HomeMy WebLinkAboutOrd.4029.05-18-2009 i
BILL NO. 09-85 ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE MAYOR OF THE CITY
OF CAPE GIRARDEAU, MISSOURI TO EXECUTE AND
DELIVER A PROMISSORY NOTE AND A DEED OF TRUST TO
THE BANK OF MISSOURI; AND AUTHORIZING CERTAIN
OTHER ACTIONS IN CONNECTION THEREWITH
WHEREAS, the City of Cape Girardeau, Missouri(the"City")is a home rule city and a political
subdivision duly organized and existing under the laws of the State of Missouri; and
WHEREAS, the City finds that it is desirable that the City authorize and approve the execution of
a Promissory Note(the "Note")and a Deed of Trust to finance the costs of acquiring and improvingcertain
property located at the Northeast comer of Broadway and Main streets in the Cityand
WHEREAS, the City finds and determines that it is desirable in connection with the execution
and delivery of the Note and the Deed of Trust that the City take certain other actions and approve the
execution of certain other documents as herein provided.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU,MISSOURI,AS FOLLOWS:
Section 1. Authorization of Note and Deed of Trust The City is hereby authorized to deliver
the Note and the Deed of Trust to The Bank of Missouri, in substantially the forms presented to and
reviewed by the City Council at this meeting and attached to this Ordinance as Exhibits A and B (copies
of which shall be filed in the records of the City), with such changes therein as shall be approved by the
officials of the City executing the Note and the Deed of Trust, respectively, such officials' signatures
thereon being conclusive evidence of their approval thereof.
Section 2. Execution of Documents. The Mayor of the City, the City Clerk and other
appropriate officers of the City are hereby authorized and directed to execute,attest,acknowledge,deliver,
for and on behalf of and as the act and deed of the City, the Note, the Deed of Trust, and such other
documents,certificates and instruments as may be necessary or desirable to carry out and comply with the
intent of this Ordinance.
Section 3. Further Authority. The officers, agents and employees of the City, including the
Mayor and the City Clerk, are authorized and directed to execute all documents and take such actions as
they may deem necessary or advisable in order to carry out and perform the purposes of this Ordinance,
and to carry out, comply with and perforin the duties of the City with respect to the Note and the Deed of
Trust, and to make such alterations, changes or additions in the format and language in the foregoing
documents without changingthe effect or value thereof.
Section 4. Severability. If any section or other part of this Ordinance, whether large or small, is
for any reason held invalid, the invalidity thereof shall not affect the validity of the other provisions of this
Ordinance.
Section 5. Effective Date. This Ordinance shall take effect 10 days from and after its final
passage.
ASS ED by the Council of the City of Cape Girardeau, Missouri, this day of
2009.
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n, Mayor
ATTEST:
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PROMISSORY NOTE
Borrower:
City of Cape Girardeau, Missouri
401 Independence St.
Cape Girardeau, MO 63702
Lender:
The Bank of Missouri
3427 William St.
Cape Girardeau, MO 63701
Principal Amount: $125,000.00 Date of Note: May 25, 2009
PROMISE TO PAY. The City of Cape Girardeau, Missouri (`Borrower"), promises to pay to The Bank of
Missouri ("Lender"), or order, in lawful money of the United States of America, the amount of One
Hundred Twenty-Five Thousand and no/100 Dollars ($125,000.00), principal, with interest from date at
the rate of Four and One-Quarter Percent (4.25%) per annum. Said principal and interest shall be paid in
installments of Ten Thousand Dollars ($10,000.00) per year (subject to annual appropriation by the City
Council for the City of Cape Girardeau). The first such payment shall be made on January 1, 2010, with
additional payments due on the I" day of January in the years 2011 and 2012. On the I" day of January
2013, all of the balance, plus unpaid interest, in the total amount of One Hundred Twelve Thousand Nine
Hundred Eighteen and 73/100 Dollars ($112,918.73) shall be due. If interest is not paid on any such due
date, then it shall become as principal and bear the same rate of interest. The maker shall have the right to
prepay any installment without the written consent of the holder. In addition to the annual payment of
principal and interest, Borrower shall pay to Cape Girardeau Area Community Development Corporation on
the same date a total of One-Quarter of One Percent (0.25%) of the total principal amount then outstanding
as a Continuing Referral Fee. If the Continuing Referral Fee is not paid on any such due date, then it shall
become as principal and bear the same rate of interest. All interest payable under this Note is computed
using a 365/360 basis; that is, by applying the ratio of the interest rate over a year of 360 days, multiplied by
the outstanding principal balance, multiplied by the actual number of days the principal balance is
outstanding.
ADDITIONAL FEES. In addition to the payments of principal and interest, as a condition of receiving the
loan proceeds, Borrower shall pay to Cape Girardeau Area Community Development Corporation a total of
One-Quarter of One Percent(0.251/6) of the total principal amount as an Initial Referral Fee, which amount is
equal to Three Hundred Twelve Dollars and 50/100 ($312.50). Borrower also agrees, as a condition of
receiving the loan proceeds, to pay all other Closing Costs as invoiced by third-party providers, including but
not limited to the costs of preparing this document and the Deed of Trust. These fees and costs must be paid
at the time of Closing, prior to delivery of the principal amount from Lender to Borrower.
DEFAULT AND ACCELERATION. If default be made: (i) in the payment of any installment when due
hereunder; or(ii) in the performance of any of the covenants, conditions or agreements contained in the Deed
of Trust given to secure the payments hereof, then, or at any time thereafter during the continuance of such
default, the legal holder hereof may, without notice, declare the whole debt immediately due and payable.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if
Borrower does not pay, and Borrower will pay Lender the amounts incurred to collect this Note. This
includes Lender's reasonable attorneys' fees and legal expenses, whether or not there is a lawsuit, including
reasonable attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated post judgment collection services.
Borrower also will pay any court costs, in addition to all other sums provided by law. This Note has been
delivered to Lender and accepted by Lender in the State of Missouri. If there is a lawsuit, Borrower agrees
upon Lender's request to submit to the jurisdiction of the courts of Cape Girardeau County, the State of
Missouri. This Note shall be governed by and construed in accordance with the laws of the State of
Missouri.
COLLATERAL. This note is secured by and subject to the terms of a Deed of Trust of even date executed
by the maker on property located at the Northeast comer of Broadway and Main streets in the City and
County of Cape Girardeau, Missouri, and the maturity of this Note is subject to acceleration as set forth in
this Deed of Trust.
RENEWALS; WAIVERS. The undersigned Borrower, and all others who are or who shall become parties
primarily or secondarily liable on this Note, whether as endorsers, guarantors or otherwise, hereby waives
demand, protest and notice of nonpayment and agrees that the holder may grant one or more extensions of
time by renewal note or otherwise without notice and with or without new consideration, and the undersigned
agrees that it will remain bound as if no such extension had been made. All such parties waive presentment,
demand for payment, protest and notice of nonpayment or dishonor and agree that failure of this holder to
exercise any of its rights hereunder in any instance shall not constitute a waiver thereof in that or any other
instance. This Note is non-assumable by any successor to or assignee of Borrower without the prior approval
in writing of the Lender. In the event Lender shall so approve such assumption, the terms of this Note shall
be binding upon Borrower's successors and assigns. The terms of this Note shall inure to the benefit of
Lender and its successors and assigns.
GENERAL PROVISIONS. Notwithstanding any provision of this Note to the contrary, the City's
obligations hereunder are subject to annual appropriation by the City Council. Lender may delay or forgo
enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person
who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for
payment, protest and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise
expressly stated in writing, no party who signs this Note, whether as Borrower, guarantor, accommodation
party or endorser, shall be released from liability. All such parties agree that Lender may renew or extend
(repeatedly and for any length of time) this loan, or release any party or guarantor or collateral; or impair, fail
to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THIS NOTE AND
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS NOTE.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBIT INCLUDING PROMISES TO
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EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU
(BORROWER)AND US (LENDER) 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.
BORROWER:
City of Cape Girardeau,Missouri
BY:
re.,Jgt. Knudtson
ayor
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DEED OF TRUST
THIS DEED OF TRUST, is made and entered into May 25, 2009, by the City of Cape Girardeau, a
Missouri municipal corporation, whose address is 401 Independence St., Cape Girardeau, MO 63701, the
"GRANTOR"; Eric E. Bob], of Cape Girardeau County, Missouri, whose address is P.O. Box 1150, Cape
Girardeau, MO 63702-1150, the "TRUSTEE"; for the benefit of The Bank of Missouri, whose address is
3427 William St., Cape Girardeau, MO 63701, the "BENEFICIARY" or"GRANTEE" or"LENDER";
GRANTING CLAUSE:
Grantor, in consideration of the debt hereinafter mentioned and created, and the sum of Ten Dollars
($10.00) and other good and valuable considerations to it paid by Lender, the receipt and sufficiency of
which are hereby acknowledged, does by these presents GRANT, BARGAIN AND SELL, CONVEY AND
CONFIRM to Trustee all of the hereinafter described properties, rights and interests, whether now owned or
hereafter acquired (said properties, rights and interests, together with any additions thereto which may be
subject to the lien of this instrument by means of supplements hereto being hereinafter called the "Mortgaged
Property'), TO HAVE AND TO HOLD the Mortgaged Property unto Trustee in accordance with the
provisions contained herein.
NOW, THEREFORE, the condition of this Deed of Trust is such that if Grantor shall well and truly
pay and perform the Secured Obligations, and shall perform, comply with and abide by each and every of the
agreements, conditions and covenants contained and set forth in this Deed of Trust, in the Note and in the
other Loan Documents, then this Deed of Trust shall be released, without warranty, at the request and cost of
Grantor.
AND, Grantor does hereby covenant and agree as follows:
ARTICLE ONE
SECURED OBLIGATIONS
1.1. Obligations Secured. This Deed of Trust is given to secure the payment and performance of the
following indebtedness and obligations (the "Secured Obligations"), in such order of priority as Lender may
elect:
(1) Payment of an indebtedness in the principal sum of One Hundred Twenty-Five Thousand and
00/100 Dollars ($125,000.00), with interest thereon, according to the terms of a certain Promissory Note
dated May 25, 2009, made by Grantor to the order of The Bank of Missouri, and any and all extensions,
modifications, substitutions, replacements or renewals thereof (herein called the "Note"), and the
performance and discharge of each and every obligation of Grantor set forth in the Note;
(2) Payment to Lender of all other sums, with interest thereon, becoming due or payable under the
provisions hereof, and under the provisions of any and all other instruments, agreements and documents
evidencing, securing or otherwise relating to any of the obligations secured by this Deed of Trust(such other
instruments, agreements and documents, together with the Note and this Deed of Trust, are sometimes
hereinafter collectively referred to as the"Loan Documents");
(3) Due, prompt and complete observance and performance of each and every obligation, covenant
and agreement of Grantor contained herein or in the Note or any of the other Loan Documents;
(4) The payment of such additional sums with interest thereon as may be hereafter borrowed from
Lender, its successors or assigns, by the then record owner or owners of the Land when evidenced by another
promissory note or notes, which by the terms thereof is or are secured by this Deed of Trust; and
(5) The payment and performance of any and all other indebtedness, obligations and liabilities of any
kind, of Grantor to Lender, now or hereafter existing, absolute or contingent,joint and/or several, due or not
due, secured or unsecured, or direct or indirect, including indebtedness, obligations and liabilities to Lender
of Grantor as a member of any partnership, syndicate, association or other group and whether incurred by
Grantor as principal, surety, endorser, guarantor, accommodation party or otherwise and any obligations
which give rise to an equitable remedy for breach of performance if such breach gives rise to an obligation
by Grantor to pay Lender, provided that the evidence of any such indebtedness, obligation or liability
contains a written provision that it is to be so secured by this Deed of Trust.
ARTICLE TWO
DEFINITIONS
2.1. Definitions of Words and Terms. In addition to words and terms defined elsewhere herein, the
following words and terms as used in this Deed of Trust shall have the following meanings unless some
other meaning is plainly indicated:
"Deed of Trust" means this Missouri Deed of Trust and Assignment of Rents (With Security
Agreement) from Grantor to Trustee for the benefit of Lender, as from time to time amended and
supplemented in accordance with the terms hereof.
"Default" means an event or condition which constitutes, or with the giving of any requisite notice or
the passage of any requisite time or the occurrence of both would constitute, an Event of Default.
"Event of Default" means any Event of Default as defined in Section l 1.1 of this Deed of Trust.
"Event of Nonappropriation" means that the City Council for the City of Cape Girardeau fails to
appropriate adequate funds in a given year to meet the obligations anticipated under the Note.
"Hazardous Substances" means and includes all hazardous and toxic substances, wastes or
materials, any pollutants or contaminants (including, without limitation, asbestos and raw materials which
include hazardous constituents), or any other similar substances, or materials which are included under or
regulated by any now-existing or hereafter enacted or promulgated local, state or federal law, statute,
ordinance, rule or regulation pertaining to environmental protection, regulation, contamination or clean-up,
toxic waste, underground storage tanks and hazardous substance or material handling, treatment, storage, use
or disposal, including, without limitation, the Comprehensive Environmental Response Compensation and
Liability Act ("CERCLA"), the Resource Conservation and Recovery Act ("RCRA"), or state lien or state
superlien or environmental clean-up statutes, all as exist from time to time (all such laws, statutes,
ordinances, rules and regulations being referred to collectively as "Environmental Laws").
"Land" means the real estate described in Exhibit A hereto and any increases or additions to such
real estate.
"Loan Documents" means collectively this Deed of Trust, the Note and any and all other
instruments, agreements and documents evidencing, securing or otherwise relating to any of the Secured
Obligations.
"Mortgaged Property" shall have the meaning set forth in the Granting Clause hereof.
"Lender" means The Bank of Missouri, and their heirs, successors, and assigns.
"Grantor" means the City of Cape Girardeau, a Missouri municipal corporation, and its successors
and assigns, and all other persons succeeding to the interest of the named Grantor in the Mortgaged Property
and any person becoming liable on the Note,this Deed of Trust or any of the other Loan Documents.
"Note" means the note of Grantor described in Section 1.1 above, made payable to the order of
Lender, and any and all extensions, modifications, substitutions, replacements or renewals thereof.
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"Permitted Encumbrances" means the Permitted Encumbrances, if any, set forth on Exhibit B
hereto.
"Secured Obligations" means the indebtedness and obligations described and referred to in Section
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"State"means the State of Missouri.
Capitalized terms not expressly defined herein shall, unless the context requires otherwise, have the
meanings given to such terms under the Loan Documents.
2.2. Rules of Construction. Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, words
importing the singular number shall include the plural and vice versa, and words importing person shall
include funis, partnerships, associations and corporations, including public bodies, as well as natural
persons.
"Herein," "hereby," "hereunder," "hereof.. "hereto," "herein-before," "hereinafter" and other
equivalent words refer to this Deed of Trust and not solely to the particular article, section, paragraph or
subparagraph hereof in which such word is used.
Reference herein to a particular article or a particular section shall be construed to be a reference to
the specified article or section hereof unless the context or use clearly indicates another or different meaning
or intent.
Whenever an item or items are listed after the word "including," such listing is not intended to be a
listing that excludes items not listed.
The captions and headings in this Deed of Trust are for convenience only and in no way define, limit
or describe the scope or intent of any provisions or sections of this Deed of Trust.
ARTICLE THREE
GENERAL COVENANTS, REPRESENTATIONS, AND WARRANTIES
3.1. Payment and Performance. Grantor covenants and agrees to pay and perform each of the
Secured Obligations and to perform, comply with and abide by each and every of the agreements, conditions
and covenants contained and set forth in this Deed of Trust, in the Note and in each of the other Loan
Documents.
3.2. Title to Mortgaged Property. Grantor covenants, agrees and warrants that it has good and
marketable fee simple title to the Mortgaged Property, free and clear of liens and encumbrances, except for
the Permitted Encumbrances (if any), and that Grantor has good right and lawful authority to mortgage and
convey the same in the manner and form herein set forth.
