<PAGE>
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 25, 1994
Commission file number 0-16633
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
______________________________________________________________________
(Exact name of registrant as specified in its charter)
MISSOURI 43-1450818
______________________________________________________________________
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
201 Progress Parkway
Maryland Heights, Missouri 63043
______________________________________________________________________
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (314) 851-2000
_____________________
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 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 the past 90
days. YES X NO
____ ____
As of the filing date, there are no voting
securities held by non-affiliates of the Registrant.
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
INDEX
Page
Number
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Statement of Financial Condition 3
Consolidated Statement of Income 5
Consolidated Statement of Cash Flows 6
Consolidated Statement of Changes in Partnership Capital 7
Notes to Consolidated Financial Statements 8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 12
Signatures 13
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
CONSOLIDATED STATEMENT OF FINANCIAL CONDITION
ASSETS
March 25, December 31,
(Amounts in thousands) 1994 1993
Cash and cash equivalents $ 31,780 $ 28,798
Receivable from:
Customers 472,977 464,760
Brokers or dealers and clearing
organization deposits 26,604 32,550
Securities owned, at market value:
Trading securities 55,612 60,371
Investment securities 66,590 73,575
Office equipment, property and improvements,
at cost, net of accumulated depreciation
and amortization of $81,895 in 1994 and
$73,920 in 1993 114,227 102,434
Other assets 36,411 37,990
__________ __________
$ 804,201 $ 800,478
The accompanying notes are an integral part of these financial
statements.
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
CONSOLIDATED STATEMENT OF FINANCIAL CONDITION
LIABILITIES AND PARTNERSHIP CAPITAL
March 25, December 31,
(Amounts in thousands) 1994 1993
Bank loans $ 195,814 $ 139,261
Payable to:
Customers 212,039 242,584
Brokers or dealers and clearing
organizations 11,690 8,092
Securities sold but not yet purchased,
at market value 16,974 17,766
Accounts payable and accrued expenses 37,768 37,419
Accrued compensation and employee benefits 53,906 69,264
Long-term debt 36,659 33,317
__________ __________
564,850 547,703
Liabilities subordinated to claims
of general creditors 59,000 73,000
Partnership capital 180,351 179,775
__________ __________
$ 804,201 $ 800,478
The accompanying notes are an integral part of these financial
statements.
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
Three Months Ended
(Amounts in thousands, March 25, March 26,
except per unit information) 1994 1993
Revenues:
Commissions $ 112,718 $ 98,113
Principal transactions 23,103 24,896
Investment banking 8,432 10,530
Interest and dividends 9,065 7,838
Other 8,095 5,447
__________ __________
161,413 146,824
__________ __________
Expenses:
Employee and partner compensation
and benefits 96,607 88,649
Occupancy and equipment 17,028 14,029
Communications and data processing 10,122 7,636
Interest 5,335 4,287
Payroll and other taxes 6,519 5,727
Floor brokerage and clearance fees 1,385 1,595
Other operating expenses 10,682 8,734
__________ __________
147,678 130,657
__________ __________
Net income $ 13,735 $ 16,167
========= =========
Net income allocated to:
Limited partners $ 2,077 $ 1,919
Subordinated limited partners 1,360 1,602
General partners 10,298 12,646
__________ __________
$ 13,735 $ 16,167
========= =========
Net income per weighted average $1,000
equivalent partnership unit outstanding:
Limited partners $ 32.52 $ 47.35
========= =========
Subordinated limited partners $ 63.36 $ 95.61
========= =========
Weighted average $1,000 equivalent
partnership units outstanding:
Limited partners $ 63,584 $ 40,529
========= =========
Subordinated limited partners $ 21,469 $ 16,758
========= =========
The accompanying notes are an integral part of these financial
statements.
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
Three Months Ended
March 25, March 26,
(Amounts in thousands) 1994 1993
Cash Flows (Used) Provided by
Operating Activities:
Net income $ 13,735 $ 16,167
Adjustments to reconcile net income to net
cash (used) provided by operating activities:
Depreciation and amortization 4,862 4,076
Increase in net receivable from/payable
to customers (38,762) (2,351)
Decrease (increase) in net receivable from/
payable to brokers and dealers 9,544 (366)
Decrease in securities owned, net 10,952 10,856
Decrease in accounts payable, accrued
expenses and accrued compensation (15,009) (11,799)
Other, net 1,579 2,227
__________ __________
Net cash (used) provided by operating
activities (13,099) 18,810
__________ __________
Cash Flows (Used) by Investing Activities:
Purchase of equipment, property and
improvements (16,655) (5,529)
__________ __________
Cash Flows Provided (Used) by Financing
Activities:
Issuance (repayment) of bank loans 56,553 (16,466)
Issuance of long-term debt 3,569 11,700
Repayment of long-term debt (227) (611)
Repayment of subordinated debt (14,000) -
Issuance of partnership interests 4,436 3,900
Redemption of partnership interests (813) (235)
Withdrawals and distributions from
partnership capital (16,782) (17,702)
__________ __________
Net cash provided (used) by financing
activities 32,736 (19,414)
__________ __________
Net increase (decrease) in cash and cash
equivalents 2,982 (6,133)
Cash and Cash Equivalents, beginning of period 28,798 37,730
__________ __________
Cash and Cash Equivalents, end of period $ 31,780 $ 31,597
Interest payments for the periods were $2,877 and $3,923.
The accompanying notes are an integral part of these financial
statements.
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
CONSOLIDATED STATEMENT OF CHANGES IN PARTNERSHIP CAPITAL
THREE MONTHS ENDED MARCH 25, 1994, AND MARCH 26, 1993
(Unaudited)
Subordinated
Limited limited General
partnership partnership partnership
(Amounts in thousands) capital capital capital Total
Balance, December 31, 1992 $ 47,328 $ 14,716 $ 75,252 $137,296
Issuance of partnership
interests - 3,900 - 3,900
Redemption of partnership
interests (235) - - (235)
Net income 1,919 1,602 12,646 16,167
Withdrawals and distributions (6,618) (1,758) (9,326) (17,702)
________ ________ ________ ________
Balance, March 26, 1993 $ 42,394 $ 18,460 $ 78,572 $139,426
Balance, December 31, 1993 $ 71,222 $ 19,163 $ 89,390 $179,775
Issuance of partnership
interests - 4,349 - 4,349
Redemption of partnership
interests (526) (200) - (726)
Net income 2,077 1,360 10,298 13,735
Withdrawals and distributions (6,941) (1,812) (8,029) (16,782)
________ ________ ________ _______
Balance, March 25, 1994 $ 65,832 $ 22,860 $ 91,659 $180,351
The accompanying notes are an integral part of these financial
statements.
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
BASIS OF PRESENTATION
The accompanying consolidated financial statements include the
accounts of The Jones Financial Companies, A Limited Partnership and
all wholly owned subsidiaries (The "Partnership"), including the
Partnership's principal subsidiary, Edward D. Jones & Co., L.P.,
("EDJ"), a registered broker/dealer.
The financial information included herein is unaudited. However,
in the opinion of management, such information includes all
adjustments, consisting solely of normal recurring accruals, which are
necessary for a fair presentation of the results of interim
operations.
Certain 1993 amounts have been reclassified to conform to 1994
financial statement presentation.
The results of operations for the three months ended March 25,
1994, are not necessarily indicative of the results to be expected for
the full year.
NET CAPITAL REQUIREMENTS
As a result of its activities as a registered broker/dealer, EDJ
is subject to the Net Capital requirements of the Securities and
Exchange Commission and the New York Stock Exchange. Under the
alternative method permitted by the rules, EDJ is required to maintain
minimum Net Capital of 2% of aggregate debit items arising from
customer transactions. The Net Capital rules also provide that EDJ
may not expand its business nor may partnership capital be withdrawn
if resulting Net Capital would be less than 5% of aggregate debit
items. At March 25, 1994, EDJ's Net Capital of $100.8 million was 22%
of aggregate debit items and its Net Capital in excess of the minimum
required was $91.6 million.
EDJ received permission from the New York Stock Exchange to
prepay in advance of its scheduled maturity $17,000,000 of
subordinated debt. During March 1994, $7,000,000 was prepaid.
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
MANAGEMENT'S FINANCIAL DISCUSSION
OPERATIONS
QUARTER ENDED MARCH 25, 1994, VERSUS
QUARTER ENDED MARCH 26, 1993
Total revenues increased 10% ($14.6 million) to $161.4 million
compared to the quarter ended March 26, 1993. Expenses increased 13%
($17.0 million) to $147.7 million. As a result, net income decreased
by $2.4 million to $13.7 million. These results were significantly
influenced by the Partnership's strategy of expanding its investment
representatives. The number of investment representatives increased
24% (551) to 2,856, and the number of branches increased to 2,784, a
26% increase over last year. The majority of new investment
representatives hired by the Partnership are beginners in the
industry. Successful investment representatives generally achieve
profitability after about 30 months. In the interim, the Partnership
incurs significant training, salary and support costs. Additionally,
the Partnership made significant increases in home office overhead to
support the increased salesforce.
Commission revenues increased 15% ($14.6 million). Mutual fund
commissions rose 10% ($5.9 million) and were a major contributor to
the increase. Insurance commission revenue increased 76%, with
variable annuity revenues increasing 104% ($7.3 million) and fixed
annuity revenues increased 5%. Listed and over-the-counter (O-T-C)
agency equity commission revenues decreased 6% ($1.4 million). With
interest rates rising slightly from their lowest levels in more than
20 years, investors continued to favor equity mutual funds for their
professional selection and diversification and variable annuities
seeking greater returns than those offered by bank time deposits and
fixed income investments.
Principal transaction revenues decreased 7% ($1.8 million) to
$23.1 million for the period. This decrease was a result of
government bond principal revenues decreasing 28% ($.7 million).
Corporate bond principal revenues increased 25% ($1.8 million). O-T-C
principal stock sales decreased 46% ($.9 million). Overall, municipal
bond principal revenue levels were comparable in 1994 and 1993.
Investment banking revenues decreased 20% ($2.1 million) to $8.4
million for the period. Municipal and equity unit investment trusts
revenues declined 58% ($1.6 million). The composition of EDJ unit
trust securities is largely utility company stocks. The utility index
has significantly declined from 1993 levels, causing investors to
favor securities other than utilities. Syndicate CMO revenues
decreased by $3.3 million (98%). With interest rates at 20 year lows,
the supply of new CMO offerings declined substantially while the
secondary market has continued growing.
Interest and dividend income increased 16% ($1.2 million) to $9.1
million primarily due to a 31% ($1.7 million) increase in margin
interest. Lower interest rate levels, marketing of a personal line of
credit service and increased equity margin sales caused customer
margin borrowing to increase $91.3 million to $467.3 million. Due to
lower interest rates, lower inventory and levels of securities owned,
interest income decreased approximately $.3 million.
Compensation costs increased 9% ($8.0 million) compared to the
same period last year. Commissions increased due to increased
revenues. However, sales bonuses, sales incentives and profit sharing
provisions were lower due to lower profit margins. Salaries and wages
earned by non-sales personnel were also higher during the period due
to increases in personnel necessary to support the increased sales
force.
Of the Partnership's remaining expenses, the most significant
changes were seen in occupancy, equipment, communications and data
processing expenses in order to support an expanding number of offices
and branch network.
LIQUIDITY AND CAPITAL ADEQUACY
The Partnership's equity capital at March 25, 1994, was $180.4
million compared to $139.4 as of March 26, 1993. Limited partnership
capital increased $23.4 million primarily due to a $24.8 million
limited partnership offering made in August 1993 and to the retention
of earnings, net of withdrawals and distributions. Subordinated
limited partnership capital increased $4.4 million due to capital
contributions. General partnership capital increased $13.1 million
due to retention of earnings and to an increase in distributable
profits.
At March 25, 1994, the Partnership had a $31.8 million balance of
cash and cash equivalents. Lines of credit are in place at nine banks
aggregating $475 million ($455 million of which are through
uncommitted lines of credit), of which $283.7 million was available at
March 25, 1994.
The Partnership believes that the liquidity provided by existing
cash balances and borrowing arrangements will be sufficient to meet
the Partnership capital and liquidity requirements.
CASH FLOWS
Cash and cash equivalents increased $3 million from December 31,
1993 to March 25, 1994. Cash flows provided were primarily from net
income, depreciation, decreases in securities owned, increase in
receivables from brokers and dealers and issuance of long-term debt,
bank loans and partnership interests. Cash flows used were primarily
used to fund loans to customers, paydown accounts payable, purchase
fixed assets, to repay bank loans and subordinated debt and to fund
withdrawals and distributions.
There were no material changes in the partnership's overall
financial condition during the three months ended March 25, 1994,
compared with the three months ended March 26, 1993. The
Partnership's balance sheet is comprised primarily of cash and assets
readily convertible into cash. Securities inventories are carried at
market values and are readily marketable. Customer margin accounts
are collateralized by marketable securities. Other customer
receivables and receivables and payables with other broker/dealers
normally settle on a current basis. Liabilities, including amounts
payable to customers, checks and accounts payable and accrued expenses
are non-interest bearing sources of funds to the Partnership. These
liabilities, to the extent not utilized to finance assets, are
available to meet liquidity needs and provide funds for short term
investments, which favorably impacts profitability.
The Partnership's principal subsidiary, Edward D. Jones & Co.,
L.P., ("EDJ") as a securities broker/dealer, is subject to the
Securities and Exchange Commission regulations requiring EDJ to
maintain certain liquidity and capital standards. EDJ has been in
compliance with these regulations at all times.
<PAGE>
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
Item 1: Legal Proceedings
There have been no material changes in the legal proceedings
previously reported.
Item 5: Other Information
For purposes of complying with the amendments to the rules
governing Form S-8 under the Securities Act of 1933, the registrant
hereby undertakes as follows, which undertaking shall be incorporated
by reference into it, Registration Statement of Form S-8 (File No. 33-
35247):
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefor, unenforceable. In the event that claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibits
Reference is made to the Exhibit Index contained hereinafter..
(b) Reports on Form 8-K
No reports were filed on Form 8-K for the quarter ended March 25,
1994.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934 the registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
(Registrant)
Dated: May 6, 1994 /s/ John W. Bachmann
_____________________
John W. Bachmann
Managing Partner
Dated: May 6, 1994 /s/ Edward Soule
_____________________
Edward Soule
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
THE JONES FINANCIAL COMPANIES, A LIMITED PARTNERSHIP
For the quarter ended March 25, 1994
Exhibit
No. Description Page
10.1 Mortgage Note; Dead of Trust and Security 15
Agreement; Assignment of Leases, Rents
and Profits; and Subordination and Attornment
Agreement between EDJ Leasing Co., L.P. and
Nationwide Insurance Company dated April 6, 1994
MORTGAGE NOTE
$21,759,081.29 St. Louis, Missouri
April 6, 1994
FOR VALUE RECEIVED, THE UNDERSIGNED EDJ LEASING CO., L.P., a
Missouri limited partnership (the "Maker") promises to pay to the
order of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation, its
successors and assigns (the "Holder") the principal sum of Twenty-One
Million Seven Hundred Fifty-Nine Thousand Eighty-One and 29/100
Dollars ($21,759,081.29), together with interest on the principal
balance of this Mortgage Note (the "Note"), from time to time
remaining unpaid, from the date of disbursement by Holder hereof at
the applicable interest rate hereinafter set forth, together with all
other sums due hereunder or under the terms of the Mortgage (as
hereinafter defined) in lawful money of the United States of America
which shall be legal tender in payment of all debts at the time of
such payment. Both principal and interest and all other sums due
hereunder shall be payable at the office of Holder at One Nationwide
Plaza, Columbus, Ohio 43216, Attention: Real Estate Investment
Department, or at such other place either within or without the State
of Ohio, as Holder hereof may from time to time designate. Said
principal and interest shall be paid over a term, at the times, and in
the manner set forth below, to wit:
Payment Provision:
(i) Interest accrued on the unpaid principal balance of this
Note from the date of disbursement hereof at the rate of eight and
seventy-two one-hundredths percent (8.72%) per annum shall be due and
payable (a) on the fifth (5th) day of the calendar month of the date
of disbursement, if such date of disbursement is before the fifth
(5th) day of the month, or (b) on the fifth (5th) day of the first
calendar month following the date of disbursement, if such date of
disbursement is after the fifth (5th) day of the month. In the event
that disbursement occurs on the fifth (5th) day of the month, then
there shall be no payment of interim interest and the first payment
due from Maker hereunder shall be in accordance with subparagraph (ii)
below.
(ii) Thereafter, installments of principal and interest on the
unpaid principal balance of this Note at the rate of eight and
seventy-two one-hundredths percent (8.72%) per annum, shall be due and
payable in one hundred and eight (108) consecutive monthly
installments commencing on the fifth day of the next calendar month
and continuing on the fifth day of each calendar month thereafter,
with each such installment to be in the sum of Two Hundred and Eighty-
Nine Thousand Six Hundred and Ninety-Nine and 45/100 Dollars
($289,699.45).
Maturity:
The unpaid principal balance of this Note and all accrued unpaid
interest thereon, if not sooner paid, shall be due and payable in full
on _______ 5, 2003 (the "Maturity Date").
Application of Payments:
All payments shall be applied first to the payment of accrued
unpaid interest on this Note and the balance, if any, shall be applied
to the reduction of the outstanding principal balance of this Note.
Interest due hereunder shall be calculated on the basis of a 360-day
year composed of twelve 30-day months; provided however in no event
shall such calculation cause the interest payable under the terms of
this Note to exceed the maximum rate of interest permitted under
applicable law.
Late Payment Charge:
The Holder of this Note may collect a late payment charge, prior
to the acceleration of this Note, in an amount equal to five percent
(5%) of the aggregate monthly installment which is not paid on the due
date, for the purpose of covering the extra expenses involved in
handling delinquent installments. Any full payment of principal
and/or interest which is correctly addressed, bears adequate first
class postage and is postmarked by the United States Postal Service on
or before the due date shall not be considered delinquent and a late
payment charge shall not be assessed.
Prepayment:
(A) Except as hereinafter provided, Maker shall not have the
right to prepay all or any part of the obligation evidenced by this
Note at any time. Maker shall have the right to prepay, in full but
not in part, the obligation evidenced by this Note upon giving (i) not
less than thirty (30) days' prior written notice to Holder of Maker's
intention to so prepay this Note, and (ii) payment to Holder of the
Prepayment Premium (as hereinafter defined), if any, then due to
Holder as hereinafter provided. As used herein, the term "Prepayment
Premium" shall mean the greater of (i) one percent (1%) of the
outstanding principal balance of this Note at the time of prepayment
or (ii) an amount equal to the sum of (a) the present value of the
scheduled monthly payments on this Note from the date of prepayment to
the Maturity Date and (b) the present value of the amount of principal
and interest of this Note due on the Maturity Date (assuming all
scheduled monthly payments due prior to the Maturity Date were made
when due), minus (c) the outstanding principal balance of this Note as
of the date of prepayment. The present values described in (a) and
(b) shall be computed on a monthly basis as of the date of prepayment
discounted at the yield-to-maturity rate of the U.S. Treasury Note or
Bond closest in maturity to the Maturity Date of this Note as reported
in the Wall Street Journal (or, if the Wall Street Journal is no
longer published, as reported in such other daily financial
publication of national circulation which shall be designated by
Holder) on the fifth (5th) business day preceding the date of
prepayment, expressed as a decimal equivalent. Maker shall be
obligated to prepay this Note on the date set forth in the notice to
Holder required hereinabove, after such notice has been delivered to
Holder. Notwithstanding the foregoing or any other provision herein
to the contrary, if Holder elects to apply insurance proceeds,
condemnation awards, or any escrowed amounts, if applicable, to the
reduction of the principal balance of this Note in the manner provided
in the Mortgage (as hereinafter defined), no Prepayment Premium shall
be due or payable as a result of such application and the monthly
installments due and payable hereunder shall be reduced accordingly.
