon the tender of possession thereof by Landlord to Tenant pursuant to
Tenant's written notice delivered pursuant to this Section 23.34.a, and
Tenant shall commence payment of rent on the entirety of the Seventh
Floor Expansion by not later than May 1, 2001, without regard to
whether or not Tenant has commenced occupancy thereof or delivered any
notices to Landlord under this Section 23.34.a. In addition, Tenant's
Proportionate Share shall be concurrently adjusted to reflect
Landlord's tender of possession of all or any portion of the Seventh
Floor Expansion, with all other terms of this Lease to remain the same.
Landlord and Tenant hereby agree to execute an amendment to the Lease
reflecting the Seventh Floor Expansion and other adjustments set forth
in this Section 23.34.a. The number of rentable square feet encompassed
by each Tenant election with respect to the Seventh Floor Expansion
shall be field verified by Landlord's Architect. Landlord shall provide
Tenant with a tenant improvement allowance for the Seventh Floor
Expansion in an amount equal to $15.00 per rentable square foot of the
Seventh Floor Expansion only for such portions of the Seventh Floor
Expansion which are used for office space and Landlord shall not
provide any tenant improvement allowance to Tenant for any portion of
the Seventh Floor Expansion used for storage. In the event Tenant does
not utilize the $15.00 per rentable square foot allowance on the
Seventh Floor Expansion ("Seventh Floor Expansion") for improvements to
the Seventh Floor Expansion prior to May 1, 2000, then Tenant may
utilize any unused portion of the Seventh Floor Expansion Allowance for
other improvements to the Premises, provided that Tenant must use this
unused portion by December 1, 2001, or Landlord will have no further
obligation with respect to the Seventh Floor Expansion Allowance. The
improvements to be constructed in connection with Tenant's lease of the
Seventh Floor Expansion shall be considered alterations and the plans
therefor and construction thereof shall be subject to the provisions of
Article 11 of this Lease. The cost of any necessary demising walls in
connection with Tenant's use of a portion of the Seventh Floor
Expansion for office use shall be paid by Tenant. Prior to May 1, 2001,
the portion of the Seventh Floor Expansion used for storage space shall
not be factored in any adjustment to Tenant's Proportionate Share. Such
portions of the Seventh Floor Expansion shall be delivered to Tenant in
its "as is" condition. Tenant agrees that the portion of the Seventh
Floor Expansion used for storage may be used only for storage (and not
any use or operation) of furniture, office equipment, supplies and
boxes and may not be used for storage of any dangerous or noxious
materials or the operation of computer equipment.
2. Miscellaneous.
a. This Second Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all such counterparts, taken
together, shall constitute but one and the same instrument. Facsimile signatures
on any counterpart shall be effective as an original signature, but the parties
hereto agree to deliver to the other original signatures within thirty (30) days
after the date of this Second Amendment.
2
<PAGE> 3
b. Except as expressly amended and modified hereby, all of the terms
and provisions of this Lease shall remain unchanged and in full force and effect
and are hereby ratified and confirmed.
c. This Second Amendment shall inure to the benefit of the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this
First Amendment to Indenture of Lease as of the day and year first written
above.
LANDLORD:
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, its Manager
By: /s/Keith F. Cooper
------------------------------------
Name: Keith F. Cooper
Title: Partner
Date:
-----------------
TENANT:
STIFEL FINANCIAL CORP.
By: /s/Charles Hartman
------------------------------------
Name: Charles Hartman
-------------------------------
Title: Secretary
Date:
----------------------------------
STIFEL, NICOLAUS & COMPANY,
INCORPORATED
By: /s/Charles Hartman
------------------------------------
Name: Charles Hartman
-------------------------------
Title: Secretary
Date:
----------------------------------
3
<PAGE> 1
FIRST EXHIBIT 10.11
EXTENSION AND MODIFICATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 15th day of March,
1999, by and between EBS BUILDING, L.L.C., having its principal place of
business at 800 Market Street, St. Louis, Missouri, 63101 (hereinafter referred
to as "Borrower" whether one or more persons) and FIRST BANK with its office at
11901 Olive, St. Louis, Missouri, 63141 (hereinafter referred to as "Lender");
WITNESSETH:
WHEREAS, Lender extended certain financing to Borrower in the amount of
Two Million Dollars ($2,000,000.00) (the "Loan") pursuant to the terms of a
certain Credit Agreement dated the 16th of March, 1998, between Lender and
Borrower (the "Loan Agreement");
WHEREAS, Borrower executed and delivered that certain promissory note
(hereinafter referred to as the "Note" whether one or more) to evidence the Loan
for the sum of Two Million Dollars ($2,000,000.00) dated March 16, 1998, payable
to the order of First Bank on March 15, 1999,
WHEREAS, the Note is secured by, among other things, a certain Deed of
Trust and Security Agreement executed by EBS Building, L.L.C. dated as of March
16, 1998, and recorded in Book 1374 at Page 1226 in the Recorder's office of St.
Louis City, at St. Louis, Missouri, which constitutes a lien on the real estate
described on Exhibit A, attached hereto and incorporated herein (hereinafter
referred to as the "Mortgage"); and
WHEREAS, the amount of Two Million Dollars ($2,000,000.00) is now
unpaid and unsatisfied; and
WHEREAS, Borrower is the owner of the real estate covered by the
Mortgage described herein; and
WHEREAS, Borrower desires to renew, extend and modify the Note and
Mortgage as herein stated.
NOW, THEREFORE, in consideration of the extension of the time of
payment of the principal sum, the forbearance of Lender from exercising certain
rights and remedies, and certain 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 Note, the Mortgage, and all other
documents evidencing or securing the Loan (the "Loan Documents"), except as
herein modified, Borrower hereby agrees to and with Lender and its successors
and assigns as follows:
<PAGE> 2
A. All capitalized terms used herein, except as modified hereby shall
have the same meanings as set forth in the Loan Documents.
B. The maturity date of the Note is hereby extended from March 15,
1999, to April 15, 1999, at which time the Note shall mature and be payable
without notice or demand.
C. Prior to maturity, whether by acceleration or otherwise, interest
shall continue to be payable at the rate specified in the Note on the first day
of each month.
D. Borrower specifically understands and agrees that Lender is
consenting to the foregoing extension and modification of the Note in reliance
upon all of the security previously pledged to Lender as security for the
repayment of the Note.
E. Borrower hereby confirms and ratifies the Note, and any agreement
securing or related to the Note as renewed and modified hereby. This is a
renewal and modification of the Note and not a replacement or novation thereof.
If for any reason this Agreement is invalid, the Note shall be enforceable
according to its original terms as heretofore amended.
F. Borrower shall reimburse Lender for all expenses, including
reasonable attorneys' fees incurred by Lender in connection with this
transaction.
G. Borrower represents to Lender and agrees that the lien of the
original Mortgage and the covenants and agreements therein, and in the Note and
other obligations secured thereby, except as herein modified, shall be and
remain in full force and effect, subject to all the conditions and provisions
contained in the Note, the Mortgage, the Loan Documents, or any other documents
evidencing or securing the Loan.