3.3. Representations and Warranties. As a material inducement to Lender to enter into the loan
transaction evidenced by the Note, Grantor and each signatory who signs on its behalf hereby
unconditionally represent and warrant as follows:
(a) If Grantor or any signatory who signs on its behalf is a corporation, limited liability company,
partnership, or trust, it is a corporation duly incorporated and validly existing, or a limited liability company,
partnership, or trust duly organized and validly existing, and that it is in good standing under the laws of the
state of its incorporation or organization and duly qualified to do business in the State, with requisite power
and authority to (i) incur the indebtedness evidenced by the Note; (ii) execute this Deed of Trust, and (iii)
enter into the other Loan Documents, and that it is in good standing in the State;
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(b) This Deed of Trust, the Note, and all other Loan Documents were executed in accordance with
the requirements of law and, if Grantor or any signatory who signs on its behalf is a corporation, limited
liability company, partnership or trust, in accordance with any requirements of its articles of incorporation,
bylaws, operating agreement, articles of partnership, partnership certificate or agreement or declaration of
trust, and any amendments thereto;
(c) The execution of this Deed of Trust, the Note, and all other Loan Documents, and the full and
complete performance of the provisions thereof, are authorized by its articles of incorporation, bylaws,
operating agreement, articles of partnership, partnership certificate or agreement or declaration of trust, or a
resolution of its board of directors, member, partners or trustees if Grantor or any signatory who signs on its
behalf is a corporation, limited liability company, partnership or trust, and will not result in any breach of, or
constitute a default under, or result in the creation of any lien, charge or encumbrance (other than those
contained in any of the Loan Documents) upon any property or assets of Grantor under any indenture,
mortgage, deed of trust, bank loan or credit agreement or other instrument or agreement to which Grantor is
a party or by which Grantor or any of the Mortgaged Property is bound or, if applicable, under Grantor's
articles of incorporation, bylaws, operating agreement, articles of partnership, partnership certificate or
agreement or declaration of trust;
(d) Any and all balance sheets, statements of income or loss and financial data of any other kind
heretofore furnished Lender by or on behalf of Grantor are true and correct in all material respects, have been
prepared in accordance with generally accepted accounting principles consistently applied and fully and
accurately present the financial condition of the subjects thereof as of the dates thereof and no material
adverse change has occurred in the financial condition reflected therein since the date of the most recent
thereof,
(e) There are no actions, suits or proceedings of a material nature pending or, to the knowledge of
Grantor, threatened against or affecting Grantor, any guarantor of any of the Secured Obligations or the
Mortgaged Property, or involving the validity or enforceability of this Deed of Trust or the priority of the
lien and security interest created hereby, and no event has occurred (including specifically Grantor's
execution of the Loan Documents and its consummation of the transaction evidenced thereby) which will
violate, be in conflict with, result in the breach of or constitute (with due notice or lapse of time or both) a
default under any statute, regulation, rule, order or limitation, or any mortgage, deed of trust, lease, contract,
bylaws, article of incorporation, operating agreement, article of partnership, partnership certificate or
agreement, declaration of trust or other agreement or document to which Grantor is a party or by which
Grantor may be bound or affected, or result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever on the Mortgaged Property other than the liens and security interests created by, or
otherwise permitted by, the Loan Documents;
(f) Prior to commencement of any renovation, remodeling, or construction on the Land Grantor has,
or will have, (i) received all requisite building permits and approvals to plans and specifications, (ii) filed
and/or recorded all requisite subdivision maps, plats and other instruments and (iii) without limiting the
generality of the foregoing, complied with all requirements of law;
(g) The use and occupancy of the Mortgaged Property comply in full with all requirements of law;
no portion of any Improvements is over areas subject to easements; neither the zoning nor any other right to
use any of the Improvements is to any extent dependent upon or related to any real estate other than the
Land; all approvals, licenses, permits, certifications, filings and other actions normally accepted as proof of
compliance with requirements of law by prudent lending institutions that make investments secured by real
estate in the general area of the Land, to the extent available as of the date hereof, have been duly made,
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issued, or taken; and to the extent such approvals, licenses, permits, certifications, filings and other actions
are not available as of the date hereof(i) the governmental authority charged with making, issuing or taking
them is under a legal duty to do so, or (ii) Grantor is entitled to have them made, issued or taken as the
ministerial act of said governmental authority;
(h) All streets, easements, utilities and related services necessary for the operation of the Mortgaged
Property for its intended purpose are available to the Land, including potable water, storm and sanitary
sewer, gas, electric and telephone facilities and garbage removal;
(i) Each Loan Document constitutes a legal and binding obligation of, and is valid and enforceable
against, Grantor, all other persons obligated to Lender thereunder (if any) and the Mortgaged Property in
accordance with the terms thereof and is not subject to any defenses or setoffs; and
Q) The Land is taxed separately without regard to any other property, so that for all purposes the
Land may be mortgaged, conveyed and otherwise dealt with as a separate lot or parcel.
ARTICLE FOUR
MAINTENANCE, ALTERATIONS AND ADDITIONS
4.1. Maintenance of Mortgaged Property, Compliance with Laws. Grantor covenants and agrees to
permit, commit or suffer no waste and to maintain the Improvements at all times in a state of good repair and
condition; to comply with, or cause to be complied with, all statutes, ordinances and requirements of any
governmental or other authority relating to the Mortgaged Property; and to do or permit to be done to the
Mortgaged Property nothing that will alter or change the use and character of the Mortgaged Property or in
any way impair or weaken the security of this Deed of Trust. In case of the refusal, neglect or inability of
Grantor to repair and maintain the Mortgaged Property or any part thereof, Lender may, at its option, make
such repairs or cause the same to be made, and advance monies in that behalf.
4.2.Alterations and Additions. No Improvements or other property now or hereafter covered by the
lien of this Deed of Trust shall be removed, demolished or altered without the prior written consent of
Lender, and no addition to or structural changes will be made on the Improvements without the prior written
approval of Lender. No fixtures or other property will be installed on the Mortgaged Property subject to
vendor's lien or other lien, and should any such fixtures or other property be hereafter installed the lien of
this Deed of Trust shall immediately attach and be prior and superior to liens or claims of others thereon.
ARTICLE FIVE
TRANSFERS, ENCUMBRANCES AND LIENS
5.1. Sale or Transfer of Mortgaged Property. No assignment (by operation of law or otherwise),
sale, transfer, mortgage, conveyance or lease of the Mortgaged Property or any part thereof or any right, title
or interest therein (including, without limitation, any oil, gas or other mineral interest) shall be made or
contracted for without first obtaining the prior written consent of Lender. If Grantor is a corporation, any
merger, dissolution or consolidation pursuant to which the Mortgaged Property or any part thereof or interest
therein vests in any successor in interest to Grantor (or any entity other than Grantor herein named) shall be
deemed an assignment for purposes hereof.
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5.2. Claims Against Mortgaged Property. Grantor will pay, from time to time when the same shall
become due, all claims and demands of mechanics, materialmen, laborers and others which, if unpaid, might
result in, or permit the creation of, a lien on the Mortgaged Property or any part thereof, or on the revenues,
rents, issues, income and profits arising therefrom, whether paramount or subordinate to this Deed of Trust,
and in general will do or cause to be done everything necessary so that the first lien of this Deed of Trust
shall be fully preserved, at the cost of Grantor, without expense to Lender.
5.3. Subrogation. Lender at its option shall be subrogated for further security to the lien of any prior
encumbrance, mechanics' or vendor's lien on the Mortgaged Property paid out of the proceeds of the loan
hereby secured, even though the same be released of record.
ARTICLE SIX
TAXES AND PUBLIC CHARGES
6.1. Taxes and Public Charges. Grantor, from time to time when the same shall become due and
payable, will pay and discharge all taxes of every kind and nature (including real and personal property taxes
and income, franchise, withholding, profits and gross receipts taxes), all general and special assessments,
levies, permit, inspection and license fees, all water and sewer rents and charges, and all other public
charges, whether of a like or different nature, imposed upon or assessed against Grantor or the Mortgaged
Property or any part thereof or upon the revenues, rents, issues, income and profits of the Mortgaged
Property, or arising in respect of the occupancy, use or possession thereof. Grantor will, immediately upon
the payment of any of the foregoing, deliver to Lender receipts evidencing the payment of all such taxes,
assessments, levies, fees and other public charges imposed or assessed against Grantor or the Mortgaged
Property or the revenues, rents, issues, income or profits thereof.
ARTICLE SEVEN
INSURANCE AND CASUALTY
7.1. Casualty Insurance. Grantor will keep the Mortgaged Property insured as may be required from
time to time by Lender against loss by fire, windstorm and other hazards, casualties and contingencies which
are covered by what is commonly referred to as "all-risk" insurance, and such other contingencies and types
of casualty as Lender may require. Unless otherwise specified by Lender, all insurance required hereunder
shall be for 100% of the full replacement cost of the Mortgaged Property. Each policy of casualty insurance
shall (a) have affixed thereto a standard Lender clause, making all loss or losses under such policy payable to
Lender as its interest may appear, (b) provide that any loss shall be payable in accordance with the terms of
such policy notwithstanding any act or negligence of Grantor which might otherwise result in forfeiture of
said insurance, (c) contain a waiver by the insurer of all rights of setoff, counterclaim or deduction against
Lender, (d) include an agreed amount endorsement and a replacement cost endorsement, and (e) include a
broad form boiler and machinery endorsement if any fired pressure vessels or piping or machinery of 10 or
more horsepower is located on the Land.
7.2. Flood Insurance. If the Land is in an area identified as a flood hazard area by the Secretary of
Housing and Urban Development or the U.S. Army Corps of Engineers or any other similar entity, Grantor
shall maintain such flood insurance as may be required by Lender. Unless otherwise specified by Lender,
Grantor shall maintain flood insurance for 100% of the full replacement cost of the Mortgaged Property.
Each policy of flood insurance shall (a) have affixed thereto a standard Lender clause, making all loss or
losses under such policy payable to Lender as its interest may appear, (b) provide that any loss shall be
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payable in accordance with the terms of such policy notwithstanding any act or negligence of Grantor which
might otherwise result in forfeiture of said insurance, and (c) contain a waiver by the insurer of all rights of
setoff, counterclaim or deduction against Lender.
7.3. Public Liability Insurance. Grantor shall maintain such comprehensive general public liability
insurance as may be required by Lender. Unless otherwise specified by Lender, such public liability
insurance shall be in the minimum amount of$1,000,000.00 combined single limit coverage. Each policy of
public liability insurance shall (a) name Lender as an additional named insured, (b) provide coverage on an
"occurrence" basis rather than a "claims-made" basis, and (c) include coverage for bodily injury and
property damage, personal injury, medical payments, supplementary payments, advertising injury,
contractual liability and liability for property damage to non-owned and hired vehicles.
7.4. Other Insurance. Grantor shall maintain such worker's compensation insurance as is required by
law from time to time. Upon request by Lender, Grantor shall also maintain such rental and business
interruption coverage and such other types of insurance, in such forms, with such companies and with such
limits and deductible amounts, as Lender may require.
7.5. Evidence of Insurance. Grantor shall deliver and keep in Lender's possession at all times
originals of all insurance policies required hereunder and shall deliver renewals of all such policies to Lender
at least ten (10) days prior to any expiration or termination thereof. All insurance maintained by Grantor
pursuant to the terms hereof shall be in such forms and with such companies as Lender may require. In the
event that renewals of policies, correctly written, in approved companies and of such kinds and types and for
such term and amounts as Lender may require, are not delivered to Lender ten (10) days or more before the
termination or expiration of the existing policy or policies, Grantor authorizes Lender to act for it and
procure at Grantor's expense the necessary insurance coverage and agrees to keep insurance so written in
force until its expiration date.
7.6. Insurers and Cancellation. All insurance maintained pursuant to the terms of this Deed of Trust
shall be issued by insurers of recognized responsibility, which are qualified to do business in the State. Each
such policy of insurance shall provide that it shall not be cancelled or terminated for any reason or modified
or amended in any manner so as to reduce the scope or amount of coverage or the deductible amount except
upon thirty(30) days' prior written notice to Lender.
7.7. Casualty. In event of any casualty, Grantor will give immediate notice by mail to Lender, and
will commence proof of loss with the casualty insurer. Lender reserves the right to direct and approve all
proof of loss and claims procedures. If proof of loss is not made promptly by Grantor, Lender is authorized
by Grantor to do so. Each insurance company concerned is hereby authorized and directed to make payment
for such loss directly to Lender and not to Grantor and Lender jointly, and the insurance proceeds, or any
part thereof, may be applied by Lender, except as otherwise provided in the other Loan Documents, at its
option either to the reduction of the Secured Obligations (such reductions applicable to such portions of the
Secured Obligations, and in such order, as Lender may elect), whether matured or unmatured, or to the
restoration or repair of the damaged Mortgaged Property. Grantor covenants and agrees to commence
promptly the restoration and repair of such damaged Mortgaged Property to as nearly as possible the same
condition as existed prior to such casualty and to prosecute diligently such restoration and repair to
completion. Grantor will submit plans for such restoration and repair to Lender for Lender's written approval
prior to the commencement of such restoration and repair.
7.8. Rights to Insurance After Foreclosure. In the event of foreclosure of this Deed of Trust, or
other transfer of title in full or partial satisfaction of the Secured Obligations or any part thereof, all right,
title and interest of Grantor in and to any insurance policies then in force, and any proceeds thereof, shall
pass to the purchaser or transferee, and Grantor shall not be entitled to unearned premiums.
ARTICLE EIGHT .
CONDEMNATION
8.1. Condemnation. If all or any part of the Mortgaged Property hereunder be taken or damaged by
the exercise of the power of eminent domain, Grantor may contest the same in good faith so long as there is
no Default hereunder, or under the Note or any of the other Loan Documents, but the award for any property
so taken is hereby assigned to Lender, and Lender, upon such award becoming final, is hereby authorized, in
the name of Grantor, to execute and deliver acquittances for, and release of, any such award and to collect
and apply the proceeds to the payment of the Secured Obligations (such application to be to such portions of
the Secured Obligations, and in such order, as Lender may elect), whether matured or unmatured, and the
remainder, if any, shall be paid to such party or parties as may be legally entitled thereto. In the event of a
partial condemnation, Grantor covenants and agrees to commence promptly the restoration and repair of the
remaining Mortgaged Property to as nearly as possible the same condition as existed prior to such taking,
and to prosecute diligently such restoration and repair to completion. Grantor will submit plans for such
restoration and repair to Lender for Lender's written approval prior to the commencement of such restoration
and repair.
ARTICLE NINE
INTENTIONALLY OMITTED
ARTICLE TEN
INTENTIONALLY OMITTED
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.1. Events of Default Any of the following shall constitute an"Event of Default" hereunder:
(a) Grantor shall fail to pay the Note or any of the other Secured Obligations or the interest thereon
as and when the same become due and payable, or shall fail to pay any other sums, amounts, charges, costs
and expenses when the same become due and payable by Grantor as provided for herein, in the Note or in
any of the other Loan Documents;
(b) Any representation or warranty of Grantor contained herein or in any of the other Loan
Documents is false or fails to remain a true representation or warranty;
(c) Grantor defaults in the performance of, or as respects, any of the terms, provisions, covenants,
conditions and requirements imposed upon it herein, in the Note or in any of the other Loan Documents;
(d) Grantor shall (i) consent to the appointment of a receiver, trustee or liquidator of all or a
substantial part of Grantor's assets, or(ii)become bankrupt or insolvent, or file any debtor proceeding or file
in any court pursuant to any law either of the United States or of any state, a petition in bankruptcy,
8
insolvency or for reorganization, or (iii) make a general assignment for the benefit of creditors, or (iv) file a
petition or answer seeking reorganization or arrangement with creditors or to take advantage of any
insolvency law, or (v) file an answer admitting the material allegations of a petition filed against the Grantor
in any bankruptcy, reorganization or insolvency proceedings, or (vi) take any action for the purpose of
effecting any of the foregoing, or (vii) generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay debts generally;
(e) Any order,judgment or decree shall be entered upon an application of a creditor of Grantor by a
court of competent jurisdiction approving a petition seeking appointment of a receiver or trustee of all or a
substantial part of the Grantor's assets and such order, judgment or decree shall continue unstayed and in
effect for a period of thirty (30) consecutive days;
(f) Any assignment (by operation of law or otherwise), sale, transfer, mortgage, conveyance or lease
of the Mortgaged Property or any part thereof or any right, title or interest therein (including, without
limitation, any oil, gas or other mineral interest) is made or contracted for without the prior written consent
of Lender; if Grantor is a corporation, any merger, dissolution or consolidation pursuant to which the
Mortgaged Property or any part thereof or interest therein vests in any successor in interest to Grantor (or
any entity other than Grantor herein named) shall be deemed an assignment for purposes hereof; or
(g) All or any substantial portion (as determined by Lender in its sole discretion) of the Mortgaged
Property is damaged by fire or other casualty or is subject to any taking by exercise of the power of eminent
domain.
11.2. Remedies Upon Default. At any time after either an Event of Default has occurred or in the
Event of Nonappropriation by the City Council in a given year, the whole of the Secured Obligations shall
become due at Lender's option forthwith or thereafter at the continuing option of Lender, and this Deed of
Trust shall remain in force, and Lender may exercise any right, power or remedy permitted to it by law or by
contract, and in particular, without limiting the generality of the foregoing, Lender shall have the absolute
right, at its option and election, to pursue one or more of the following rights:
(a) Lender shall be entitled thereupon or thereafter without notice or demand, to the extent permitted
by the laws of the State, (i) to institute suit at law or in equity to enforce the rights of the Lender, and (ii) to
enforce, at Lender's continuing option, payment of all sums secured hereby by action at law or by suit in
equity to foreclose this Deed of Trust, either or both, concurrently or otherwise; and one action or suit shall
not abate or be a bar to or waiver of Lender's right to institute or maintain the other, provided said Lender
shall have only one payment and satisfaction of the Secured Obligations;
(b) Lender shall have the right from time to time to take action to recover any of the Secured
Obligations, as the same become due, without regard to whether or not any of the other Secured Obligations
shall be due, and without prejudice to the right of Lender thereafter to bring an action of foreclosure, or any
other action, with respect to any Event of Default or Event of Nonappropriation existing at the time such
earlier action was commenced; or
(c) Trustee may proceed to sell the Mortgaged Property and any and every part thereof, at public
vendue, to the highest bidder, at the customary place in the county in which the Land is located, for cash,
fust giving the public notice required by law of the time, terms and place of sale, and of the property to be
sold; and upon such sale shall 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 nonpayment of
money hereby secured to be paid, existence of the Secured Obligations, notice of advertisement, sale, receipt
9
of money, and the happening of any of the events whereby any successor trustee became successor as herein
provided, shall be prima facie evidence of the truth of such statement or recital; and Trustee shall receive the
proceeds of such sale, out of which Trustee shall pay: first, the cost and expenses of executing this trust,
including attorneys' fees, title examination fees, mailing charges, recording fees, and compensation to
Trustee for his services; and next to Lender or its endorsees or assignees, upon the usual vouchers therefor,
all monies paid pursuant to or under any provisions set forth herein, in the Note or in any of the other Loan
Documents; and next to the payment of the Secured Obligations, in such order as Lender may elect; and the
balance of such proceeds, if any, shall be paid to the person or persons legally entitled thereto; and Trustee
covenants faithfully to perform the trust herein created. Until a sale shall be held hereunder, Trustee hereby
lets the Mortgaged Property to Grantor, upon the following terms and conditions, to-wit: Grantor, and every
and all persons claiming or possessing the Mortgaged Property, or any part thereof, by, through, or under
Grantor shall or will pay rent therefor during said term at the rate of one cent per month, payable monthly
upon demand and shall and will surrender peaceable possession of the Mortgaged Property, and any and
every part thereof, to Trustee, its successors, assignees, or purchasers thereof, without notice or demand
therefor, upon the occurrence of any Event of Default or Event of Nonappropriation.