(B) In the event the Maturity Date of the indebtedness
evidenced by this Note is accelerated by Holder hereof at any time due
to a default, continuing beyond the expiration of any applicable cure
periods, by Maker in the terms, covenants or conditions contained in
this Note, the Mortgage or any of the other Loan Documents (as
hereinafter defined), then a tender of payment in an amount necessary
to satisfy the entire outstanding principal balance and all accrued
unpaid interest on this Note made by Maker, or by anyone on behalf of
Maker, at any time prior to, at, or as a result of, a foreclosure sale
or sale pursuant to power of sale, shall constitute a voluntary
prepayment hereunder prior to the contracted Maturity Date of this
Note thus requiring the payment to Holder of a Prepayment Premium
equal to the applicable Prepayment Premium as set forth in paragraph
(A) above; provided, however, that in the event such Prepayment
Premium is construed to be interest under the laws of the State of
Missouri in any circumstance, such payment shall not be required to
the extent that the amount thereof, together with other interest
payable hereunder, exceeds the maximum rate of interest that may be
lawfully charged under applicable law.
(C) Maker shall have the right, from time to time, to obtain
releases of portions of the Property from the lien of the Mortgage and
to partially prepay the obligation evidenced by this Note on the
following terms and conditions: (i) Maker shall give not less than
thirty (30) days' prior written notice to Holder of Maker's request
for a release and Maker's intention to partially prepay this Note,
such notice to contain a complete legal description and street address
of the portion of the Property proposed to be released, a calculation
of the Release Price for the portion of the Property proposed to be
released, a calculation of the remaining principal balance of the Note
following the proposed release and partial prepayment, and a
calculation of the Minimum Principal Balance of the Note following the
proposed release and partial prepayment; (ii) the partial prepayment
anticipated shall not result in the reduction of the principal balance
of this Note below the Minimum Principal Balance; (iii) Maker shall
pay to Holder the Release Price for the portion of the Property to be
released; (iv) Maker shall pay to Holder a prepayment premium equal to
the Prepayment Premium (calculated in accordance with (A) above) times
the Applicable Percentage for the portion of the Property to be
released; and (v) no default or Event of Default shall have occurred
(and be continuing upon the expiration of any applicable cure period,
if any, expressly provided therein) hereunder, under the Mortgage, or
under any other document securing this Note or executed in connection
herewith. Maker shall be obligated to partially prepay this Note on
the date set forth in the notice to Holder required hereinabove, after
such notice has been delivered to Holder.
The term "Minimum Principal Balance" shall mean an amount equal
to fifty-six and three tenths percent (56.30%) of the "Amortized
Principal Balance" on the date of any release and partial prepayment.
The term "Amortized Principal Balance" shall mean an amount equal
to Twenty-One Million Seven Hundred and Fifty-Nine Thousand Eighty-One
and 29/100 Dollars ($21,759,081.29) less the principal portion of all
regular monthly payments due hereunder and actually made on or prior
to the date of any partial prepayment and release.
The term "Release Price" shall mean the Applicable Percentage for
the portion of the Property to be released times the Amortized
Principal Balance on the date of any partial prepayment and release.
The term "Applicable Percentage" for each portion of the Property
is as follows:
STREET ADDRESS APPLICABLE PERCENTAGE
100 Progress Parkway 22.66%
115 Progress Parkway 2.91%
120 Progress Parkway 3.40%
135 Progress Parkway 2.74%
141 Progress Parkway 3.75%
158 Progress Parkway 5.36%
201 Progress Parkway 24.79%
5 American Industrial Drive 11.60%
9 American Industrial Drive 2.79%
20 American Industrial Drive 2.56%
75 Worthington Access Drive and
44 Kimler Drive 9.01%
41 Kimler Drive 4.76%
145 Weldon Parkway 3.67%
(D) Notwithstanding anything contained herein to the contrary,
during the ninety (90) day period immediately preceding the Maturity
Date, the entire outstanding principal balance and all accrued unpaid
interest on this Note may be prepaid in whole, but not in part,
without incurring a Prepayment Premium.
Additional Conditions:
This Note is secured by a Deed of Trust and Security Agreement
containing provisions for future advances and future obligations
governed by Section 443.055 R.S.Mo. (as amended) and which is a lien
on the property therein described executed of even date herewith
(hereinafter referred to as the "Mortgage") and by an Assignment of
Leases, Rents and Profits (hereinafter referred to as the
"Assignment") of even date herewith each encumbering certain real
property located in St. Louis County, Missouri and other property as
more particularly described in the Mortgage (hereinafter collectively
referred to as the "Property"). The Mortgage and the Assignment
contain terms and provisions which provide grounds for acceleration of
the indebtedness evidenced by this Note together with additional
remedies in the event of default hereunder or thereunder. Failure on
the part of Holder hereof to exercise any right granted herein or in
the aforesaid Mortgage or the Assignment shall not constitute a waiver
of such right or preclude the subsequent exercise and enforcement
thereof. This Note, the Mortgage, the Assignment and all other
documents and instruments executed as further evidence of, as
additional security for, or executed in connection with the
indebtedness evidenced by this Note are hereinafter collectively
referred to as the "Loan Documents".
Except as herein otherwise provided, all parties to this Note,
including endorsers, sureties and guarantors, hereby jointly and
severally waive presentment for payment, demand, protest, notice of
protest, notice of demand and of nonpayment or dishonor and of
protest, and any and all other notices and demands whatsoever, and
agree to remain bound hereby until the principal and interest of this
Note are paid in full, notwithstanding any extensions of time for
payment which may be granted by Holder, even though the period of
extension be indefinite, and notwithstanding any inaction by, or
failure to assert any legal rights available to the Holder of this
Note.
If the obligations evidenced by this Note, or any part thereof,
are placed in the hands of an attorney for collection, whether by suit
or otherwise, at any time, or from time to time, Maker shall be liable
to Holder, in each instance, for all costs and expenses incurred in
connection therewith, including, without limitation, Reasonable
Attorneys' Fees (as hereinafter defined).
Default:
If default shall be made in the payment of principal and/or
interest as stipulated above (and it is hereby understood that if such
payment is postmarked by the United States Postal Service on or before
the due date for such payment, is correctly addressed and bears
adequate first class postage, Maker shall not be considered to have
defaulted in making such payment) or in the payment of any other sums
due hereunder or under any of the other Loan Documents, or should any
default be made in the performance of any of the terms, covenants and
conditions contained herein or in any of the other Loan Documents,
then in any or all of such events, at the option of Holder, the entire
outstanding principal balance of this Note, together with all accrued
unpaid interest thereon and all other sums advanced by Holder on
behalf of Maker shall become and be immediately due and payable then
or thereafter as Holder may elect, regardless of the Maturity Date
hereof. All such amounts shall bear interest after maturity, by
acceleration or otherwise, at the lesser of either (i) the highest
rate of interest then allowed by the laws of the State of Missouri or,
if controlling, the laws of the United States, or (ii) the then
applicable interest rate of this Note plus five hundred (500) basis
points.
During the existence of any default, Holder may apply any sums
received, including but not limited to, insurance proceeds or
condemnation awards, to any amount then due and owing hereunder or
under the terms of any of the other Loan Documents as Holder may
determine. Neither the right nor the exercise of the right herein
granted unto Holder to apply such proceeds as aforesaid shall preclude
Holder from exercising its option to cause the entire indebtedness
evidenced by this Note to become immediately due and payable by reason
of Maker's default under the terms of this Note or any of the other
Loan Documents.
Notwithstanding any provisions herein to the contrary, Holder's
right, power and privilege to accelerate the maturity of the
indebtedness evidenced hereby shall be conditioned upon, with respect
to any Non-Monetary Default (as hereinafter defined), Holder giving
Maker written notice of such Non-Monetary Default and a thirty (30)
day period after the date of such notice within which to cure such
Non-Monetary Default, unless such Non-Monetary Default cannot
reasonably be cured within said thirty (30) day period, in which event
Maker shall have an extended period of time to complete cure, provided
that action to cure such Non-Monetary Default is commenced within said
thirty (30) day period and Maker is not substantially diminishing or
impairing the value of the Property, and is diligently pursuing a cure
to completion. Any notice required hereunder shall be given as
provided in the Mortgage. Holder shall have no obligation to give
Maker notice of, or any period to cure any Monetary Default (as
hereinafter defined) or any Incurable Default (as hereinafter defined)
prior to exercising its right, power and privilege to accelerate the
maturity of the indebtedness evidenced hereby and to declare the same
to be immediately due and payable and exercise all other rights and
remedies herein granted or otherwise available to Holder at law or in
equity. As used herein, the term "Monetary Default" shall mean any
default which can be cured by the payment of money including, but not
limited to, the payment of principal and interest due under this Note
and the payment of taxes, assessments and insurance premiums when due
as provided in the Mortgage. As used herein, the term "Non-Monetary
Default" shall mean any default which is not a Monetary Default or an
Incurable Default. As used herein, the term "Incurable Default" shall
mean (i) any voluntary or involuntary sale, assignment, mortgaging or
transfer in violation of the covenants of the Mortgage; or (ii) if
Maker, or any person or entity comprising Maker, should make an
assignment for the benefit of creditors, become insolvent, or file a
petition in bankruptcy (including but not limited to, a petition
seeking a rearrangement or reorganization).
Savings Clause; Severability:
Notwithstanding any provisions herein or in the Mortgage to the
contrary, the total liability for payments in the nature of interest
including but not limited to Prepayment Premiums, default interest and
late fees shall not exceed the limits imposed by the laws of the State
of Missouri or the United States of America relating to maximum
allowable charges of interest. Holder shall not be entitled to
receive, collect or apply, as interest on the indebtedness evidenced
hereby, any amount in excess of the maximum lawful rate of interest
permitted to be charged by applicable law or regulations, as amended
or enacted from time to time. In the event Holder ever receives,
collects or applies, as interest, any such excess, such amount which
would be excessive interest shall be applied to reduce the unpaid
principal balance of the indebtedness evidenced by this Note. If the
unpaid principal balance of such indebtedness is paid in full, any
remaining excess shall be forthwith paid to Maker.
If any clauses or provisions herein contained operate or would
prospectively operate to invalidate this Note, then such clauses or
provisions only shall be held for naught, as though not herein
contained and the remainder of this Note shall remain operative and in
full force and effect.
Exculpation:
The liability of Maker and the general partner of Maker, LHC,
Inc., and any other current or future general partner of Maker
("General Partner") with respect to the payment of principal and
interest hereunder shall be "non-recourse" and, accordingly, Holder's
source of satisfaction of said indebtedness and Maker's other
obligations hereunder and under the other Loan Documents shall be
limited to the Property and Holder's receipt of the rents, issues, and
profits from the Property and Holder shall not seek to procure payment
out of any other assets of Maker, or any person or entity comprising
Maker, or to seek judgment for any sums which are or may be payable
under this Note or under any of the other Loan Documents, as well as
any claim or judgment (except as hereafter provided) for any
deficiency remaining after foreclosure of the Mortgage.
Notwithstanding the above, nothing herein contained shall be deemed to
be a release or impairment of the indebtedness evidenced by this Note
or the security therefor intended by the other Loan Documents or be
deemed to preclude Holder from exercising its rights to foreclose the
Mortgage or to enforce any of its other rights or remedies under the
Loan Documents.
Notwithstanding the foregoing, it is expressly understood and
agreed that the aforesaid limitation on liability shall in no way
affect or apply to Maker's and General Partner's continued personal
liability for all sums due to:
(1) fraud or misrepresentation made in or in connection with
this Note or any of the other Loan Documents;
(2) failure to pay taxes or assessments prior to delinquency,
or to pay charges for labor, materials or other charges which can
create liens on any portion of the Property;
(3) the misapplication of (i) proceeds of insurance covering
any portion of the Property; or (ii) proceeds of the sale or
condemnation of any portion of the Property; or (iii) rentals received
by or on behalf of Maker subsequent to the date on which Holder makes
written demand therefor pursuant to any Loan Document;
(4) causing or permitting waste to occur in, on or about the
Property and failure to maintain the Property, excepting ordinary wear
and tear;
(5) the return to Holder of all unearned advance rentals and
security deposits paid by tenants of the Property and not refunded to
or forfeited by such tenants;
(6) loss by fire or casualty to the extent not compensated by
insurance proceeds collected by Holder;
(7) the return of, or reimbursement for, all Fixtures and
Personal Property (as defined in the Mortgage) owned by Maker taken
from the Property by or on behalf of Maker, out of the ordinary course
of business, and not replaced by items of equal or greater value than
the original value of the Fixtures and Personal Property so removed;
(8) (i) any and all costs incurred in order to cause the
Property to comply with the Accessibility Laws (as defined in the
Mortgage) and (ii) any indemnity or other agreement to hold Holder
harmless from and against any and all losses, liabilities, damages,
injuries, costs or expenses of any kind arising under Paragraph 3 of
the Mortgage regarding accessibility for the disabled or handicapped,
or under the separate Indemnity Agreement executed by Maker and
General Partner. Maker shall not be liable hereunder for compliance
with any Accessibility Laws that first become effective, or for any
violation of any Accessibility Laws resulting form alterations or
improvements to the Property that are performed subsequent to Holder's
acquisition of the Property by foreclosure or acceptance of a deed in
lieu thereof or subsequent to any transfer of ownership which was
approved or authorized by Holder pursuant to the Mortgage, provided
that such transferee assumes all obligations pertaining to
Accessibility Laws pursuant to the Loan Documents;
(9) all court costs and Reasonable Attorneys' Fees (as
hereinafter defined) actually incurred which are provided for in this
Note or in any other Loan Documents;
(10) (i) the removal of any chemical, material or substance,
exposure to which is prohibited, limited, or regulated by any Federal,
State, County, Regional or Local Authority which may or could pose a
hazard to the health and safety of the occupants of the Property,
regardless of the source of origination; (ii) the restoration of the
Property to comply with all governmental regulations pertaining to
hazardous waste found in, on or under the Property, regardless of the
source of origination; and (iii) any indemnity or other agreement to
hold the Holder harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses of any and every kind
arising under paragraph 3 of the Mortgage and/or the Indemnity
Agreement of even date herewith executed by Maker and General Partner.
Maker shall not be liable hereunder if the Property becomes
contaminated subsequent to Holder's acquisition of the Property by
foreclosure or acceptance of a deed in lieu thereof or subsequent to
any transfer of ownership which was approved or authorized by Holder
pursuant to the Mortgage, provided that such transferee assumes all
obligations pertaining to Hazardous Materials (as defined in the
Mortgage) pursuant to the Loan Documents. Liability under this
subparagraph shall extend beyond repayment of this Note and compliance
with the terms of the Mortgage and, if not terminated pursuant to the
foregoing, beyond Holder's acquisition of the Property by foreclosure
or acceptance of a deed in lieu thereof or subsequent to any transfer
of ownership which was approved or authorized by Holder pursuant to
the Mortgage unless at such time Maker provides Holder with an
environmental assessment report acceptable to Holder showing the
Property to be free of Hazardous Materials and not in violation of
Hazardous Waste Laws (as defined in the Mortgage). The burden of
proof under this subparagraph with regard to establishing the date
upon which such chemical, material or substance was placed or appeared
in, on or under the Property shall be upon Maker.
The obligations of Maker in subparagraphs (1) through (10),
except as specifically provided in subparagraphs (8) and (10), shall
survive the repayment and satisfaction of this Note.
As used herein, the phrase "Reasonable Attorneys' Fees" shall
mean fees charged by attorneys selected by Holder based upon such
attorneys' then prevailing hourly rates as opposed to any statutory
presumption specified by any statute then in effect in the State of
Missouri.
THE PROVISIONS of this Note shall be governed by and construed in
accordance with the laws of the State of Missouri and if controlling,
by the laws of the United States and shall be binding upon Maker, its
heirs, personal representatives, successors and assigns and shall
inure to the benefit of Holder.
IN WITNESS WHEREOF, Maker has executed this Note under seal as of
the day and year first above written.
EDJ LEASING CO., L.P., a Missouri
By: LHC, Inc.
By:________________________________
Name:______________________________
Title:_____________________________
DEED OF TRUST AND SECURITY AGREEMENT
(With Future Advances and Future Obligations
Governed by Section 443.055 R.S.Mo.)
THIS DEED OF TRUST AND SECURITY AGREEMENT (hereinafter referred
to as the "Mortgage") is made and executed this __ day of
_______________, 1994, by and among EDJ LEASING CO., L.P., a Missouri
limited partnership having its principal address at 201 Progress
Parkway, Maryland Heights, Missouri 63043, Attention: Edward Soule
(hereinafter referred to as "Mortgagor"), and Robert C. Graham III of
the County of St. Louis, Missouri hereinafter referred to as
"Trustee"), and NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation, its successors and assigns, having its principal office
at One Nationwide Plaza, Columbus, Ohio 43216, Attention: Real Estate
Investments, or at such other place either within or without the State
of Ohio, as it may from time to time designate (hereinafter referred
to as "Mortgagee");
W I T N E S S E T H:
WHEREAS, Mortgagor is justly indebted to Mortgagee in the
principal sum of Twenty-One Million Seven Hundred Fifty-Nine Thousand
Eighty-One and 29/100 Dollars ($21,759,081.29) with interest thereon,
which indebtedness is evidenced and represented by a certain Mortgage
Note of even date herewith in the sum of Twenty-One Million Seven
Hundred Fifty-Nine Thousand Eighty-One and 29/100 Dollars
($21,759,081.29) payable to Nationwide Life Insurance Company (said
Mortgage Note being hereinafter referred to as the "Note"), which Note
shall be due and payable on ______ 5, 2003, and all other notes given
in substitution therefor or in modification, increase, renewal or
extension thereof, in whole or in part; and
WHEREAS, Mortgagee, as a condition precedent to the extension of
credit and the making of the loan evidenced by the Note, has required
that Mortgagor provide Mortgagee with security for the repayment of
the indebtedness evidenced by the Note as well as for the performance,
observance and discharge by Mortgagor of various covenants, conditions
and agreements made by Mortgagor to, with, in favor of and for the
benefit of Mortgagee with respect to said indebtedness and such
security;
NOW THEREFORE, in consideration of and in order to secure the
repayment of the indebtedness evidenced and represented by the Note,
together with interest on such indebtedness, as well as the payment of
all other sums of money secured hereby, as hereinafter provided; and
to secure the observance, performance and discharge by Mortgagor of
all covenants, conditions and agreements set forth in the Note, this
Mortgage and in all other documents and instruments executed and
delivered by Mortgagor to and in favor of Mortgagee for the purpose of
further securing the repayment of the indebtedness evidenced and
represented by the Note; and in order to charge the properties,
interests and rights hereinafter described with such payment,
observance, performance and discharge; and in consideration of the sum
of One Dollar paid by Trustee to Mortgagor and the trust hereinafter
mentioned and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor does hereby
Grant, Bargain and Sell, Convey and Confirm, and alien, remise,
release, assign, transfer, pledge, deliver, set over, hypothecate, and
warrant unto Trustee forever, all of Mortgagor's right, title and
interest in and to the following described properties, rights and
interests and all replacements of, substitutions for, and additions
thereto (all of which are hereinafter together referred to as the
"Property"), to wit:
ALL THAT certain piece, parcel or tract of land or real property
of which Mortgagor is now seized and in actual or constructive
possession, situate in St. Louis County, Missouri, more particularly
described on Exhibit A attached hereto and by this reference made a
part hereof (hereinafter referred to as the "Real Property");
TOGETHER WITH all buildings, structures and other improvements of
any kind, nature or description now or hereafter erected, constructed,
placed or located upon said Real Property (which buildings, structures
and other improvements are hereinafter sometimes together referred to
as the "Improvements"), including, without limitation, any and all
additions to, substitutions for or replacements of such Improvements;
TOGETHER WITH all minerals, royalties, gas rights, water, water
rights, water stock, flowers, shrubs, lawn plants, crops, trees,
timber and other emblements now or hereafter located on, under or
above all or any part of the Real Property;
TOGETHER WITH all and singular, the tenements, hereditaments,
strips and gores, rights-of-way, easements, privileges and other
appurtenances now or hereafter belonging or in any way appertaining to
the Real Property, including, without limitation, all right, title and
interest of the Mortgagor in any after-acquired right, title,
interest, remainder or reversion, in and to the beds of any ways,
streets, avenues, roads, alleys, passages and public places, open or
proposed, in front of, running through, adjoining or adjacent to said
Real Property (hereinafter sometimes together referred to as
"Appurtenances");
TOGETHER WITH any and all leases, contracts, rents, royalties,
issues, revenues, profits, proceeds, income and other benefits,
including accounts receivable, of, accruing to or derived from said
Real Property, Improvements and Appurtenances and any business or
enterprise presently situated or hereafter operated thereon and
therewith;
TOGETHER WITH any and all awards or payments, including interest
thereon, and the right to receive the same, as a result of (a) the
exercise of the right of eminent domain, (b) the alteration of the
grade of any street, or (c) any other injury to, taking of, or
decrease in the value of, the Property, to the extent of all amounts
which may be secured by this Mortgage at the date of any such award or
payment including but not limited to the Reasonable Attorneys' Fees
(as hereinafter defined), costs and disbursements incurred by the
Mortgagee in connection with the collection of such award or payment.