H. Borrower shall obtain a title endorsement to the loan policy of
title insurance in favor of Lender confirming the ownership of the Property by
Borrower, and updating the effective date thereof to the date of the recording
of this Agreement and adding this Agreement to Schedule A of such loan policy of
title insurance. Such title endorsement shall be in form and substance
satisfactory to the Lender and shall contain no exceptions to title having
priority over the lien of the Mortgage as amended hereby.
I. Borrower represents to Lender that Borrower has no defenses,
set-offs, claims, actions, causes of action, damages, demands or any other
claims of any kind or nature whatsoever, whether asserted or unasserted, against
Lender as of the date hereof with respect to any action previously taken or not
taken by Lender.
Without limiting the generality of the foregoing, Borrower waives,
releases and forever discharges Lender and Lender's employees, agents, officers
and directors from and against any and all rights, claims, action, causes of
action, damages, demands, incidental or consequential damages and all other
claims of whatsoever nature which may now exist or which may later accrue or
arise out of any dealings between them occurring on or before the date of this
Agreement.
<PAGE> 3
J. Borrower further acknowledges and agrees that the Lender is
specifically relying upon the representations, warranties, and agreements
contained herein and that this Agreement is being executed by Borrower and
delivered to Lender as a material inducement to the Lender to forbear from
exercising contractual remedies available to Lender, including foreclosure,
attachment, and prosecution in collection of the outstanding indebtedness under
the Note and all security interests, encumbrances, liens, deeds of trust,
mortgages and other collateral given as security therefore.
K. Borrower represents and warrants to Lender that no Event of
Default, or default exists under the Note, the Mortgage, the Loan Documents, or
any other documents evidencing or securing the Loan as of the date hereof.
L. This Agreement shall not be deemed to constitute an alteration,
waiver, annulment, or variation of any of the terms and conditions of the Note
(as heretofore amended), the Mortgage, the Loan Documents, or any other
documents evidencing or securing the Loan except as expressly set forth herein.
Any term or condition of the Note, the Mortgage, the Loan Documents, or any
other documents evidencing or securing the Loan that is inconsistent with this
Agreement is deemed modified to be consistent herewith. If, for any reason, this
Agreement is invalid, the Note shall be enforceable in accordance with its
original form as heretofore amended.
The aggregate principal amount due and owing under the Note as of the
date hereof is Two Million Dollars ($2,000,000.00).
M. The obligations evidenced in this Extension and Modification
Agreement are secured by a Deed of Trust and Security Agreement executed on the
16th day of March, 1998, containing provisions regarding future advances and
future obligations pursuant to Section 443.055 RSMo. and which is a lien on the
Property (and which may be secured by other property).
N. No amendment, modification, supplement, termination, consent or
waiver of any provision of this Agreement, nor consent to any departure
therefrom, will in any event be effective unless the same is in writing and is
signed by the party against whom enforcement of the same is sought. Any waiver
of any provision of this Agreement and any consent to any departure from the
terms of any provision of this Agreement is to be effective only in the specific
instance and for the specific purpose for which given.
O. Captions contained in this Agreement have been inserted herein
only as a matter of convenience and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provisions hereof.
P. For purposes of executing this Agreement, a document (or signature
page thereto) signed and transmitted by facsimile machine or telecopier is to be
treated as an original document. The signature of any party thereon, for
purposes hereof, is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an original
signature on an original document. At the request of any party, any
<PAGE> 4
facsimile or telecopy document is to be reexecuted in original form by the
parties who executed the facsimile or telecopy document. No party may raise the
use of a facsimile machine or telecopier or the fact that any signature was
transmitted through the use of a facsimile or telecopier machine as a defense to
the enforcement of this Agreement or any amendment or other document executed in
compliance with this Paragraph.
Q. 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.
1. This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
letters of intent, understandings, negotiations and discussions of the parties,
whether oral or written.
R. The parties will execute and deliver such further instruments and
do such further acts and things as may be required to carry out the intent and
purpose of this Agreement.
S. 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.
T. Any provision of this Agreement which is prohibited, unenforceable
or not authorized in any jurisdiction is, as to such jurisdiction, ineffective
to the extent of any such prohibition, unenforceability or nonauthorization
without invalidating the remaining provisions hereof, or affecting the validity,
enforceability or legality of such provision in any other jurisdiction, unless
the ineffectiveness of such provision would result in such a material change as
to cause completion of the transactions contemplated hereby to be unreasonable.
U. All provisions of this Agreement are binding upon, inure to the
benefit of, and are enforceable by or against, the parties and their respective
heirs, executors, administrators or other legal representatives and permitted
successors and assigns.
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.
<PAGE> 5
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the day and year first above written.
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers, LLP, manager
(SEAL)
By: /s/ Keith F. Cooper
----------------------------
Keith F. Cooper, Partner
FIRST BANK
By: /s/ Russell L. Whites
------------------------------------
Russell L. Whites, Vice President
<PAGE> 6
STATE OF GEORGIA )
) SS.
COUNTY OF FULTON )
On this 19th day of March, 1999, before me, personally appeared Keith
F. Cooper, to me personally known, who, being duly sworn, did say that he is a
of PricewaterhouseCoopers, LLP, a limited liability partnership, and the said
limited liability partnership is the manager of EBS Building, L.L.C., a limited
liability company; and said Keith F. Cooper acknowledged said instrument to be
the free act and deed of said corporation.
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.
/s/ Penny Mosley
--------------------------------
Notary Public
My Term Expires: Notary Public, Cobb County, Georgia
My Commission Expires April 17, 1999
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this 15th day of March, 1999, before me appeared Russell L. Whites,
to me personally known, who, being by me duly sworn, did say that he is a Vice
President of First Bank, a Missouri banking 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 Russell L. Whites, 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.
/s/ Marsha A. Woods
--------------------------------
Notary Public
My Term Expires: July 1, 2001
<PAGE> 1
EXHIBIT 10.12
SECOND
EXTENSION AND MODIFICATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 23rd day of March,
1999, by and between EBS Building, L.L.C., having its principal place of
business at 800 Market Street, St. Louis, Missouri, 63101 (hereinafter referred
to as "Borrower" whether one or more persons) and First Bank with its office at
11901 Olive, St. Louis, Missouri, 63141 (hereinafter referred to as "Lender");
WITNESSETH:
WHEREAS, Lender extended certain financing to Borrower in the amount of
Two Million Dollars ($2,000,000.00) (the "Original Loan") pursuant to the terms
of a certain Credit Agreement dated the 16th of March, 1998, between Lender and
Borrower (the "Loan Agreement");
WHEREAS, Borrower executed and delivered that certain promissory note
(as amended, hereinafter referred to as the "Original Note" whether one or more)
to evidence the Original Loan for the sum of Two Million Dollars ($2,000,000.00)
dated March 16, 1998, payable to the order of First Bank on March 15, 1999; and
WHEREAS, the Original Note is secured by, among other things, a certain
Deed of Trust and Security Agreement executed by Borrower dated as of March 16,
1998, and recorded in Book 1374 at Page 1226 in the Recorder's office of St.
