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HomeMy WebLinkAboutRES.2129.12-05-2005 0 y4 BILL NO. 05-288 RESOLUTION NO. � 1v��1 � RESOLUTION AUTHORIZING THE CTTY OF CAPE � GIRARDEAU, NIISSOURI TO ENTER INTO CERTAIN TRANSACTIONS RELATING TO THE SALE OF THE CITY'S PUBLIC WORKS BUII,DING. WHEREAS, 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 and RZK, LLC (the "Purchaser")have entered into an Agreement for the Sale of Real Properiy (the "Sale Agreement")relating to property at 219 N. Kingshighway and 120 N. Broadview in the City(the"Property"),which encompasses those parcels formerly occupied by the City as its public works building;and WHEREAS, in lieu of paying cash for the Property,the Purchaser will execute a PromissoryNote (the "Purchaser Note") in favor of the City for the purchase price of the Property, which Note will be secured by a First Deed of Trust on the Property;and WHEREAS, the City Council finds and determines that it is desirable in connection with the acceptance of the Purcfiaser Note that the City take certain actions and approve the execution of certain documents as herein provided. NOW,THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE � GIItARDEAU,MISSOURI,A5 FOLLOWS: Section 1. Acceptance of Purchaser Note. The City hereby ratifies and confirms the Sale Agreement, attached as Exhibit A hereto. The City is authorized to accept the Purchaser Note in - substantially the form presented to and reviewed by the City Council at this meeting and attached to this Resolution as Eahibit B, and the First Deed of Trust in substantially the form presented to and reviewed by the City Council at this meeting and attached to this Resolution asEahibit C,with such cha.nges therein as shall be approved by the City Manager. Copies of such documents shall be filed in the records of the City. Section 2. Execution of Documents. The City Manager, 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, such documents, certificates and instruments as may be necessary csr desirable to carry out and comply with the intent of this Resolution. Section 3. Further Authority. The officers, agents and employees of the Ciy, including the City Manager 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 Resolution, and to carry out, comply with and perform the duties of the City with respect to the Purchaser Note, the First Deed of Trust and the Sale Agreement, and to make such alterations, changes or additions in the format and language in the foregoing documents without changing the effebor value thereof. Section 4. Severability. The provisions of this Resolution shall be deemed severable. If any provision of this Resolutron is found by a court of competent jurisdiction to be invalid, the remaining � provisions of this Resolution shall remain valid unless the court finds that the valid provisions are so � 4 essentially and inseparably connected with and so dependenX upon the invalid provision that it cannot be presumed that the parties hereto would have agreed to the valid provisions of this Resolution,or unless the � court finds the valid provisions, standing alone, are incomptete and incapable of being executed in accordance with the contcacting parries' intent. Section 5. Effective Date. This Resolution shal}take effect and be in full force from and after its final passage by the City Council. PASSED by the City Council of theCITY OF CAPE GIItARDEAU,MISSOURi,this 19th day of December,2005. ca�"4$ �I��"�� � ] �, Ntay f�+N T'p e�� � �}'' � . j,:�'-�� r:,r�c, '� �' ``- ..,-�": � .:� ;� . __�_— • Clerk � . V � -2- . ' . EI�IT A � SALE AGREEMENT [On file in the City Clerk's Office.J � � � ,r x �� t. . • ` . �� 1 . � � AQREEM�NT FOR THE SALE OF REAL P�tOPERTY . . . 219 N. IOngshighway and�120�N. Broadview . � Cape(3irardeau, Mlssouri . � t,,� � The undersfgned� C17Y OF CAPE GIRARDEAU, �AI3SOURl� hereinaf#er cailed the - `City"� in constdera�on of the mutu�covenants and agreements herein set forth, agrees to convey to RxK, LLC,hereinafter called ths`Purchasers", and the PurcF�asers agree to aocept, the fee simple titl�to the foltowin�desaibed land� and aU rights, heredi�aments, easements and appurtenances.thereunto belonging, located in the City and County of Cape Girardeau� State of � Missouri� bounded and descxibed as set forth in Exhibit A attached hereto and made a part � her.eof� subject to existing easemer�ts for pubiic u#ititfes. � The terms a�d condi�ons of this agreement are as fotlows: � . � . .1. The Purchasers agree to pay the sum of One Million Dollars and No Cents ($1�000�000.00)to the C(ty for the approximately 6-ac�e property at 219 N. . � IQngshighway and 120 N. Broadvlew(Tax map nos. 15-920-00-p9-011 and 15-920- � 00-09-015), a$f�urther described in F�chibit A. The City shal�execute and delhrer a good and sufficient