AS WELL AS all of the right, title and interest of Mortgagor in
and to all fixtures, goods, inventory, chattels, construction supplies
and materials, fittings, furniture, furnishings, equipment, machinery,
apparatus, appliances, and other items of personal property, whether
tangible or intangible, of any kind, nature or description, whether
now owned or hereafter acquired by Mortgagor, including, without
limitation, all signs and displays, all heating, air conditioning,
water, gas, lighting, incinerating and power equipment; all engines,
compressors, pipes, pumps, tanks, motors, conduits, wiring, and
switchboards; all plumbing, lifting, cleaning, fire prevention, fire
extinguishing, sprinkling, refrigerating, ventilating, waste removal
and communications equipment and apparatus; all boilers, furnaces,
oil burners, vacuum cleaning systems, elevators, and escalators; all
stoves, ovens, ranges, disposal units, dishwashers, water heaters,
exhaust systems, refrigerators, cabinets and partitions; all rugs,
attached floor coverings, curtains, rods, draperies, and carpets; all
building materials, tools, shades, awnings, blinds, screens, storm
doors and windows; and all other general intangibles, contract
rights, accounts receivable, chattel paper, documents and business
records, of every kind, including, without limitation, any and all
licenses, permits, or franchises; any of which is, are or shall
hereafter be, attached, affixed to or used or useful, either directly
or indirectly, in connection with the complete and comfortable use,
occupancy and operation of the Real Property and Improvements and
Appurtenances as an office building, or any other business, enterprise
or operation as may hereafter be conducted upon or within said Real
Property, Improvements and Appurtenances, as well as the proceeds
thereof or therefrom regardless of form (hereinafter sometimes
together referred to as the "Fixtures and Personal Property," which
term expressly excludes any toxic wastes or substances deemed
hazardous under federal, state, regional or local laws). Mortgagor
hereby expressly grants to Mortgagee a present security interest in
and a lien and encumbrance upon the Fixtures and Personal Property
(Notwithstanding anything herein to the contrary, nothing contained
herein shall be deemed to grant Mortgagee a security interest in any
furnishings, furniture, or computer equipment owned by any tenant
including, but without limitation, Jones [as herein defined], under
any lease affecting the Property and used by such tenant, with respect
to the conduct of its business on the Property and the term Fixtures
and Personal Property shall not be deemed to include any such
furnishings, fixtures or computer equipment.);
TO HAVE AND TO HOLD the foregoing Property and the rights hereby
granted for the use and benefit of the Trustee and the Trustee's
successors and assigns forever in trust, for the uses and purposes set
forth, possession of the Property being hereby granted and conveyed to
the Trustee;
AND Mortgagor covenants and warrants with and to Mortgagee that
Mortgagor is indefeasibly seized of the Property and has good right,
full power, and lawful authority to convey and encumber all of the
same as aforesaid; that Mortgagor hereby fully warrants the title to
the Property and will defend the same and the validity and priority of
the lien and encumbrance of this Mortgage against the lawful claims of
all persons whomsoever; and Mortgagor further warrants that the
Property is free and clear of all liens and encumbrances of any kind,
nature or description, save and except only (with respect to said Real
Property, Improvements and Appurtenances) for real property taxes for
years subsequent to 1993 (which are not yet due and payable), those
matters set forth in the title insurance policy issued to Mortgagee
insuring the first lien priority of this Mortgage, and those matters
described in the surveys of the Real Property prepared by Sterling Co.
during March of 1994, and certified to Mortgagee to the extent such
matters are disclosed in the title insurance policy or, if not
disclosed therein, insured over thereby (hereinafter referred to as
the "Permitted Exceptions");
PROVIDED ALWAYS, however, that if Mortgagor shall pay unto
Mortgagee the indebtedness evidenced by the Note, and if Mortgagor
shall duly, promptly and fully perform, discharge, execute, effect,
complete and comply with and abide by each and every one of the
agreements, conditions and covenants of the Note, this Mortgage and
all other documents and instruments executed as further evidence of or
as security for the indebtedness secured hereby, then this Mortgage
and the estates and interests hereby granted and created shall cease,
terminate and be null and void, and shall be discharged of record by a
proper deed of release furnished by the Mortgagee and executed in
recordable form, at the request and expense of Mortgagor, which
expense Mortgagor agrees to pay;
AND Mortgagor, for the benefit of Mortgagee and Trustee does
hereby expressly covenant and agree:
PAYMENT OF PRINCIPAL AND INTEREST
1. To pay the principal of the indebtedness evidenced by the
Note, together with all interest thereon, in accordance with the terms
of the Note, promptly at the times, at the place and in the manner
that said principal and interest shall become due, and to promptly and
punctually pay all other sums required to be paid by Mortgagor
pursuant to the terms of the Note, this Mortgage and all other
documents and instruments executed as further evidence of, as
additional security for or in connection with the indebtedness
evidenced by the Note and secured by this Mortgage (hereinafter
together referred to as the "Loan Documents").
PERFORMANCE OF OTHER OBLIGATIONS
2. To perform, comply with and abide by each and every one of
the covenants, agreements and conditions contained and set forth in
the Note, this Mortgage and the other Loan Documents and to comply
with all laws, ordinances, rules, regulations and orders of
governmental authorities now or hereafter affecting the Property or
requiring any alterations or improvements to be made thereon, and
perform all of its obligations under any covenant, condition,
restriction or agreement of record affecting the Property and to
insure that at all times the Property constitutes one or more legal
lots capable of being conveyed without violation of any subdivision or
platting laws, ordinances, rules or regulations, or other laws
relating to the division or separation of real property.
PRESERVATION AND MAINTENANCE OF PROPERTY; ACCESSIBILITY;
HAZARDOUS WASTE
3. To keep all Improvements now existing or hereafter erected
on the Real Property in good order and repair and not to do or permit
any waste, impairment or deterioration thereof or thereon, nor to
alter, remove or demolish any of the Improvements or any Fixtures and
Personal Property attached or appertaining thereto, without the prior
written consent of Mortgagee (provided, however, this provision shall
not apply to any repair, remodeling or renovation work, structural or
otherwise), nor to initiate, join in or consent to any change in any
private restrictive covenant, zoning ordinance or other public or
private restrictions limiting or defining the uses which may be made
of the Property or any part thereof, nor to do or permit any other act
whereby the Property shall become less valuable, be used for purposes
contrary to applicable law or used in any manner which will increase
the premium for or result in a termination or cancellation of the
insurance hereinafter required to be kept and maintained on the
Property. In furtherance of, and not by way of limitation upon the
foregoing covenant, Mortgagor shall effect such repairs as Mortgagee
may reasonably require, and from time to time make all needful and
proper replacements so that the Improvements, Appurtenances, and
Fixtures and Personal Property will, at all times, be in good
condition, fit and proper for the respective purposes for which they
were originally erected or installed. Mortgagor at all times shall
maintain the Property in full compliance with all federal, state or
municipal laws, ordinances, rules and regulations currently in
existence or hereinafter enacted or rendered governing accessibility
for the disabled, including but not limited to The Architectural
Barriers Act of 1968, The Rehabilitation Act of 1973, The Fair Housing
Act of 1988, and The Americans with Disabilities Act (hereinafter
collectively called the "Accessibility Laws"). Mortgagor at all times
shall keep the Property and ground water of the Property free of
Hazardous Materials (as hereinafter defined) in excess of limits
prescribed by Hazardous Waste Laws (hereinafter defined). Mortgagor
shall not knowingly permit its tenants or any third party requiring
the consent of Mortgagor to enter the Property, to use, generate,
manufacture, treat, store, release, threaten release, or dispose of
Hazardous Materials in, on or about the Property or the ground water
of the Property in violation of any federal, state or municipal law,
decision, statute, rule, ordinance or regulation currently in
existence or hereinafter enacted or rendered (hereinafter collectively
referred to as "Hazardous Waste Laws"). Mortgagor shall give
Mortgagee prompt written notice of any claim by any person, entity, or
governmental agency that a significant release or disposal of
Hazardous Materials has occurred on the Property. Mortgagor, through
its professional engineers and at its cost, shall promptly and
thoroughly investigate suspected Hazardous Materials contamination of
the Property. Mortgagor shall forthwith remove, repair, clean up,
and/or detoxify any Hazardous Materials in excess of limits prescribed
by Hazardous Waste Laws from the Property or the ground water of the
Property whether or not such actions are required by law, and whether
or not Mortgagor was responsible for the existence of the Hazardous
Materials in, on or about the Property or the ground water of the
Property. Hazardous Materials shall include but not be limited to
substances defined as "hazardous substances," "hazardous materials,"
or "toxic substances" in The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by The Superfund
Amendments and Reauthorization Act of 1986, The Hazardous Materials
Transportation Act, The Resource Conservation and Recovery Act of
1976, as amended by The Used Oils Recycling Act of 1980, The Solid
Waste Disposal Act amendment of 1984, The Toxic Substances Control
Act, The Clean Air Act, The Clean Water Act, the Missouri Hazardous
Waste Management Law (Mo. Rev. Stat. SS 260.350-260.434), the Missouri
Abandoned or Uncontrolled Sites Law (Mo. Rev. Stat. SS 260.435-
260.546), the Missouri Air Conservation Law (Mo. Rev. Stat. Chapter
643), the Missouri Clean Water Law (Mo. Rev. Stat. Chapter 644), the
Missouri Underground Storage Tank Law (Mo. Rev. Stat. SS 319.100-
319.137) or in any other Hazardous Waste Laws.
Mortgagor and the general partner of Mortgagor, LHC, Inc., and
any other current or future general partner of Mortgagor ("General
Partner") hereby agree to indemnify Mortgagee and Trustee and hold
Mortgagee and Trustee harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses and claims of any and
every kind whatsoever paid, incurred or suffered by, or asserted
against Mortgagee or Trustee for, with respect to, or as a direct or
indirect result of, the non-compliance of the Property with the
Accessibility Laws and/or the presence in, on or under, or the escape,
seepage, leakage, spillage, discharge, emission, discharging or
release from, the Property of any Hazardous Materials in excess of
limits prescribed by Hazardous Waste Laws (including, without
limitation, any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Hazardous Waste
Laws), regardless of the source of origination and whether or not
caused by, or within the control of, Mortgagor.
Mortgagee, and/or its agents, shall have the right and shall be
permitted, but shall not be required, at all reasonable times, to
enter upon and inspect the Property to insure compliance with the
foregoing covenants and any and all other covenants, agreements and
conditions set forth in this Mortgage.
Liability under this Paragraph shall extend beyond repayment of
the Note and compliance with the terms of this Mortgage; provided,
however, Mortgagor and General Partner shall have no liability under
this Paragraph 3 regarding: (1) Hazardous Materials if (a) the
Property becomes contaminated subsequent to Mortgagee's acquisition of
the Property by foreclosure, acceptance by Mortgagee of a deed in lieu
thereof, or subsequent to any transfer of ownership of the Property
which was approved or authorized by Mortgagee in writing, provided
that such transferee assumes all obligations of Mortgagor with respect
to Hazardous Materials or (b) at such time Mortgagor provides
Mortgagee with an environmental assessment report acceptable to
Mortgagee, in its sole discretion, showing the Property to be free of
Hazardous Materials and not in violation of any Hazardous Waste Laws,
or (2) Accessibility Laws that first become effective, or for any
violation of any Accessibility Laws resulting from alterations or
improvements to the Property that are performed subsequent to
Mortgagee's acquisition of the Property by foreclosure or acceptance
of a deed in lieu thereof or subsequent to any transfer of ownership
which was approved or authorized by Mortgagee pursuant to this
Mortgage, provided that such transferee assumes all obligations
pertaining to Accessibility Laws pursuant to the Loan Documents.
The burden of proof under this paragraph with regard to
establishing the date upon which any Hazardous Material was placed or
appeared in, on or under the Property shall be upon Mortgagor.
PAYMENT OF TAXES, ASSESSMENTS AND OTHER CHARGES
4. To pay all and singular such taxes, assessments and public
charges as already levied or assessed or that may be hereafter levied
or assessed upon or against the Property, when the same shall become
due and payable according to law, before the same become delinquent,
and before any interest or penalty shall attach thereto, and to
deliver official receipts evidencing the payment of the same to
Mortgagee not later than thirty (30) days following the payment of the
same. Mortgagor shall have the right to contest, in good faith, the
proposed assessment of ad valorem taxes or special assessments by
governmental authorities having jurisdiction over the Property;
provided, however, Mortgagor shall give written notice thereof to
Mortgagee and Mortgagee may, in its sole discretion, require Mortgagor
to post a bond or other collateral satisfactory to Mortgagee in
connection with any such action by Mortgagor.
PAYMENT OF LIENS, CHARGES AND ENCUMBRANCES
5. To immediately pay and discharge from time to time when the
same shall become due all lawful claims and demands of mechanics,
materialmen, laborers and others which, if unpaid, might result in, or
permit the creation of, a lien, charge or encumbrance upon the
Property or any part thereof, or on the rents, issues, income,
revenues, profits and proceeds arising therefrom and, in general, to
do or cause to be done everything necessary so that the lien of this
Mortgage shall be fully preserved, at the cost of Mortgagor, without
expense to Mortgagee. Mortgagor shall have the right to contest, in
good faith and in accordance with applicable laws and procedures,
mechanics' and materialmens' liens filed against the Property;
provided however, that Mortgagor shall give written notice thereof to
Mortgagee, and Mortgagee may, in its sole discretion, require
Mortgagor to post a bond or other collateral satisfactory to Mortgagee
(and acceptable to the title company insuring the Mortgage) in
connection with any such action by Mortgagor.
PAYMENT OF JUNIOR ENCUMBRANCES
6. To permit no default or delinquency under any other lien,
imposition, charge or encumbrance against the Property, even though
junior and inferior to the lien of this Mortgage; provided however,
the foregoing shall not be construed to permit any other lien or
encumbrance against the Property.
PAYMENT OF MORTGAGE TAXES
7. To pay any and all taxes which may be levied or assessed
directly or indirectly upon the Note and this Mortgage (except for
income taxes payable by Mortgagee) or the debt secured hereby, without
regard to any law which may be hereafter enacted imposing payment of
the whole or any part thereof upon Mortgagee, its successors or
assigns. Upon violation of this agreement to pay such taxes levied or
assessed upon the Note and this Mortgage, or upon the rendering by any
court of competent jurisdiction of a decision that such an agreement
by Mortgagor is legally inoperative, or if any court of competent
jurisdiction shall render a decision that the rate of said tax when
added to the rate of interest provided for in the Note exceeds the
then maximum rate of interest allowed by law, then, and in any such
event, the debt hereby secured shall, at the option of Mortgagee, its
successors or assigns, become immediately due and payable, anything
contained in this Mortgage or in the Note secured hereby
notwithstanding, without the imposition of a Prepayment Premium (as
defined in the Note). The additional amounts which may become due and
payable hereunder shall be part of the debt secured by this Mortgage.
HAZARD INSURANCE
8. To continuously, during the term hereof, keep the
Improvements, and the Fixtures and Personal Property, now or hereafter
existing, erected, installed and located in or upon the Real Property,
insured with extended coverage insurance against loss or damage
resulting from fire, windstorm, flood, earthquake, sinkhole and such
other hazards, casualties, contingencies and perils including, without
limitation, other risks insured against by persons operating like
properties in the locality of the Property, or otherwise deemed
necessary by Mortgagee, on such forms as may be required by Mortgagee,
covering the Property in the amount of the full replacement cost
thereof, less excavating and foundation costs (provided however, in no
case shall the amount of insurance be less than the difference between
the amount of the Note and eighty percent (80%) of the appraised value
of the Real Property) and covering loss by flood (if the Property
lies in a specified Flood Hazard Area as designated on the Department
of Housing and Urban Development Maps, or other flood prone
designation) in an amount equal to the outstanding principal balance
of the indebtedness secured hereby or such other amount as approved by
Mortgagee. All such insurance shall be carried with a company or
companies acceptable to Mortgagee, which company or companies shall
have a rating at the time this Mortgage is executed equivalent to at
least A:VIII as shown in the most recent Best's Key Rating Guide, and
the original policy or policies and renewals thereof (or, at the sole
option of Mortgagee, duplicate originals or certified copies thereof),
together with receipts evidencing payment of the premium therefor,
shall be deposited with, held by and are hereby assigned to Mortgagee
as additional security for the indebtedness secured hereby. Each such
policy of insurance shall contain a non- contributing loss payable
clause in favor of and in form acceptable to Mortgagee and shall
provide for not less than thirty (30) days' prior written notice to
Mortgagee of any intent to modify, cancel or terminate the policy or
policies, or the expiration of, such policies of insurance. If the
insurance required under this Paragraph 8 or any portion thereof is
maintained pursuant to a blanket policy, Mortgagor shall furnish to
Mortgagee a certified copy of such policy, together with an original
certificate indicating that Mortgagee is an insured under such policy
in regard to the Property and showing the amount of coverage
apportioned to the Property which coverage shall be in an amount
sufficient to satisfy the requirements hereof. Not less than fifteen
(15) days prior to the expiration dates of each policy required of
Mortgagor hereunder, Mortgagor will deliver to Mortgagee a renewal
policy or policies marked "premium paid" or accompanied by other
evidence of payment and renewal satisfactory to Mortgagee; and in the
event of foreclosure of this Mortgage, any purchaser or purchasers of
the Property shall succeed to all rights of Mortgagor, including any
rights to unearned premiums, in and to all insurance policies assigned
and delivered to Mortgagee pursuant to the provisions of this
Paragraph 8.