Louis City, at St. Louis, Missouri, which constitutes a lien on the real estate
described on Exhibit A, attached hereto and incorporated herein (hereinafter
referred to as the "Mortgage");
WHEREAS, the maturity date of the Original Note was extended from March
15, 1999 to April 15, 1999, by that certain First Extension and Modification
Agreement executed by Borrower and Lender as of March 15, 1999 (the "First
Extension"); and
WHEREAS, the amount of Two Million Dollars ($2,000,000.00) is now
unpaid and unsatisfied; and
WHEREAS, Borrower desires to borrow additional funds;
WHEREAS, the Lender is willing to lend such funds based on the terms
and conditions set forth herein;
WHEREAS, Borrower is the owner of the real estate covered by the
Mortgage described herein; and
WHEREAS, Borrower desires to renew, extend and modify the Original
Note, Mortgage and Assignment as herein stated.
<PAGE> 2
NOW, THEREFORE, in consideration of the extension of the time of
payment of the principal sum, the forbearance of Lender from exercising certain
rights and remedies, the agreement by Lender to loan additional funds to
Borrower, and certain 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 Original Note, the Mortgage, and all other
documents evidencing or securing the Loan (the "Loan Documents"), except as
herein modified, Borrower hereby agrees to and with Lender and its successors
and assigns as follows:
1. All capitalized terms used herein, except as modified hereby shall
have the same meanings as set forth in the Loan Documents.
2. The maturity date of the Original Note is hereby extended from April
15, 1999, to June 23, 1999, at which time the Original Note shall mature and be
payable without notice or demand.
3. Lender agrees to loan Borrower additional funds in the amount of
Three Million Two Hundred Thousand Dollars ($3,200,000.00) (the "Additional
Loan") under the terms and conditions set forth (i) herein and (ii) in the
Additional Note in the original principal amount of Three Million Two Hundred
Thousand Dollars ($3,200,000) ("Additional Note"), attached hereto and
incorporated herein as Exhibit B. The Borrower shall execute and deliver the
Additional Note to Lender as of the date hereof. Advances of funds under the
Additional Note shall be governed by the terms of the Loan Agreement.
4. Borrower hereby agrees to pay to Lender a fee in the amount of
Twenty Six Thousand Dollars ($26,000.00) that will be deducted from the proceeds
of the first Advance under the Loan Agreement.
5. The Loan Agreement and each of the other Loan Documents shall be
amended as follows:
a. The Loan Amount shall be amended to read Five Million Two
Hundred Thousand Dollars ($5,200,000).
b. Except as specifically stated herein or therein, from and
after the date hereof any references to "Note" in any of the Loan Documents
shall be deemed to refer to the Original Note and Additional Note.
c. The term "Loan" shall hereafter collectively refer to the
Original Loan and the Additional Loan.
6. The Loan Agreement is amended as follows:
<PAGE> 3
a. The following shall be inserted immediately following
Section 2.3 thereof:
2.4 Limitations on Advances.
(a) Advances are only available to pay for those items listed
in that certain budget dated March 15, 1999 provided by Borrower to
Lender and approved by Lender and for bank expenses, fees, and
interest. All requests for Advances shall be accompanied by a completed
and itemized cost statement, executed by the Borrower, together with
invoices for all items covered thereby and lien waivers thereof for
those items which are lienable.
(b) If the Advance includes amounts to be paid to a
contractor, it shall be accompanied by: (i) a completed and fully
itemized Application and Certificate for Payment (AIA Document G702 and
G703 or similar form approved by the Lender) containing the
certification of the Contractor and Engineer as to the accuracy of
same, and showing all subcontractors and materialmen by name and trade
or job, the total amount of each subcontract or purchase order, the
amount theretofore paid to each subcontractor or materialman as of the
date of such application, and the amount to be paid from the proceeds
of the Advance to each subcontractor and materialman; (ii) a
certificate of the contractor in the form of Exhibit B attached hereto;
and (iii) copies of requisitions and invoices from subcontractors and
materialmen supporting all items of cost covered by such application.
In addition, Borrower shall provide written lien waivers from the
contractor and such laborers, subcontractors and materialmen for work
done and materials supplied by them which were paid for pursuant to the
next preceding Advance.
(c) On the date of each Advance, the Title Policy shall be
endorsed by an endorsement in form and substance satisfactory to Lender
bringing the effective date of the Title Policy forward to the date of
the Advance and increasing the amount insured to total the amount
advanced hereunder.
b. The following shall be inserted immediately following
Section 5.4 thereof:
5.5. Fee. Borrower shall pay to Lender a credit facility fee
in an amount equal to one quarter of one percent (0.25%) of the outstanding
principal balance of the Note on the 1st day of each month hereunder and on the
Maturity Date of the Note, whether by acceleration or otherwise (including the
date of any prepayment of the Note in full). Such credit facility fee shall be
calculated on the highest outstanding principal balance of the Note during the
prior calendar month. Such facility fee shall not be prorated for partial
months.
<PAGE> 4
c. Borrower hereby agrees to immediately pay to Lender a fee
in the amount of Twenty Six Thousand Dollars ($26,000.00).
7. The Original Note is amended as follows:
a. The second paragraph on page 1 thereof shall be deleted and
the following shall be inserted in lieu thereof:
Prior to the Maturity Date, Maker agrees to pay interest on the from
time to time unpaid principal balance of this Note at a rate per annum equal to
the from time to time publicly announced Prime Rate of interest plus two percent
(2.0%) (the "Loan Interest Rate").
b. The sixth paragraph on page 1 thereof shall be deleted and
the following shall be inserted in lieu thereof:
The term "Prime Rate" for any day shall mean the rate from time to time
announced by First Banks, Inc., at its main office as the Prime Rate, or as the
case may be, the base, reference, or other rate then in use for commercial loan
reference purposes, it being understood that such rate is a reference rate, not
necessarily the lowest, which serves as the basis upon which effective rates of
interest are calculated for those loans that make reference thereto as said
First Banks, Inc.'s "Prime Rate." Said interest rate will change simultaneously
with each change in the Prime Rate. Interest shall be calculated on the basis of
the actual number of days elapsed assuming a year of three hundred and sixty
(360) days.
8. As a condition precedent to the effectiveness hereof, Borrower shall
execute, as of the date hereof in recordable form, an Amendment to Deed of Trust
in the form attached hereto and incorporated herein as Exhibit C (the "Amendment
to Deed of Trust") and an Amendment to Assignment of Leases and Rents in the
form attached hereto and incorporated herein as Exhibit D (the "Amendment to
Assignment of Leases").