11.3. Right of Lender to Credit Sale. Upon any sale or sales made hereunder, whether made under
the power of sale herein granted or under or by virtue of judicial proceedings or of a judgment or decree of
foreclosure and sale, Lender may bid for and acquire the Mortgaged Property or any part thereof and, in lieu
of paying cash therefor, may make settlement for the purchase price by crediting upon the Secured
Obligations the net sales price after deducting therefrom the expenses of sale and the cost of the action and
any other sums which Lender is authorized to deduct under this Deed of Trust, and, in such event, this Deed
of Trust and the Note or other evidence of Secured Obligations may be presented to the persons or person
conducting the sale in order that the amount so used or applied may be credited upon the Secured
Obligations as having been paid.
11.4. Multiple Foreclosures. Lender shall have the option to proceed with foreclosure or sale under
the power of sale contained in this Deed of Trust in satisfaction of any part of the Secured Obligations
without declaring the whole of the Secured Obligations as immediately matured, and such foreclosure or sale
may be made subject to the unmatured part of the Secured Obligations, and it is agreed that such foreclosure
or sale, if so made, shall not in any manner affect the unmatured part of the Secured Obligations, but as to
such unmatured part, this Deed of Trust, as well as the other Loan Documents, shall remain in full force and
effect just as though no foreclosure or sale had been made. Several foreclosures or sales may be made
without exhausting the right of foreclosures or power of sale for any unmatured part of the Secured
Obligations, it being the purpose to provide for a foreclosure or sale under this Deed of Trust for any
matured portion of the Secured Obligations without exhausting the power of foreclosure or power of sale
respecting the balance of the Mortgaged Property for any other part of the Secured Obligations.
11.5. Entry by Lender. During the continuance of any Event of Default or Event of
Nonappropriation, Lender personally, or by its agents or attorneys may enter into and upon and take
possession of all or any part of the Mortgaged Property, and each and every part thereof, and may exclude
Grantor, its agents and servants wholly therefrom and, having and holding the same, may use, occupy and
control the Mortgaged Property or any part thereof, either personally or by its superintendents, managers,
agents, servants, attorneys or receivers; and upon every such entry, Lender, at the expense of, at Lender's
option, the Mortgaged Property or Grantor, from time to time, either by purchase, repairs or construction,
may maintain and restore the Mortgaged Property, whereof it shall become possessed as aforesaid; and
likewise, from time to time, at the expense of, at Lender's option, the Mortgaged Property or Grantor, Lender
may make all necessary or proper repairs, renewals, and replacements and such useful alterations, additions,
betterments and improvements thereto and thereon as may seem advisable to Lender; and in every such case
10
Lender shall have the right to manage and operate the Mortgaged Property or any part thereof and exercise
all rights and powers of Grantor with respect thereto either in the name of Grantor or otherwise as it shall
deem best; and Lender shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and
income of the Mortgaged Property and every part thereof, and after deducting the expenses of conducting the
business thereof and of all maintenance, repairs, renewals, replacements, alterations, betterments and
improvements and amounts necessary to pay for taxes, assessments, insurance and prior or other proper
charges upon the Mortgaged Property, or any part thereof, as well as just and reasonable compensation for
the services of Lender and for all attorneys, counsel, agents, clerks, servants and other employees by it
properly engaged and employed, Lender shall apply the monies arising as aforesaid, first, to the payment of
the principal of the Note and the interest thereon, when and as the same shall become payable and, second, to
the payment of any other sums required to be paid by Grantor under this Deed of Trust or the other Loan
Documents.
11.6. Appointment of Receiver. Upon any Event of Default or Event of Nonappropriation, Lender
shall be entitled without notice to Grantor to apply at any time to a court having jurisdiction thereof for the
appointment of a receiver of the Mortgaged Property or any part thereof and of all rents, incomes, profits,
issues and revenues thereof, from whatever source derived; and thereupon it is hereby expressly covenanted
and agreed that the court shall forthwith appoint such receiver with the usual powers and duties of receivers
in like cases; and said appointment shall be made by the court ex parte as a matter of strict right to Lender,
and without reference to the adequacy or inadequacy of the value of the Mortgaged Property, or to the
solvency or insolvency of Grantor or any party defendant to such suit. Grantor hereby specifically waives the
right to object to the appointment of a receiver as aforesaid and hereby expressly consents that such
appointment shall be made ex parte and without notice to Grantor as an admitted equity and as a matter of
absolute right to Lender. In order to maintain and preserve the Mortgaged Property and to prevent waste and
impairment of its security, Lender may, at its option, advance monies to the appointed receiver and all such
sums advanced shall become secured obligations under this Deed of Trust and shall bear interest from the
date of such advance at the delinquent rate specified in the Note or, if no delinquent rate is specified, then at
the Note rate.
11.7. Remedies Cumulative. No remedy conferred upon or reserved to Lender herein, or in the Note
or any of the other Loan Documents is intended to be exclusive of any other remedy or remedies, and each
and every such remedy shall be cumulative and shall be in addition to every remedy given to Lender or now
or hereafter existing at law or in equity or by statute. No delay or omission by Lender in the exercise of any
right or power accruing upon any Event of Default or Event of Nonappropriation shall impair any such right
or power, or shall be construed to be a waiver of any such Event of Default or Event of Nonappropriation or
any acquiescence therein; and every power and remedy given in this Deed of Trust, or in the Note or any of
the other Loan Documents, to Lender may be exercised from time to time as often as may be deemed
expedient by Lender. Nothing in this Deed of Trust or in the Note or in any of the other Loan Documents
shall affect the obligation of Grantor to pay the Secured Obligations in the manner and at the time and place
therein respectively expressed. In the event of foreclosure Grantor shall be fully liable for any deficiency.
11.8.No Waiver. Any failure by Lender to insist upon the strict performance by Grantor of any of the
terms and provisions of this Deed of Trust, the Note or the other Loan Documents shall not be deemed to be
a waiver of any of the terms and provisions hereof or of the Note or the other Loan Documents, and Lender,
notwithstanding any such failure, shall have the right thereafter to insist upon the strict performance by
Grantor of any and all of the terms and provisions of this Deed of Trust or of the Note or the other Loan
Documents to be performed by Grantor; and Lender may resort for the payment of the Secured Obligations
to the Mortgaged Property or to any other security therefor held by Lender in such order and manner as
Lender may elect.
11
11.9. Attornment by Tenant In the event the Mortgaged Property or any part thereof is hereafter
occupied by a tenant under a lease, and in the event of any foreclosure hereunder, such tenant shall, at the
option of the purchaser of the Mortgaged Property, either (a) immediately surrender possession of the
Mortgaged Property to such purchaser or (b) agree to attom to and to execute an agreement reasonably
satisfactory to such purchaser, which agreement shall recognize such purchaser as the landlord under such
lease.
11.10. Waiver of Redemption and Other Rights. To the extent permitted by the laws of the State,
Grantor will not at any time (a) insist upon, or plead, or in any manner whatever claim or take any benefit or
advantage of, any stay or extension or moratorium law, any exemption from execution or sale of the
Mortgaged Property or any part thereof, wherever enacted, now or at any time hereafter in force, which may
affect the covenants and terms of performance of this Deed of Trust, nor (b) claim, take or insist upon any
benefit or advantage of any law now or hereafter in force providing for the valuation or appraisal of the
Mortgaged Property, or any part thereof, prior to any sale or sales thereof which may be made pursuant to
any provision herein, or pursuant to the decree,judgment or order of any court of competent jurisdiction, nor
(c) after any such sale or sales, claim or exercise any right under any statute heretofore or hereafter enacted,
by any governmental authority or otherwise, to redeem the property so sold or any part thereof. Grantor, to
the extent permitted by the laws of the State, hereby expressly waives all benefit or advantage of any such
law or laws, and covenants not to hinder, delay or impede the execution of any power herein granted or
delegated to Lender, but to suffer and permit the execution of every power as though no such law or laws had
been made or enacted. Grantor, for itself and all who claim under it, waives, to the extent permitted by the
laws of the State, all right to have the Mortgaged Property, or any other assets which secure the indebtedness
hereby secured, marshaled upon any foreclosure hereof.
11.11. Successor Trustee. Lender may, from time to time, remove the Trustee and substitute another
trustee in place of the Trustee herein named. Upon such appointment, and without conveyance to the
successor trustee, the latter shall be vested with all the titles, estates, rights, powers and trusts conferred upon
the Trustee herein named. Such appointment shall be made by written instrument executed by Lender which
shall be recorded among the public records in the county where the Land is located, and shall be conclusive
proof of the proper appointment of the successor trustee.
ARTICLE TWELVE
MISCELLANEOUS
12.1. Protection of Lender's Security. Lender may, at its option, and without waiving its right to
accelerate the Secured Obligations or any part thereof and to foreclose the same, pay either before or after
delinquency any or all of those obligations required by the terms hereof to be paid by Grantor for the
protection of the Deed of Trust security or for the collection of any of the Secured Obligations if not paid by
Grantor not later than ten (10) days prior to the due date thereof. All sums so advanced or paid by Lender
shall become Secured Obligations and shall bear interest from the date thereof at the delinquent rate
specified in the Note (or if no delinquent rate is specified, then at the Note rate in effect from time to time),
and become an integral part thereof, subject in all respects to the terms, conditions and covenants of the Note
and this Deed of Trust, excepting, however, that said sums shall be repaid to Lender within ten (10) days
after demand by Lender to Grantor for said payment.
12.2. Costs and Expenses. Grantor agrees to pay all fees and charges incurred in the procuring and
making of this Deed of Trust or in the perfection of the lien and security interest hereof, including without
12
limitation: fees and expenses relating to the examination of title to the Mortgaged Property; title insurance
premiums, costs and expenses; surveys; mortgage recording, documentary, transfer, mortgage registration or
similar fees or taxes; revenue stamps; architects', engineers' and other similar fees; and attorneys' fees.
Grantor further agrees to pay all and singular the costs, charges and expenses, including attorneys' fees and
title examination fees, reasonably incurred or paid at any time by Lender because of the failure of Grantor to
perform, comply with, and abide by each and every of the agreements, conditions and covenants of the Note,
this Deed of Trust, or any other document.
12.3. Successors and Assigns. All of the grants, covenants, terms, provisions and conditions herein
shall run with the Mortgaged Property, and shall, subject to the provisions of Section 5.1, apply to and bind
the heirs, successors and assigns of Grantor and shall inure to the benefit of the heirs, successors and assigns
of Lender.
12.4. Funds for and Proof of Payment of Taxes and Insurance. If required by Lender, Grantor will
pay to Lender, on the first day of each and every consecutive month, a sum equal to one-twelfth of the
annual amount necessary to pay all taxes and assessments against the Mortgaged Property, said monthly sum
to be estimated solely by Lender and calculated to be an amount not less than the amount of taxes and
assessments assessed against the Mortgaged Property for the previous year, and if further required by
Lender, to pay all insurance premiums in manner and form as provided herein for the payment of taxes and
assessments. Except as otherwise required by applicable law, no interest will be paid upon any sum held by
Lender pursuant to the terms hereof. If Lender elects not to collect such fund for payment of taxes and
insurance as aforesaid, Grantor will deliver to Lender, prior to the date upon which any taxes or insurance
premiums respecting the Mortgaged Property are due, proof satisfactory to Lender evidencing payment of
such amounts. Lender shall have the right, at any time, to require Grantor to commence payment to the
aforesaid fund regardless of any prior waiver by Lender of such requirement.
12.5. Grantor's Certificate. Grantor will, within ten (10) days after the request of Lender, furnish a
written statement of the amount owing on the Secured Obligations and therein state whether or not Grantor
claims any defenses or offsets thereto. Such statement shall also include such other certifications as Lender
may require.
12.6. Taxation Affecting Debts. In the event of the passage of any federal, state or other law, order,
Wile or regulation which in any manner changes or modifies the laws now in force governing the taxation of
debts secured by mortgages or deeds of trust, or the manner of collecting taxes, so as to affect Lender
adversely, Grantor will promptly pay any such tax; if Grantor fails to do so, or if any such law, order, Wile or
regulation prohibits Grantor from making such payment, or would penalize Lender if Grantor makes such
payment, then the entire balance of the Secured Obligations, shall, without notice, immediately become due
and payable at the option of Lender.
12.7. Notices. All notices, approvals, waivers, consents, demands, requests and declarations
(hereafter called "notices") given or required to be given by either party hereto to the other party shall be in
writing. Except as otherwise provided by applicable law: (1) all notices by Lender to Grantor shall be
deemed to have been properly given if delivered in person or if sent by United States registered or certified
mail, postage prepaid, addressed to Grantor at the address listed hereinabove, or to such other address as
Grantor may from time to time designate by written notice to Lender given as herein required; (2) all notices
by Grantor to Lender shall be deemed to have been properly given if sent by United States registered or
certified mail, postage prepaid, addressed to Lender at the address listed hereinabove, or to such other
address as Lender may from time to time designate by written notice to Grantor given by Lender or its
assigns, as herein required; and (3) notices given in the manner aforesaid shall be deemed sufficiently served
13
or given for all purposes under this Deed of Trust, the Note and the other Loan Documents at the time such
notice is personally delivered or when deposited as aforesaid in any post office or branch post office
regularly maintained by the United States Government.
12.8. Corrections and Future Acts. Grantor will, upon request of Lender, promptly correct any
defect, error, or omission which may be discovered in the contents of this Deed of Trust or in the execution
or acknowledgment hereof, and will execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be reasonably requested by Lender to carry out more effectively
the purposes of this Deed of Trust, to subject to the lien and security interest hereby created any of Grantor's
properties, rights or interest covered or intended to be covered hereby, and to perfect and maintain such lien
and security interest.
12.9. Indemnification. Lender and Trustee shall be indemnified, held harmless, and reimbursed by
Grantor for any liability, damage or expense, including attorneys' fees and amounts paid in settlement, which
either may incur or sustain in the execution of this Deed of Trust or in the doing of any act which either is
required or permitted to do by the terms hereof or by law, and shall be reimbursed therefor in accordance
with the provisions of Section 12.1.
12.10. Governing Law. This Deed of Trust shall be construed according to Missouri law, without
reference to the conflicts of laws principles thereof.
12.11. Severability. If any provision or clause of this Deed of Trust shall be held or deemed to be or
shall, in fact, be inoperative, invalid or unenforceable as applied in any particular case or in all cases because
it conflicts with any provisions of any constitution or statute or rule of public policy, or for any other reason,
such determination shall not affect in any way any other provision or clause herein which can be given effect
without the inoperative, invalid or unenforceable provision or clause.
12.12. Amendments. No alteration or amendment of this Deed of Trust shall be effective unless in
writing signed by the parties sought to be charged or bound thereby.
12.13. After Acquired Property. All right, title and interest of Grantor in and to all improvements,
betterments, renewals, substitutes and replacements of and all additions and appurtenances to, the Mortgaged
Property hereafter acquired, constructed, assembled or placed by Grantor on the Mortgaged Property, and all
conversions of the security constituted thereby, and any other or additional interest in or to the Mortgaged
Property hereafter acquired by Lender, immediately upon such acquisition, construction, assembly,
placement or conversion, as the case may be, and in each such case without any further mortgage, grant,
conveyance or assignment or other act of Grantor, shall become subject to the lien of this Deed of Trust as
fully and completely, and with the same effect, as though now owned by Grantor and specifically described
in the Granting Clause hereof.
12.15. Purchase Money Mortgage. This Mortgage secures an obligation incurred for the purchase of
the Land described on Exhibit A attached hereto.
ARTICLE THIRTEEN
ENVIRONMENTAL COVENANTS
13.1. Grantor's Warranties. Grantor hereby warrants and represents to Lender that: there has not
been, as of the date hereof, any "release" (as defined in CERCLA) or threat of a release of(a) any Hazardous
Substances, (b) petroleum, including without limitation, crude oil or any fraction thereof, or (c) natural gas
14
liquids, liquefied natural gas, or synthetic gas, on, upon or into the Land and, to Grantor's knowledge, there
has been no such release on, upon or into any real property adjoining or in the vicinity of the Land which
could have come to be located upon the Land or water or the groundwater thereon or thereunder; there are
not any underground storage tanks of any kind or character, whether empty or containing substances, of any
nature located within the Land; no part of the Mortgaged Property is or may be a "facility" (as defined in
CERCLA); and the Land and the use thereof is in compliance with all Environmental Laws. The
representations and warranties contained in this Section 13.1 shall, insofar as they relate to the Land, be
deemed to be continuing and shall remain true and correct in all material respects until the Secured
Obligations have been paid in full.