In the event of loss by reason of hazards, casualties,
contingencies and perils for which insurance has been required by
Mortgagee hereunder, Mortgagor shall give immediate notice thereof to
Mortgagee, and Mortgagee is hereby irrevocably appointed attorney-in-
fact coupled with an interest, for Mortgagee to, at its option, make
proof of loss if not made promptly by Mortgagor, and each insurance
company concerned is hereby notified, authorized and directed to make
payment for such loss directly to Mortgagee, instead of to Mortgagor
and Mortgagee jointly. Provided Mortgagor is not in default hereunder
or under any other Loan Documents, Mortgagor and Mortgagee shall
jointly adjust and compromise any losses for which insurance proceeds
are payable under any of the aforesaid insurance policies; provided
that if Mortgagor and Mortgagee cannot agree on such adjustment within
thirty (30) days, Mortgagee shall adjust and compromise any losses in
its sole discretion, which Mortgagor authorizes Mortgagee to do.
Mortgagor authorizes Mortgagee, after deducting the costs of
collection, to apply the proceeds of such insurance, at its option, as
follows: (a) to the restoration or repair of the insured Improvements
and the Fixtures and Personal Property, provided that, in the opinion
and sole discretion of Mortgagee, such restoration or repair is
reasonably practical and, provided further, that, in the opinion and
sole discretion of Mortgagee, either: (i) the insurance proceeds so
collected are sufficient to cover the cost of such restoration or
repair of the damage or destruction with respect to which such
proceeds were paid, or (ii) the insurance proceeds so collected are
not sufficient alone to cover the cost of such restoration or repair,
but are sufficient therefor when taken together with funds provided
and made available by Mortgagor from other sources; in which event
Mortgagee shall make such insurance proceeds available to Mortgagor
for the purpose of effecting such restoration or repair; but Mortgagee
shall not be obligated to see to the proper application of such
insurance proceeds nor shall the amount of funds so released or used
be deemed to be payment of or on account of the indebtedness secured
hereby, or (b) to the reduction of the indebtedness secured hereby,
notwithstanding the fact that the amount owing thereon may not then be
due and payable or that said indebtedness is otherwise adequately
secured, in which event such proceeds shall be applied at par against
the indebtedness secured hereby and the monthly payment due on account
of such indebtedness shall be reduced accordingly. None of such
actions taken by Mortgagee shall be deemed to be or result in a waiver
or impairment of any equity, lien or right of Mortgagee under and by
virtue of this Mortgage, nor will the application of such insurance
proceeds to the reduction of the indebtedness serve to cure any
default in the payment thereof. In the event of foreclosure of this
Mortgage or other transfer of title to the Property in extinguishment
of the indebtedness secured hereby, all right, title and interest of
Mortgagor in and to any insurance policies then in force and insurance
proceeds then payable shall pass to the purchaser or grantee.
In case of Mortgagor's failure to keep the Property so insured,
Mortgagee or its assigns, may, at its option (but shall not be
required to) effect such insurance at Mortgagor's expense.
Notwithstanding anything set forth in this Paragraph 8 to the
contrary, in the event of loss or damage to the Property by fire or
other casualty for which insurance has been required by Mortgagee and
provided by Mortgagor, Mortgagee hereby agrees to allow the proceeds
of insurance to be used for the restoration of the Property and to
release such insurance proceeds to Mortgagor as such restoration
progresses, provided:
(a) Mortgagor is not in default under any of the terms,
covenants and conditions of this Mortgage, the Note or any of the
other Loan Documents;
(b) The plans and specifications for the restoration of the
Property are approved in writing by Mortgagee, such approval not to be
unreasonably withheld;
(c) Mortgagor has deposited with Mortgagee funds which, when
added to insurance proceeds received by Mortgagee, are sufficient to
complete the restoration of the Property in accordance with the
approved plans and specifications, all applicable building codes,
zoning ordinances and regulations, and further, that the funds
retained by Mortgagee are sufficient to complete the restoration of
the Property as certified to Mortgagee by Mortgagee's inspecting
architect/engineer;
(d) Mortgagor provides completion, payment and performance
bonds and builders' all risk insurance for such restoration in form
and amount acceptable to Mortgagee (provided, however, that Mortgagor
may guarantee completion of construction to Mortgagee in lieu of
completion and performance bonds);
(e) The insurer under such policies of fire or other casualty
insurance does not assert any defense to payment under such policies
against Mortgagee, Mortgagor or any tenant of the Property;
(f) Mortgagee shall have the option, upon the completion of
such restoration of the Property, to apply any surplus insurance
proceeds remaining after the completion of such restoration, at par,
to the reduction of the outstanding principal balance of the Note;
notwithstanding the fact that the amount owing thereon may not then be
due and payable or that said indebtedness is otherwise adequately
secured;
(g) The funds held by Mortgagee shall be disbursed no more
often than once per month and in amounts of not less than Fifty
Thousand and No/100 Dollars ($50,000.00) each (except the final
disbursement of such funds which may be in an amount less than Fifty
Thousand and No/100 Dollars ($50,000.00);
(h) Mortgagee's obligation to make any such disbursement shall
be conditioned upon Mortgagee's receipt of written certification from
Mortgagee's inspecting architect/engineer (whose fees shall be paid by
Mortgagor) that all construction and work for which such disbursement
is requested has been completed in accordance with the approved plans
and specifications and in accordance with all applicable building
codes, zoning ordinances and all other local or federal governmental
regulations, and, further, that Mortgagor has deposited with Mortgagee
sufficient funds to complete such restoration in accordance with
subparagraph 8(d) above; and
(i) Mortgagee shall be entitled to require and to impose such
other conditions to the release of such funds as would be customarily
or reasonably required and imposed by local construction lenders for a
project of similar nature and cost.
LIABILITY INSURANCE
9. To carry and maintain such comprehensive general liability
insurance as may from time to time be required by Mortgagee, taking
into consideration the type of property being insured and the
corresponding liability exposure, on forms, in amounts and with such
company or companies as may be acceptable to Mortgagee. All such
comprehensive general liability insurance shall be carried with a
company or companies which have a rating at the time this Mortgage is
executed equivalent to at least A:VIII as shown in the most recent
Best's Key Rating Guide. Such policy or policies of insurance shall
name Mortgagee as an additional insured and shall provide for not less
than thirty (30) days' prior written notice to Mortgagee of the intent
to modify, cancel, or terminate the policy or policies or the
expiration of such policy or policies of insurance. Not less than
fifteen (15) days prior to the expiration dates of such policy or
policies, Mortgagor will deliver to Mortgagee a renewal policy or
policies marked "premium paid" or accompanied by other evidence of
payment and renewal satisfactory to Mortgagee. The original policy or
policies and all renewals thereof (or, at the sole option of
Mortgagee, duplicate originals or certified copies thereof), together
with receipts evidencing payment of the premium therefor, shall be
deposited with, held by and are hereby assigned to Mortgagee as
additional security for the indebtedness secured hereby.
COMPLIANCE WITH LAWS
10. To observe, abide by and comply with all statutes,
ordinances, laws, orders, requirements or decrees relating to the
Property enacted, promulgated or issued by any federal, state, county
or municipal authority or any agency or subdivision thereof having
jurisdiction over Mortgagor or the Property, and to observe and comply
with all conditions and requirements necessary to preserve and extend
any and all rights, licenses, permits (including, but not limited to,
zoning, variances, special exceptions and nonconforming uses),
privileges, franchises and concessions which are applicable to the
Property or which have been granted to or contracted for by Mortgagor
in connection with any existing, presently contemplated or future use
of the Property.
MAINTENANCE OF PERMITS
11. To obtain, keep and constantly maintain in full force and
effect during the entire term of this Mortgage, all certificates,
licenses and permits necessary to keep the Property operating as an
office building and, except as specifically provided for in this
Mortgage, not to assign, transfer or in any manner change such
certificates, licenses or permits without first receiving the written
consent of Mortgagee.
OBLIGATIONS OF MORTGAGOR AS LESSOR
12. To perform every obligation of Mortgagor (as the lessor)
and enforce every obligation of the lessee in that certain Master
Lease Agreement dated of even date herewith, between Mortgagor and
Edward D. Jones & Co., L.P., a Missouri limited partnership ("Jones"),
as tenant (the "Master Lease") and cause Jones to perform every
obligation of the lessor and enforce every obligation of the lessee i
any and every lease or other occupancy agreement of or affecting the
Property or any part thereof (hereinafter referred to as the
"Occupancy Leases"), and not to modify, alter, waive, or cancel the
Master Lease nor to allow Jones to modify, waive, or cancel any such
Occupancy Leases or any part thereof, without the prior written
consent of Mortgagee (but such consent shall not be required for such
action as to Occupancy Leases of 10,000 square feet or less if such
action is in the ordinary course of business of owning and operating
the Property in a prudent manner), nor collect for more than thirty
(30) days in advance any rents that may be collectible under the
Master Lease, or allow Jones to do so with respect to any such
Occupancy Leases and, except as provided for in this Mortgage, not to
assign the Master Lease or rents thereunder or allow Jones to assign
any such Occupancy Lease or any such rents to any party other than
Mortgagee, without the prior written consent of Mortgagee. In the
event of default under the Master Lease or any such Occupancy Lease by
reason of failure of the Mortgagor or Jones, as the case may be, to
keep or perform one or more of the covenants, agreements or conditions
thereof, Mortgagee is hereby authorized and empowered, and may, at its
sole option, remedy, remove or cure any such default, and further,
Mortgagee may, at its sole option and in its sole discretion, but
without obligation to do so, pay any sum of money deemed necessary by
it for the performance of said covenants, agreements and conditions,
or for the curing or removal of any such default, and incur all
expenses and obligations which it may consider necessary or reasonable
in connection therewith, and Mortgagor shall repay on demand all such
sums so paid or advanced by Mortgagee together with interest thereon
until paid at the lesser of either (i) the highest rate of interest
then allowed by the laws of the State of Missouri or, if controlling,
the laws of the United States, or (ii) the then applicable interest
rate of the Note plus five hundred (500) basis points; all of such
sums, if unpaid, shall be added to and become part of the indebtedness
secured hereby. Except as set forth below, all such Occupancy Leases
hereafter made shall be subject to the approval of Mortgagee and (a)
shall be at competitive market rental rates then prevailing in the
geographic area for an office building comparable to the Property, (b)
shall have lease terms of not less than three (3) years, and (c) at
Mortgagee's option, shall be superior or subordinate in all respects
to the lien of this Mortgage. The Master Lease shall, at the option
of the Mortgagee, be subordinated to the lien of this Mortgage by an
agreement in form and content acceptable to the Mortgagee. In the
event of any default by a tenant under any Occupancy Lease under which
the net rentable area, including expansion options, is less than
10,000 square feet, Mortgagor or Jones shall be entitled to enforce
the terms of such Occupancy Lease (provided such Occupancy Lease has
been approved by the Mortgagee or is not required to be so approved)
against such tenant by any appropriate action at law or in equity, or
as otherwise permitted thereunder, provided, Jones notifies Mortgagee
regarding any such action (provided however, that so long as the
failure so to notify Mortgagee arises out of the negligence of Jones,
such failure shall not be a default under this Mortgage) and provided
further that Mortgagor and Jones shall in no event be required to
provide any such notice in respect of any Occupancy Lease under which
the net rentable area is less than 10,000 square feet, including
expansion options. Mortgagee shall not require approval in advance of
any Occupancy Leases which conform to the Mortgagor's Form Lease (as
hereinafter defined) as previously approved by Mortgagee, except as
set forth below. Neither the right nor the exercise of the right
herein granted unto Mortgagee to keep or perform any such covenants,
agreements or conditions as aforesaid shall preclude Mortgagee from
exercising its option to cause the whole indebtedness secured hereby
to become immediately due and payable by reason of Mortgagor's default
under the Master Lease or Jones' default under the Master Lease with
respect to its obligations to Mortgagor, or Jones' default under any
Occupancy Lease (in each instance, after the expiration of any
applicable cure period, if any) in keeping or performing any such
covenants, agreements or conditions as hereinabove required (except
with respect to any Occupancy Lease under which the net rentable area,
including expansion options, is less than 10,000 square feet).
Mortgagee has heretofore approved a form of Occupancy Lease to be
used with respect to subtenants under the Master Lease in connection
with the Property without Mortgagee's prior consent (hereinafter
referred to as the "Form Lease"). Neither Mortgagor nor Jones shall,
without the prior written consent of Mortgagee, modify or alter the
Form Lease in any material respect. In addition, neither Mortgagor
nor Jones shall, without the prior written consent of Mortgagee,
surrender or terminate, either orally or in writing, any Occupancy
Lease now existing or hereafter made with any Major Tenant (as
hereinafter defined) for all or part of the Property, permit an
assignment or sublease (except on account of the Master Lease) of any
such Occupancy Lease, or request or consent to the subordination of
any Occupancy Lease to any lien subordinate to this Mortgage.
Mortgagor shall furnish Mortgagee with copies of all executed
Occupancy Leases of all or any part of the Property now existing or
hereafter made, and Mortgagor shall assign to Mortgagee the Master
Lease and Mortgagor and Jones, to the extent of their respective
interests, shall assign, as additional security for the Note, all
Occupancy Leases now existing or hereafter made for all or any part of
the Property (which assignments shall be in form and content
acceptable to Mortgagee).
Notwithstanding the foregoing approval by Mortgagee of
Mortgagor's Form Lease, Mortgagee hereby specifically reserves the
right to approve all prospective tenants under all Occupancy Leases
hereafter proposed to be made if: (i) the term thereof, excluding
options to renew the same, exceeds five (5) years; or (ii) the net
rentable area to be occupied thereunder, including expansion options,
exceeds ten thousand square feet of the net leasable area of the
Improvements (the tenants under such leases being hereinafter referred
to as "Major Tenants"). Mortgagor shall notify Mortgagee in writing
of all prospective Major Tenants and shall deliver to Mortgagee, at
Mortgagor's sole cost and expense, a copy of the prospective Major
Tenant's current financial statement and the most recent Dun &
Bradstreet credit report on said prospective Major Tenant. Said
financial statement shall be certified as true and correct by the
Major Tenant, or, if available, by a certified public accountant.
MAINTENANCE OF PARKING AND ACCESS; PROHIBITION AGAINST ALTERATION
13. To construct, keep and constantly maintain, as the case may
be, all curbs, drives, parking areas and the number of parking spaces
heretofore approved by Mortgagee or heretofore or hereafter required
by any governmental body, agency or authority having jurisdiction over
Mortgagor or the Property, and as required by the terms of the
Occupancy Leases, and not to alter, erect, build or construct upon any
portion of the Property, any building or structure of any kind
whatsoever, the erection, building or construction of which has not
been previously approved by Mortgagee in writing, which approval shall
be at the sole discretion of Mortgagee; provided, however, that this
provision does not apply to any repair, remodeling, or renovation
work, structural or otherwise.
EXECUTION OF ADDITIONAL DOCUMENTS
14. To do, execute, acknowledge and deliver all and every such
further acts, deeds, conveyances, mortgages, assignments, notices of
assignments, transfers, assurances and other instruments, including
security agreements and financing statements, as Mortgagee shall from
time to time require for the purpose of better assuring, conveying,
assigning, transferring and confirming unto Mortgagee the Property and
rights hereby encumbered, created, conveyed, assigned or intended now
or hereafter so to be encumbered, created, conveyed or assigned or
which Mortgagor may now be or may hereafter become bound to encumber,
create, convey, or assign to Mortgagee, or for the purpose of carrying
out the intention or facilitating the performance of the terms of this
Mortgage, or for filing, registering, or recording this Mortgage, and
to pay all filing, registration, or recording fees and all taxes,
costs and other expenses, including Reasonable Attorneys' Fees (as
defined in Paragraph 40), incident to the preparation, execution,
acknowledgment, delivery, and recordation of any of the same.
AFTER-ACQUIRED PROPERTY SECURED
15. It is understood and agreed that all right, title and
interest of Mortgagor in and to all extensions, improvements,
betterments, renewals, substitutions and replacements of, and all
additions and appurtenances to, the Property hereinabove described,
hereafter acquired by or released to Mortgagor, or constructed,
assembled or placed by Mortgagor on the Real Property, and all
conversions of the security constituted thereby, immediately upon such
acquisition, release, construction, assembling, placement or
conversion, as the case may be, and in each such case, without any
further mortgage, encumbrance, conveyance, assignment or other act by
Mortgagor, shall become subject to the lien of this Mortgage as fully
and completely and with the same effect as though now owned by
Mortgagor and specifically described herein, but at any and all times
Mortgagor will execute and deliver to Mortgagee any and all such
further assurances, mortgages, conveyances, or assignments thereof or
security interests therein as Mortgagee may reasonably require for the
purpose of expressly and specifically subjecting the same to the lien
of this Mortgage.
PAYMENTS BY MORTGAGEE ON BEHALF OF MORTGAGOR
16. Should Mortgagor or Jones, as the case may be, fail to make
payment of any taxes, assessments or public charges on or with respect
to the Property before the same shall become delinquent, or shall
Mortgagor or Jones, as the case may be, fail to make payment of any
insurance premiums or other charges, impositions, or liens herein or
elsewhere required to be paid by Mortgagor, then Mortgagee, at its
sole option, but without obligation to do so, may make payment or
payments of the same and also may redeem the Property from tax sale
without any obligation to inquire into the validity of such taxes,
assessments and tax sales. In the case of any such payment by
Mortgagee, Mortgagor agrees to reimburse Mortgagee, upon demand
therefor, the amount of such payment and of any fees and expenses
attendant in making the same, together with interest thereon at the
lesser of either (i) the highest rate of interest then allowed by the
laws of the State of Missouri or, if controlling, the laws of the
United States, or (ii) the then applicable interest rate of the Note
plus five hundred (500) basis points; and until paid such amounts and
interest shall be added to and become part of the debt secured hereby
to the same extent that this Mortgage secures the repayment of the
indebtedness evidenced by the Note. In making payments hereby
authorized by the provisions of this Paragraph 16, Mortgagee may do so
whenever, in its sole judgment and discretion, such advance or
advances are necessary or desirable to protect the full security
intended to be afforded by this instrument. Neither the right nor the
exercise of the right herein granted unto Mortgagee to make any such
payments as aforesaid shall preclude Mortgagee from exercising its
option to cause the whole indebtedness secured hereby to become
immediately due and payable by reason of Mortgagor's default in making
such payments as hereinabove required.
FUNDS HELD BY MORTGAGEE FOR TAXES, ASSESSMENTS, INSURANCE
PREMIUMS, AND OTHER CHARGES
17. In order to more fully protect the security of this
Mortgage, Mortgagor shall deposit with Mortgagee, together with and in
addition to each monthly payment due on account of the indebtedness
evidenced by the Note, an amount equal to one-twelfth (1/12) of the
annual total of such taxes, assessments, insurance premiums, and other
charges (all as estimated by Mortgagee in its sole discretion) so
that, at least thirty (30) days prior to the due date thereof,
Mortgagee shall be able to pay in full all such taxes, assessments,
insurance premiums, and other charges as the same shall become due,
and Mortgagee may hold without paying interest and commingle with its
general funds the sums so deposited and apply the same to the payment
of said taxes, assessments, insurance premiums, or other charges as
they become due and payable. If at any time the funds so held by
Mortgagee are insufficient to pay such taxes, assessments, insurance
premiums, or other charges as they become due and payable Mortgagor
shall immediately, upon notice and demand by Mortgagee, deposit with
Mortgagee the amount of such deficiency, and the failure on the part
of Mortgagor to do so shall entitle Mortgagee, at its sole option, to
make such payments in accordance with its right and pursuant to the
conditions elsewhere provided in this Mortgage. Whenever any default
exists under this Mortgage, Mortgagee may, at its sole option but
without an obligation so to do, apply any funds so held by it pursuant
to this Paragraph 17 toward the payment of the indebtedness secured
hereby, notwithstanding the fact that the amount owing thereon may not
then be due and payable or that said indebtedness may otherwise be
adequately secured in such order and manner of application as
Mortgagee may elect.