9. As a condition precedent to the effectiveness hereof, Borrower shall
provide to Lender, at Borrower's sole cost and expense, an endorsement to the
Title Policy (a) confirming the ownership of the Property by Borrower, (b)
updating the effective date thereof to the date of the recording of this
Agreement, the Amendment to Deed of Trust and the Amendment to Assignment of
Leases, (c) adding this Agreement, the Amendment to Deed of Trust and the
Amendment to Assignment of Leases to Schedule A of such loan policy of title
insurance, (d) increasing the amount insured to the Loan amount, and (e)
providing for the periodic disbursement thereof as advances are made. Such
endorsement shall be in form and substance satisfactory to the Lender and shall
contain no exceptions to title, other than those for taxes due and payable in
the current year 1999, having priority over the lien of the Mortgage as amended
hereby.
<PAGE> 5
10. Borrower specifically understands and agrees that Lender is
consenting to the foregoing extension and modification of the Note in reliance
upon all of the security previously pledged to Lender as security for the
repayment of the Note.
11. Borrower hereby confirms and ratifies the Original Note, and any
agreement securing or related to the Note as renewed and modified hereby. This
is a renewal and modification of the Original Note and not a replacement or
novation thereof. If for any reason this Agreement is invalid, the Original Note
shall be enforceable according to its original terms as heretofore amended.
12. Borrower shall reimburse Lender for all expenses, including
reasonable attorneys' fees incurred by Lender in connection with this
transaction.
13. Borrower represents to Lender and agrees that the lien of the
original Mortgage as amended hereby and the covenants and agreements therein,
and in the Note and other obligations secured thereby, except as herein
modified, shall be and remain in full force and effect, subject to all the
conditions and provisions contained in the Loan Agreement, the Note, the
Mortgage, the Loan Documents, or any other documents evidencing or securing the
Loan as amended hereby.
14. Borrower represents to Lender that Borrower has no defenses,
set-offs, claims, actions, causes of action, damages, demands or any other
claims of any kind or nature whatsoever, whether asserted or unasserted, against
Lender as of the date hereof with respect to any action previously taken or not
taken by Lender.
Without limiting the generality of the foregoing, Borrower waives,
releases and forever discharges Lender and Lender's employees, agents, officers
and directors from and against any and all rights, claims, action, causes of
action, damages, demands, incidental or consequential damages and all other
claims of whatsoever nature which may now exist or which may later accrue or
arise out of any dealings between them occurring on or before the date of this
Agreement.
15. Borrower further acknowledges and agrees that the Lender is
specifically relying upon the representations, warranties, and agreements
contained herein and that this Agreement is being executed by Borrower and
delivered to Lender as a material inducement to the Lender to forbear from
exercising contractual remedies available to Lender, including foreclosure,
attachment, and prosecution in collection of the outstanding indebtedness under
the Note and all security interests, encumbrances, liens, deeds of trust,
mortgages and other collateral given as security therefor.
16. Borrower represents and warrants to Lender that no Event of
Default, or default which with notice or passage of time would constitute an
Event of Default exists under the Note, the Mortgage, the Loan Documents, or any
other documents evidencing or securing the Loan as of the date hereof.
<PAGE> 6
17. This Agreement shall not be deemed to constitute an alteration,
waiver, annulment, or variation of any of the terms and conditions of the Note
(as heretofore amended), the Mortgage, the Loan Documents, or any other
documents evidencing or securing the Loan except as expressly set forth herein.
Any term or condition of the Note, the Mortgage, the Loan Documents, or any
other documents evidencing or securing the Loan that is inconsistent with this
Agreement is deemed modified to be consistent herewith. If, for any reason, this
Agreement is invalid, the Note shall be enforceable in accordance with its
original form as heretofore amended.
18. The obligations evidenced in this Extension and Modification
Agreement are secured by a Deed of Trust and Security Agreement executed on the
16th day of March, 1998, and amended by instrument executed on the 15th day of
March 1998 containing provisions regarding future advances and future
obligations pursuant to Section 443.055 RSMo. and which is a lien on the
Property (and which may be secured by other property).
19. No amendment, modification, supplement, termination, consent or
waiver of any provision of this Agreement, nor consent to any departure
therefrom, will in any event be effective unless the same is in writing and is
signed by the party against whom enforcement of the same is sought. Any waiver
of any provision of this Agreement and any consent to any departure from the
terms of any provision of this Agreement is to be effective only in the specific
instance and for the specific purpose for which given.
20. Captions contained in this Agreement have been inserted herein
only as a matter of convenience and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provisions hereof.
21. For purposes of executing this Agreement, a document (or signature
page thereto) signed and transmitted by facsimile machine or telecopier is to be
treated as an original document. The signature of any party thereon, for
purposes hereof, is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an original
signature on an original document. At the request of any party, any facsimile or
telecopy document is to be reexecuted in original form by the parties who
executed the facsimile or telecopy document. No party may raise the use of a
facsimile machine or telecopier or the fact that any signature was transmitted
through the use of a facsimile or telecopier machine as a defense to the
enforcement of this Agreement or any amendment or other document executed in
compliance with this Paragraph.
22. 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.
<PAGE> 7
23. This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
letters of intent, understandings, negotiations and discussions of the parties,
whether oral or written.
24. The parties will execute and deliver such further instruments and
do such further acts and things as may be required to carry out the intent and
purpose of this Agreement.
25. 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.
26. Any provision of this Agreement which is prohibited, unenforceable
or not authorized in any jurisdiction is, as to such jurisdiction, ineffective
to the extent of any such prohibition, unenforceability or nonauthorization
without invalidating the remaining provisions hereof, or affecting the validity,
enforceability or legality of such provision in any other jurisdiction, unless
the ineffectiveness of such provision would result in such a material change as
to cause completion of the transactions contemplated hereby to be unreasonable.
27. All provisions of this Agreement are binding upon, inure to the
benefit of, and are enforceable by or against, the parties and their respective
heirs, executors, administrators or other legal representatives and permitted
successors and assigns.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 8
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the day and year first above written.
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, manager
(SEAL)
By: /s/ Keith F. Cooper
-------------------------------------
Keith F. Cooper, Partner
FIRST BANK
(SEAL)
By: /s/ Russell L. Whites
-------------------------------------
Russell L. Whites, Vice President
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this 25th day of March, 1999, before me appeared Keith F. Cooper, to
me personally known, who, by me being duly sworn did say that he is a partner of
PricewaterhouseCoopers LLP, a limited liability partnership, and the said
limited liability partnership is the manager of EBS Building, L.L.C., a limited
liability company and said Keith F. Cooper acknowledged that he executed the
same in behalf of said limited liability partnership and said limited liability
company and said Keith F. Cooper acknowledged said instrument to be the free act
and deed of said limited liability partnership and said limited liability
company.
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.
/s/Donna R. Franz
-----------------------------------
Notary Public
My Term Expires: January 9, 2001
<PAGE> 9
LENDER ACKNOWLEDGMENT
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this 24th day of March, 1999, before me appeared Russell L. Whites,
to me personally known, who, being by me duly sworn, did say that he is a Vice
President of First Bank, a Missouri banking 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 Russell L. Whites 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.