13.2. Notice of Hazardous Substances. Grantor agrees to provide Lender with copies of any
notifications of releases of oil or Hazardous Substances or of any environmental hazards or potential hazards
which are given by or on behalf of Grantor to any federal, state or local agencies or authorities or which are
received by Grantor from any federal, state or local agencies or authorities with respect to the Land. Such
copies shall be sent to Lender concurrently with their being mailed or delivered to the governmental agencies
or authorities or within ten (10) days after they are received by Grantor.
13.3. Notice of Chemical Disclosures. Grantor agrees to provide Lender with copies of all
emergency and hazardous chemical inventory forms (hereinafter"Environmental Notices") previously given,
as of the date hereof, to any federal, state or local governmental authority or agency as required pursuant to
the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.A. § § 11001 et seq., or any
other Environmental Laws, and to provide Lender with copies of all Environmental Notices subsequently
sent to any such governmental authority or agency as required pursuant to the Emergency Planning and
Community Right-to-Know Act of 1986 or any other Environmental Laws. Such copies of subsequent
Environmental Notices shall be sent to Lender concurrently with their being mailed to any such
governmental authority or agency.
13.4. Operation of Mortgaged Property. Grantor hereby covenants and agrees to comply with and
operate and at all times use, keep and maintain the Mortgaged Property and every part thereof(whether or
not such property constitutes a facility, as defined in CERCLA) in conformance with all Environmental
Laws. Without limiting the generality of the foregoing, Grantor will not use, generate, treat, store, dispose of
or otherwise introduce any Hazardous Substance into or on the Mortgaged Property or any part thereof nor
cause, suffer, allow or permit anyone else to do so except in accordance with Environmental Laws.
13.5. Indemnity. To the extent permitted by law, Grantor hereby covenants and agrees to indemnify,
protect and hold harmless Lender from and against any and all claims, demands, liabilities and costs,
including attorneys' fees, arising from (a) any release (as defined above) or threat of a release, actual or
alleged, of (i) any Hazardous Substances, (ii) petroleum, including without limitation, crude oil or any
fraction thereof, or (iii) natural gas liquids, liquefied natural gas, or synthetic gas, upon or about the Land or
respecting any products or materials previously, now or hereafter located upon, delivered to or in transit to or
from the Land, regardless of whether such release or threat of release or alleged release or threat of release
has occurred prior to the date hereof or hereafter occurs and regardless of whether such release occurs as the
result of the negligence or misconduct of Grantor or any third party or otherwise, or (b) any violation, actual
or alleged, of or any other liability under or in connection with any Environmental Laws relating to or
affecting the Land or any products or materials previously, now or hereafter located upon, delivered to or in
transit to or from the Land, regardless of whether such violation or alleged violation or other liability has
occurred or arisen prior to the date hereof or hereafter occurs or arises and regardless of whether such
violation or alleged violation or other liability occurs or arises as the result of the negligence of misconduct
of Grantor or any third party or otherwise. This indemnity shall survive any foreclosure of this Deed of Trust
15
as to any release or threat of release or any violation, alleged violation or other liability occurring or arising
prior to such foreclosure.
IN WITNESS WHEREOF, Grantor has executed this Deed of Trust the day and year first above written.
City of Cape Girardeau, Missouri
ame: J B. Knudtson
T' ayor
STATE OF MISSOURI )
) ss
COUNTY OF CAPE GIRARDEAU )
On this /$#k day of , 2009, before me, appeared Jay B. Knudtson, being
Mayor of the City of Cape Girardea , a Missouri municipal corporation, to me personally known, known to
me to be the person who executed this Deed of Trust on behalf of said corporation and acknowledged to me
that he executed the same for the purposes therein stated and acknowledged said instrument to be the free act
and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at my office
in Cape Girardeau, Missouri, the day and year first above written.
-a9y
,Np, Public
Y'P`!
GAYLE L CONRAD
=b��` �;= hyCom�SsronF�ires
•' November 19,2012
'•.
SEAL. Cape Girardeau County
' 90mmlumn#904"904
16
EXHIBIT A TO DEED OF TRUST
Legal Description for Property
Lot 2 of a Resubdivision of Lots 2 and 3 of New River Development Subdivision recorded December 4,
2008 in Plat Book 24 Page 83.
17
Will
Eaa� E CITY OF-'CAPE GIRARDEAU ._ w rcm E
'., vQMXcn
N.em Ct� uPE ewNOEwu.EOala2alr
IEIEVIONE ISTJI9M'E9!
June 30,2009
The Bank of Missouri
3427 William Street
Cape Girardeau,Missouri 63701
Re: Pmmissory Note dated June 30,2009(the"NoW)of the City of Cape Girardeau,Missouri
(the"CityD
Ladies and Gentlemen:
1 have acted as counsel to the City in connection with the issuance of the Note by the City and have
examined(a)the Note,(b)the Deed of Tnst dated June 30,2009(the"Deed of Trust"and,together with
the Note,the"Loan Documents'),(c)the Ordinance of the Board of Alderman of the City that,among other
things, authorizes the City to execute the Loan Documents, and(d)such other opinions, documents and
matters of law as 1 have deemed necessary in connection with the following opinions. Capitalized terms if
not defined herein have the meanings set out in the Loan Documents.
Based on the foregoing,I am of the following opinions:
I. The City is a political subdivision duty organized and existing under the laws of the State of
Missouri and has a substantial amount of one or more of the following sovereign powers:(a)the power to
tax,(b)the power of eminent domain,and(c)police power.
2. The City has the requisite power and authority to execute and deliver the Loan Documents
and to perform its obligations thereunder.
3. The Loan Documents have been duly authorized,approved and executed by and on behalf
of the City and are valid and binding obligations of the City enforceable in accordance with their respective
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
creditors'rights heretofore or hereafter enacted to the extent applicable.
4. The authorization, approval and execution of the Loan Documents and all other
proceedings of the City relating to the transactions contemplated thereby have been performed in
accordance with all open meeting laws,public bidding laws and all other applicable state and federal laws.
5. The indebtedness represented by the Loan Documents for any year does not exceed the
income and revenue of the City provided for such year plus any unencumbered balances from previous
years.
June 30,2009
Page 2
6. There is no proceeding pending or,to my knowledge,threatened in my coon or before my
governmental authority or arbitration board or tribunal that.if adversely determined,would adversely affect
the transactions contemplated by the Loan Documents or the interest of the City or its assigns in the land.
Very jtr/ruuly yours,
2Co f ty
• f
GOVERNMENTAL CERTIFICATE
-.rPfiNCIpeC� loan Dttte� Mewriw - Loen-Mo - -=Caen Ceu . A02"ount car _ _
-3-125,000:00 _ .0g=30-2009'01-01 x20.7 = 127974 -tE700/766' _ 7{ypg'
References In to boxes show bra br Leoer'e uta oNY end do not IIMt No applicali iry of tlua document to any particular ban ar giant.
An hem above cerard"•••••by been emitted due ts text length limitations.
Entity: Cm OF CAPE GIRARDEAU Leander: The Ben of MbeanW
401 INDEPENDENCE ST Witham Street Bruch
CAPE GIRARDEAU,MO 63702 3427 William Strep
Cape Gherdesu.MO 63701
L THE UNDERSIGNED.DO HEREBY CERTIFY THAT:
THE ENTITY'S MSTENCE. The Cameron,and correct name of the governmental Crary is CITY OF CAPE GIRARDEAU('Entity'). The Entry IS
a oovermn,mal Sniffy which is,and at all times shag be,duty organized,validly existing,and In good standing under and by Wnue of the laws
arm mgulatbma of the Stets of Missouri. The Entry has W hA Power and authority 10 own Its properties and to transact the Waieas and
amM1W In which it is presently engaged or presently preposu to engage. The Entity maotaia an office of 401 INDEPENDENCE ST,CAPE
GIRARDEAU, MO 63702. The Entity shag do all things gamester,of preserve and to keep in full force and effect Its emtsnce,rights arm
Privileges, and mail comply with an regulations, MISS.Ordbuirc&1,statutes,Orders and decrees Of this Entity and any other governmental or
qumpgovwnmamtal authority or aeon applicable to the Entity and the Entity's business ecWit is.
CERTIFICATES ADOPTED. At a meeting of the appropriate govem i g body of the Entity,duty caged and hem on Jus 30,2009, at which e
querun was present arm voting,or by other duty authorized action in fou of a meeting.the rcaoMora set forth In this Certificem were adopted.
OFFICIAL. The fmLowlng marred parson is an Official of CITY OF CAPE GIRARDEAU:
NAMES TIRES AUTHORIZED C IGNATURES
JAY B[NUDTSON MAYOR Y %:
ACTIONS AUTHOR®. The authorized person[wed Sot may enter Inro a amen,of any melba with Lander,and those agreements
will bind the Entity. Swifically.but wlihout limlatiom the authorized person ro authorized,empowered, and dimmed to do the bgowing hot
aro on behalf of the Entry:
Borrow Money. To borrow,as a cosig,or or otherwise,from arra to time from Lender.on such tensa as may be agreed upon between the
Entity and Lender.such San or sum,of moray m In his or her lodgment should be borrowed,without limitation.
Esparta Nobs. Ta execute anddeliver te Lender the yram6aory rote ce roue,or other evidenw of the Entity's credit accommodation,on
Lender's forms,at such rates of Irnerest and on such lemma ex may be agreed upon,evidencing the slap of money so borrowed or any of
nue Entity's Indebtedness to Lander, and also to exec= and deliver to Lender on or mom renewals, ,pension, modification,
refinancings eonsogdatione, or substitutions for one or mora of the miss, any portion of the roto, berry other evidence of credit
eccemmeatkrn.
Grad Security. To mortgage,pledge,transfer,endorse,hypothecate.or otherwise encumber and dalner to Lender any emnerty now or
hereafter belonging to the Entity or In which to Entity now or hereehe may here an intemS4 Including whhout 11mWton all of the 6dry's
real Property and all of the EntiMs personal Property (tangible or Intangible). as security, for the payment of any ban or credit
accommodations so Obtained,em/promissory mise an execute(inchming any amendments b or modification,renewals,and arenas,
of such promWnry rotes), or any other or further Indebtedness of the Entity to Lender at any time owing, however the same may be
evidenced. Such Property may be monoeg,d, Wedged, tanefere,ermorsed, hypothecated or encumbered at the time such ban are
obtained or such ihdabtadnesa is Incurred, or et any other time or times, and nay be either In addition ro or in Gu of any property
theretofore mortgaged,Wedged,transferred,edomed,hypothecated or encumhere.
Fmcuts Security Donmarme. To etecuts and deliver be Lender the tome of mortgage,dead of Ohne,pledge agreement,hypothecation
agreement, and otter Security agreements and financing eabments which Lender may ramdre and which shall evidence the forms mm
cwmhbn under and pursuant b which such gene and encumbrances.or any of them,els given;and also to execue and delver to Lender
Sty other written kaotvnam,any chattel paper,or arry other collatael,of Cry kid or raters,which LaMar may deem necessary w proper
In connection with or Pertaining to the giving of the fen and encumbamu.
Nagvtlefe Items. To draw, endorse, and Saloum with Lender all drafts. trade acceptances, promWory notes. or other evidences of
Indebtedness payable to or belonging w the Entity a In which the Entity may hew an Imme aL and either to receive cash far the coma or to
cause such proceeds to be credited to the Entry's account with Lender, or to cause such other disposition of the Proceeds derived
therefrom as he or she may deem advisable.
Further Am. In the case of linea of cmdl6 to designate additional or alternate bmWduals as being euthoiaed to request advances under
such Ones. end In e0 cases,to do and perform such other acts and things.to pay any and all fees end=am,and to execute end dander
such other documents and egreemants m tag Official nay In No or her d1scretbn deem reasonably neceseary or proper in Orden to Carty
into effect the pmvlclehe of two Cerdflcob.
ASSUMED BUSINESS NAMES. The Entity has filed or recorded til documents or ffinga required by law,relating to all assumed Nalness ranee
coed by the Entity. Excluding the name of the Entity,the following is a complete get of all eseamed busiess names under which the Emily does
business: Nee.
NOTICES TO LENDER. The Entity will promptly ratty,Lender In wi tog at Lender's address mown above lot such other addre»w as Lente
may designate from time to time)prior to any W chews in the Enthys name; ITN change in the Entity's assared"Inset name(S); (C)
change In the structure or the Entity, (D) change in the authorized signer{a); (E) change In the Entity's principal office address; OR charge b
the Entry's principal residence;or (Of change in arty other aspect of the Entity the directly or indkecty rehabs to any agreements between the
Entity and lender.
CERTIFICATION CONCERN G OFFICIALS AND CERTIFICATES. The Official name,bow is duty aiectsd,appointed,or employed by or for to
Entity. as the case may be,and oceuplea the position set opposite his ar her mopectiva name. This Certificate now,stands of record on the
boob of the Entity,Is in full force and effect and hes of been modified or revoked in any manner whomsoever.
CON INUI)G VALIDITY. Arty and an ace autlrorfse pursuant b this Ciomfcats and Portomed prior to the passage of this Camtbate am
hereby ratified and appmve. This Certificate Shall be continuing,shall mmab in hN twee and effect end Lender nay rely on it until written
notice of Its revocation mag haw been delivered to and received by Lander at Lenders address shown above far such addresses as Leader may
designm from time to tine). Arty such notice Shag not affect arty of rho Enaty'a agreements or C'Cmmpments in effect at the time ecce IS
• f
GOVERNMENTAL CERTIFICATE
Loan No: 127971 (Continued) Paye 2
pmn.
IN TESTIMONY WHEREOF.I have Ireaada 20 my hand and atom that 0a sigma sst opposite the nems Used above b ha a her•emmte
sipnahaa.
I haw mad aU the pmvubta of dds Carcfime.and I paaon•Dy and on behaR of the Emiry cmHy teat a9 stat oo,end mry wnatiom meds
o nm Catdf m a0 ttu std come Thu Oovs oo Cadf=o Is daad.has 30,2009.
CERTIRED TO AND ATTESTED BY:
x,GAYLE 0 (Bf—Sb'E CnVU, �m
ODURD
a]lE nav Ola�l pybp ab CbaapbbasyvtCgn�biVNaGmmeaaam Nes NMb bmvasmumvm FamYt. M.ebNMYtm Mpb GrpOvt qel pt
m 1®ab�tllfm N em fink.
u®iaul�.tlmO Y. Y.w.����aml60 uY�rr .m a�0�{m�
FEDERAL TAX CERTIFICATE
$125,000
City of Cape Girardeau,Missouri
Promissory Note dated June 30,2009
The undersigned, Mayor,acting on behalf of the City of Cape Girardeau,Missouri(the"City"),
and being charged with the responsibility for issuing the above-described Promissory Note payable to The
Bank of Missouri(the"Note'),hereby certifies pursuant to Treasury Regulation§ 1.148-2(b),as follows:
1. Meaning of Words and Terms. Words and phrases used herein generally shall have the
meanings assigned in § 148 of the Internal Revenue Code of 1986,as amended(the"Code")and in the
Treasury Regulations promulgated thereunder.
2. Authority and Propose for Note. The City is issuing and delivering the Note
simultaneously with the delivery of this Certificate,pursuant to the laws of the State of Missouri for the
purpose of financing the costs of acquiring and improving certain property located at the Northeast comer
of Broadway and Main streets in the City(the"Project').
3. Amount and Use of Note Proceeds. The proceeds of the Note($125,000)are expected
to be expended to pay,or to reimburse the City for the payment oi�costs of the Project, including the
costs of issuing the Note.
4. No Overissuance. The sale proceeds of the Note, together with expected investment
earnings thereon, and other moneys contributed by the City, do not exceed the expected cost of the
Project.
5. Project Completion. The City will pursue the completion of the Project and the
expenditure of the sale proceeds of the Note with due diligence. Completion of the Project is expected to
occur within three years. The City has entered into,or will enter into within six months after the date
hereof,binding contracts or commitments obligating the expenditure of at least 5%of the sale proceeds of
the Note. At least 85°A of the proceeds of the Note will be expended on the Project within 3 years after
the date hereof.
6. Reserve, Replacement and Pledged Funds. No reserve fund has been or will be
established for the Note. None of the proceeds of the Note will be used as a substitute for other funds that
were intended or earmarked to pay costs of the Project and that have been or will be used to acquire
higher yielding investments
7. Tax Covenants.
(a) The City covenants and agrees that(1)it will comply with all applicable provisions of the
Code, including Sections 103 and 141 through 150, necessary to maintain the exclusion from federal
gross income of the interest on the Note,and(2)it will not use or permit the use of any proceeds of the
Note or any other funds of the City,nor take or permit any other action,or fail to take any action,which
would adversely affect the mchrsion from federal gross income of the interest onthe Note. The City will
also adopt such other ordinances or resolutions and take such other actions as may be necessary to comply
with the Code and with other applicable future law,in order to ensure that the interest on the Note will
remain excluded from federal grass income,to the extent any such actions can be taken by the City.
r
(b) The City covenants and agrees that(1)it will use the proceeds of the Note as soon as
practicable and with all reasonable dispatch for the purposes for which the Note is being issued,and(2)it
will not invest or directly or indirectly use or permit the use of any proceeds of the Note or any other
funds of the City in any manner,or take or omit to take any action,that would cause the Note to be an
"arbitrage bond"within the meaning of Section 148(x)of the Code.