CONDEMNATION; EMINENT DOMAIN
18. All awards and other compensation heretofore or hereafter
made to Mortgagor and all subsequent owners of the Property in any
taking by eminent domain or recovery for inverse condemnation, either
permanent or temporary, of all or any part of the Property or any
easement or any appurtenance thereto, including severance and
consequential damages and change in grade of any street, are hereby
assigned to Mortgagee. Provided Mortgagor is not in default hereunder
or under any of the other Loan Documents, Mortgagor and Mortgagee
shall jointly adjust and compromise the claim for any such award,
provided that if Mortgagor and Mortgagee cannot agree on such
adjustment within thirty (30) days, Mortgagee shall adjust and
compromise the claim for any such award in its sole discretion.
Subject to the foregoing, Mortgagor hereby irrevocably appoints
Mortgagee as its attorney-in-fact, coupled with an interest, and
authorizes, directs and empowers such attorney, at the option of said
attorney, on behalf of Mortgagor, its successors and assigns, to
adjust or compromise the claim for any such award and alone to collect
and receive the proceeds thereof, to give proper receipts and
acquittances therefor and, after deducting any expenses of collection,
at its sole option:
(i) to apply the net proceeds as a credit upon any portion of
the indebtedness secured hereby, as selected by Mortgagee,
notwithstanding the fact that the amount owing thereon may not then be
due and payable or that said indebtedness is otherwise adequately
secured. In the event Mortgagee applies such awards to the reduction
of the outstanding indebtedness evidenced by the Note, such proceeds
shall be applied at par and the monthly installments due and payable
under the Note shall be reduced accordingly; however no such
application shall serve to cure an existing default in the payment of
the Note;
or
(ii) to hold said proceeds without any allowance of interest and
make the same available for restoration or rebuilding the
Improvements. In the event that Mortgagee elects to make said
proceeds available to reimburse Mortgagor for the cost of the
restoration or rebuilding of the buildings or improvements on the
Property, such proceeds shall be made available in the manner and
under the conditions that Mortgagee may require as provided under
Paragraph 8 hereof. If the proceeds are made available by Mortgagee
to reimburse Mortgagor for the cost of said restoration or rebuilding,
any surplus which may remain out of said award after payment of such
cost of restoration or rebuilding shall be applied on account of the
indebtedness secured hereby at par notwithstanding the fact that the
amount owing thereon may not then be due and payable or that said
indebtedness may otherwise be adequately secured.
Mortgagor further covenants and agrees to give Mortgagee
immediate notice of the actual or threatened commencement of any
proceedings under eminent domain and to deliver to Mortgagee copies of
any and all papers served in connection with any proceedings.
Mortgagor further covenants and agrees to make, execute and deliver to
Mortgagee, at any time or times, upon request, free, clear and
discharged of any encumbrance of any kind whatsoever, any and all
further assignments and/or other instruments deemed necessary by
Mortgagee for the purpose of validly and sufficiently assigning all
such awards and other compensation heretofore or hereafter made to
Mortgagee (including the assignment of any award from the United
States government at any time after the allowance of the claim
therefor, the ascertainment of the amount thereof and the issuance of
the warrant for payment thereof).
It shall be a default hereunder if any part of any of the
Improvements situated on the Property shall be condemned by any
governmental authority having jurisdiction, or if lands constituting a
portion of the Property shall be condemned by any governmental
authority having jurisdiction, such that the Property is in violation
of applicable parking, zoning, platting, or other ordinances, or fails
to comply with the terms of the Master Lease or the Occupancy Leases
with Major Tenants, and in either of said events, Mortgagee shall be
entitled to exercise any or all remedies provided or referenced in
this Mortgage, including the application of condemnation proceeds to
the outstanding principal balance of the Note at par and the right to
accelerate the maturity date of the Note and require payment in full
without the imposition of a Prepayment Premium.
COSTS OF COLLECTION
19. In the event that the Note secured hereby is placed in the
hands of an attorney for collection, or in the event that Mortgagee
shall become a party either as plaintiff or as defendant, in any
action, suit, appeal or legal proceeding (including, without
limitation, foreclosure, condemnation, bankruptcy, administrative
proceedings or any proceeding wherein proof of claim is by law
required to be filed), hearing, motion or application before any court
or administrative body in relation to the Property or the lien and
security interest granted or created hereby or herein, or for the
recovery or protection of said indebtedness or the Property, or for
the foreclosure of this Mortgage, Mortgagor shall save and hold
Mortgagee harmless from and against any and all costs and expenses
incurred by Mortgagee on account thereof, including, but not limited
to, Reasonable Attorneys' Fees, title searches and abstract and survey
charges, at all trial and appellate levels, and Mortgagor shall repay,
on demand, all such costs and expenses, together with interest thereon
until paid at the lesser of either (i) the highest rate of interest
then allowed by the laws of the State of Missouri, or, if controlling,
the laws of the United States, or (ii) the then applicable rate of
interest of the Note plus five hundred (500) basis points; all of
which sums, if unpaid, shall be added to and become a part of the
indebtedness secured hereby.
DEFAULT RATE
20. Any sums not paid when due, whether maturing by lapse of
time or by reason of acceleration under the provisions of the Note or
this Mortgage, and whether principal, interest or money owing for
advancements pursuant to the terms of this Mortgage or any other Loan
Document, shall bear interest until paid at the lesser of either (i)
the highest rate of interest then allowed by the laws of the State of
Missouri or, if controlling, the laws of the United States, or (ii)
the then applicable rate of interest of the Note plus five hundred
(500) basis points; all of which sums shall be added to and become a
part of the indebtedness secured hereby.
SAVINGS CLAUSE; SEVERABILITY
21. Notwithstanding any provisions in the Note or in this
Mortgage to the contrary, the total liability for payments in the
nature of interest including but not limited to Prepayment Premiums,
default interest and late fees shall not exceed the limits imposed by
the laws of the State of Missouri or, if controlling, the United
States of America relating to maximum allowable charges of interest.
Mortgagee shall not be entitled to receive, collect or apply, as
interest on the indebtedness evidenced by the Note, any amount in
excess of the maximum lawful rate of interest permitted to be charged
by applicable law. In the event Mortgagee ever receives, collects or
applies as interest any such excess, such amount which would be
excessive interest shall be applied to reduce the unpaid principal
balance of the indebtedness evidenced by the Note. If the unpaid
principal balance of such indebtedness is paid in full, any remaining
excess shall be forthwith paid to Mortgagor.
If any clauses or provisions herein contained shall operate or
would prospectively operate to invalidate this Mortgage, then such
clauses or provisions only shall be held for naught, as though not
herein contained and the remainder of this Mortgage shall remain
operative and in full force and effect.
BANKRUPTCY, REORGANIZATION OR ASSIGNMENT
22. It shall be a default hereunder if Mortgagor or General
Partner shall: (a) elect to dissolve and liquidate its business
organization and windup its business affairs without prior written
approval of Mortgagee, or (b) consent to the appointment of a
receiver, trustee or liquidator of all or a substantial part of
Mortgagor's assets, or General Partner's assets, or (c) be adjudicated
as bankrupt or insolvent, or file a voluntary petition in bankruptcy,
or admit in writing its inability to pay its debts as they become due,
or (d) make a general assignment for the benefit of creditors, or (e)
file a petition under or take advantage of any insolvency law, or (f)
file an answer admitting the material allegations of a petition filed
against Mortgagor or General Partner in any bankruptcy, reorganization
or insolvency proceeding or fail to cause the dismissal of such
petition within thirty (30) days after the filing of said petition, or
(g) take action for the purpose of effecting any of the foregoing, or
(h) if any order, judgment or decree shall be entered upon an
application of a creditor of Mortgagor or General Partner by a court
of competent jurisdiction approving a petition seeking appointment of
a receiver or trustee of all or a substantial part of Mortgagor's
assets or General Partner's assets and such order, judgment or decree
shall continue unstayed and in effect for a period of thirty (30)
days.
TIME IS OF THE ESSENCE; MONETARY AND NON-MONETARY DEFAULTS
23. It is understood by Mortgagor that time is of the essence
hereof in connection with all obligations of Mortgagor herein, in the
Note, the Assignment (as defined in Paragraph 34) and any of the other
Loan Documents evidencing or securing the Note.
If default be made in the payment of any installment of the Note,
whether of principal or interest, or both (and it is hereby understood
that if such payment is postmarked by the United States Postal Service
on or before the due date for such payment, is correctly addressed and
bears adequate first class postage, Mortgagor shall not be considered
to have defaulted in making such payment), or in the payment of any
other sums of money referred to herein or in the Note, promptly and
fully when the same shall be due without notice or demand from
Mortgagee to Mortgagor in regard to such Monetary Default (as
hereinafter defined), or in the event a breach or default be made by
Mortgagor in any one of the agreements, conditions and covenants of
the Note, this Mortgage, the Assignment or any other Loan Documents
evidencing or securing the Note, or in the event that each and every
one of said agreements, conditions and covenants are not otherwise
duly, promptly and fully discharged or performed, and any such Non-
Monetary Default (as hereinafter defined) remains uncured for a period
of thirty (30) days after written notice thereof from Mortgagee to
Mortgagor, has been delivered in the manner prescribed in Paragraph 41
hereof, unless such Non-Monetary Default cannot reasonably be cured
within said thirty (30) day period, in which event Mortgagor shall
have an extended period of time to complete cure, provided that action
to cure such Non- Monetary Default is commenced within said thirty
(30) day period, and Mortgagor is not substantially diminishing or
impairing the value of the Property, and is diligently pursuing a cure
to completion, Mortgagee, at its sole option, may thereupon or
thereafter declare the indebtedness evidenced by the Note, as well as
all other monies secured hereby, including, without limitation, all
Prepayment Premiums (to the extent permitted by the laws of the State
of Missouri) and late payment charges, to be forthwith due and
payable, whereupon the principal of and the interest accrued on the
indebtedness evidenced by the Note and all other sums secured by this
Mortgage, at the option of Mortgagee, shall immediately become due and
payable as if all of said sums of money were originally stipulated to
be paid on such day, and thereupon, Mortgagee may avail itself of all
rights and remedies provided by law and may foreclose or prosecute a
suit at law or in equity as if all monies secured hereby had matured
prior to its institution, anything in this Mortgage or in the Note to
the contrary notwithstanding. Mortgagee shall have no obligation to
give Mortgagor notice of, or any period to cure, any Monetary Default
or any Incurable Default (as hereinafter defined) prior to exercising
its right, power and privilege to accelerate the maturity of the
indebtedness secured hereby.
As used herein, the term "Monetary Default" shall mean any
default which can be cured by the payment of money such as, but not
limited to, the payment of principal and interest due under the Note,
taxes, assessments and insurance premiums when due as provided in this
Mortgage. As used herein, the term "Non-Monetary Default" shall mean
any default which is not a Monetary Default or an Incurable Default.
As used herein, the term "Incurable Default" shall mean (i) any
voluntary or involuntary sale, assignment, mortgaging, encumbering or
transfer in violation of the covenants contained herein; or (ii) if
Mortgagor, or any person or entity comprising Mortgagor, should make
an assignment for the benefit of creditors, become insolvent, or file
a petition in bankruptcy (including but not limited to, a petition
seeking a rearrangement or reorganization).
Mortgagee may institute an action to foreclose this Mortgage as
to the amount so declared due and payable, and this Mortgage shall
remain in force, and thereupon the Trustee shall, after receiving
notice of the election and demand for sale from the Mortgagee, proceed
to sell the Property as one parcel in its entirety or any part
thereof, either in mass or in parcels, at the absolute discretion of
the Trustee, at public vendue at the door of the Court House or other
location then customarily employed for the purpose, in the County
where the Property is located, to the highest bidder for cash, first
making or causing to be made or given such demands or notices of the
time, terms, and place of sale, and a description of the property to
be sold, by advertisement published and as is provided by the laws of
the State of Missouri then in effect, and upon sale, the Trustee shall
(subject to any applicable statutory periods and rights of redemption)
execute and deliver a deed of conveyance of the property sold to the
purchaser or purchasers thereof, and any statement or recital of fact
in such deed, in relation to the non-payment of the indebtedness
secured hereby, existence of the indebtedness secured hereby, notice
of advertisement, sale, and receipt of the proceeds of sale, shall be
presumptive evidence of the truth of such statements or recitals, and
the Trustee shall receive the proceeds of such sale out of which the
Trustee shall pay the following in any order Mortgagee shall elect:
(1) the costs and expenses of executing this trust, including
compensation to the Trustee for services as provided by law and
Reasonable Attorneys' Fees to any attorneys employed by the Trustee or
the Mortgagee for their services; (2) upon the usual vouchers
therefor, all amounts paid by the Mortgagee for insurance, taxes, lien
claims, and other payments made by Mortgagee as provided herein, with
interest thereon until paid at the lesser of either (i) the highest
rate of interest then allowed by the laws of the State of Missouri or,
if controlling, the laws of the United States, or (ii) the then
applicable rate of interest of the Note plus five hundred (500) basis
points; (3) the amount due on the indebtedness secured hereby then
due and unpaid; (4) the amount due on any junior encumbrances, with
interest. The remainder of such proceeds, if any, shall be paid to
Mortgagor. The Mortgagee may bid and become purchaser at any sale
under this Mortgage. Any sale of the Property under this Mortgage
shall, without further notice, create the relation of landlord and
tenant at sufferance between the purchaser and Mortgagor or any person
holding possession of the Property through Mortgagor, and upon failure
of Mortgagor or such person to surrender possession thereof
immediately, Mortgagor or such person may be removed by a writ of
possession of the purchaser in any Court having venue.
The Trustee or Substitute Trustee covenants to faithfully to
perform the trust herein created.
The Trustee may sell and convey the Property under the power
aforesaid, although the Trustee has been, may now be or may hereafter
be attorney or agent of the Mortgagee in respect to the loan made by
the Mortgagee evidenced by the Note or any part thereof or this
Mortgage or in respect to any matter of business whatsoever.
The Trustee hereby lets the Property to the Mortgagor until a
sale be had under the foregoing provisions, upon the following terms
and conditions, such letting being to-wit: The Mortgagor and every and
all persons claiming or possessing the Property, or any part thereof,
by, through or under Mortgagor shall pay rent therefor during said
term at the rate of one cent per month, payable monthly upon demand,
and without notice or demand shall surrender immediate peaceable
possession of said premises, to the purchaser thereof, under such
sale. Should possession not be surrendered as provided for herein the
purchaser shall be entitled to institute proceedings for possession as
aforesaid.
Except to the extent contrary to law, Mortgagor waives the
benefit of all laws now existing or that hereafter may be enacted
providing for (i) any appraisement before sale of any portion of the
Property, (ii) any exemption, under and by virtue of any statute of
the State of Missouri, and (iii) the benefit of all laws that may be
hereafter enacted in any way extending the time for the enforcement
and collection of the indebtedness secured hereby or creating or
extending a period of redemption from any sale made in collecting the
indebtedness secured hereby.
In any action or proceeding to foreclose this Mortgage, Mortgagee
shall be at liberty to apply, without notice, for the appointment of a
receiver for the rents and profits of the Property, and shall be
entitled to the appointment of such a receiver as a matter of right
without regard to the value of the Property as security for the
indebtedness due Mortgagee or the solvency of any person, or
corporation, liable for the payment of such indebtedness.
If the indebtedness secured hereby is paid after the beginning of
publication of notice of sale, as herein provided, or in the event the
Mortgagee shall, at its sole option, permit Mortgagor to pay any part
of the indebtedness secured hereby after the beginning of publication
of notice of sale, as herein provided, then Mortgagor shall pay on
demand all expenses incurred by the Trustee and Mortgagee in
connection with said publication, including fees to the attorneys for
the Trustee and for the Mortgagee, and a reasonable fee to the
Trustee, and this Mortgage shall be security for all such expenses and
fees.
The failure or omission on the part of Mortgagee to exercise the
option for acceleration of maturity of the Note and foreclosure of
this Mortgage following any default as aforesaid or to exercise any
other option or remedy granted hereunder to Mortgagee when entitled to
do so in any one or more instances, or the acceptance by Mortgagee of
partial payment of the indebtedness secured hereby, whether before or
subsequent to Mortgagor's default hereunder, shall not constitute a
waiver of any such default or the right to exercise any such option or
remedy, but such option or remedy shall remain continuously in force.
Acceleration of maturity of the Note, once claimed hereunder by
Mortgagee, at the option of Mortgagee, may be rescinded by written
acknowledgment to that effect by Mortgagee, but the tender and
acceptance of partial payments alone shall not in any way affect or
rescind such acceleration of maturity.
PROTECTION OF MORTGAGEE'S SECURITY
24. At any time after default hereunder and the expiration of
the applicable cure periods, if any, expressly provided for herein,
Mortgagee is authorized, without notice and in its sole discretion, to
enter upon and take possession of the Property or any part thereof and
to perform any acts which Mortgagee deems necessary or proper to
conserve the security herein intended to be provided by the Property,
to operate any business or businesses conducted thereon and to collect
and receive all rents, issues and profits thereof and therefrom,
including those past due as well as those accruing thereafter.
APPOINTMENT OF RECEIVER
25. If, at any time after a default hereunder and the
expiration of the applicable cure periods, if any, expressly provided
for herein, in the sole discretion of Mortgagee, a receivership may be
necessary to protect the Property or its rents, issues, revenue,
profits or proceeds, whether before or after maturity of the Note and
whether before or at the time of or after the institution of
foreclosure or suit to collect such indebtedness, or to enforce this
Mortgage, Mortgagee, as a matter of strict right and regardless of the
value of the Property or the amounts due hereunder or secured hereby,
or of the solvency of any party bound for the payment of such
indebtedness, shall have the right, upon ex parte application and
without notice to anyone, and by any court having jurisdiction, to the
appointment of a receiver to take charge of, manage, preserve, protect
and operate the Property, to collect the rents, issues, revenues,
profits, proceeds and income thereof, to make all necessary and
needful repairs, and to pay all taxes, assessments and charges against
the Property and all premiums for insurance thereon, and to do such
other acts as may by such court be authorized and directed, and after
payment of the expenses of the receivership and the management of the
Property, to apply the net proceeds of such receivership in reduction
of the indebtedness secured hereby or in such other manner as the said
court shall direct notwithstanding the fact that the amount owing
thereon may not then be due and payable or the said indebtedness is
otherwise adequately secured. Such receivership shall, at the option
of Mortgagee, continue until full payment of all sums hereby secured
or until title to the Property shall have passed by sale under this
Mortgage. Mortgagor hereby specifically waives its right to object to
the appointment of a receiver as aforesaid and hereby expressly agrees
that such appointment shall be made as an admitted equity and as a
matter of absolute right to Mortgagee.
RIGHTS AND REMEDIES CUMULATIVE; FORBEARANCE NOT A WAIVER
26. The rights and remedies herein provided are cumulative and
Mortgagee, as the holder of the Note and of every other obligation
secured hereby, may recover judgment thereon, issue execution therefor
and resort to every other right or remedy available at law or in
equity, without first exhausting any right or remedy available to
Mortgagee and without affecting or impairing the security of any right
or remedy afforded hereby, and no enumeration of special rights or
powers by any provisions hereof shall be construed to limit any grant
of general rights or powers, or to take away or limit any and all
rights granted to or vested in Mortgagee by law, and Mortgagor further
agrees that no delay or omission on the part of Mortgagee to exercise
any rights or powers accruing to it hereunder shall impair any such
right or power or shall be construed to be a waiver of any such event
of default hereunder or an acquiescence therein; and every right,
power and remedy granted herein or by law to Mortgagee may be
exercised from time to time as often as may be deemed expedient by
Mortgagee.