/s/ Marsha A. Woods
-----------------------------------
Notary Public
My Term Expires: July 1, 2001
<PAGE> 10
EXHIBIT A
A tract of land being Block 119, part of Block 118, that part of St. Charles
Street, 50 feet wide, vacated by Ordinance No. 58574 and that part of a 7.5 foot
wide Alley in Block 118 vacated by Ordinance No. 58533, in the City of St.
Louis, Missouri and being further described as follows: Beginning at a point on
the East line of Sixth Street, 60 feet wide, at its intersection with the South
line of vacated St. Charles Street, 50 feet wide, said point being the Northwest
corner of Block 118; thence North 1 degree 54 minutes 12 seconds East, 49.93
feet across vacated St. Charles Street to the Southwest corner of Block 119;
thence along the East line of Sixth Street, North 0 degrees 09 minutes 53
seconds West, 150.46 feet to its intersection with the South line of Washington
Avenue, 80 feet wide, said point being the Northwest corner of Block 119; thence
along the South line of Washington Avenue, North 89 degrees 54 minutes 07
seconds East, 270.40 feet to its intersection with the West line of Broadway, 80
feet wide, said point being the Northeast corner of Block 119; thence along the
West line of Broadway, South 0 degrees 11 minutes 45 seconds East, 149.97 feet
to its intersection with the North line of vacated St. Charles Street, said
point being the Southeast corner of Block 119; thence South 2 degrees 26 minutes
11 seconds West, 50.14 feet across vacated St. Charles Street to the Northeast
corner of Block 118; thence continuing along the West line of Broadway, South 2
degrees 33 minutes 22 seconds West, 13.64 feet to a point on the East line of
Block 118; thence leaving said point and running North 87 degrees 22 minutes
23 seconds West, 269.68 feet to the point of beginning and containing 55,902
square feet (1.283 acres) according to survey by The Clayton Engineering Company
February, 1998.
<PAGE> 11
EXHIBIT B
CONTRACTOR'S REQUISITION CERTIFICATE
Application for Payment No.
TO: First Bank
FROM:
RE: ("Project") , LLC ("Owner").
We are the general contractor for the Project, and to induce Lender to
advance loan proceeds to assist in funding construction of the Project and
knowing that Lender will rely on this certificate in doing so, we hereby certify
as follows:
1. In reference to our contract dated , 19
with Owner for construction of the Project, and the Plans and
Specifications therefor, no amendments, modifications or
changes have been made with respect to our contract or the
Plans and Specifications except such as have had your prior
written approval. There are no pending change orders except as
follows:
2. Our Application for Payment No. , dated ,
199 , which we understand is to be included as an item in the
Owner's requisition to you, is in full compliance with the
terms of our contract with Owner, and, upon the payment of
same, we will have no other or additional claim (including
claims for so-called "extras") against Owner on account of our
contract or otherwise for and through the period of time
ending upon the date of our Application for Payment, for all
labor and materials furnished by us through and including the
date of our Application for Payment except as follows:
(a) retainage not exceeding 10% of the value of labor and
materials incorporated into the Project and covered
by applications submitted by us on account of the
Project for which payment is to be made to us after
substantial completion of our contract, as provided
therein (the amount of said retainage, as of the end
of the period covered by our Application for Payment
dated , 199 , is $ ); and
(b)
3. The Owner is not in default of any of the Owner's obligations
to us as of the date hereof except as follows:
<PAGE> 12
4. We have paid in full all our obligations to subcontractors,
workmen, suppliers and materialmen for and with respect to all
labor and materials supplied through and including the date of
our last Application for Payment, except for an amount equal
to 10% thereof, which we are holding in accordance with the
terms of such obligations and our contract, and all our
subcontractors have paid their subcontractors, workmen and
materialmen in full for and with respect to all labor and
materials supplied through and including the date of our last
Application for Payment.
5. We waive and release any and all rights to claim any lien for
labor done or materials furnished up to an amount equal to the
amount of our Application for Payment dated ,
199 , conditioned upon receipt of payment therefor, plus the
amount of all our previously funded applications.
Executed this day of , 199 .
By:
Name:
Title:
<PAGE> 1
EXHIBIT 10.13
ADDITIONAL PROMISSORY NOTE
St. Louis, Missouri
$3,200,000.00 March 23, 1999
On or before the Maturity Date, the undersigned, EBS BUILDING, L.L.C.
("Maker"), for value received, promises to pay to the order of FIRST BANK (the
"Lender"), at its office located at 11901 Olive St. Louis, Missouri 63141, or at
such other place as may be designated in writing by the holder hereof, in lawful
money of the United States of America in immediately available funds, the
principal sum of Three Million Two Hundred Thousand Dollars ($3,200,000.00) or
such lesser amount as may be disbursed hereunder together with interest on each
disbursement of the aforesaid principal sum, from the date of such disbursement,
at the rate or rates hereinafter specified.
Prior to the Maturity Date, Maker agrees to pay interest on the from
time to time unpaid principal balance of this Note at a rate per annum equal to
the from time to time publicly announced Prime Rate of interest plus two percent
(2.0%) (the "Loan Interest Rate").
Said interest shall be due and payable monthly on the 1st day of each
month, commencing on April 1, 1999, and on the Maturity Date, or when otherwise
paid in full or in part.
Each of said payments shall be applied first to the payment of accrued
interest and then to the reduction of the principal balance and any other sums
owed to the Lender, or in any other order as determined by the Lender in the
sole discretion of the Lender and as permitted by law.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Agreement (hereinafter defined). The
term "Maturity Date" shall mean June 23, 1999, or any earlier date on which
payment hereunder is due whether by acceleration or otherwise.
The term "Prime Rate" for any day shall mean the rate from time to time
announced by First Banks, Inc., at its main office as the Prime Rate, or as the
case may be, the base, reference, or other rate then in use for commercial loan
reference purposes, it being understood that such rate is a reference rate, not
necessarily the lowest, which serves as the basis upon which effective rates of
interest are calculated for those loans that make reference thereto as said
First Banks, Inc.'s "Prime Rate." Said interest rate will change simultaneously
with each change in the Prime Rate. Interest shall be calculated on the basis of
the actual number of days elapsed assuming a year of three hundred and sixty
(360) days.
<PAGE> 2
After maturity, whether by acceleration or otherwise, the rate of
interest of this Note shall be the Loan Interest Rate then in effect plus three
(3) percentage points per annum (the "Default Rate").
If any payment of principal or interest due on this Note is payable on
a day which is a Saturday, Sunday, or legal holiday in the State of Missouri,
then such payment shall be due on the next business day, the amount of such
payment, in such case, to include all interest accrued to the date of actual
payment.