(c) The City covenants and agrees that it will pay or provide for the payment from time to
time of all rebamble arbitrage to the United States pursuant to Section 148(f) of the Code and the
Arbitrage Instructions attached hereto as Fshibit A This covenant shall survive payment in full or
defeasance of the Note. The Arbitrage Instructions may be amended or replaced if, in the opinion of
Bond Counsel nationally recognized on the subject of municipal bonds,such amendment or replacement
will not adversely affect the exclusion from federal gross income of the interest on the Note.
(d) The City covenants and agrees that it will not use any portion of the proceeds of the Note,
including any investment income eamed on such proceeds, directly or indirectly, (1)in a manner that
would rause the Note to be a"private activity bond"within the meaning of Section 141(a)of the Code,or
(2)to make or finance a loan to any person.
(e) The City makes the following representations in connection with the exception for small
governmental units from the arbitrage rebate requirements tinder Section 148(fx4)(D)of the Code:
(1) the City is a governmental unit ander Missouri law with general taxing powers;
(2) the Note is not a private activity bond as defined in Section 141 of the Code;
(3) 95 percent or more of the net proceeds of the Note are to be used for local
governmental activities of the City;
(4) the aggregate face amount of all tax-exempt bonds (other than private activity
bonds)issued by the City(and all subordinate entities thereof)during the calendar year in which
the Note are issued is not reasonably expected to exceed$5,000,000;and
(5) the City(including all subordinate entities thereof) will not issue in excess of
$5,000,000 of tax-exempt bonds(including Use Note but excluding private activity bonds)during
the calendar year in which the Note is issued without first obtaining an opinion of Bond Counsel
that the exclusion of the interest on the Note from federal gross income will not be adversely
affected thereby.
(f) The City hereby designates the Note as a"qualified tax-exempt obligation"as defined in
Section 265(b)(3)of the Code. In addition,the City hereby represents that:
(1) the aggregate face ammut of all tax-exempt obligations (other than private
activity bonds which are not"qualified 501(c)(3)bonds")which will be issued by the City(and
all subordinate entities thereof) during the calendar year in which the Note is issued is not
reasonably expected to exceed 530,000,000;and
(2) the City (including all subordinate entities thereof) will not issue an aggregate
principal amount of obligations designated by the City to be"qualified tax-exempt obligations"
during the calendar year in which the Note is issued, including the Note, in excess of
$30,000,000,without fim obtaining an opinion of Bond Counsel that the designation of the Note
as a"qualified tax-exempt obligation"will not be adversely affected
2
S. Investment of Proceeds and Arbitrage Rebate. The investments of proceeds of the
Note are subject to certain restricliom under the Code and the Treasury Regulations thereunder as
described in the Arbitrage Instructions attached hereto as Exhibit A. Based on the above certifications
made by the City,Bond Counsel has advised the City that the Note is exempt from the arbitrage rebate
requirements of Code§ 148(f),under the$5,000,000 exception ser forth in Code§ 148(f)(4)(D).
9. ERS Form 8038-G. The information contained in Pans B through VI of IRS
Form 8038-0 which was filed by the City with the Internal Revenue Service was supplied by the City,
and is true,complete and correct as of the date hereof.
10. Miscellaneous.
(a) Reasomble Expectauonr. To the best of my knowledge,information and belief,the facts
and estimates set forth in this Certificate are accurate and the expectations of the City ser forth herein are
reasonable.
(b) Expected Use. The City expects to use the Project for its governmental purposes ova the
term of the Note.
(e) Kedge Note. The City expects that(1)at least 85%of the sale proceeds of the Note will
be used to carry out the governmental purpose of the Note within three years aft=the date hereof,and(2)
not more than 50%of the proceeds of the Note will be invested in investments having a substantially
guaranteed yield for four years or more.
(d) No Other[sues. There are no other obligations of the City which(1) are being sold
within 15 days of the sale of the Note; (2)are being sold pursuant to the same plan of financing as the
Note; and (3) are expected to be paid from substantially the same source of funds (disregarding
guarantees from unrelated parties,such as bond insurance).
On the basis of the foregoing facts and estimates, the City does not expect the proceeds of the
Note to be used in a manner that would cause the Note to be an`arbitrage bond"within the meaning of
Code§ 148.
ED: lune 30,2009.
w�tMRDgaO
CITY OF CAPE GDtARDEAU,MISSOURI
m
tKg VNt0 rr eyor.
8 EAS'
A
Gaye L. Conn , ty Cler
-3-
EXHIBIT A
TO FEDERAL TAX CERTIFICATE
ARBITRAGE INSTRUCTIONS
$125,000
City of Cape Girardeau,Missouri
Promissory Note dated June 30,2009
These Arbitrage Instructions provide procedures for complying with § 148 of the Internal
Revenue Code of 1986,as amended(the"Code"), in order to preserve the exclusion from federal gess
income of the interest on the above-referenced Note(the"Note")payable to The Bank of Missouri.
1. Temporary PeriodsMeld Restriction. The sale proceeds of the Note and investment
earnings thereon may be invested without yield restriction for three years after the date of issue of the
Note(the"Issue Date'). If any unspent proceeds remain after three years,such amounts may continue to
be invested without yield restriction so long as the City computes and pays to the IRS all yield reduction
payments in accordance with Trus.Reg. § 1.148-5(c). These payments are required whether or not the
Note is exempt from the arbitrage rebate requirements of Code§ 148.
Any amounts not invested as described above shall be invested at a yield not greater than the
yield on the Note.
2. Opinion of Bond Counsel. These Arbitrage Instructions may be modified or amended in
whole or in pan upon receipt of an opinion of Bond Counsel to the effect that such modifications and
amendments will not adversely affect the exclusion from gross income of the interest on the Note.
A-1
Font 8038-G Informatlon Return for Tax-Exempt Governmental obligations
► Under Imw
emal Revna section SBkxn 149(6) ONa Na 15r5in2e
(Rev.November 2000) ►Sm separate ..n-
��4.a.�Sv� Corrtiort tl do lS4n ••:-••
jjMjjj
pica H vide t100.Q70.use Fam 8n3a-GC.
Reponuq AuLhodty If Amended Return check here► ❑
1 Issuerhem
s re 2 Issuers employer ills tifvaum wanner.
City of Cape Girardeau,MWouri 43: 6000593
9 Nunbe,and sren(a P.O.box tl mei is no de
wand a seed address) Romds kit 4 Repot rxanber
401 Independence Street 301
5 Car.town.Or Pas dace,smre,and LP code
6 Date Issue
Cape Girardeau,Missouri 63702 June 30,2009
7 Name of issue a CUSIP nuance,
Pnomhutory Note dated June 30,2009 WA
9 Name ard dub of dllcer or legal represMetwe wham tin IRS Itay catl fa more WwWrouw 10 Tdgi n,nvAe dd5m a"repesRaNe
W.Eric Cunningham,City AltomeY ( 573 )339-6324
Type of Issue Icheck applicable bor(es)and enter the issue rice)See Irabuctlons and attach schedule
11 ❑ Education . . . . . . . . . . . . . . 11
12 ❑ Health and hospital . . . . . . . . . . . . . . . . . . . . . . . . . 12
13 ❑ Transportation . . . . . . . . . . . . . . . . . . . . . 13
14 ❑ Public safely. . . . . . . . . . . . . 14
15 ❑ Envhonmert(Including sewage bands) . . . . . . . . . . . . . 15
16 ❑ Housing . . . . . . . . . . . . . . . . . . . . . . 16
17 ❑ Udraters. 17
16 ® Other.Desalba b. an
acgutrbtg d improving certain property in the City. . . . . 16 125,000
19If obligations are TANS or RANs,check box b- 11 If obligations we rs,check Dox ► ❑
20 Ifo are In the ram of a lease or Installment sale,check box . ► ❑
LjULLLj Desai no OIll atlon9.Complete for the entire issue for which this form Is beirat filed.
afoalrmurlrarae a�wPa (d m aW=7 aY
21 01101/2013 f 125,000 1 $ 125,000 1 32091 years 1 4.279737 %
INLYA Uses of Proceeds of Bond Issue(fructudbur underwriters'discolmt
22 Proceeds used for accrued Interest . . . . . . . . 22 0
23 Issue price of entire Issue(enter amount from line 21.cehunn(b)) . . . . 23 125,000
24 Proceeds used for lard Issuance costs gnaudl19 taderwriters'dHrnun0 24 a
25 Proceeds used for credit enhancement. . 25 0
26 Proceeds allocated to reasonably required reserve a replacement rad 26 0
27 proceeds used to currently refund prior issues . . . . . . . 27 0
28 Proceeds used to advance refuel prior issues . . . . . . . 29 1 0
29 Taal(add hares 24 trough 28). . . 29 0
30 Nonrefuncling proceeds of the Issue subtract Tote 29 from fine 23 and enter amount here , 30 125,000
Desai tion of Refunded Boards(Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the bads to be currently refanded . . . ► Years
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► Years
33 Freer the last date m which the refunded bonds will be called . . . . . . . . . . . ►
34 Enter rite date the refunded bonds were tsslred►
Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 35
36a Eno tie amoat d gross Mcwds FNL4ed a to be:9mW h a g wmv d mama.c . hew mmuoias) 36a
b Enter the final maturity date of the guaranteed imestme nt contract►
37 Pooled financings: a Proceeds of this see that ma to be Iliad a make nam to other goveranwnal[nits b7a
b If this issue is a loan made from the proceeds of amtber ax-exempt Issue,check box► ❑and enter the name of the
issues I. and the date of the Issue 11-
38
36 If the issuer has designated the issue under section 265(b)(3)(B)(B(IIg(small issuer exception),check box . . . ►
39 if the Issuer has elected to pay a penalty an lieu of arbitrage rebate.check box . . . . . . . . . . . . ► ❑
40 If the issuer has identified a hedge,check box0- El. . . . . . . . . . . . . . . . . . . . . . .
unaer Pc atlm d P.O,,,I Ordae Ind I Mit aamrav tae rano w ecu "tg vd,Nrls e,,e sean,vo.w m va E d^e W.W,
w rod. �TypWla
Sign ((
Here 009 Jay B.Knudtson Mayor
d Imam andaWd rvp¢ 'Tape a Print raanal
aIe
For Paperwork Reduellat Act No1Ke,sea page 2 of the Insaucticum cd.Pro.617735 Form 8038-G one..ht.aen
PROMISSORY NOTE
Borrower:
City of Cape Girardeau,Missouri
401 Independence St.
Cape Girardeau,MO 63702
Lender:
The Bank of Missouri
3427 William St.
Cape Girardeau,MO 63701
Principal Amount: $125,000.00 Date of Note: June 30,2009
PROMISE TO PAY. The City of Cape Girardeau,Missouri("Borrowed,promises to pay to The Bank of Missouri
("Leader"),or order, in lawful money of the United States of America,the amount of One Hundred Twenty-Five
Thousand and 00/100 Dollars($125,000.00),principal,with interest from date at the rate of Four and OnaQuarter
Percent (4.25%) per annum Said principal and interest shall be paid in installments of Ten Thousand Dollars
($10,000.00)per year(subject to annual appropriation by the City Council for the City of Cape Girardeau). The fust
such payment shall be made on January 1,2010,with additional payments due on the 1'day of January in the years
2011 and 2012. On the I'day of January 2013, all of the balance,plus unpaid interest, in the total amount of One
Hundred Twelve Thousand Three Hundred Fifteen and 73/100 Dollars($112,315.73)shall be due. If interest is oot
paid on any such due date,then it shall become as principal and bear the same rate of interest. The maker shall have
the right to prepay any installment without the written consent of the holder. In addition to the annual payment of . .
principal and interest,Borrower shall pay to Cape Girardeau Area Community Development Corporation on the same
date a total of One-Quarter of One Pement(0.25%)of the total principal amount Wen outstanding as a Continuing
Referral Fee. If the Continuing Referral Fee is not paid on any such due date,Wen it shall become as principal and
bear the same rate of interest. AB interest payable under this Note is computed using a 365/360 basis; that is, by
applying the ratio of the interest rate over a year of 360 days, multiplied by the outstanding principal balance,
multiplied by the actual number of days the principal balance is outstanding.
ADDITIONAL FEES. In addition to the payments of principal and interest, as a condition of receiving the loan
proceeds,Borrower shall pay to Cape Girardeau Area Community Development Corporation a total of One-Quarter of
One Percent(0.25%)of the total principal amount as an Initial Referral Fee,which amount is equal to Three Hundred
Twelve Dollars and 50/100($31250). Borrower also agrees,as a condition of receiving the loan proceeds,to pay all
other Closing Costs as invoiced by third-party providers, including but not limited to the costs of preparing this
document and the Deed of Trust. These fees and costs most be paid at the time of Closing,prior to delivery of the
principal amount from Lender to Borrower.
DEFAULT AND ACCELERATION. If default be made (i) in the payment of my installment when due
hereunder,or(H)in the performance of my of the covenants,conditions or agreements contained in the Deed of Trust
given to amore the payments hereof,then,or at any time thereafter during the continuance of such default,the legal
holder hereof may,without notice,declare the whole debt mediately due and payable.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower
does not pay, and Borrower will pay Lender the amounts incurred to collect this Note. This includes Lender's
reasonable attorneys' fees and legal expenses,whether or not there is a lawsuit,including reasonable attorneys' fees
and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or
injunction),appeals,and any anticipated post-judgment collection services. Borrower also will pay any court costs,in
addition to all other sums provided by law. This Note has been delivered to Lenda and accepted by Lender in the
State of Missouri. If there is a lawsuit, Borrowa agrees upon Lenda's request to submit to the jurisdiction of the
courts of Cape Girardeau County,the State of Missouri. This Note shall be governed by and construed in accordance
with the laws of the State of Missouri.
COLLATERAL. This note is secured by and subject to the terms of a Deed of Trust of even date executed by the
maks on property located at the Northeast comer of Broadway and Main streets in the City and County of Cape
Girardeau,Missouri,and the maturity of this Note is subject to acceleration as set forth in this Deed of Trust.
RENEWALS;WAIVERS. The undersigned Borrower,and all others who are or who shall become parties primarily
or secondarily liable on this Note,whether as endorsers,guarantors or otherwise,hereby waives demand,protest and
notice of nonpayment and agrees that the holder may grant one or more extensions of time by mutual note or
otherwise without notice and with or without new consideration,and the undersigned agrees that it will remain bound
as if no such extension had been rade. All such parties waive presentment,demand for payment,protest and notice
of nonpayment or dishonor and agree that failure of this holder to exercise any of its rights hereunder in any instance
shall not constitute a waiver thereof in that or any other instance. This Note is non-assumable by any successor to or
assigaee of Borrower without the prior approval in writing of the Lender. In the event Lender shall so approve such
assumption,the terms of this Note shall be binding upon Borrower's successors and assigns. The terms of this Note
shall inure to the benefit of Lender and its successors and assigns.
GENERALPROVISIONS. Notwithstanding eery provision of this Note to the contrary, the City's obligations
hereunder are subject to annual appropriation by the City Council. Lenda may delay or forgo enforcing any of its
rights or remedies under this Note without losing them Borrower and any other person who signs, guarantees or
endorses this Note, to the extent allowed by law, waive presentment, demand for payment, pretest and notice of
dishonor. Upon any change in the terms of this Note,and unless otherwise expressly stated in writing,no party who
sips this Note,whether as Borrowa, guarantor,accommodation party or endorser, shall be released from liability.
All such parties agree that Lenda may renew or extend (repeatedly and for any length of lime)this loan,or release
any party or guarantor or collateral; or impair. fail to realize upon or perfect Lender's security interest in the
collateral;and take any other action deemed necessary by Lender without the consent of or notice to anyone.
PRIOR TO SIGNING THIS NOTE,BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE BORROWER AGREES TO THE TERMS OF THIS NOTE AND ACKNOWLEDGES
RECEIPT OF A COMPLETED COPY OF THIS NOTE.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,EXTEND CREDIT OR TO FOREBEAR
FROM ENFORCING REPAYMENT OF A DEBIT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE TO PROTECT YOU(BORROWER)AND US(LENDER)FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH ISCOMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US MAY LATER AGREE IN
WRITING TO MODIFY IT.
0�4� 3�N •.
BORROWER: 4
City of Cape Cirardeeo,Missouri 1\Y � (SEAL)
��J •cs-tBNto 1* ATTEST
un
Gyle L. rad, City Clerk
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DEED OF TRUST
THIS DEED OF TRUST,is made and entered into June 30,2009,by the City of Cape
Girardeau, a Missouri municipal corporation, whose address is 401 Independence St., Cape
Girardeau, MO 63701, the "GRANTOR"; Eric E. Bob], of Cape Girardeau County, Missouri,
whose address is P.O. Box 1150, Cape Girardeau, MO 63702-1150, the "TRUSTEE"; for the
benefit of The Bank of Missouri, whose address is 3427 William St., Cape Girardeau, MO
63701,the"BENEFICIARY"or"GRANTEE"or"LENDER";
GRANTING CLAUSE:
Grantor, in consideration of the debt hereinafter mentioned and created, and the sum of
Ten Dollars(S 10.00)and other good and valuable considerations to it paid by Lender,the receipt
and sufficiency of which are hereby acknowledged, does by these presents GRANT, BARGAIN
AND SELL, CONVEY AND CONFIRM to Trustee the following described real estate situate, lying
and being in the County of Cape Girardeau and State of Missouri,to-wit:
Lot 2 of a Resubdivision of Lots 2 and 3 of New River Development Subdivision
recorded December 4,2008 in Plat Book 24 Page 83.