MODIFICATION NOT AN IMPAIRMENT OF SECURITY
27. Mortgagee, without notice and without regard to the
consideration, if any, paid therefor, and notwithstanding the
existence at that time of any inferior mortgages or other liens
thereon, may release any part of the security described herein or may
release any person or entity liable for any indebtedness secured
hereby without in any way affecting the priority of this Mortgage, to
the full extent of the indebtedness remaining unpaid hereunder, upon
any part of the security not expressly released. Mortgagee may, at
its option and within its sole discretion, also agree with any party
obligated on said indebtedness, or having any interest in the security
described herein, to extend the time for payment of any part or all of
the indebtedness secured hereby, and such agreement shall not, in any
way, release or impair this Mortgage, but shall extend the same as
against the title of all parties having any interest in said security,
which interest is subject to this Mortgage.
PROPERTY MANAGEMENT AND LEASING
28. The exclusive manager of the Property shall be Mortgagor or
such other manager as may be first approved in writing by Mortgagee
(and Mortgagee hereby approves Turley Martin Company and Follman
Properties-Oncor International as such managers). The exclusive
leasing agent of the Property, if other than the foregoing party,
shall be first approved in writing by Mortgagee. The governing
management and leasing contracts (or in the absence of any such
written contract, a letter so stating and further identifying the name
of the person or entity charged with the responsibility for managing
and/or leasing the Property) shall be subordinate to this Mortgage and
satisfactory to and subject to the written approval of Mortgagee
throughout the term of the indebtedness secured hereby. Upon default
in either of these requirements after the expiration of applicable
cure periods, if any, then the whole of the indebtedness hereby
secured shall, at the election of Mortgagee, become immediately due
and payable, together with any default premium and late payment
charges required by the Note, and Mortgagee shall be entitled to
exercise any or all remedies provided for or referenced in this
Mortgage.
MODIFICATION NOT A WAIVER
29. In the event Mortgagee: (a) releases, as aforesaid, any
part of the security described herein or any person or entity liable
for any indebtedness secured hereby, or (b) grants an extension of
time for the payment of the Note, or (c) takes other or additional
security for the payment of the Note, or (d) waives or fails to
exercise any rights granted herein, in the Note, or any of the other
Loan Documents, any said act or omission shall not release Mortgagor,
subsequent purchasers of the Property or any part thereof, or makers,
sureties, endorsers or guarantors of the Note, if any, from any
obligation or any covenant of this Mortgage, the Note, or any of the
other Loan Documents, nor preclude Mortgagee from exercising any
right, power or privilege herein granted or intended to be granted in
the event of any other default then made, or any subsequent default.
TRANSFER OF PROPERTY OR CONTROLLING INTEREST IN MORTGAGOR;
ASSUMPTION
30. Except as set forth in Paragraph 36(b) hereof, without the
prior written consent of Mortgagee, the sale, transfer, assignment or
conveyance of all or any portion of the Property or the transfer,
assignment or conveyance of a controlling interest in Mortgagor,
whether voluntarily or by operation of law, without the prior written
consent of Mortgagee, shall constitute a default under the terms of
this Mortgage and entitle Mortgagee, at its sole option, to accelerate
all sums due on the Note together with any Prepayment Premiums (to the
extent permitted by the laws of the State of Missouri), late payment
charges, or any other amounts secured hereby (provided, however, that
said prohibitions shall not apply to changes among partners of The
Jones Financial Companies, a Limited Partnership). Mortgagee may,
however, elect to waive the option to accelerate granted hereunder if,
prior to any such sale, transfer, assignment or conveyance of the
Property, the following conditions shall be fully satisfied: (a)
Mortgagee acknowledges in writing that, in its sole discretion, the
creditworthiness of the proposed transferee and the ability and
experience of the proposed transferee to operate the Property are
satisfactory to Mortgagee, and (b) Mortgagee and the proposed
transferee shall enter into an agreement in writing that (i) the
interest payable on the indebtedness secured hereby shall be at such
rate as Mortgagee shall determine, (ii) the repayment schedule as set
forth in the Note shall be modified by Mortgagee, in its sole
discretion, to initiate amortization or modify the existing
amortization schedule in order to amortize the then remaining unpaid
principal balance of the Note secured hereby over a period of time as
determined by Mortgagee in its sole discretion without a change in the
maturity date of the Note, and (iii) the proposed transferee shall
assume all obligations under the Note, this Mortgage and the other
Loan Documents and an assumption fee equal to one percent (1%) of the
outstanding principal balance of the Note shall be charged by
Mortgagee in its sole discretion, (c) Mortgagee shall receive for its
review and approval copies of all transfer documents, and (d)
Mortgagor or the transferee shall pay all costs and expenses in
connection with such transfer and assumption, including, without
limitation, all fees and expenses incurred by Mortgagee. Mortgagor
and any subsequent owner of the Property or any portion thereof shall
do all things necessary to preserve and keep in full force and effect
its and their existence, franchises, rights and privileges as a
corporation or partnership, as the case may be, under the laws of the
state of its formation and its right to own property and transact
business in the State of Missouri.
It shall be a default hereunder if Mortgagor or any subsequent
owner of the Property or any portion thereof shall amend, modify,
transfer, assign or terminate the partnership agreement, certificate
of partnership or articles of incorporation, as the case may be, of
Mortgagor or such subsequent owner and, in the reasonable
determination of Mortgagee, such amendment, modification, transfer,
assignment or termination shall have a material adverse effect on
Mortgagee, the Property or the security value thereof. Any amendment,
modification, transfer, assignment or termination of Mortgagor's
partnership agreement or any other action pursuant to which LHC, Inc.
shall (A) cease to be the managing general partner of Mortgagor, or
(B) except to the extent permitted herein, cease to own or maintain a
partnership interest in Mortgagor equal to or greater than its
partnership interest at the time this Mortgage is executed shall be a
default hereunder. Notwithstanding the foregoing, nothing herein
shall restrict or limit the right of Mortgagor or General Partner or
any other underlying entities comprising Mortgagor to amend or modify
Mortgagor's or General Partner's partnership agreement, partnership
certificate, articles of incorporation, or other organizational
documents provided that General Partner is at all times the managing
general partner of Mortgagor and General Partner maintains a
partnership interest in Mortgagor equal to or greater than its
partnership interest on the date hereof. In the event of any such
amendment or modification, transfer or assignment, Mortgagor shall
provide Mortgagee with copies of any documents or insruments
evidencing the same.
In the event the ownership of the Property, or any part thereof,
shall become vested in a person or entity other than Mortgagor,
whether with or without the prior written consent of Mortgagee,
Mortgagee may, without notice to Mortgagor, deal with such successor
or successors in interest with reference to the Property, this
Mortgage and the Note in the same manner and to the same extent as
with Mortgagor without in any way vitiating or discharging Mortgagor's
liability hereunder or under the Note. No sale, transfer or
conveyance of the Property, no forbearance on the part of Mortgagee
and no extension of the time for the payment of the Note hereby
secured given by Mortgagee to Mortgagor shall operate to release,
discharge, modify, change, or affect the original liability of
Mortgagor, either in whole or in part, unless expressly set forth in
writing executed by Mortgagee. Notwithstanding anything contained
herein to the contrary, Mortgagor hereby waives any right it now has
or may hereafter have to require Mortgagee to prove an impairment of
its security as a condition to exercise Mortgagee's rights under this
Paragraph 30.
FURTHER ENCUMBRANCE PROHIBITED; SUBROGATION
31. So long as the Note remains unpaid, Mortgagor shall neither
voluntarily nor involuntarily permit the Property or any part thereof
to become subject to any secondary lien, mortgage, security interest
or encumbrance of any kind whatsoever without the prior written
consent of Mortgagee, and the imposition of any such secondary lien,
mortgage, security interest or encumbrance without the approval of
Mortgagee shall constitute an event of default hereunder and entitle
Mortgagee, at its sole option, to declare all sums due in accordance
with the terms of the Note to be and become immediately due and
payable. In the event that Mortgagee shall hereafter give its written
consent to the imposition of any such secondary lien, mortgage,
security interest or other encumbrance upon the Property, Mortgagee,
at its sole option, shall be entitled to accelerate the maturity of
the Note and exercise any and all remedies provided and available to
Mortgagee hereunder in the event that the holder of any such
secondary lien or encumbrance shall institute foreclosure or other
proceedings to enforce the same; it being understood and agreed that a
default under any instrument or document evidencing, securing or
secured by any such secondary lien or encumbrance shall be and
constitute an event of default hereunder. In the event all or any
portion of the proceeds of the loan secured hereby are used for the
purpose of retiring debt or debts secured by prior liens on the
Property, Mortgagee shall be subrogated to the rights and lien
priority of the holder of the lien so discharged.
Notwithstanding the above, secondary financing of the Property
shall be permitted as long as (i) the quotient of the aggregate amount
of indebtedness placed on the Property (which indebtedness shall
include the indebtedness secured hereby) divided by the current market
value of the Property does not exceed 0.90; (ii) the net operating
income generated by the Property (defined as annual rental income,
minus annual taxes and all annual operating expenses) covers the
annual debt service on the loan evidenced by the Note and on such
secondary financing at least 1.2 times; (iii) such secondary financing
must provide for a fixed rate of interest to be charged on the loan;
and (iv) Mortgagor is not in default under the terms, conditions and
provisions of the Note, this Mortgage, the Assignment or any of the
other Loan Documents. Mortgagee shall have the right to approve the
lender under any proposed secondary financing, and to review and
approve any and all documentation with respect to such secondary
financing such approval not to be unreasonably withheld. All costs
incurred in connection with such secondary financing shall be borne by
Mortgagor.
CONVEYANCE OF MINERAL RIGHTS PROHIBITED
32. Mortgagor agrees that the making of any oil, gas or mineral
lease or the sale or conveyance of any mineral interest or right to
explore for minerals under, through or upon the Property would impair
the value of the Property securing the Note; and that Mortgagor shall
have no right, power or authority to lease the Property, or any part
thereof, for oil, gas or other mineral purposes, or to grant, assign
or convey any mineral interest of any nature, or the right to explore
for oil, gas and other minerals, without first obtaining from
Mortgagee express written permission therefor, which permission shall
not be valid until recorded among the Public Records of St. Louis
County, Missouri. Mortgagor further agrees that if Mortgagor shall
make, execute, or enter into any such lease or attempt to grant any
such mineral rights without such prior written permission of
Mortgagee, then Mortgagee shall have the option, without notice, to
declare the same to be a default hereunder and to declare the
indebtedness hereby secured immediately due and payable. Whether or
not Mortgagee shall consent to such lease or grant of mineral rights,
Mortgagee shall receive the entire consideration to be paid for such
lease or grant of mineral rights, with the same to be applied to the
indebtedness hereby secured notwithstanding the fact that the amount
owing thereon may not then be due and payable or the said indebtedness
is otherwise adequately secured; provided, however, that the
acceptance of such consideration shall in no way impair the lien of
this Mortgage on the Property.
ESTOPPEL CERTIFICATION BY MORTGAGOR
33. Mortgagor, upon request therefor made either personally or
by mail, shall certify in writing to Mortgagee (or any party
designated by Mortgagee) in form satisfactory to Mortgagee the amount
of principal and interest then outstanding under the terms of the Note
and any other sums due and owing under this Mortgage or any of the
other Loan Documents and whether any offsets or defenses exist against
the Mortgage debt. Such certification shall be made by Mortgagor
within ten (10) days if the request is made personally, or within
twenty (20) days if the request is made by mail.
CROSS-DEFAULT
34. The Note is also secured by the terms, conditions and
provisions of an Assignment of Leases, Rents and Profits (hereinafter
referred to as the "Assignment") recorded among the Public Records of
St. Louis County, Missouri and, additionally, may be secured by
contracts or agreements of guaranty or other security instruments.
The terms, conditions and provisions of each security instrument shall
be considered a part hereof as fully as if set forth herein verbatim.
Any default under this Mortgage or the Note secured hereby shall
constitute an event of default under the Assignment and any of the
other Loan Documents, and any default under the Assignment or other
Loan Documents shall likewise constitute a default hereunder and under
the Note. Notwithstanding the foregoing, the enforcement or attempted
enforcement of this Mortgage or any of the other Loan Documents now or
hereafter held by Mortgagee shall not prejudice or in any manner
affect the right of Mortgagee to enforce any other Loan Document; it
being understood and agreed that Mortgagee shall be entitled to
enforce this Mortgage and any of the other Loan Documents now or
hereafter held by it in such order and manner as Mortgagee, in its
sole discretion, shall determine.
EXAMINATION OF MORTGAGOR'S RECORDS
35. Mortgagor will maintain complete and accurate books and
records showing in detail the income and expenses of the Property, and
will permit Mortgagee and its representatives to examine said books
and records and all supporting vouchers and data during normal
business hours and from time to time upon request by Mortgagee, in
such place as such books and records are customarily kept, and will
furnish to Mortgagee, within one hundred twenty (120) days after the
close of each fiscal year of Mortgagor, a balance sheet and profit and
loss statement for Mortgagor, Jones, General Partner, and the
Property, which shall also include a rent roll, certified by Mortgagor
to be true and correct and showing in detail all income derived from
and expenses incurred in connection with the ownership of the
Property. In the event Mortgagor fails to provide such statements to
Mortgagee within the time prescribed above, Mortgagor shall pay
Mortgagee the sum of Two Hundred and No/100 Dollars ($200.00) for each
successive month for which statements are delinquent. In the event of
default hereunder, Mortgagee shall have the right to require that said
financial statements be audited and certified by a certified public
accountant acceptable to Mortgagee, at the sole cost and expense of
Mortgagor.
ALTERATION, REMOVAL AND CHANGE IN USE OF PROPERTY PROHIBITED
36. Mortgagor covenants and agrees to permit or suffer none of
the following without the prior written consent of Mortgagee:
(a) Any structural alteration of, or addition to, the
Improvements now or hereafter situated upon the Real Property or the
addition of any new buildings or other structure(s) thereto, other
than erection or removal of non-load bearing interior walls (provided,
however, this provision shall not apply to any repair, remodeling or
renovation work, structural or otherwise); or
(b) The removal, transfer, sale or lease of the Property,
except that the renewal, replacement or substitution of fixtures,
equipment, machinery, apparatus and articles of personal property
(replacement or substituted items must be of like or better quality
than the removed items in their original condition) encumbered hereby
may be made in the normal course of business; or
(c) The use of any of the Improvements now or hereafter
situated on the Real Property for any purpose other than as an office
building and related facilities.
FUTURE ADVANCES SECURED
37. This Mortgage shall secure not only existing indebtedness,
but also future advances, whether such advances are obligatory or to
be made at the option of Mortgagee. Upon request of Mortgagor, and at
Mortgagee's option prior to release of this Mortgage, Mortgagee may
make future advances to Mortgagor. All future advances with interest
thereon shall be secured by this Mortgage to the same extent as if
such future advances were made on the date of the execution of this
Mortgage unless the parties shall agree otherwise in writing. Any
advances or disbursements made for the benefit or protection of or the
payment of taxes, assessments, levies or insurance upon the Property,
with interest on such disbursements as provided herein, shall be added
to the principal balance of the Note and collected as a part thereof.
To the extent that this Mortgage may secure more than one mortgage
note, a default in the payment of any such mortgage note shall
constitute a default in the payment of all such mortgage notes.
The total amount outstanding at any one time which is secured by
this Mortgage, excluding any interest and any amounts advanced by
Mortgagee for the protection of the security interest herein granted
or amounts advanced or obligations incurred for the completion of a
contemplated improvement under a construction loan agreement, shall
not exceed Forty-Two Million Dollars ($42,000,000.00). This Mortgage
shall be governed by all provisions of Section 443.055 of the Revised
Statutes of Missouri.
EFFECT OF SECURITY AGREEMENT
38. Mortgagor does hereby grant and this Mortgage is and shall
be deemed to create, grant, give and convey a mortgage of, a lien and
encumbrance upon, and a present security interest in both real and
personal property, including all improvements, goods, chattels,
furniture, furnishings, fixtures, equipment, apparatus, appliances and
other items of tangible or intangible personal property, hereinabove
particularly or generally described and conveyed, whether now or
hereafter affixed to, located upon, necessary for or used or useful,
either directly or indirectly, in connection with the operation of the
Property as an office building, and this Mortgage shall also serve as
a "security agreement" within the meaning of that term as used in the
Uniform Commercial Code as adopted and in force from time to time in
the State of Missouri, and shall be operative and effective as a
security agreement in addition to, and not in substitution for, any
other security agreement executed by Mortgagor in connection with the
extension of credit transaction secured hereby (Notwithstanding
anything herein to the contrary, nothing herein shall be deemed to
grant or create a security interest in any furnishings, furniture or
computer equipment owned by any tenant [including, without limitation,
Jones] under the Master Lease affecting the Property and used by such
tenant with respect to the conduct of its business on the Property).
Mortgagor agrees to and shall, upon the request of Mortgagee, execute
and deliver to Mortgagee, in form and content satisfactory to
Mortgagee, such financing statements, descriptions of property and
such further assurances as Mortgagee, in its sole discretion, may from
time to time consider necessary to create, perfect, continue and
preserve the lien and encumbrances hereof and the security interest
granted herein upon and in such real and personal property and
fixtures described herein, including all buildings, improvements,
goods, chattels, furniture, furnishings, fixtures, equipment,
apparatus, appliances, and other items of tangible and intangible
personal property herein specifically or generally described and
intended to be the subject of the security interest, lien and
encumbrance hereby created, granted and conveyed. Without the prior
written consent of Mortgagee, Mortgagor shall not create or suffer to
be created, pursuant to the Uniform Commercial Code, any other
security interest in such real and personal property and fixtures
described herein. Upon the occurrence of a default hereunder and the
expiration of the applicable cure periods, if any, or Mortgagor's
breach of any other covenants or agreements between the parties
entered into in conjunction herewith, Mortgagee shall have the
remedies of a secured party under the Uniform Commercial Code and, at
Mortgagee's option, the remedies provided for in this Mortgage.
Mortgagee, at the expense of Mortgagor, may or shall cause such
statements, descriptions and assurances, as herein provided in this
Paragraph 38, and this Mortgage to be recorded and re-recorded, filed
and refiled, at such times and in such places as may be required or
permitted by law to so create, perfect and preserve the lien and
encumbrance hereof upon all of the Property.
Upon the occurrence of a default hereunder Mortgagee shall, at
its option and without notice or demand, be entitled to enter upon the
Real Property to take immediate possession of the Fixtures and
Personal Property. Upon request, Mortgagor shall assemble and make
the Fixtures and Personal Property available to Mortgagee at a place
designated by Mortgagee which is reasonably convenient to both
parties. Mortgagee may sell all or any portion of the Fixtures and
Personal Property at public or private sale in accordance with the
Uniform Commercial Code as adopted in the State of Missouri or in
accordance with the foreclosure advertisement and sale provisions
under this Mortgage. Mortgagor agrees that a commercially reasonable
manner of disposition of the Fixtures and Personal Property upon the
occurrence of a default shall include, without limitation and at the
option of Mortgagee, the sale of the Fixtures and Personal Property,
in whole or in part, concurrently with a foreclosure sale of the Real
Property in accordance with the provisions of this Mortgage. In the
event the Mortgagee shall dispose of any or all of the Fixtures and
Personal Property after the occurrence of a default, the proceeds of
disposition shall be applied in the following order: (a) to the
expenses of retaking, holding, preparing for sale, selling, and the
like; (b) to the attorneys' fees and legal expenses incurred by
Mortgagee; (c) to the satisfaction of the indebtedness secured hereby;
and (d) the balance, if any to subordinate lien holders and Mortgagor
as their interests may appear. Mortgagor hereby waives any right of
redeeming the Fixtures and Personal Property.