Maker reserves the right to prepay the whole or any part of the
principal sum hereof at any time or from time to time, without premium or
penalty. Any partial prepayment shall not relieve the undersigned of paying
succeeding installment maturities when due. Interest accrued on any part of the
principal hereof which is prepaid shall be paid with such principal prepayment.
This Additional Note is one of the notes constituting the "Note"
referred to in and issued pursuant to the Credit Agreement (the "Agreement")
dated as of March 16, 1998, between Maker and the Lender, as amended by the
First Extension and Modification Agreement dated as of the March 15, 1999 and
the Second Extension and Modification Agreement dated as of the date hereof and
is secured by, among other things, a Deed of Trust and Security Agreement,
containing provisions for future advances and future obligations governed by
Section 443.055 R.S.Mo. (as amended) and which is a lien on the property therein
described, executed of March 16, 1998 encumbering certain real property and
improvements located thereon in the City of St. Louis, Missouri as amended by
the Amendment to Deed of Trust dated as even date herewith (the "Mortgage") and
certain other Collateral (as such term is defined in the Agreement). The
Agreement and the Mortgage are by this reference incorporated herein and made a
part hereof as if fully set forth herein. This Note is entitled to all benefits
and security of the Agreement, the Mortgage and any other documents securing or
executed in connection with this Note (hereinafter referred to as the "Loan
Documents").
Should Maker fail to make any payment hereon or under any obligation
for the payment of any sum or sums under the Mortgage or any other documents
securing or executed in connection with this Note, on the date on which it shall
fall due, and Maker continues to be in default in making said payment for a
period of ten (10) days after the giving of written notice of such default or
Event of Default by holder hereof, or should any default or Event of Default be
made in the performance of any of the agreements, conditions, covenants,
provisions, or stipulations contained in this Note, the Mortgage, or any of the
other Loan Documents (including, but not limited to an Event of Default
occasioned by sale, encumbrance, or other voluntary alienation of the Property
described therein) for more than thirty (30) days (or any shorter period
contained herein or therein) after the giving of written notice of such default
or Event of Default by the holder hereof or if such failure is incapable of
being cured within said thirty (30) day
<PAGE> 3
period, Maker fails to commence to cure said failure within said thirty (30) day
period or fails to diligently prosecute said cure, then the holder of this Note,
at its option and without further notice or demand, may declare immediately due
and payable the entire unpaid balance of principal due under this Note, together
with all accrued interest thereon and all other sums due from Maker pursuant to
the Mortgage and the other Loan Documents, and after the date of such default or
Event of Default this Note shall bear interest at the Default Rate. In such
case, the holder of this Note may also recover all costs of suit and other
expenses in connection with efforts to collect any of the aforesaid amounts,
together with reasonable attorneys' fees (including attorneys' fees for
representation in proceedings under the Bankruptcy Code), regardless of whether
litigation is commenced, together with interest on any judgment obtained by the
holder of this Note at the Default Rate, including interest at the Default Rate
from and after the date of any such default or Event of Default until actual
payment is made to the holder of this Note of the full amount due such holder.
Notwithstanding anything to the contrary contained herein, no notices of
defaults or Events of Default shall be required to be given following the
Maturity Date.
If any payment of principal and/or interest is not paid in full within
fifteen (15) days of its due date, then undersigned agrees to pay, to the extent
permitted by law, a late payment charge equal to five percent (5%) of such
payment.
Presentment and demand for payment, notice of non-payment, protest,
protest of non-payment, notice of protest, notice of dishonor, and any and all
lack of diligence and suit are hereby waived by all parties liable hereon. The
undersigned and all endorsers, guarantors, sureties, or other persons who may
now or hereafter be liable for the payment of this Note by executing, endorsing,
guaranteeing, or assuming this Note, jointly and severally consent and agree to
all of the terms and conditions herein contained, and without limitation of the
foregoing and without affecting their liabilities hereunder or under any other
document or instrument, agree and consent, without further notice to (i) all
renewals, deferrals, extensions, and modifications hereof, in whole or in part,
(ii) the impairment, alteration, compromise, acceleration, extension or change
in the time or manner of the payment of the undersigned's obligations to the
Lender, (iii) the impairment, substitution, exchange or release at any time or
times of all or any part of any security or collateral security or guaranty now
or hereafter furnished with respect to this Note; (iv) the release of or the
impairment of the right of recourse against any of the undersigned or any
endorser, guarantor, surety, or any other person now or hereafter liable hereon;
(v) the substitution of renewal or extension notes for this Note; (vi) the
modification of any terms hereof or of any mortgage, deed of trust, or other
agreement now or hereafter given in connection with or as security for this
Note; and (vii) any change in the rate of interest hereon or the imposition of
any fees whether authorized under this Note or any mortgage, deed of trust, or
any other agreement now or hereafter given in connection with or as security for
this Note.
<PAGE> 4
Any failure by any holder hereof to exercise any right hereunder shall
not be construed as a waiver of the right to exercise the same or any other
right at any other time and from time to time thereafter.
It is the intent hereof that each of the undersigned (if more than one)
remain liable hereunder until the full amount of all indebtedness evidenced by
this Note has been paid, notwithstanding any act, omission or event that might
otherwise operate as a legal or equitable discharge or defense with respect to
any of the undersigned.
No setoff or counterclaim of any kind claimed by any person liable
under this Note shall stand as a defense to the enforcement of this Note against
any person, it being agreed that any such setoff or counterclaim must be
maintained by separate suit.
The loan evidenced hereby has been made and this Note has been
delivered, at the Lender's office set forth above, and such loan, this Note, and
the rights, obligations and remedies of the Lender and the undersigned shall be
governed by and construed in accordance with the laws of the State of Missouri.
All obligations of the undersigned and rights, powers and remedies of the
Lender, expressed herein shall be in addition to, and not in limitation of,
those provided by law or in any documents, agreements or instrument now or
hereafter evidencing or securing the obligations evidenced by this Note.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 5
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, manager
/s/ Keith F. Cooper
----------------------------------------
Keith F. Cooper, Partner
<PAGE> 1
EXHIBIT 10.14
AMENDMENT TO DEED OF TRUST
THIS AMENDMENT is made and entered into as of the 23rd day of March,
1999, by and between FIRST BANK having its principal place of business in the
County of St. Louis, Missouri (hereinafter referred to as "Lender") and EBS
BUILDING, L.L.C., a Delaware limited liability company, residing or having its
principal place of business at 800 Market Street, St. Louis, Missouri 63101 in
the City of St. Louis, Missouri (hereinafter referred to as "Mortgagor") and
FIRST LAND TRUSTEE CORP., St. Louis, Missouri (hereinafter referred to as
"Trustee").