TOGETHER WITH all buildings, structures, and other improvements, including futures,
presently existing or hereinafter erected or attached, and all appurtenant easements, rights, rents and
profits.
SUBJECr TO the recorded plat thereof,and all easements,reservations and restrictions of record.
TO HAVE AND TO HOLD the Mortgaged Property unto Trustee in accordance with the
provisions contained herein.
NOW, THEREFORE, the condition of this Deed of Trust is such that if Grantor shall
well and truly pay and perform the Secured Obligations, and shall perform, comply with and
abide by each and every of the agreements,conditions and covenants contained and set forth in
this Deed of Trust,in the Note and in the other Loan Documents,then this Deed of Trust shall be
released,without warranty,at the request and cost of Grantor.
AND,Grantor does hereby covenant and agree as follows:
ARTICLE ONE
SECURED OBLIGATIONS
I.I. ObHgaatons Secured. This Deed of Trust is given to secure the payment and
performance of the following indebtedness and obligations(the"Secured Obligations', in such
order of priority as Lender may elect:
(1) Payment of an indebtedness in the principal sum of One Hundred Twenty-Five
Thousand and 00/100 Dollars ($125,000.00),with interest thereon,according to the terms of a
certain Promissory Note dated June 30, 2009, made by Grantor to the order of The Bank of
Missouri, and any and all extensions, modifications, substitutions, replacements or renewals
thereof (herein called the "Note"), and the performance and discharge of each and every
obligation of Grantor set forth in the Note;
(2) Payment to Lender of all other sums,with interest thereon,becoming due or payable
under the provisions hereof, and under the provisions of any and all other instruments,
agreements and documents evidencing, securing or otherwise relating to any of the obligations
secured by this Deed of Trust(such other instruments,agreements and documents,together with
the Note and this Deed of Trust,are sometimes hereinafter collectively referred to as the"Loan
Documents");
(3) Due,prompt and complete observance and performance of each and every obligation,
covenant and agreement of Grantor contained herein or in the Note or any of the other Loan
Docuraents;
(4) The payment of such additional stuns with interest thereon as may be hereafter
borrowed from Lender,its successors or assigns,by the then record owner or owners of the Land
when evidenced by another promissory note or notes, which by the terms thereof is or are
secured by this Deed of Trust;and
(5) The payment and performance of any and all other indebtedness, obligations and
liabilities of any kind, of Grantor to Lender, now or hereafter existing, absolute or contingent,
joint and/or several, due or not due, secured or unsecured, or direct or indirect, including
indebtedness, obligations and liabilities to Lender of Grantor as a member of any partnership,
syndicate, association or other group and whether incurred by Grantor as principal, surety,
endorser,guarantor,accommodation party or otherwise and any obligations which give rise to an
equitable remedy for breach of performance if such breach gives rise to an obligation by Grantor
to pay Lender, provided that the evidence of any such indebtedness, obligation or liability
contains a written provision that it is to be so secured by this Deed of Trust.
ARTICLE TWO
DEFINITIONS
2.1.Definitions of Words and Terns. In addition to words and terms defined elsewhere
herein, the following words and terms as used in this Deed of Trust shall have the following
meanings unless some other meaning is plainly indicated:
"Deed of Trust" means this Missouri Deed of Trust and Assignment of Rents (With
Security Agreement) from Grantor to Trustee for the benefit of Lender, as from time to time
amended and supplemented in accordance with the terms hereof
"Default" means an event or condition which constitutes, or with the giving of any
requisite notice or the passage of any requisite time or the occurrence of both would constitute,
an Event of Default.
"Event of Default"means any Event of Default as defined in Section I LI of this Deed
of Trust.
"Event of Nonappropriation" means that the City Council for the City of Cape
Girardeau fails to appropriate adequate funds in a given year to meet the obligations anticipated
under the Note.
"Hazardous Substances"means and includes all hazardous and toxic substances,wastes
or materials, any pollutants or contaminants (including, without limitation, asbestos and raw
materials which include hazardous constituents), or any other similar substances, or materials
which are included under or regulated by any now-existing or hereafter enacted or promulgated
local, state or federal law, statute, ordinance, rule or regulation pertaining to environmental
protection, regulation, contamination or clean-up, toxic waste, underground storage tanks and
hazardous substance or material handling,treatment,storage,use or disposal,including,without
limitation, the Comprehensive Environmental Response Compensation and Liability Act
("CERCLA"), the Resource Conservation and Recovery Act ("RCRA'), or state lien or state
superlien or environmental clean-up statutes, all as exist from time to time (all such laws,
statutes, ordinances, rules and regulations being referred to collectively as "Environmental
Laws").
"Land" means the real estate described in the Granting Clause and any increases or
additions to such real estate.
"Loan Documents"means collectively this Deed of Trust,the Note and any and all other
instruments,agreements and documents evidencing, securing or otherwise relating to any of the
Secured Obligations.
"Mortgaged Property"shall have the meaning set forth in the Granting Clause hereof.
"Lender"means The Bank of Missouri,and their heirs,successors,and assigns.
"Grantor"means the City of Cape Girardeau, a Missouri municipal corporation, and
its successors and assigns,and all other persons succeeding to the interest of the named Grantor
in the Mortgaged Property and any person becoming liable on the Note,this Deed of Trust or any
of the other Loan Documtents. -
"Note"means the note of Grantor described in Section 1.1 above, made payable to the
order of Lender, and any and all extensions, modifications, substitutions, replacements or
renewals thereof.
"Permitted Encumbrances" means the Permitted Encumbrances, if any, set forth on
Exhibit A hereto.
"Secured Obligations" means the indebtedness and obligations described and referred
to in Section l.l.
"State"means the State of Missouri.
Capitalized terms not expressly defined herein shall, unless the context requires
otherwise,have the meanings given to such terms under the Loan Documents.
2.2. Rules of Construction. Words of the masculine gender shall be deemed and
3
construed to include correlative words of the feminine and neuter genders. Unless the context
shall otherwise indicate, words importing the singular number shall include the plural and vice
versa, and words importing person shall include firms, partnerships, associations and
corporations,including public bodies,as well as natural persons.
"Herein,' "hereby," 'hereunder," "hereof," "hereto," "herein-before," "hereinafter' and
other equivalent words refer to this Deed of Trust and not solely to the particular article,section,
paragraph or subparagraph hereof in which such word is used.
Reference herein to a particular article or a particular section shall be construed to be a
reference to the specified article or section hereof unless the context or use clearly indicates
another or different meaning or intent.
Whenever an item or items are listed after the word "including," such listing is not
intended to be a listing that excludes items not listed.
The captions and headings in this Deed of Trust are for convenience only and in no way
define,limit or describe the scope or intent of any provisions or sections of this Deed of Trust.
ARTICLE THREE
GENERAL COVENANTS,REPRESENTATIONS,AND WARRANTIES
3.1.Payment and Performance Grantor covenants and agrees to pay and perform each
of the Secured Obligations and to perform, comply with and abide by each and every of the
agreements, conditions and covenants contained and set forth in this Deed of Trust,in the Note
and in each of the other Loan Documents.
3.2.Title to Mortgaged Property. Grantor covenants,agrees and warrants that it has good
and marketable fee simple title to the Mortgaged Property, free and clear of liens and
encumbrances,except for the.Permitted Encumbrances(if any), and that Grantor has good right
and lawful authority to mortgage and convey the same in the manner and form herein set forth.
3.3.Representations and Warranties. As a material inducement to Lender to enter into
the loan transaction evidenced by the Note,Grantor and each signatory who signs on its behalf
hereby unconditionally represent and warrant as follows:
(a) If Grantor or any signatory who signs on its behalf is a corporation,limited liability
company, partnership, or trust, it is a corporation duly incorporated and validly existing, or a
limited liability company,partnership,or trust duly organized and validly existing,and that it is
in good standing under the laws of the state of its incorporation or organization and duly
qualified to do business in the State, with requisite power and authority to (i) incur the
indebtedness evidenced by the Note;(il)execute this Deed of Trust,and(iii)enter into the other
Loan Documents,and that it is in good standing in the State;
(b) This Deed of Trust, the Note, and all other Loan Documents were executed in
accordance with the requirements of law and,if Grantor or any signatory who signs on its behalf
is a corporation, limited liability company, partnership or trust, in accordance with any
requirements of its articles of incorporation,bylaws,operating agreement,articles of partnership,
partnership certificate or agreement or declaration of trust,and any amendments thereto;
4
(c) The execution of this Deed of Trust,the Note,and all other Loan Documents,and the
full and complete performance of the provisions thereof, are authorized by its articles of
incorporation, bylaws, operating agreement, articles of partnership, partnership-certificate or
agreement or declaration of trust, or a resolution of its board of directors, member, partners or
trustees if Grantor or any signatory who signs on its behalf is a corporation, limited liability
company,partnership or trust, and will not result in any breach of,or constitute a default under,
or result in the creation of any lien,charge or encumbrance(other than those contained in any of
the Loan Documents) upon any property or assets of Grantor under any indenture, mortgage,
deed of trust,bank loan or credit agreement or other instrument or agreement to which Grantor is
a party or by which Grantor or any of the Mortgaged Property is bound or,if applicable,under
Grantor's articles of incorporation, bylaws, operating agreement, articles of partnership,
partnership ccrtificate.or agreement or declaration of trust;
(d) Any and all balance sheets, statements of income or loss and financial data of any
other kind heretofore furnished Lender by or on behalf of Grantor are true and correct in all
material respects, have been prepared in accordance with generally accepted accounting.
principles consistently applied and fully and accurately present the financial condition of the
subjects thereof as of the dales thereof and no material adverse change has occurred in the
financial condition reflected therein since the date of the most recent thereof.,
(e) There are no actions, suits or proceedings of a material nature pending or, to the
knowledge of Grantor, threatened against or affecting Grantor, any guarantor of any of the
Secured Obligations or the Mortgaged Property,or involving the validity or enforceability of this
Deed of Trust or the priority of the lien and security interest created hereby, and no event has
occurred (including specifically Grantor's execution of the Loan Documents and its
consummation of the transaction evidenced thereby)which will violate,be in conflict with,result
in the breach of or constitute (with due notice or lapse of time or both) a default under any
statute, regulation, rule, order or limitation, or any mortgage, deed of trust, lease, contract,
bylaws, article of incorporation, operating agreement, article of partnership, partnership
certificate or agreement,declaration of trust or other agreement or document to which Grantor is
a party or by which Grantor may be bound or affected,or result in the creation or imposition of
any lien,charge or encumbrance of any nature whatsoever on the Mortgaged Property other than
the liens and security interests created by,or otherwise permitted by,the Loan Documents;
(f)Prior to commencement of any renovation, remodeling, or construction on the Land
Grantor has, or will have, (i) received all requisite building permits and approvals to plans and
specifications, (u) filed and/or recorded all requisite subdivision maps, plats and other
instruments and (iii) without limiting the generality of the foregoing, complied with all
requirements of law;
(g) The use and occupancy of the Mortgaged Property comply in full with all
requirements of law;no portion of any Improvements is over areas subject to easements;neither
the zoning nor any other right to use any of the Improvements is to any extent dependent upon or
related to any real estate other than the Land; all approvals, licenses, permits, certifications,
filings and other actions nomrally accepted as proof of compliance with requirements of law by
prudent lending institutions that make investments secured by real estate in the general area of
5
the Land,to the extent available as of the date hereof,have been duly made,issued,or taken;and
to the extent such approvals, licenses, permits, certifications, Slings and other actions are not
available as of the date hereof(i) the governmental authority charged with making, issuing or
taking them is under a legal duty to do so,or(ii)Grantor is entitled to have them made,issued or
taken as the ministerial act of said governmental authority;
(h) All streets,easements,utilities and related services necessary for the operation of the
Mortgaged Property for its intended purpose ore available to the Laird, including potable water,
storm and sanitary sewer,gas,electric and telephone facilities and garbage removal;
(i) Each Loan Document constitutes a legal and binding obligation of, and is valid and
enforceable against, Grantor, all other persons obligated to Lender thereunder(if any) and the
Mortgaged Property in accordance with the terms thereof and is not subject to any defenses or
setoffs;and
0) The Land is taxed separately without regard to any other property, so that for all
purposes the Land may be mortgaged, conveyed and otherwise dealt with as a separate lot or
parcel.
ARTICLE FOUR
MAINTENANCE,ALTERATIONS AND ADDITIONS
4.1. Maintenance of Mortgaged Property; Compliance with Laws Grantor covenants
and agrees to Permit,commit or suffer no waste and to maintain the Improvements at all times in
a state of good repair and condition;to comply with, or cause to be complied with, all statutes,
ordinances and requirements of any governmental or other authority relating to the Mortgaged
Property; and to do or permit to be done to the Mortgaged Property nothing that will alter or
change the use and character of the Mortgaged Property or in any way impair or weaken the
security of this Deed of Trust. In case of the refusal,neglect or inability of Grantor to repair and
maintain the Mortgaged Property or any part thereof, Lender may, at its option, make such
repairs or cause the same to be made,and advance monies in that behalf.
4.2. Alterations and Additions. No Improvements or other property now or hereafter
covered by the lien of this Deed of Trust shall be removal, demolished or altered without the
prior written consent of Lender, and no addition to or structural changes will be made on the
Improvements without the prior written approval of Lender.No fixnnes or other property will be
installed on the Mortgaged Property subject to vendor's lien or other lien,and should any such
fixtures or other property be hereafter installed the lien of this Deed of Trust shall immediately
attach and be prior and superior to liens or claims of others thereon.
ARTICLE FIVE
TRANSFERS,ENCUMBRANCES AND LIENS
5.1. Sale or Transfer of Mortgaged Property. No assignment (by operation of law or
6
otherwise), sale, transfer,mortgage, conveyance or lease of the Mortgaged Property or any part
thereof or any right, title or interest therein (including, without limitation, any oil, gas or other
mineral interest)shall be made or contracted for without first obtaining the prior written consent
of Lender.if Grantor is a corporation,any merger,dissolution or consolidation pursuant to which
the Mortgaged Property or any part thereof or interest therein vests in any successor in interest to
Grantor (or any entity other than Grantor herein named) shall be deemed an assignment for
purposes hereof.
5.2. Claims Against Mortgaged Property. Grantor will pay, from time to time when the
same shall become due, all claims and demands of mechanics, materiahnen,laborers and others
which,if unpaid,might result in,or permit the creation of, a lien on the Mortgaged Property or
any part therco�or on the revenues,rents,issues, income and profits arising therefrom,whether
paramount or subordinate to this Deed of Trust, and in general will do or cause to be done
everything necessary so that the first lien of this Deed of Trust shall be fully preserved, at the
cost of Grantor,without expense to Lender.
5.3.Subrogation Lender at its option shall be subrogated for further security to the lien
of any prior enctunbrance, mechanics' or vendor's lien on the Mortgaged Property paid out of
the proceeds of the loan hereby secured,even though the same be released of record.
ARTICLE SIX
TAXES AND PUBLIC CHARGES
6.1. Taxes and Public Charges Grantor, from time to time when the same shall become
due and payable, will pay and discharge all taxes of every kind and nature (including real and
personal property taxes and inc6me,franchise, withholding,profits and gross receipts taxes),all
general and special assessments,levies,permit, inspection and license fees, all water and sewer
rents and charges, and all other public charges, whether of a like or different nature, imposed
upon or assessed against Grantor or the Mortgaged Property or any pari thereof or upon the
revenues,rents,issues,income and profits of the Mortgaged Property,or arising in respect of the
occupancy,use or possession thereat Grantor will,immediately upon the payment of any of the
foregoing, deliver to Lender receipts evidencing the payment of all such taxes, assessments,
levies, fees and other public charges imposed or assessed against Grantor or the Mortgaged
Property or the revenues,rents,issues,income or profits thereof -
ARTICLE SEVEN
INSURANCE AND CASUALTY
7.1. Casualty Insurance. Grantor will keep the Mortgaged Property insured as may be
required from time to time by Lender against loss by fire, windstorm and other hazards,
casualties and contingencies which are covered by what is commonly referred to as "all-risk"
insurance, and such other contingencies and types of casualty as Lender may require. Unless
otherwise specified by Lender, all insurance required hereunder shall be for 100% of the full
7
replacement cost of the Mortgaged Property. Each policy of casualty insurance shall (a) have
affixed thereto a standard Lender clause,making all loss or losses under such policy payable to
Lender as its interest may appear, (b)provide that any loss shall be payable in accordance with
the terms of such policy notwithstanding any act or negligence of Grantor which might otherwise
result in forfeiture of said insurance, (c)contain a waiver by the insurer of all rights of setoff,
counterclaim or deduction against Lender, (d) include an agreed amount endorsement and a
replacement cost endorsement,and(e)include a broad form boiler and machinery endorsement if
any fired pressure vessels or piping or machinery of 10 or more horsepower is located on the
Land.
7.2.Flood Insurance If the Land is in an area identified as a flood hazard area by the
Secretary of Housing and Urban Development or the U.S.Army Corps of Engineers or any other
similar entity,Grantor shall maintain such flood insurance as may be required by Lender.Unless
otherwise specified by Lender, Grantor shall maintain flood insurance for 100% of the full
replacement cost of the Mortgaged Property. Each policy of flood insurance shall (a) have
affixed thereto a standard Lender clause,malting all loss or losses under such policy payable to
. Lender as its interest may appear, (b)provide that any loss shall be payable in accordance with
the terms of such policy notwithstanding any act or negligence of Grantor which might otherwise
result in forfeiture of said insurance,and(c)contain a waiver by the insurer of all rights of setoff,
counterclaim or deduction against Lender.