TERMS OF CONTRACT SURVIVE CLOSING
39. The terms and provisions of the Application/Contract for
Mortgage Loan dated December 30, 1993, and any subsequent amendments
thereto (hereinafter referred to as the "Contract"), executed by and
between Mortgagor as Applicant and Mortgagee as Nationwide are
incorporated herein by reference. All terms and conditions of the
Contract not expressly set forth in this Mortgage, the Note, the
Assignment and any other Loan Documents additionally securing the Note
shall survive the closing hereof and remain in full force and effect.
In the event any conflict exists between the terms, conditions and
provisions of the Contract and the Loan Documents, the terms,
conditions and provisions of the Loan Documents shall prevail.
SUCCESSORS AND ASSIGNS; TERMINOLOGY
40. The provisions hereof shall be binding upon Mortgagor and
the heirs, personal representatives, successors and assigns of
Mortgagor, and shall inure to the benefit of Mortgagee and its
successors and assigns. Where more than one Mortgagor is named
herein, the obligations and liabilities of said Mortgagor shall be
joint and several.
Wherever used in this Mortgage, unless the context clearly
indicates a contrary intent or unless otherwise specifically provided
herein, the word "Mortgagor" shall mean Mortgagor and/or any
subsequent owner or owners of the Property, the word "Mortgagee" shall
mean Mortgagee or any subsequent holder or holders of this Mortgage,
the word "Note" shall mean Note(s) secured by this Mortgage, and the
word "person" shall mean an individual, trustee, trust, corporation,
partnership or unincorporated association. As used herein, the phrase
"Reasonable Attorneys' Fees" shall mean fees charged by attorneys
selected by Mortgagee based upon such attorneys' then prevailing
hourly rates as opposed to any statutory presumption specified by any
statute then in effect in the State of Missouri.
NOTICES
41. All notices hereunder shall be deemed to have been duly
given if mailed by United States registered or certified mail, with
return receipt requested, postage prepaid, to the parties at the
following addresses (or at such other addresses as shall be given in
writing by any party to the others), and shall be deemed complete
three (3) days after any such mailing:
TO MORTGAGOR: EDJ Leasing Co., L.P.
201 Progress Parkway
Maryland Heights, Missouri 63043
Attention: Edward Soule
TO MORTGAGEE: NATIONWIDE LIFE INSURANCE COMPANY
One Nationwide Plaza
Columbus, Ohio 43216
Attention: Real Estate Investments
TO TRUSTEE: Robert C. Graham III
Armstrong, Teasdale, Schlafly & Davis
1 Metropolitan Square, Suite 2600
St. Louis, Missouri 63102-2740
GOVERNING LAW
42. This Mortgage is to be governed by and construed in
accordance with the laws of the State of Missouri and, if controlling,
by the laws of the United States and shall be binding upon Mortgagor
and shall inure to the benefit of Mortgagee.
RIGHTS OF MORTGAGEE CUMULATIVE
43. The rights of Mortgagee arising under the clauses and
covenants contained in this Mortgage shall be separate, distinct and
cumulative and none of them shall be in exclusion of the others; and
no act of Mortgagee shall be construed as an election to proceed under
any one provision herein to the exclusion of any other provisions,
anything herein or otherwise to the contrary notwithstanding.
MODIFICATIONS
44. This Mortgage cannot be changed, altered, amended or
modified except by an agreement in writing and in recordable form,
executed by both Mortgagor and Mortgagee.
EXCULPATION
45. The liability of Mortgagor and General Partner with respect
to the payment of principal and interest under the Note shall be "non-
recourse" and, accordingly, Mortgagee's source of satisfaction of said
indebtedness and Mortgagor's other obligations hereunder and under the
other Loan Documents shall be limited to the Property and Mortgagee's
receipt of the rents, issues and profits from the Property and
Mortgagee shall not seek to procure payment out of any other assets of
Mortgagor or any person or entity comprising Mortgagor, or to seek
judgment for any sums which are or may be payable under the Note, this
Mortgage or any of the other Loan Documents, as well as any claim or
judgment (except as hereafter provided) for any deficiency remaining
after foreclosure of this Mortgage. Notwithstanding the above,
nothing herein contained shall be deemed to be a release or impairment
of the indebtedness evidenced by the Note or the security therefor
intended by this Mortgage and the other Loan Documents, or be deemed
to preclude Mortgagee from exercising its rights to foreclose this
Mortgage or to enforce any of its other rights or remedies under the
Loan Documents.
Notwithstanding the foregoing, it is expressly understood and
agreed that the aforesaid limitation on liability shall in no way
affect or apply to Mortgagor's and General Partner's continued
personal liability for all sums due to:
(1) fraud or misrepresentation made in or in connection with
the Note or any of the other Loan Documents;
(2) failure to pay taxes, or assessments prior to delinquency,
or to pay charges for labor, materials or other charges which can
create liens on any portion of the Property;
(3) the misapplication of (i) proceeds of insurance covering
any portion of the Property; or (ii) proceeds of the sale or
condemnation of any portion of the Property; or (iii) rentals received
by or on behalf of Mortgagor subsequent to the date on which Mortgagee
makes written demand therefor pursuant to any Loan Document;
(4) causing or permitting waste to occur in, on or about the
Property and failure to maintain the Property, excepting ordinary wear
and tear;
(5) the return to Mortgagee of all unearned advance rentals and
security deposits paid by tenants of the Property and not refunded to
or forfeited by such tenants;
(6) loss by fire or casualty to the extent not compensated by
insurance proceeds collected by Mortgagee;
(7) the return of, or reimbursement for, all Fixtures and
Personal Property owned by Mortgagor taken from the Property by or on
behalf of Mortgagor, out of the ordinary course of business, and not
replaced by items of equal or greater value than the original value of
the Fixtures and Personal Property so removed;
(8) (i) any and all costs incurred in order to cause the
Property to comply with the Accessibility Laws, and (ii) any indemnity
or other agreement to hold Mortgagee and Trustee harmless from and
against any and all losses, liabilities, damages, injuries, costs or
expenses of any kind arising under Paragraph 3 of this Mortgage
regarding accessibility for the disabled or handicapped, or under the
separate Indemnity Agreement from Mortgagor and General Partner to
Mortgagee. Mortgagor shall not be liable hereunder for compliance
with any Accessibility Laws that first become effective, or for any
violation of any Accessibility Laws resulting from alterations or
improvements to the Property that are performed subsequent to
Mortgagee's acquisition of the Property by foreclosure or acceptance
of a deed in lieu thereof or subsequent to any transfer of ownership
which was approved or authorized by Mortgagee pursuant to this
Mortgage, provided that such transferee assumes all obligations
pertaining to Accessibility Laws pursuant to the Loan Documents;
(9) all court costs and Reasonable Attorneys' Fees actually
incurred which are provided for in the Note or in any other Loan
Document;
(10) (i) the removal of any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any Federal,
State, County, Regional or Local Authority which may or could pose a
hazard to the health and safety of the occupants of the Property,
regardless of the source of origination; (ii) the restoration of the
Property to comply with all governmental regulations pertaining to
hazardous waste found in, on or under the Property, regardless of the
source of origination; and (iii) any indemnity or other agreement to
hold the Mortgagee and Trustee harmless from and against any and all
losses, liabilities, damages, injuries, costs, expenses of any and
every kind arising under paragraph 3 of this Mortgage and/or the
Indemnity Agreement of even date herewith executed by Mortgagor and
General Partner. Mortgagor shall not be liable hereunder if the
Property becomes contaminated subsequent to Mortgagee's acquisition of
the Property by foreclosure or acceptance of a deed in lieu thereof or
subsequent to any transfer of ownership which was approved or
authorized by Mortgagee pursuant to this Mortgage, provided that such
transferee assumes all obligations pertaining to Hazardous Materials
pursuant to the Loan Documents. Liability under this subparagraph
shall extend beyond repayment of the Note and compliance with the
terms of this Mortgage and, if not terminated pursuant to the
foregoing, beyond Mortgagee's acquisition of the Property by
foreclosure or acceptance of a deed in lieu thereof or subsequent to
any transfer of ownership which was approved or authorized by
Mortgagee pursuant to this Mortgage unless at such time Mortgagor
provides Mortgagee with an environmental assessment report acceptable
to Mortgagee showing the Property to be free of Hazardous Materials
and not in violation of Hazardous Waste Laws. The burden of proof
under this subparagraph with regard to establishing the date upon
which such chemical, material or substance was placed or appeared in,
on or under the Property shall be upon Mortgagor.
The obligations of Mortgagor in subparagraphs (1) through (10)
above, except as specifically provided in subparagraphs (8) and (10),
shall survive the repayment of the Note and satisfaction of this
Mortgage.
TRUSTEE
46. Mortgagor agrees that the Trustee and any successor or
substitute trustee may be an officer, agent, attorney, or employee of
the Mortgagee and any objections to such fact which might be made by
the Mortgagor, its heirs, successors, or assigns, are hereby waived.
SUBSTITUTE TRUSTEE
47. In case of the death, inability, refusal to act,
resignation, or absence of the Trustee from the State of Missouri, or
in case the holder of the Note shall desire for any reason to remove
the Trustee or any substitute trustee hereunder and to appoint a new
trustee in his place and stead, the holder of the Note is hereby
granted full power to appoint in writing a substitute trustee for said
Trustee, and the substitute trustee shall, when appointed, become
successor to the title to the Property and the same shall become
vested in him in trust for the purpose and objects of this Mortgage
with all the powers, duties, and obligations herein conferred on the
Trustee. In the event any foreclosure advertisement is running or has
run at the time of such appointment of a substitute Trustee, the
substitute Trustee may consummate the advertised sale without the
necessity of republishing such advertisement. The making of oath or
giving of bond by Trustee or any successor Trustee is expressly
waived.
CAPTIONS
48. The captions set forth at the beginning of the various
Paragraphs of this Mortgage are for convenience only and shall not be
used to interpret or construe the provisions of this Mortgage.
ORAL COMMITMENTS
49. The following is added pursuant to Section 432.045 R.S.Mo.;
as used below "borrower(s)" shall mean Mortgagor and "creditor" shall
mean Mortgagee:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR
TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO
EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER(S)) AND US (CREDITOR) FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS ARE
CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
PARTIAL RELEASES
50. The Mortgagor shall be entitled to obtain releases of
portions of the Real Property (and any personal property associated
with such portion of the Real Property being released) from the lien
hereof in accordance with the terms of the Note. In the event that
the terms of the Note have been complied with in the event of a
requested release of a portion of the Real Property, Mortgagee agrees
to execute appropriate deeds of release and personal property releases
with respect to such portion of the Real Property in order to
effectuate such release. Mortgagor agrees to pay all costs and
expenses of Mortgagee associated with the preparation and filing of
such releases, and, if requested by Mortgagee, Mortgagor shall provide
Mortgagee with an endorsement to Mortgagee's policy of title insurance
bringing the effective date of such policy to the date of the filing
of any partial release.
IN WITNESS WHEREOF, the undersigned have executed this Mortgage
the day and year first above written.
EDJ LEASING CO., L.P., a Missouri
By: LHC, Inc.
By:________________________________
Name:______________________________
Title:_____________________________
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this ____ day of _________________________, 1994, before me
appeared ___________________________________, to me personally known,
who, by me being duly sworn did say that he is the _________________
of LHC, Inc., a corporation and the said seal affixed to the foregoing
instrument is the corporate seal of said corporation, and the said
corporation is the general partner of EDJ Leasing Co., L.P., a limited
partnership and said _________________________ acknowledged that he
executed and sealed the same in behalf of said corporation and said
limited partnership by authority of the Board of Directors of the
corporation and said _________________________ acknowledged said
instrument to be the free act and deed of said corporation and said
limited partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in the county or city and state aforesaid,
the day and year last above written.
___________________________________
Notary Public
My Term Expires: __________________
ASSIGNMENT OF LEASES, RENTS AND PROFITS
THIS ASSIGNMENT OF LEASES, RENTS AND PROFITS (hereinafter
referred to as "Assignment") is executed and delivered as of the
_____ day of _____________, 1994, by EDJ LEASING CO., L.P., a
Missouri limited partnership having its principal address at 201
Progress Parkway, Maryland Heights, Missouri 63043, Attention
Edward Soule (hereinafter referred to as "Assignor"), to and in
favor of NATIONWIDE LIFE INSURANCE COMPANY, an Ohio corporation
having its principal office at One Nationwide Plaza, Columbus,
Ohio 43216, Attention: Real Estate Investments, its successors
and assigns, or at such other place either within or without the
State of Ohio as it may from time to time designate, (hereinafter
referred to as "Assignee");
W I T N E S S E T H:
WHEREAS, Assignor is the present owner in fee simple of
certain real property located in St. Louis County, Missouri, more
particularly described on Exhibit A attached hereto and by this
reference made a part hereof (hereinafter referred to as the
"Real Property"); and
WHEREAS, Assignee is the owner and holder of a certain deed
of trust and security agreement dated of even date herewith
(hereinafter referred to as the "Mortgage") encumbering the Real
Property and other property more specifically described in the
Mortgage (all of which property is referred to herein and in the
Mortgage as the "Property"), which Mortgage secures the payment
of a certain Mortgage Note of even date herewith in the amount of
Twenty-One Million Seven Hundred Fifty-Nine Thousand Eighty-One
and 29/100 Dollars ($21,759,081.29) made by Assignor as Maker to
and in favor of Assignee as Holder (said Mortgage Note being
hereinafter referred to as the "Note"); and
WHEREAS, Assignee, as a condition to making the aforesaid
loan and to obtain additional security therefor, has required the
execution of this Assignment by Assignor; and
NOW THEREFORE, in order to further secure the payment of the
indebtedness of Assignor to Assignee evidenced by the Note, and
secured by the Mortgage, and in further consideration of the sum
of Ten and 00/100 Dollars ($10.00) in hand paid by Assignee to
Assignor, the receipt and sufficiency of which are hereby
acknowledged, Assignor does hereby sell, assign, transfer and set
over unto Assignee all of the leases, rents, issues, profits and
income of, from or pertaining to the Property. This Assignment
shall include any and all leases or rental agreements that may
now be in effect, specifically including without limitation,
those leases set forth in Exhibit B, attached hereto and by this
reference made a part hereof, as well as any future or additional
leases or rental agreements, and any renewals or extensions of
the same, that may be entered into by Assignor. Assignor hereby
agrees to execute and deliver such further assignments of said
leases or rental agreements as Assignee may from time to time
request.
This Assignment is absolute and effective immediately and
without possession. Notwithstanding the foregoing, Assignor
shall have a license to receive, collect and enjoy the rents,
issues, profits and income accruing from the Property until a
default has occurred (and is continuing upon the expiration of
the applicable cure period, if any, expressly provided for
therein) under the Note, the Mortgage or any other instrument
evidencing or securing the Note. Upon the occurrence of a
default and the expiration of the applicable cure periods, if
any, the license shall cease automatically, without need of
notice, possession, foreclosure or any other act or procedure,
and all leases, rents, issues, profits and income assigned hereby
shall thereafter be payable to Assignee.
PROVIDED ALWAYS that if Assignor shall pay unto Assignee the
indebtedness evidenced by the Note, and if Assignor shall duly,
promptly and fully perform, discharge, execute, effect, complete,
comply with and abide by each of the agreements, conditions and
covenants of the Note, the Mortgage, this Assignment and all
other instruments executed by Assignor to and in favor of
Assignee as further evidence of or as additional security for the
indebtedness (hereinafter together referred to as the "Loan
Documents"), then this Assignment and the estates and interests
hereby granted and created shall terminate.
REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
1. In furtherance of the foregoing assignment, Assignor:
A. Represents and warrants that it is the owner in fee
simple of the Property and has good title to the leases, rents,
income, issues, and profits hereby assigned and good right to
assign the same, and that no other person, entity, firm or
corporation has any right, title or interest therein except for
the interest of Edward D. Jones & Co., A Missouri Limited
Partnership ("Jones"), as tenant under that certain Master Lease
Agreement dated of even date herewith, with Assignor as Landlord
(the "Master Lease") which Master Lease has been subordinated to
the lien of the Mortgage pursuant to a Subordination Agreement
dated of even date herewith; that Assignor has not previously
sold, assigned, transferred, mortgaged or pledged said rents,
issues, profits, income and leases of the Property (which has not
been released), except pursuant to the Master Lease; and that
payment of any of the same has not otherwise been anticipated,
waived, released, discounted, set off or otherwise discharged or
compromised.
B. Except as provided in the Mortgage, agrees and
warrants that, without the prior written consent of Assignee, the
terms of any and all leases will not be amended, altered,
modified or changed in any manner whatsoever, nor will they be
surrendered or cancelled, nor will any proceedings for
dispossession or eviction of any lessee under said leases be
instituted by Assignor.
C. Agrees and warrants that no request will be made of
any lessee to pay any rent, and no rent will be accepted by
Assignor, for more than one month in advance of the date such
rent becomes due and payable under the terms of any and all
leases, it being agreed between Assignor and Assignee that rent
shall be paid as provided in said leases and not otherwise. The
foregoing shall not prevent Assignor from charging and collecting
security deposits from each tenant leasing space on the Real
Property.
D. Authorizes Assignee, by and through its employees or
agents or a duly appointed receiver, at its option, after the
occurrence of a default (and the expiration of the applicable
cure periods, if any, expressly provided for herein) under this
Assignment, the Note, the Mortgage or any of the other Loan
Documents, to enter upon the Property and to collect, in the name
of Assignor, as its lawful attorney, or in its own name as
Assignee, any rents, income or profits accrued but unpaid and/or
in arrears at the date of such default, as well as the rents,
income or profits thereafter accruing and becoming payable during
the period of the continuance of the said default or any other
default. To this end, Assignor further agrees that it will
cooperate with and facilitate, in all reasonable ways, Assignee's
collection of said rents, income or profits and will, upon
request by Assignee, execute a written notice to each tenant,
occupant or licensee directing said tenant, occupant or licensee
to pay directly to Assignee all income, rents and profits due and
payable under said leases; provided, however, that Assignee may
notify said tenant, occupant or licensee of the effectiveness of
this Assignment without giving notice to Assignor or requesting
Assignor to give such notice or join in such notice.
E. Authorizes Assignee, upon such entry, at its option,
to take over and assume the management, operation and maintenance
of the Property and to perform all acts necessary and proper and
to expend such sums out of the income of the Property as in
Assignee's sole discretion may be reasonable or necessary in
connection therewith, in the same manner and to the same extent
as Assignor theretofore might do. Assignor hereby releases all
claims against Assignee arising out of such management, operation
and maintenance.
F. Agrees to execute, upon the request of Assignee, any
and all other instruments requested by Assignee to effectuate
this Assignment or to accomplish any other purpose deemed by
Assignee to be necessary or appropriate in connection with this
Assignment.
G. Assignor agrees and acknowledges that nothing in this
Assignment shall be construed to limit or restrict in any way the
rights and powers granted to Assignee in the Note, the Mortgage
or any of the other Loan Documents. The collection and
application of the rents, issues and profits as described herein
shall not constitute a waiver of any default which might at the
time of application or thereafter exist under the Note, the
Mortgage or any of the other Loan Documents, and the exercise by
Assignee of the rights herein provided shall not prevent
Assignee's exercise of any rights provided under the Note, the
Mortgage or any of the other Loan Documents.