WITNESSETH:
WHEREAS, Lender has advanced certain funds to Mortgagor in the past;
and
WHEREAS, said advance was secured by a Deed of Trust recorded in the
Recorder of Deeds Office in the City of St. Louis, at Book 1374, Page 1226, (the
"Deed of Trust"); and
WHEREAS, said Deed of Trust provides for future advances and future
obligations to be secured thereby and governed by Section 443.055 RSMo.;
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable considerations paid by Trustee, the receipt and sufficiency of
which is hereby acknowledged by Mortgagor, it is agreed as follows:
1. The Deed of Trust is amended by deleting paragraph 2 on page 4
thereof and inserting the following in lieu thereof:
The total amount outstanding or the total amount of obligations secured
at any time which is secured by this Deed of Trust, excluding any interest and
any amounts advanced by Lender for the protection of the security interest
herein granted or amounts advanced or obligations incurred or evidenced for the
completion of a contemplated improvement under a construction loan agreement,
shall not exceed Six Million Dollars ($6,000,000). This Deed of Trust, including
any future advances or future obligations, shall be governed by all provisions
of Section 443.055 of the Revised Statutes of Missouri in effect as of the date
hereof.
2. The Deed of Trust is amended by deleting part (a) of the last
paragraph on page 3 and inserting the following in lieu thereof:
(a)(1) that certain promissory note dated March 16, 1998, executed
by Mortgagor payable to the order of Lender in the principal amount of Two
Million Dollars ($2,000,000.00) bearing interest as specified in said note,
containing an attorneys' fee clause, with principal and interest payable as
specified in said note and maturing on June 23, 1999 (hereinafter the "Note")
<PAGE> 2
including all amounts now or hereafter advanced by Lender to Mortgagor to and
including the aggregate principal amount of the Note, and any additional amounts
which Lender may be permitted to advance now or hereafter;
(a)(2) that certain promissory note dated March 23, 1999, executed
by Mortgagor payable to the order of Lender in the principal amount of Three
Million Two Hundred Thousand Dollars ($3,200,000.00) bearing interest as
specified in said note, containing an attorneys' fee clause, with principal and
interest payable as specified in said note and maturing on June 23, 1999,
(hereinafter the "Additional Note") including all amounts now or hereafter
advanced by Lender to Mortgagor to and including the aggregate principal amount
of the Additional Note, and any additional amounts which Lender may be permitted
to advance now or hereafter (the Note and Additional note are hereinafter
collectively referred to as the ?Additional Note?);
3. The Deed of Trust is further amended as follows:
a. The following shall be inserted immediately following Section 1.22:
1.23. Year 2000.
1.23.1. "Year 2000 Compliant" shall mean that computer
hardware, software, other equipment or applications containing embedded
microchips, and other systems are able to perform date and time sensitive
functions (including but not limited to, calculating, comparing and sequencing)
from, into and between the twentieth and twenty-first centuries, and the years
1999 and 2000 and leap year calculations both prior to and after December 31,
1999.
1.23.2. "Year 2000 Problem" shall mean the inability of
computer hardware, software, other equipment or applications containing embedded
microchips, and other systems to perform date and time sensitive functions
(including but not limited to, calculating, comparing and sequencing) from, into
and between the twentieth and twenty-first centuries, and the years 1999 and
2000 and leap year calculations both prior to and after December 31, 1999.
1.23.3. The Mortgagor has (i) initiated a review and
assessment of all areas within Mortgagor's (and each of Mortgagor's
Subsidiaries') business and operations (including those affected by suppliers
and vendors) that could be adversely affected by the Year 2000 Problem, (ii)
developed a plan and timeline for addressing the Year 2000 Problem on a timely
basis, and (iii) to date, implemented that plan in accordance with that
timetable. The Mortgagor reasonably believes that all computer applications
(including those of its suppliers and vendors) that are material to Mortgagor's
(or any of Mortgagor's Subsidiaries') businesses and operations will on a timely
basis be Year 2000 Compliant except to the extent that a failure to do so could
not reasonably be expected to have a material adverse effect upon the financial
condition of Mortgagor.
1.23.4. The Mortgagor has reviewed, or will expeditiously
review its operations with a view to assessing whether its businesses will be
vulnerable to a Year 2000 Problem or will be vulnerable to the effects of a Year
2000 Problem suffered by any of the Mortgagor's major commercial
counter-parties. The Mortgagor shall take all actions necessary
<PAGE> 3
and commit adequate resources to assure that its computer-based and other
systems are Year 2000 Compliant before, on and after January 1, 2000, without
experiencing any Year 2000 Problem that could cause a material adverse effect on
the Mortgagor or its businesses. At the request of the Lender, the Mortgagor
will provide the Lender with assurances and substantiations (including, but not
limited to, the results of internal or external audit reports prepared in the
ordinary course of business) reasonably acceptable to the Lender as to the
capability of the Mortgagor to conduct its businesses and operations before, on
and after January 1, 2000, without experiencing a Year 2000 Problem causing a
material adverse effect on the Mortgagor or its businesses. The Mortgagor
represents and warrants that it has a reasonable basis to believe that no Year
2000 Problem will cause a material adverse effect on the Mortgagor or its
businesses.
1.23.5. The Mortgagor will promptly notify the Lender in
the event the Mortgagor discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to Mortgagor's
(or any of Mortgagor's Subsidiaries')businesses and operations will not be Year
2000 Compliant on a timely basis except to the extent that a failure to do so
could not reasonably be expected to have a material adverse effect upon the
financial condition of Mortgagor.
b. The following shall be inserted immediately following Section 3.22:
3.23 Statutory Notice-Insurance. The following notice is given
pursuant to Section 427.120 of the Missouri Revised Statutes; nothing contained
in such notice shall be deemed to limit or modify the terms of the Loan
Documents:
UNLESS YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED
BY YOUR AGREEMENT WITH US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT
OUR INTERESTS IN YOUR COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT YOUR
INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT YOU MAKE OR
ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE COLLATERAL. YOU MAY
LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT ONLY AFTER PROVIDING EVIDENCE
THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY OUR AGREEMENT. IF WE PURCHASE
INSURANCE FOR THE COLLATERAL, YOU WILL BE RESPONSIBLE FOR THE COSTS OF THAT
INSURANCE, INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES WE
MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF
THE INSURANCE MAY BE ADDED TO YOUR TOTAL OUTSTANDING BALANCE OR OBLIGATION. THE
COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO
OBTAIN ON YOUR OWN.
4. The lien of the original Deed of Trust and the covenants and
agreements therein, and in the note originally secured by the Deed of Trust and
all other obligations secured thereby, except as herein modified, shall be and
remain in full force and effect, subject to all of the
-3-
<PAGE> 4
conditions and provisions contained in the note secured by the original Deed of
Trust and other obligations in the Deed of Trust. Mortgagor hereby assumes and
agrees to be bound by and to perform all of the covenants and agreements
contained in the note originally secured by the Deed of Trust, and other
obligations in the Deed of Trust to be performed by the makers thereof, at the
times and in the manner therein specified, except as expressly modified and/or
extended herein.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-4-
<PAGE> 5
IN WITNESS WHEREOF, this Amendment has been duly executed by the
undersigned as of the 23rd day of March, 1999.