7.3. Public Liability Insurance. Grantor shall maintain such comprehensive general
public liability insurance as may be required by Lender. Unless otherwise specified by Lender,
such public liability insurance shall be in the minimum amount of$1,000,000.00 combined
single limit coverage. Each policy of public liability insurance shall (a) name Lender as an
additional named insured,(b)provide coverage on an `occurrence"basis rather than a"claims-
made" basis, and (c) include coverage for bodily injury and property damage, personal injury,
medical payments,supplementary payments,advertising injury,contractual liability and liability
for property damage to non-owned and hired vehicles.
7A.Other Insurance Grantor shall maintain such worker's compensation insurance as is
required by law from time to time. Upon request by Lender, Grantor shall also maintain such
rental and business interruption coverage and such other types of insurance,in such forms,with
such companies and with such limits and deductible amounts,as Lender may require.
7.5.Evidence of Insurance. Grantor shall deliver and keep in Lender's possession at all
times originals of all insurance policies required hereunder and shall deliver renewals of all such
policies to Lender at least ten (10) days prior to any expiration or termination thereof. All
insurance maintained by Grantor pursuant to the terms hereof shall be in such forms and with
such companies as Lender may require. In the event that renewals of policies, correctly written,
in approved companies and of such kinds and types and for such term and amounts as Lender
may require, are not delivered to Lender ten (10) days or more before the termination or
expiration of the existing policy or policies,Grantor authorizes Lender to act for it and procure at
Grantor's expense the necessary insurance coverage and agrees to keep insurance so written in
force until its expiration date.
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7.6. Insurers and Cancellation. All insurance maintained pursuant to the terms of this
Deed of Trust shall be issued by insurers of recognized responsibility, which are qualified to do
business in the State.Each such policy of insurance shall provide that it shall not be cancelled or
terminated for any reason or modified or amended in any manner so as to reduce the scope or
amount of coverage or the deductible amount except upon thirty(30)days'prior written notice
to Lender.
7.7. Casuafty. In event of any casualty, Grantor will give immediate notice by mail to
Lender,and will commence proof of loss with the casualty insurer. Lender reserves the right to
direct and approve all proof of loss and claims procedures. If proof of loss is not made promptly
by Grantor, Lender is_authorized by Grantor to do so. Each insurance company concerned is
hereby authorized and directed to make payment for such loss directly to Lender and not to
Grantor and Lender jointly,and the insurance proceeds,or any pari thereof,may be applied by
Lender, except as otherwise provided in the other Loan Documents, at its option either to the
reduction of the Secured Obligations(such reductions applicable to such portions of the Secured
Obligations,and in such order, as lender may elect), whether matured or unmanned, or to the
restoration or repair of the damaged Mortgaged Property. Grantor covenants and agrees to
commence promptly the restoration and repair of such damaged Mortgaged Property to as nearly
as possible the same condition as existed prior to such casualty and to prosecute diligently such
restoration and repair to completion Grantor will submit plans for such restoration and repair to
Lender for Lender's written approval prior to the commencement of such restoration and repair.
7.8.Riglus to Insurance After Foreclosure. In the event of foreclosure of this Deed of
Trust,or other transfer of title in full or partial satisfaction of the Secured Obligations or any part
thereof all right, title and interest,of Grantor in and to any insurance policies then in force,and
any proceeds thereof,shall pass to the purchaser or transferee,and Grantor shall not be entitled
to unearned premiums.
ARTICLE EIGHT
CONDEMNATION
8.1. Condemnation. If all or any part of the Mortgaged Property hereunder be taken or
damaged by the exercise of the power of eminent domain,Grantor may contest the same in good
faith so long as there is no Default hereunder, or under the Note or any of the other Loan
Documents, but the award for any property so taken is hereby assigned to Lender, and Lender,
upon such award becoming final, is hereby authorized, in the name of Grantor, to execute and
deliver acquittances for,and release of,any such award and to collect and apply the proceeds to
the payment of the Secured Obligations(such application to be to such portions of the Secured
Obligations, and in such order, as Lender may elect), whether matured or unmatured, and the
remainder,if any,shall be paid to such party or parties as may be legally entitled thereto. In the
event of a partial condemnation, Grantor covenants and agrees to commence promptly the
restoration and repair of the remaining Mortgaged Property to as nearly as possible the same
condition as existed prior to such taking, and to prosecute diligently such restoration and repair
to completion. Grantor will submit plans for such restoration and repair to Lender for Lender's
written approval prior to the commencement of such restoration and repair.
9
ARTICLE NINE
INTENTIONALLY OMITTED
ARTICLE TEN
INTENTIONALLY OMITTED
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.1. Events of Default Any of the following shall constitute an "Event of Default"
hereunder.
(a) Grantor shall fail to pay the Note or any of the other Secured Obligations or the
interest thereon as and when the same become due and payable, or shall fail to pay any other
sums,amounts,charges,costs and expenses when the same become due and payable by Grantor
as provided for herein,in the Note or in any of the other Loan Documents;
(b) Any representation or warranty of Grantor contained herein or in any of the other
Loan Documents is false or fails to remain a true representation or warranty;
(c) Grantor defaults in the performance of, or as respects, any of the terms,provisions,
covenants,conditions and requirements imposed upon it herein,in the Note or in any of the other
Loan Documents;
(d) Grantor shall (i)consent to the appointment of a receiver,trustee or liquidator of all
or a substantial part of Grantor's assets,or(ii)become bankrupt or insolvent,or file any debtor
proceeding or file in any court pursuant to any law either of the United States or of any state,a
petition in bankruptcy, insolvency or for reorganization,or(iii) make a general assignment for
the benefit of creditors, or(iv) file a petition or answer seeking reorganization or arrangement
with creditors or to take advantage of any insolvency law, or(v) file an answer admitting the
material allegations of a petition filed against the Grantor in any bankruptcy, reorganization or
insolvency proceedings,or(vi)take any action for the purpose of effecting any of the foregoing,
or (vii) generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay debts generally,
(e) Any order,judgment or decree shall be entered upon an application of a creditor of
Grantor by a court of competent jurisdiction approving a petition seeking appointment of a
receiver or trustee of all or a substantial part of the Grantor's assets and such order,judgment or
decree shall continue urutayed and in effect for a period of thirty(30)consecutive days;
(f) Any assignment (by operation of law or otherwise), sale, transfer, mortgage,
conveyance or lease of the Mortgaged Property or any part thereof or any right, title or interest
10
therein(including,without limitation,any oil,gas or other mineral interest)is made or contracted
for without the prior written consent of Lender, if Grantor is a corporation, any merger,
dissolution or consolidation pursuant to which the Mortgaged Property or any part thereof or
interest therein vests in any successor in interest to Grantor(or any entity other than Grantor
herein named)shall be deemed an assignment for purposes hereof;or
(g) All or any substantial portion(as determined by lender in its sole discretion)of the
Mortgaged Properly is damaged by fire or other casualty or is subject to any taking by exorcise
of the power of eminent domain
11.2.Remedies Upon Default. At any time after either an Event of Default has occurred
or in the Event of Nonappropriation by the City Council in a given year, the whole of the
Secured Obligations shall become due at Lender's option forthwith or thereafter at the
continuing option of Lender, and this Deed of Trust shall remain in force, and Lender may
exercise any right, power or remedy permitted to it by law or by contract, and in particular,
without limiting the generality of the foregoing,Lender shall have the absolute right,at its option
and election,to pursue one or more of the following rights:
(a) Lender shall be entitled thereupon or thereafter without notice or demand, to the
extent permitted by the laws of the State, (i) to institute suit at law or in equity to enforce the -
rights of the Lender, and (ii) to enforce, at Lender's continuing option, payment of all sums
secured hereby by action at law or by suit in equity to foreclose this Deed of Trust, either or
both,concurrently or otherwise;and one action or suit shall not abate or be a bar to or waiver of
Lender's right to institute or maintain the other, provided said Lender shall have only one
payment and satisfaction of the Secured Obligations;
(b) Lender shall have the right from time to time to take action to recover any of the
Secured Obligations, as the same become due,without regard to whether or not any of the other
Secured Obligations shall be due,and without prejudice to the right of Lender thereafter to bring
an action of foreclosure, or any other action, with respect to any Event of Default or Event of
Nonappropriation existing at the time such earlier action was commenced;or
(c) Trustee may proceed to sell the Mortgaged Property and any and every part thereof
at public vendue,to the highest bidder,at the customary place in the county in which the Land is
located, for cash, first giving the public notice required by law of the time, terms and place of
sale, and of the property to be sold; and upon such sale shall 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 nonpayment of money hereby secured to be paid,
existence of the Secured Obligations, notice of advertisement, sale, receipt of money, and the
happening of any of the events whereby any successor trustee became successor as herein
provided,shall be prima facie evidence of the truth of such statement or recital;and Trustee shall
receive the proceeds of such sale,out of which Trustee shall pay: first,the cost and expenses of
executing this trust,including attorneys' fees,title examination fees,mailing charges, recording
fees, and compensation to Trustee for his services; and next to Lender or its endorsees or
assignees,upon the usual vouchers therefor,all monies paid pursuant to or under any provisions
set forth herein,in the Note or in any of the other Loan Documents;and next to the payment of
11
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the Secured Obligations,in such order as Lender may elect;and the balance of such proceeds, if
any, shall be paid to the person or persons legally entitled thereto; and Trustee covenants .
faithfully to perform the trust herein created.Until a sale shall be held hereunder,Trustee hereby
lets the Mortgaged Property to Grantor, upon the following terms and conditions, to-wit:
Grantor, and every and all persons claiming or possessing the Mortgaged Property, or any part
thereof;by, through, or under Grantor shall or will pay rent therefor during said term at the rate
of one cent per month, payable monthly upon demand and shall and will surrender peaceable
possession of the Mortgaged Property,and any and every part thereof;to Trustec,its successors,
assignees,or purchasers thereof,without notice or demand therefor,upon the occurrence of any
Event of Default or Event of Nonappropriation.
113.Right of Lender to Credit Sale. Upon any sale or sales made hereunder, whether
made under the power of sale herein granted or under or by virtue of judicial proceedings or of a
judgment or decree of foreclosure and sale, Lender may bid for and acquire the Mortgaged
Property or any part thereof and, in lieu of paying cash therefor, may make settlement for the
purchase price by crediting upon the Secured Obligations the net sales price after deducting
therefrom the expenses of sale and the cost of the action and any other sums which Lender is
authorized to deduct under this Deed of Trust, and, in such event, this Deed of Trust and the
Note or other evidence of Secured Obligations may be presented to the persons or person
conducting the sale in order that the amount so used or applied may be credited upon the Secured
Obligations as having been paid.
11.4.Multiple Foreclosures Lender shall have the option to proceed with foreclosure or
sale under the power of sale contained in this Deed of Trust in satisfaction of any part of the
Secured Obligations without declaring the whole of the Secured Obligations as immediately
matured,and such foreclosure or sale may be made subject to the unmatured pari of the Seared
Obligations, and it is agreed that such foreclosure or sale, if so made, shall not in any manner
affect the unmatured part of the Secured Obligations,but as to such unmanned part,this Deed of
Trost, as well as the other Loan Documents,shall remain in Doll force and effect just as though
no foreclosure or sale had been made. Several foreclosures or sales may be made without
exhausting the right of foreclosures or power of sale for any unmatured part of the Secured
Obligations,it being the purpose to provide for a foreclosure or sale under this Deed of Trust for
any matured portion of the Secured Obligations without exhausting the power of foreclosure or
power of sale respecting the balance of the Mortgaged Property for any other part of the Secured
Obligations.
115. Entry by Leader. During the continuance of any Event of Default or Event of
Nonappropriation, Lender personally,or by its agents or attorneys may enter into and upon and
take possession of all or nay part of the Mortgaged Property, and each and every part thereof,
and may exclude Grantor, its agents and servants wholly therefrom and,having and holding the
same,may use,occupy and control the Mortgaged Property or any part thereof,either personally
or by its superintendents,managers,agents,servants,attorneys or receivers;and upon every such
entry, Lender, at the expense of, at Lender's option, the Mortgaged Property or Grantor, from
time to time,either by purchase,repairs or construction,may maintain and restore the Mortgaged
Property,whereof it shall become possessed as aforesaid;and likewise, from time to time,at the
expense of, at Lender's option, the Mortgaged Property or Grantor, Lender may make all
12
necessary or proper repairs, renewals, and replacements and such useful alterations, additions,
betterments and improvements thereto and thereon as may seem advisable to Lender; and in
every such case Lendershall have the right to manage and operate the Mortgaged Property or
any part thereof and exercise all rights and powers of Grantor with respect thereto either in the
name of Grantor or otherwise as it shall deem best; and Lender shall be entitled to collect and
receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and
every part thereof,and after deducting the expenses of conducting the business thereof and of all
maintenance, repairs, renewals, replacements, alterations, betterments and improvements and
amounts necessary to pay for taxes, assessments, insurance and prior or other proper charges
upon the Mortgaged Property,or any part thereof, as well as just and reasonable compensation
for the services of Lender and for all attorneys, counsel, agents, clerks, servants and other
employees by it properly engaged and employed, Lender shall apply the monies arising as
aforesaid,first,to the payment of the principal of the Note and the interest thereon,when and as
the same shall become payable and,second,to the payment of any other sums required to be paid
by Grantor under this Deed of Trust or the other Loan Documents.
11.6. Appointment of Receiver. Upon any Event of Default or Event of
Nonappropriation, Lender shall be entitled without notice to Grantor to apply at any time to a
court having jurisdiction thereof for the appointment of a receiver of the Mortgaged Property or
any part thereof and of all rents, incomes, profits, issues and revenues thereof, from whatever
source derived; and thereupon it is hereby expressly covenanted and agreed that the court shall
forthwith appoint such receiver with the usual powers and duties of receivers in like cases; and
said appointment shall be made by the court ex pane as a matter of strict right to lender, and
without reference to the adequacy or inadequacy of the value of the Mortgaged Property,or to
the solvency or insolvency of Grantor or any party defendant to such suit. Grantor hereby
specifically waives the right to object to the appointment of a receiver as aforesaid and hereby
expressly consents that such appointment shall be made ex parte and without notice to Grantor as
an admitted equity and as a matter of absolute right to Lender.In order to maintain and preserve
the Mortgaged Property and to prevent waste and impairment of its security, Lender may, at its
option, advance monies to the appointed receiver and all such sums advanced shall become
secured obligations under this Deed of Trust and shall bear interest from the date of such
advance at the delinquent rate specified in the Note or,if no delinquent rate is specified,then at
the Note rate.
11.7.Remedies Cumulotiva No remedy conferred upon or reserved to Lender herein,or
in the Note or any of the other Loan Documents is intended to be exclusive of any other remedy
or remedies, and each and every such remedy shall be cumulative and shall be in addition to
every remedy given to Lender or now or hereafter existing at law or in equity or by statute.No
delay or omission by Lender in the exercise of any right or power accruing upon any Event of
Default or Event of Nonappropriation shall impair any such right or power,or shall be construed
to be a waiver of any such Event of Default or Event of Nonappropriation or any acquiescence
therein; and every power and remedy given in this Deed of Trust, or in the Note or any of the
other Loan Documents,to Lender may be exercised from time to time as often as may be deemed
expedient by Lender. Nothing in this Deed of Trust or in the Note or in any of the other Loan
Documeats shall affect the obligation of Grantor to pay the Secured Obligations in the manner
13
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and at the time and place therein respectively expressed.In the event of foreclosure Grantor shall
be fully liable for any deficiency.
11.8.No Waiver. Any failure by lender to insist upon the strict performance by Grantor
of any of the terms and provisions of this Deed of Trust, the Note or the other Loan Documents
shall not be deemed to be a waiver of any of the terms and provisions hereof or of the Note or the
other Loan Documents, and Lender, notwithstanding any such failure, shall have the right'
thereafter to insist upon the strict performance by Grantor of any and all of the terns and
provisions of this Deed of Trust or of the Note or the other Loan Documents to be performed by
Grantor, and Lender may resort for the payment of the Secured Obligations to the Mortgaged
Property or to any other security therefor held by Lender in such order and manner as Lender
may elect.
11.9.Anornmenr by Tenant In the event the Mortgaged Property or any part thereof is
hereafter occupied by a tenant under a lease,and in the event of any foreclosure hereunder,such
tenant"shall, at the option of the purchaser of the Mortgaged Property, either(a) immediately
surrender possession of the Mortgaged Property to such purchaser or(b)agree to attorn to and to
execute an agreement reasonably satisfactory to such purchaser,which agreement shall recognize
such purchaser as the landlord under such lease.