general warranty deed conveying said land� with the hereditaments and appurtenances thereunto�belonging� ta the Purchasers� in fee � � simpls�free and clearfrom aU liens.and encumbrances. � �� � 2. The Purchasers shall pay the City Fifty Thousand Doliars and No Cents($50�000.00) �. in eamest money within 5 days of th�execution of thls�agreemen� The remafning � Nins Hundred F'rt�y Thousand_and No Cer�ts($950�000.00)shail be paid to the c�ty at the�me of closing. In the everrt Purchasers fail to do�e on the property as�required � herein,the eamest money shall be forfe�ed to the city.. If Seller fails to dose.Buyer � shall recover eamest money.or seek any other remedy availabie at law or equity. - 3. Within ten (10) days after the Contract Date of.,this Sale Contract bx ail parties,the City will deliver to PurGhaser the following� to the exterit�in the City's possession or otherwise available or as.they come available a.) Copies of all app�afsal, surveys, certtficates or abstract of title, commitmer�ts for . tl�e insurance and�tle insurance pertafning to the Property. . b.) Copies of all butiding, architectural, engineering, co�struc�on or other development plarts and spec�ications, soil test boHrig results� envlronrriental or � . other impact studfes. � . _ �. c.) Complete�opies of all wrftten schedule or summarie�`of any pral or Written �� �notices received from any govemmental or quasi go�ernmental authority or utillty perta(ning to the Property � � 4. The Ci�r wiil remove the Items 1lsted In Exhibit B f�om.t�e��pr�erty prior to the � closing. � 5. The closing on the property shall occur not before September�0, 2005 or no later� than 30 days after State of Mlssouri Department of Natural Re�ources issues a letter of No Further Remedia#fon (NFR). Both pa�es.acknavutedg�-that no realtor or other agent was used to arrange for this sale, and that na�corqmiasion fa.c�uue to,ahy person�firm or corporatior�for such services. � � 8. Prlor to the time of cloa(ng, the Cf�r�shall provide to the Pu�chasers a No FurtlYer " Remediadon (NFR)letter irom the 3tate of Missouri Department of Natwral . . Resources with regard to all underground storage t�nks which have been used for � #he storage of petroleum products on the property d`esa�ibed in Exhibit A. ;��;, C;�Documents end Settfngalscott rhodeslLoc�l SetqngslTemporary•Internet FIIes�OLK1741219 N � Kingshighway 120 N Broadvfew Draft#2 with changes.doc � ��t * � �� ` ; • _. � ` � , � 7. Purchasers shatl have the right to c�nduct soil testing and environmental studies on • �'' the property described in Exhibit A The environmental studies.may include, but are � � � not limited by�the foliowing: Use or storage of toxic or hazardous substances.and petroleum products; storage tanks� above ground or underground; asbestos containing materials; and lead based pain� Any(ssues discovered during safd environmental studfes will be the City's responsibil�ty and must be resolved prfor to � closing. If the purchasers are not saatisfled with said�resolu�on of identified environmental is$ues,said contract wiil be voided and purchaser eamest money . �hail'be retumed within ten (10)da}r� � 8. The Purchasers represent that no elected City officiai or Cit�r employee shall be admitted to or share any part of thfs agreement� or to any bertefits that may arise therefrom. . 9. The terms and conditions aforesaid are to apply to,and bind tha heirs� executors, � administrators�successors and assigns of the Purchasers. �� 10.Ail terms and condi�ons with respeat to this agreement are expressly contained herein and the Purchasers agree that no representa�ve or agent of the City has made any reptesentatlon or promis+a with respect to this agreement not expr!essly contained within. � � � R2K, LLC(PURCHASEk�) . � � Scott M. Rhodes, Mernber `� � . � a hodes, Member � + � d� Kidd Kidd Land Development, LLC, Member �• O. �.�t CITY OF CAPE GIRARDEAU, MISSOURI ,� (SELLER) v��t �'� � , ;�. , ' S" . � Dou s K: Leslie Date �. City Manager . � ATTEST: � � � �—_ � . ayl Conrad � , City C erk . � C:1Documents and Settings�scott rhadeslLocal Settings�Temporary Internet Files10LK174�219 N Iqngshighway 120 N Broadview Draft#2 with changes.doc � n _ ,t , . � • . . , d f �.. f . �+xhibit B � . `Z... ' . List of l�uildings and equipment to be removed fram PmPe�9�Y�tY Prior to closin;g . •h �_. � . .. � • Recqclittg drop-oE�centet bu�ding . . • ��� by 100-foot steel frarac bu�ding immediatelq behind tbe Alliance water office � $ . . � � Undergxound fue!tanks and aboveground fuel p�unps � �Parkiug sheds . � � � � ' AIl re�Ycling EquiPment&om arisdng Recyr.ling Building, . . � 1"he HID lights from the Recpcling Bwlding and the Street bay � Two post lift and 110 water lieate�and ai=hose reel from Police Garage, two post lif�air reel and all tire repair