ASSIGNEE'S RIGHTS FOLLOWING DEFAULT BY ASSIGNOR
2. Assignee may, after the occurrence of a default (and
the expiration of the applicable cure periods, if any, expressly
provided for herein) as hereinabove provided, from time to time,
appoint and dismiss such agents or employees as shall be
necessary or reasonable for the collection of the rents, issues
and profits derived from the Property and for the proper care and
operation of the Property, and Assignor hereby grants to Assignee
the authority to give such agents or employees so appointed full
and irrevocable authority on Assignor's behalf to manage the
Property and to do all acts relating to such management,
including, without limitation, the entry into and execution of
new leases in the name of Assignor or otherwise, the alteration
or amendment of existing leases, the authorization to repair or
replace any items necessary in order to maintain the building or
buildings and chattels incidental thereto in good and tenantable
condition, and the effectuation of such alterations or
improvements as in the judgment of Assignee may be reasonable or
necessary to maintain or increase the income from the Property.
Assignee shall have the sole control of such agents or employees,
whose remuneration shall be paid out of the rents, issues and
profits as hereinabove provided, at the rate of compensation
accepted in the community wherein the Property is situated.
APPLICATION BY ASSIGNEE OF NET INCOME FROM THE PROPERTY
3. Assignee shall, after payment of all proper charges
and expenses enumerated under Paragraph 2 above, and after
retaining sufficient sums to meet taxes, assessments, utilities
and insurance coverages in requisite amounts (including
liability, fire and extended coverage), credit the net income
received by Assignee from the Property, by virtue of this
Assignment, to any amounts due and owing to Assignee by Assignor
under and pursuant to the terms of the Note and the Mortgage, but
the manner of the application of such net income shall be
determined in the sole discretion of Assignee. Assignee shall
make a reasonable effort to collect rents, income and profits,
reserving, however, within its sole discretion, the right to
determine the method of collection and the extent to which
enforcement of the collection of delinquent rents, income and
profits shall be prosecuted. Notwithstanding the foregoing, no
such credit shall be given by Assignee for any sum or sums
received from the rents, issues and profits of the Property until
the sums collected are actually received by Assignee at its
principal office as stated above (or at such other place as
Assignee shall designate in writing), and no credit shall be
given for any uncollected rents or other uncollected amounts or
bills, nor shall credit be given for any rents, issues and
profits derived from the Property under any order of court or by
operation of law until such amounts are actually received by
Assignee at its principal offices as stated above. The net
amount of income received by Assignee hereunder and applied by
Assignee to the amounts due and owing by Assignor shall not serve
to cure any default under the Note, the Mortgage or any of the
other Loan Documents, nor shall any amounts received by Assignee
hereunder be in full satisfaction of the indebtedness evidenced
by the Note unless such amounts are sufficient to pay such
indebtedness in full (including any prepayment premiums, late
payment charges and advancements) in accordance with the terms of
the Note, the Mortgage and the other Loan Documents.
LIMITATION OF ASSIGNEE'S LIABILITY
4. Assignee shall not be obligated to perform or
discharge any obligation under the leases hereby assigned or
under or by reason of this Assignment, and Assignor hereby agrees
to indemnify and hold Assignee harmless against any and all
liability, loss or damage which Assignee might incur under the
leases or under or by reason of this Assignment and of and from
any and all claims and demands whatsoever which may be asserted
against Assignee by reason of any alleged obligation or
undertaking on Assignee's part to perform or discharge any of the
terms of such leases, except for claims and demands arising by
reason of Assignee's gross negligence or willful misconduct.
REINSTATEMENT AFTER DEFAULT
5. In the event that Assignor shall, with the consent of
Assignee, reinstate the indebtedness evidenced by the Note
completely in good standing, having complied with all the terms,
covenants and conditions of the Note, the Mortgage, this
Assignment and all of the other Loan Documents, then, in such
event, Assignee shall return possession of the Property to
Assignor, and Assignor shall remain in possession of the Property
unless and until another default occurs under the Note, the
Mortgage, this Assignment or any of the other Loan Documents, at
which time Assignee may, at its option, again take possession of
the Property under authority of and pursuant to the terms and
provisions of this Assignment.
TENANT'S NOTIFICATION OF ASSIGNMENT
6. Upon request by Assignee, at any time, Assignor will
and will cause Jones to, as the case may be, deliver a written
notice to each of the tenants and lessees of the Property, which
notice shall inform such tenants and lessees of this Assignment
and instruct them that upon receipt of notice by them from
Assignee of the existence of a default by Assignor under the
Note, the Mortgage or any of the other Loan Documents, all rent
due thereafter shall be paid directly to Assignee.
SATISFACTION OF MORTGAGE; SATISFACTION OF ASSIGNMENT
7. This Assignment shall remain in full force and effect
as long as the indebtedness evidenced by the Note and secured by
the Mortgage remains unpaid in whole or in part. It is
understood and agreed that a complete release or satisfaction of
the aforesaid Mortgage shall operate as a complete release or
satisfaction of all of Assignee's rights and interest hereunder,
and that satisfaction of the Mortgage shall operate to satisfy
this Assignment.
EXCULPATION
8. Except as hereinafter provided, the liability of
Assignor and the general partner of Assignor, LHC, Inc., and any
other current or future general partner of Assignor ("General
Partner") with respect to the payment of principal and interest
under the Note shall be "non-recourse" and, accordingly,
Assignee's source of satisfaction of said indebtedness and
Assignor's other obligations hereunder and under the other Loan
Documents shall be limited to the Property and Assignee's receipt
of the rents, issues and profits from the Property, and Assignee
shall not seek to procure payment out of any other assets of
Assignor or any person or entity comprising Assignor, nor to seek
judgment for any sums which are or may be payable under the Note
or under any of the other Loan Documents, as well as any claim or
judgment (except as hereafter provided) for any deficiency
remaining after foreclosure of the Mortgage. Notwithstanding the
above, nothing herein contained shall be deemed to be a release
or impairment of the indebtedness evidenced by the Note or the
security therefor intended by this Assignment and the other Loan
Documents or be deemed to preclude Assignee from exercising its
rights to foreclose the Mortgage or to enforce any of its other
rights or remedies under the Loan Documents.
Notwithstanding the foregoing, it is expressly understood
and agreed that the aforesaid limitation on liability shall in no
way affect or apply to Assignor's and General Partner's continued
personal liability for all sums due to:
A. fraud or misrepresentation made in or in connection
with the Note or any of the other Loan Documents;
B. failure to pay taxes or assessments prior to
delinquency, or to pay charges for labor, materials or other
charges which can create liens on any portion of the Property;
C. the misapplication of (i) proceeds of insurance
covering any portion of the Property; or (ii) proceeds of the
sale or condemnation of any portion of the Property; or (iii)
rentals held or received by or on behalf of the Assignor
subsequent to the date on which Assignee makes written demand
therefor pursuant to any Loan Document;
D. causing or permitting waste to occur in, on or about
the Property and failure to maintain the Property excepting
ordinary wear and tear;
E. the return to Assignee, of all unearned advance
rentals and security deposits paid by tenants of the Property and
not refunded to or forfeited by such tenants;
F. loss by fire or casualty to the extent not compensated
by insurance proceeds collected by Assignee;
G. the return of, or reimbursement for, all Fixtures and
Personal Property (as defined in the Mortgage) owned by Assignor
taken from the Property by or on behalf of Assignor, out of the
ordinary course of business, and not replaced by personalty of
equal or greater value than the original value of the Fixtures or
Personal Property so removed;
H. (i) any and all costs incurred in order to cause the
Property to comply with the Accessibility Laws (as defined in the
Mortgage), and (ii) any indemnity or other agreement to hold
Assignee harmless from and against any and all losses,
liabilities, damages, injuries, costs and expenses of any kind
arising under Paragraph 3 of the Mortgage regarding accessibility
for the disabled or handicapped, or under the separate Indemnity
Agreement from Assignor and General Partner to Assignee.
Assignor shall not be liable hereunder for compliance with any
Accessibility Laws that first become effective, or for any
violation of any Accessibility Laws resulting form alterations or
improvements to the Property that are performed subsequent to
Assignee's acquisition of the Property by foreclosure or
acceptance of a deed in lieu thereof or subsequent to any
transfer of ownership which was approved or authorized by
Assignee pursuant to the Mortgage, provided that such transferee
assumes all obligations pertaining to Accessibility Laws pursuant
to the Loan Documents;
I. all court costs and Reasonable Attorneys' Fees
actually incurred which are provided for in the Note or in any
other Loan Document governing, securing, or pertaining to the
payment of the Note; and
J. (i) the removal of any chemical, material or
substance, exposure to which is prohibited, limited or regulated
by any Federal, State, County, Regional or Local Authority which
may or could pose a hazard to the health and safety of the
occupants of the Property regardless of the source of
origination; (ii) the restoration of the Property to comply with
all governmental regulations pertaining to hazardous waste found
in, on or under the Property regardless of the source of
origination; and (iii) any indemnity or other agreement to hold
the Assignee harmless from and against any and all losses,
liabilities, damages, injuries, costs, expenses of any and every
kind arising under paragraph 3 of the Mortgage and/or the
Indemnity Agreement of even date herewith executed by Assignor
and General Partner. Assignor shall not be liable hereunder if
the Property became contaminated subsequent to Assignee's
acquisition of the Property by foreclosure or acceptance of a
deed in lieu thereof or subsequent to any transfer of ownership
which was approved or authorized by Assignee by the Mortgage,
provided that such transferee assumes all obligations pertaining
to Hazardous Materials (as defined in the Mortgage) pursuant to
the Loan Documents. Liability under this subparagraph shall
extend beyond repayment of the Note and compliance with the terms
of the Mortgage and, if not terminated pursuant to the foregoing,
beyond Assignee's acquisition of the Property by foreclosure or
acceptance of a deed in lieu thereof or subsequent to any
transfer of ownership which was approved or authorized by
Assignee pursuant to the Mortgage unless at such time Assignor
provides Assignee with an environmental assessment report
acceptable to Assignee showing the Property to be free of
Hazardous Materials (as defined in the Mortgage) and not in
violation of Hazardous Waste Laws (as defined in the Mortgage).
The burden of proof under this subparagraph with regard to
establishing the date upon which such chemical, material or
substance was placed or appeared in, on or under the Property
shall be upon Assignor.
The obligations of Assignor in subparagraphs A through J
above, except as specifically provided in subparagraphs H and J,
shall survive the repayment of the Note, and satisfaction of this
Assignment.
CAPTIONS
9. The captions set forth at the beginning of the various
paragraphs of this Assignment are for convenience only and shall
not be used to interpret or construe the provisions of this
Assignment.
MISCELLANEOUS
10. The provisions of this Assignment shall inure to the
benefit of Assignee, its successors and assigns, and shall be
binding upon Assignor, its heirs, personal representatives,
successors and assigns. The creation of rights and powers under
this Assignment in favor of, or available to, Assignee shall, in
no way whatsoever, be construed to impose concomitant duties or
obligations on Assignee in favor of Assignor except as expressly
set forth herein.
11. As used herein, the phrase "Reasonable Attorneys'
Fees" shall mean fees charged by attorneys selected by Assignee
based upon such attorneys' then prevailing hourly rates as
opposed to any statutory presumption specified by any statute
then in effect in the State of Missouri.
12. This Assignment is executed and delivered as
additional security for a loan transaction negotiated and
consummated in St. Louis County, Missouri and is to be construed
according to the laws of the State of Missouri, and the laws of
the United States.
ORAL COMMITMENTS
13. The following is added pursuant to Section 432.045
R.S.Mo.; as used below "borrower(s)" shall mean Assignor and
"creditor" shall mean Assignee:
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.
IN WITNESS WHEREOF, the undersigned have executed this
Assignment the day and year first above written.
EDJ LEASING CO., L.P., a Missouri
By: LHC, Inc.
By:________________________________
Name:______________________________
Title:_____________________________
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this ____ day of _________________________, 19__, before
me appeared ___________________________________, to me personally
known, who, by me being duly sworn did say that he is the
_________________ of LHC, Inc., a corporation and the said seal
affixed to the foregoing instrument is the corporate seal of said
corporation, and the said corporation is the general partner of
EDJ Leasing Co., L.P., a limited partnership and said
_________________________ acknowledged that he executed and
sealed the same in behalf of said corporation and said limited
partnership by authority of the Board of Directors of the
corporation and said _________________________ acknowledged said
instrument to be the free act and deed of said corporation and
said limited partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my official seal at my office in the county or city and
state aforesaid, the day and year last above written.
___________________________________
Notary Public
My Term Expires: __________________
SUBORDINATION AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of the ____ day of _________, 1994,
executed by and among NATIONWIDE LIFE INSURANCE COMPANY, an Ohio
corporation with its principal office at One Nationwide Plaza,
Columbus, Ohio 43216, Attention: Real Estate Investments, (hereinafter
called "Lender"); EDWARD D. JONES & CO., L.P., a Missouri limited
partnership (hereinafter called "Tenant"); and EDJ LEASING CO., L.P.,
a Missouri limited partnership (hereinafter called "Borrower");
WITNESSETH:
WHEREAS, Tenant has entered into a certain Lease dated
__________, 19__, ("Lease") with Borrower covering certain premises
more fully described in said Lease ("Premises") located in St. Louis
County, Missouri, more fully described on _________ Exhibit A, attached
hereto and made a part hereof (the "Property"); and
WHEREAS, by Deed of Trust and Security Agreement dated
_____________, 1994, and recorded in Book _____ at Page _____ in the
office of the Recorder of Deeds of St. Louis County, Missouri
(hereinafter called the "Deed of Trust"), Borrower granted a first
lien interest in the Property and the Premises to Lender; and
WHEREAS, Tenant desires to be assured of continued occupancy of
the Premises under the terms of the Lease and subject to the terms of
the Deed of Trust);
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00)
by each party in hand paid to the other, the receipt of which is
hereby acknowledged, and in consideration of the mutual promises,
covenants and agreements herein contained, the parties hereto,
intending to be legally bound hereby, promise, covenant and agree as
follows:
1. The Lease and all estates, options (including purchase
options, if any), liens and charges therein contained or created
thereunder is and shall be subject and subordinate to the lien and
effect of the Deed of Trust insofar as it affects the real and
personal property of which the Premises forms a part, and to all
renewals, modifications, consolidations, replacements and extensions
thereof, to the full extent of the principal sum secured thereby and
interest thereon, with the same force and effect as if the Deed of
Trust had been executed, delivered, and duly recorded among the above-
mentioned public records, prior to the execution and delivery of the
Lease.
2. In the event that Lender succeeds to the interest of
Borrower under the Lease and/or to title to the Premises, Lender and
Tenant hereby agree to be bound to Lender under all of the terms,
covenants and conditions of the Lease, at the option of Lender.
Accordingly, from and after such event (and provided Lender elects to
so bind Tenant), Lender and Tenant shall have the same remedies
against one another for the breach of an agreement contained in the
Lease as Tenant and Borrower had before Lender succeeded to the
interest of Borrower; provided, however, that Lender shall not be:
(i) liable for any act or omission of any prior landlord
(including the Borrower); or
(ii) subject to any offsets or defenses which Tenant might have
against any prior landlord (including the Borrower); or
(iii) bound by any rent or additional rent which Tenant might
have paid for more than the current month to any prior landlord
(including the Borrower);
(iv) liable for the repayment of any security deposit not
actually paid to Lender, or
(v) bound by any amendment or modification of the Lease made
without lender's written consent.
3. In the event that anyone else acquires title to or the right
to possession of the Premises upon the foreclosure of the Deed of
Trust, or upon the sale of the Premises by Lender or its successors or
assigns after foreclosure or acquisition of title in lieu thereof or
otherwise, Tenant agrees not to seek to terminate the Lease by reason
thereof, but shall remain bound unto the new owner so long as the new
owner agrees to be bound to Tenant under all terms, covenants and
conditions of the Lease.
4. In the event Lender becomes a mortgagee-in-possession of the
Premises or exercises its rights under the Assignment of Leases, Rents
and Profits, Tenant agrees to make all payments payable by Tenant
under the Lease directly to Lender upon Lender's written instructions
to Tenant.
5. This Agreement shall be binding upon the parties hereto and
their respective heirs, administrators, executors, successors and
assigns.
6. Tenant hereby warrants and represents, covenants and agrees
with Lender:
(i) not to alter or modify the Lease in any respect without the
prior written consent of Lender;
(ii) to deliver to Lender a duplicate of each notice of default
delivered to Borrower at the same time as such notice is given to
Borrower;
(iii) that Tenant is now the sole owner of the leasehold estate
created by the Lease and shall not hereafter assign the Lease
except as permitted by the terms thereof, and that
notwithstanding any such assignment or any sublease, Tenant shall
remain primarily liable for the observance and performance of all
of its agreements under the Lease;
(iv) not to seek to terminate the Lease by reason of any default
of Borrower without prior written notice thereof to Lender and
the lapse thereafter of such time as under the Lease was granted
to remedy the default, within which time Lender, at its option,
may render any such default; provided, however, that with respect
to any default of Borrower under the Lease which cannot be
remedied within such time, if Lender commences to cure such
default within such time and thereafter diligently proceeds with
such efforts, Lender shall be permitted such time as is
reasonably necessary to complete curing such default;
(v) not to anticipate the payment of rent or other sums due
under the Lease; and
(vi) to promptly certify in writing to Lender, in connection
with any proposed assignment of the Deed of Trust, whether or not
any default on the part of Borrower then exists under the Lease.
NATIONWIDE LIFE INSURANCE COMPANY,
an Ohio corporation
[CORPORATE SEAL] By:______________________________
Name:____________________________
Vice President
ATTEST:
_________________________
Name:____________________
Assistant Secretary
EDJ LEASING CO., L.P., a Missouri
By: LHC, Inc.
ATTEST: By:________________________________
Name:______________________________
Title:_____________________________
__________________________
Name:
Title:
EDWARD D. JONES & CO., L.P.
[CORPORATE SEAL] By:______________________________
Typed Name:______________________
Title:___________________________
ATTEST:
_________________________
STATE OF OHIO
COUNTY OF FRANKLIN
This _____ day of ____________, 19___, personally came before me
______________________________ who, being by me duly sworn, says that
he is the Vice President of NATIONWIDE LIFE INSURANCE COMPANY and that
the seal affixed to the foregoing instrument in writing is the
corporate seal of the company, and that said writing was signed and
sealed by him, on behalf of said corporation, by its authority duly
given. And the said Assistant Secretary acknowledged the said writing
to be the act and deed of said corporation.
_________________________________
Notary Public
My commission expires:
_________________________
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
On this ____ day of _________________________, 19__, before me
appeared ___________________________________, to me personally known,
who, by me being duly sworn did say that he is the _________________
of LHC, Inc., a corporation and the said seal affixed to the foregoing
instrument is the corporate seal of said corporation, and the said
corporation is the general partner of EDJ Leasing Co., L.P., a limited
partnership and said _________________________ acknowledged that he
executed and sealed the same in behalf of said corporation and said
limited partnership by authority of the Board of Directors of the
corporation and said _________________________ acknowledged said
instrument to be the free act and deed of said corporation and said
limited partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in the county or city and state aforesaid,
the day and year last above written.
___________________________________
Notary Public
My Term Expires: __________________
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS)
On this ____ day of ____________________, 19__, before me,
personally appeared ____________________________________, to me known
to be the person who executed the foregoing instrument as the Managing
General Partner of Edward D. Jones & Co., L.P., a Missouri limited
partnership, and that he acknowledged that he executed the same as the
free act and deed of said limited partnership and is acting for and on
behalf of and as Managing General Partner of the said partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal at my office in the county or city and state aforesaid,
the day and year last above written.
___________________________________
Notary Public
My Term Expires:________________________