11.10. Waiver ofRedempdon and Other Rights To the extent permitted by the laws of
the State,Grantor will not at any time(a)insist upon,or plead,or in any[Wanner whatever claim
or take any benefit or advantage of, any stay or extension or moratorium law, any exemption
from execution or sale of the Mortgaged Property or any part thereof,wherever enacted,now or
at any time hereafter in force,which may affect the covenants and terms of performance of this
Deed of Trust, nor (b) claim, take or insist upon any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of the Mortgaged Property,or any part
thereof,prior to any sale or sales thereof which may be made pursuant to any provision herein,or
"pursuant to the decree,judgment or order of any court of competent jurisdiction,nor(c)after any
such sale or sales,claim or exercise any right under any statute heretofore or hereafter enacted,
by any governmental authority or otherwise,to redeem the property so sold or any part thereof
Grantor, to the extent permitted by the laws of the State,hereby expressly waives all benefit or
advantage of any such law or laws,and covermts not to hinder,delay or impede the execution of
any power herein granted or delegated to Lender,but to suffer and permit the execution of every
power as though no such law or laws had been made or enacted. Grantor, for itself and all who
claim under it, waives, to the extent permitted by the laws of the State, all right to have the
Mortgaged Property, or any other assets which secure the indebtedness hereby secured,
marshaled upon any foreclosure hereof."
11.11. Successor Trustee. Lender may, from time to time, remove the Trustee and
substitute another trustee in place of the Trustee herein named. Upon such appointment, and
without conveyance to the successor trustee,the latter shall be vested with all the titles, estates,
rights, powers and trusts conferred upon the Trustee herein named. Such appointment shall be
made by written instrument executed by Lender which shall be recorded among the public
records in the county where the Land is located, and shall be conclusive proof of the proper
appointment of the successor trustee.
14
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ARTICLE TWELVE
MISCELLANEOUS
12.1.Protection of Lender's Security. Lender may,at its option,and without waiving its
right to accelerate the Secured Obligations or any part thereof and to foreclose the same, pay
either before or after delinquency any or all of those obligations required by the terms hereof to
be paid by Grantor for the protection of the Deed of Trust security or for the collection of any of
the Secured Obligations if not paid by Grantor not later than ten(10)days prior to the due date
thereof. All sums so advanced or paid by Lender shall become Secured Obligations and shall
bear interest from the date thereof at the delinquent rate specified in the Note(or if no delinquent
rate is specified,then at the Note rate in effect from time to time), and become an integral part
thereof; subject in all respects to the terms,conditions and covenants of the Note and this Deed
of Trust,excepting,however,that said sums shall be repaid to Lender within ten(10)days after
demand by Lender to Grantor for said payment.
12.2. Costs and Expenses. Grantor agrees to pay.all fees and charges incurred in the
procuring and malting of this Deed of Trust or in the perfection of the lien and security interest
hereof,including without limitation: fees and expenses relating to the examination of title to the
Mortgaged Property,title insurance premiums,costs and expenses;surveys;mortgage recording,
documentary,transfer,mortgage registration or similar fees or taxes;revenue stamps;architects',
engineers' and other similar fees; and attorneys' fees. Grantor further agrees to pay all and
singular the costs, charges and expenses, including attorneys' fees and title examination fees,
reasonably incurred or paid at any time by Lender because of the failure of Grantor to perform, .
comply with, and abide by each and every of the agreements, conditions and covenants of the
Note,this Deed of Trust,or any other document.
12.3. Successors and Assigns All of the grants, covenants, terms, provisions and
conditions herein shall run with the Mortgaged Property, and shall, subject to the provisions of
Section 5.1, apply to and bind the heirs,successors and assigns of Grantor and shall inure to the
benefit of the heirs,successors and assigns of Lender.
12.4. Funds for and Proof of Payment of Taxes and Insurance. If required by Lender,
Grantor will pay to Lender,on the first day of each and every consecutive month,a sum equal to
one-twelfth of the annual amount necessary to pay all taxes.and assessments against the
Mortgaged Property,said monthly sun to be estimated solely by Lender and calculated to be an
amount not less than the amount of taxes and assessments assessed against the Mortgaged
Property for the previous year, and if further required by Lender,to pay all insurance premiums
in manner and form as provided herein for the payment of taxes and assessments. Except as
otherwise required by applicable law, no interest will be paid upon any sum held by Lender
pursuant to the terms hereof. If Lender elects not to collect such fund for payment of taxes and
insurance as aforesaid,Grantor will deliver to Lender,prior to the date upon which any taxes or
insurance premiums respecting the Mortgaged Property are due, proof satisfactory to Lander
evidencing payment of such amounts.Lender shall have the right,at any time,to require Grantor
to commence payment to the aforesaid fund regardless of any prior waiver by Leader of such
requirement.
15
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12.5.Grantor's Certificate Grantor will,within ten(10)days after the request of Lender,
ftunish a written statement of the amount owing on the Secured Obligations and therein state
whether or not Grantor claims any defenses or offsets thereto. Such statement shall also include
such other certifications as Lender may require.
12.6. Taxation Affecting Debts In the event of the passage of any federal,state or other
law, order, rule or regulation which in any manner.changes or modifies the laws now in force
governing the taxation of debts secured by mortgages or deeds of trust, or the manner of
collecting taxes, so as to affect Lender adversely, Grantor will promptly pay any such tax; if
Grantor fails to do so,or if any such law,order,rule or regulation prohibits Grantor from making
such payment,or would penalize Lender if Grantor makes such payment,then the entire balance
of the Secured Obligations, shall, without notice, immediately become due and payable at the
option of Lender.
12.7. Notices All notices, approvals, waivers, consents, demands, requests and
declarations (hereafter called"notices") given or required to be given by either party hereto to
the other party shall be in writing.Except as otherwise provided by applicable law:(1)all notices
by Lender to Grantoi shall be deemed to have been properly given if delivered in person or if
sent by United States registered or certified mail, postage prepaid, addressed to Grantor at the
address listed hereinabove,or to such other address as Grantor may from time to time designate
by written notice to Lender given as herein required;(2)all notices by Grantor to Lender shall be
deemed to have been properly given if sent by United States registered or certified mail,postage
prepaid,addressed to Lender at the address listed hereiaabove,or to such other address as Lender
may from time to time designate by written notice to Grantor given by Lender or its assigns,as
herein required; and (3) notices given in the manner aforesaid shall be deemed sufficiently
served or given for all purposes under this Deed of Trust, the Note and the other Loan
Documents at the time such notice is personally delivered or when deposited as aforesaid in any
post office or branch post office regularly maintained by the United States Government
12.8. Corrections and Future Acts Grantor will, upon request of Lender, promptly
correct any defect, error,or omission which may be discovered in the contents of this Deed of
Trust or in the execution or acknowledgment hereof,and will execute, acknowledge and deliver
such further instruments and do such further acts as may be necessary or as may be reasonably
requested by Lender to carry out more effectively the purposes of this Deed of Trust,to subject
to the lien and security interest hereby created any of Grantor's properties, rights or interest
covered or intended to be covered hereby, and to perfect and maintain such lien and security
interest.
12.9. Indemnification. LenderandTrustee shall be indemnified, held harmless, and
reimbursed by Grantor for any liability, damage or expense, including attorneys' fees and
amounts paid in settlement, which either may incur or sustain in the execution of this Deed of
Trust or in the doing of any act which either is required or permitted to do by the terms hereof or
by law,and shall be reimbursed therefor in accordance with the provisions of Section 12.1.
12.10.Governing Law. This Deed of Trust shall be construed according to Missouri law,
without reference to the conflicts of laws principles thereof.
16
}
12.11. Severability. If any provision or clause of this Deed of Trust shall be held or
deemed to be or shall, in fact, be inoperative, invalid or unenforceable as applied in any
particular case or in all cases because it conflicts with any provisions of any constitution or
statute or rule of public policy,or for any other reason,such determination shall not affect in any
way any other provision or clause herein which can be given effect without the inoperative,
invalid or unenforceable provision or clause.
12.12.Amendments No alteration or amendment of this Deed of Trust shall be effective
unless in writing signed by the parties sought to be charged or bound thereby.
12.13. AfterAcquired Property. All right, title and interest of Grantor in and to all
improvements, betterments, renewals, substitutes and replacements of and all additions and
appurtenances to, the Mortgaged Property hereafter acquired, constructed, assembled or placed
by Grantor on the Mortgaged Property, and all conversions of the security constituted thereby,
and any other or additional interest in or to the Mortgaged Property hereafter acquired by Lender,
immediately upon such acquisition,construction,assembly,placement or conversion,as the case
may be,and in each such case without any further mortgage,grant,conveyance or assignment or
other act of Grantor, shall become subject to the lien of this Deed of Trust as fully and
completely, and with the same effect, as though now owned by Grantor and specifically
described in the Granting Clause hereof.
12.15. Mortgage. This Mortgage secures an obligation incurred in connection with the
Land described in the Granting Clause.
ARTICLE THIRTEEN
ENVIRONMENTAL COVENANTS
13.1.Grantor's Warrantie.s Grantor hereby warrants and represents to Lender that: there
has not been,as of the date hereof,any"release"(as defined in CERCLA)or threat of a release
of(a) any Hazardous Substances, (b)petroleum, including without limitation, crude oil or any
fraction thereof,or(c)natural gas liquids,liquefied natural gas,or synthetic gas,on,upon or into
the Land and,to Grantor's knowledge,there has been no such release on, upon or into any real
property adjoining or in the vicinity of the Land which could have come to be located upon the
Land or water or the groundwater thereon or thereunder,there are not any underground storage
tanks of any kind or character, whether empty or containing substances, of any nature located
within the Land; no part of the Mortgaged Property is or may be a "facility' (as defined in
CERCLA); and the Land and the use thereof is in compliance with all Environmental Laws.The
representations and warranties contained in this Section 13.1 shall, insofar as they relate to the
Land,be deemed to be continuing and shall remain true and correct in all material respects until
the Secured Obligations have been paid in full.
13.2.Notice of Hazardous Substances Grantor agrees to provide Lender with copies of
any notifications of releases of oil or Hazardous Substances or of any environmental hazards or
potential hazards which are given by or on behalf of Grantor to any federal, state or local
agencies or authorities or which are received by Grantor from any federal,state or local agencies
17
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or authorities with respect to the Land. Such copies shall be sent to Lender concurrently with
their being mailed or delivered to the governmental agencies or authorities or within ten (10)
days after they are received by Grantor.
13.3.Notice of Chemical Disclosures. Grantor agrees to provide Lender with copies of
all emergency and hazardous chemical inventory forms (hereinafter "Environmental Notices')
previously given, as of the date hereof, to any federal, state or local governmental authority or
agency as required pursuant to the Emergency Planning and Community Right-to-Know Act of
1986,42 U.S.C.A. § § 11001 et seq.,or any other Environmental Laws, and to provide Lender
with copies of all Environmental Notices subsequently sent to any such governmental authority
or agency as required pursuant to the Emergency Planning and Community Right-to-Know Act
of 1986 or any other Environmental Laws. Such copies of subsequent Environmental Notices
shall be sent to Lender concurrently with their being mailed to any such governmental authority
or agency. -
13A.Operation ojMorrgaged property. Grantor hereby covenants and agrees to comply
with and operate and at all times use,keep and maintain the Mortgaged Property and every part
thereof (whether or not such property constitutes a facility, as defined in CERCLA) in
conformance with all Environmental Laws. Without limiting the generality of the foregoing,
Grantor will not use, generate, treat, store, dispose of or otherwise introduce any Hazardous
Substance into or on the Mortgaged Property or any part thereof nor cause, suffer, allow or
permit anyone else to do so except in accordance with Environmental Laws.
135.Indemnity. To the extent permitted by law,Grantor hereby covenants and agrees to
indemnify, protect and hold harmless Lender from and against any and all claims, demands,
liabilities and costs, including attorneys' fees, arising from(a)any release(as defined above)or
threat of a release, actual or alleged,of(i)any Hazardous Substances, (ii)petroleum, including
without limitation,crude oil or any fraction thereof,or(iii)natural gas liquids,liquefied natural
gas,or synthetic gas,upon or about the Land or respecting any products or materials previously,
now or hereafter located upon, delivered to or in transit to or from the Land, regardless of
whether such release or threat of release or alleged release or threat of release has occurred prior
to the date hereof or hereafter occurs and regardless of whether such release occurs as the result
of the negligence or misconduct of Grantor or any third party or otherwise,or(b)any violation,
actual or alleged,of or any other liability under or in connection with any Environmental Laws
relating to or affecting the Land or any products or materials previously,now or hereafter located
upon, delivered to or in transit to or from the Land, regardless of whether such violation or
alleged violation or other liability has occurred or arisen prior to the date hereof or hereafter
occurs or arises and regardless of whether such violation or alleged violation or other liability
occurs or arises as the result of the negligence of misconduct of Grantor or any third party or
otherwise.This indemnity shall survive any foreclosure of this Deed of Trust as to any release or
threat of release or any violation,alleged violation or other liability occurring or arising prior to
such foreclosure.
IB
IN WITNESS WHEREOF, Grantor has executed this Deed of Trust the day and year first
above written.
City of Cape Girardeau,Missouri
r //
JayB. /Knududtson
Title: Mayor
STATE OF MISSOURI )
as
COUNTY OF CAPE GIRARDEAU )
On this204 day of June, 2009, before me, appeared Jay B. Knudtson, being Mayor of
the City of Cape Girardeau,a Missouri municipal corporation,to me personally(mown,(mown
to me to be the person who executed this Deed of Trust on behalf of said corporation and
acknowledged to me that he executed the same for the purposes therein stated and acknowledged
said instrument to be the fiee act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
at my office in Cape Girardeau,Missouri,the day and year first above written.
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Gayle L. Conrad, Clerk..
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DISBURSEMENT REQUEST AND AUTHORIZATION
Princ'ryal. _--._` LoeN'D6E :;JNotitf3ty ` ':_Loan Nom Calpf Cog'--.. -'-.A.eDoi±Pt _QFfi_ce E.,
4126,000:00` '06 0-2009 01.01-2073 _ ,1Z7971`- -iElgeReferences in Ow borne above are for Larder's we onNand do not ghat Uta applicaG9N of thk docapem m any pertkubr loan or
Ares hem above mnalnl ••has been pmhted due m aq k IkNtntions.
00"w6r: CITY OF CAPE GIRARDEAU Lender: The Bank of Missouri
401 INDEPENDENCE ST William Straat armed
CAPE GIRARDEAU,MO 63702 3427 WM=gees[
Cap Girardeau,MO 63701
LOAN TYPE. This is e Feed Rate(4.260%)Nord'rsclosable Loan to a Government Entity,for$125.000.00 due on January 1,2013.
PRIMARY PURPOSE OF LOAN. The primary purpose of this ban Is for:
❑
Fontenot,FamOy,or Namshgd Pwpwaa or pe soros Imes[n m.
®Bro4wsa fl d dlrq Real Estate hrvwtrn.Q.
SPECIFIC PURPOSE. The apecifk purpose of mia ben Is: IMPROVE COMMERCIAL HEAL ESTATE.
FLOOD INSURANCE. The property mel wig secna the ben Is not located In an mea that has been Identified by the Director of the Federal
Emergency Management Agency as on ane having special flood hazards. Therefore,aRhough Rood inaumnos me,be svegebb for the property,
no special good hazard Insurance protecting property at located In an ares having special flood hazards 4 required by law for this loan at this
time.
DISBURSEMENT INSTRUCTIONS. Borrower undcreta da that=ban proceeds win be Gutw i ad ura an of lender's cordltlons for making the
loan have been Satisfied. Please dist use the ban proceeds of 0125,000.00 as follows:
Amount paid to Borrower d1mcV: 0122,866.25
0122,866.25 Lender's Check 0
Amount paid to othre an Borrower's b"r,. $812.50
0312.50 to CAPE GIRARDEAU AREA COMMUNITY
DEVELOPMENT CORPORATION
0500.00 no THE UMBAUGH FIRM
Omer Charges Flounced: 01,321.26
0760.00 Appraisal Fee
$514.25 Tela Insurance
067.00 Recording Fos: DT
Note Prbtdpl: $126,000.00
LIEN RELEASE FEES. In addition m all other charges,Borrow"&grew,to the•stem net pruNblted by law,to pay all governmental fees for
rebase of LaMar'.wcaity Imorreses In collaaral wcuring this ban. Bonower WT.I Pry Oros fans at the dos the lien or gena am released. The
estimated amwm of Naw future Ban rebase few Is$27.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION. BORROWER REPRESENTS AND WARRANTS TO LENDER THAT THE
INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND THAT THERE RAS SEEN NO MATERIAL ADVERSE CHANGE W BORROWER'S
FINANCIAL CONDITION AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS AUTHORIZATION IS
DATED JUNE 30,2009.
BORROWER:
Crr OF C U
By:
JAY NUDi60N, MAYOR a} CITY OF CAP
EAU
Page I of I
. a •
Cunningham, Eric
From: Kathleen W. Bertrand ikbertrand@bankofmissoud.com]
Sent: Tuesday, June 30, 2009 4:06 PM
To: sflynn@gilmorebell.com; Cunningham, Eric; Conrad, Gayle
Subject: Loan documents
Attachments: 0453_001.pdf
Attached are all of the documents pertaining to the loan to the city. I didn't know who wanted what, but this way at
least you can discard that which you do not need. Sean, I will send you the original form 8038-G. As far as I
recall, that is the only original item anyone needed.
If anyone has any questions, please do not hesitate to contact me. Thanks for everyone's help on this -especially
those late-comers!
Sean, do you need the original form 8038-G sent via overnight, or is mail o.k.?
2Catky Bertrand
2/-ie Bankof 9Kissouri
3427 r VCwm Street
Cape Girardeau, 9KO 63703
(573)335-3100
(573)986-7284 Tax.-
From: Br 8 Copier [mailto:br8dscopier@bankofmissouri.com]
Sent: Tuesday, June 30, 2009 2:57 PM
To: Kathleen W. Bertrand
Subject: Attached Image
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7/24/2009