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, manager
(SEAL)
By: /s/ Keith F. Cooper
-------------------------------------
Keith F. Cooper, Partner
FIRST BANK
By: /s/ Russell L. Whites
-------------------------------------
Russell L. Whites, Vice President
-5-
<PAGE> 6
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this day of March, 1999, before me appeared Keith F. Cooper, to
me personally known, who, by me being duly sworn did say that he is a partner of
PricewaterhouseCoopers LLP, a limited liability partnership, and the said
limited liability partnership is the manager of EBS Building, L.L.C., a limited
liability company and said Keith F. Cooper acknowledged that he executed the
same in behalf of said limited liability partnership and said limited liability
company and said Keith F. Cooper acknowledged said instrument to be the free act
and deed of said limited liability partnership and said limited liability
company.
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.
/s/ Donna R. Franz
-----------------------------------
Notary Public
My Term Expires: 1/9/2001
LENDER ACKNOWLEDGMENT
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this day of March, 1999, before me appeared Russell L. Whites,
to me personally known, who, being by me duly sworn, did say that he is a Vice
President of First Bank, a Missouri banking 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 Russell L. Whites 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.
/s/ Marsha A. Woods
-----------------------------------
Notary Public
My Term Expires: July 1, 2001
-6-
<PAGE> 1
EXHIBIT 10.15
AMENDMENT TO ASSIGNMENT OF LEASES AND RENTS
THIS AMENDMENT is made and entered into as of the 23rd day of March,
1999, by and between FIRST BANK having its principal place of business in the
County of St. Louis, Missouri (hereinafter referred to as "Lender") and EBS
BUILDING, L.L.C., a Delaware Limited Liability Corporation, residing or having
its principal place of business at 800 Market Street, St. Louis, Missouri 63101
in the City of St. Louis, Missouri (hereinafter referred to as "Borrower").
WITNESSETH:
WHEREAS, Lender has advanced certain funds to Borrower in the past; and
WHEREAS, said advance was secured by an Assignment of Leases and Rents
recorded in the Recorder of Deeds Office in the City of St. Louis, at Book 1374,
Page 1259, (the "Assignment"); and
WHEREAS, said Assignment provides for future advances and future
obligations to be secured thereby and governed by Section 443.055 RSMo.;
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable considerations paid by Trustee, the receipt and sufficiency of
which is hereby acknowledged by Borrower, it is agreed as follows:
1. The Assignment is amended by deleting the first paragraph on page 3
thereof and inserting the following in lieu thereof:
The total amount outstanding or the total amount of obligations secured
at any time which is secured by this Assignment, excluding any interest and any
amounts advanced by Lender for the protection of the security interest herein
granted or amounts advanced or obligations incurred or evidenced for the
completion of a contemplated improvement under a construction loan agreement,
shall not exceed Six Million Dollars ($6,000,000). This Assignment, including
any future advances or future obligations, shall be governed by all provisions
of Section 443.055 of the Revised Statutes of Missouri in effect as of the date
hereof.
2. The lien of the original Assignment and the covenants and agreements
therein, and in the note originally secured by the Assignment and all other
obligations secured thereby, except as herein modified, shall be and remain in
full force and effect, subject to all of the conditions and provisions contained
in the note secured by the original Assignment and other obligations in the
Assignment. Borrower hereby assumes and agrees to be bound by and to perform all
of the covenants and agreements contained in the note originally secured by the
Assignment, and other obligations in the Assignment to be performed by the
makers thereof, at the times and in the
<PAGE> 2
manner therein specified, except as expressly modified and/or extended herein.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE> 3
IN WITNESS WHEREOF, this Amendment has been duly executed by the
undersigned as of the 23rd day of March, 1999.
EBS BUILDING, L.L.C.
By: PricewaterhouseCoopers LLP, manager
(SEAL)
By: /s/ Keith F. Cooper
-------------------------------------
Keith F. Cooper, Partner
FIRST BANK
By: /s/ Russell L. Whites
-------------------------------------
Russell L. Whites, Vice President
-3-
<PAGE> 4
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this day of March, 1999, before me appeared Keith F. Cooper, to
me personally known, who, by me being duly sworn did say that he is a partner of
PricewaterhouseCoopers LLP, a limited liability partnership, and the said
limited liability partnership is the manager of EBS Building, L.L.C., a limited
liability company and said Keith F. Cooper acknowledged that he executed the
same in behalf of said limited liability partnership and said limited liability
company and said Keith F. Cooper acknowledged said instrument to be the free act
and deed of said limited liability partnership and said limited liability
company.
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.
/s/ Donna R. Franz
-----------------------------------
Notary Public
My Term Expires: 1/9/2001
LENDER ACKNOWLEDGMENT
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this day of March, 1999, before me appeared Russell L. Whites,
to me personally known, who, being by me duly sworn, did say that he is a Vice
President of First Bank, a Missouri banking 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 Russell L. Whites 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.
/s/ Marsha A. Woods
-----------------------------------
Notary Public
My Term Expires: July 1, 2001
-4-
<PAGE> 1
EXHIBIT 11
STATEMENT RE: COMPUTATION OF EARNINGS
The following table sets forth the computation of primary and fully diluted
earnings (loss) per unit for the periods ended:
<TABLE>
<CAPTION>
For the Period
September 26, 1997 For the
Through 12 Months Ended
December 31, 1997 December 31, 1998
<S> <C> <C>
Numerator:
Net Earnings/(Loss) - Primary and Diluted $ (137,700) $ (1,128,152)
================= =================
Denominator:
Weighted Average Units Outstanding - Primary 1,927,243 9,438,704
Effect of Potentially Dilutive Unit 8,072,757 561,296
----------------- -----------------
Units Outstanding - Diluted 10,000,000 10,000,000
================= =================
Primary Earnings/(Loss) per Unit $ (0.07) $ (0.12)
================= =================
Diluted Earnings/(Loss) per Unit $ (0.01) $ (0.11)
================= =================
</TABLE>
The weighted average units outstanding - basic was calculated on a daily
outstanding unit basis. The outstanding units - diluted was calculated
assuming that all of the Calss B Units currently issued and outstanding will
eventually be converted into an equal number of Class A Units.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 512
<SECURITIES> 0
<RECEIVABLES> 18,209
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 38,854
<PP&E> 20,614,941
<DEPRECIATION> (930,964)
<TOTAL-ASSETS> 21,374,300
<CURRENT-LIABILITIES> 829,630
<BONDS> 2,000,000
0
0
<COMMON> 0
<OTHER-SE> 18,544,670
<TOTAL-LIABILITY-AND-EQUITY> 21,374,300
<SALES> 0
<TOTAL-REVENUES> 3,356,043
<CGS> 0
<TOTAL-COSTS> 4,449,282
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 34,913
<INCOME-PRETAX> 1,128,152
<INCOME-TAX> 0
<INCOME-CONTINUING> 1,128,152
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,128,152)
<EPS-PRIMARY> (0.12)
<EPS-DILUTED> (0.11)
</TABLE>