equipmesit in the Tire Shop - _ � Thsee air compressoxs-one in the Paint Storage Bap,one in the T"iLe Shop,arid the one in the main shop . � Waste Oil tank outside mait�Shop.Bul�lubricate tank and associated hoses and reels from . the Main shop.Air hose reels(2)from maia shop. � � Vehicle Vacuum next to Wash Bay - . � Scadonary pressure washer d�ar secves che wash bay . • Street Departmeat Calcium tank � � Weather Station on Wall ia Front Office � D`i'N.Dish aud weather computer . . • V'uieo Security System for Parking lot and 3 cameras. • All window air conditioning units(3) from Main Bldg-2 in Fleet Offices and 1 in Break � room. • Signage on pmpertp. �- - • �� �} . � i� � . .. � � y � PRONIIS�ORY NOTE $1,000,000 January_,2006 FOR VALUE RECEIVED,RZK,LLC,a Missouri limited liability company(the"Obligor")hereby promises to pay to the order of the City of Cape Girardeau, Missouri, a home rule eity and political subdivision of the State of Missouri(the"City"),the principal amount of$1,000,000 together with interest thereon as hereinafter provided. Said sum,together with the interest thereon, is payable in federal or other immediately available funds during normal business hours in installments to the City at 401 Independence Street,Cape Girardeau,Missouri 63701,as follows: (a) At or before 11:00 a.m.,central time,on the first day of each calendar month,commencing February l,2006 and ending on January 1,2026,equal monthly payments of principal in an amount sufficient to retire the full principal amount of this Note;and (b) At or before I 1:00 a.m.,central time,on the first day of each calendar month commencing January l, 2009 unril the full principal amount of this Note is paid, interest on the outstanding principal amount of this Note at a rate equal to the sum of the Prime Rate minus 2.75%,multiplied by 60.938%,plus 1.45%. "Prime Rate" means the prime ra.te as of the last business day of each month, as reported in the "Money Rates" column or any successor column of The Wall Street.Iournal, currently defined therein as the base rate on corporate loans posted by at least 75% of the nation's 30 largest banks. If The Wall Street Journal ceases publication of the Prime Rate, then "Prime Rate" shall mean the "prime rate" or � "base rate"announced by Bank of America,N.A., or any successor thereto. lfiis Note is issued to evidence the obligation of the Obligor to pay the purchase price of property located at 219 N. Kingshighway and 120 N. Broadview in the City(the"Prop.erty"), as legally described on Eshibit A hereto, in the amount of$1,000,000.T'his Note is described in and secured by a First Deed of Trust dated January� 2006 (the"Deed of Trust")executed and delivered by the Obligor to the mortgage trustee therein named for the benefit of the City, covering the Property which is located in the County of Cape Girardeau, State of Missouri, in which County the Deed of Trust has been duly recorded,and to which Deed of Trust reference is hereby made for a statement of the terms and conditions upon which this Note is secured. T'he obligations of the Obligor to make the payments required hereunder are absolute and unconditional. The amounts payable under this Note are subject to prepayment in whole or in part at any time at the option of thE Obligor. Upon any failure or default in the performance of any of the covenants or agreements of the Obligor contained in this Note or the Deed of Trust, the unpaid principal of and accrued interest on this Note may, at the option of the holder hereof, be declared due and payable as provided in the herein and in the Deed of Trust. The failure of the holder of this Note to exercise such option and to declare such indebtedriess to be due as specified herein and in the Deed of Trust shall not constitute a waiver of the right at any time thereafter to declare the entire amount of such indebtedness to be due and payable. � c � The Obligor hereby waives presentment, demand of payment, protest and notice of non-payment � and of protest and any and all other notices and demands whatscever. � ORAL AGREEMENTS OR COMNIITMENTS TO LOAN MONEY,EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT THE OBLIGOR AND THE CITY FROM NIISUNDERSTANDING OR DISAPPOINTMENT, ANY � AGREEMENTS THE OBLIGOR AND THE CITY REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE C1TY AND THE OBLIGOR, EXCEPT AS THE CITY AND THE OBLIGOR MAY LATER AGREE IN WRITING TO MODIFY IT. This Note shall be governed by the laws of the State of Missouri. IN WTINESS WHEREOF, the Obligor has caused this Note to be executed in its name as of the day and year first above written. RZK,LLC By: Member � � . 2 , V EJ�IT A � � � � � The following�-described real estate situated in the County of Cape Girardeau, State of Missouri: � � ♦ , � � FIItST DEED OF TRUST BY AND BETWEEN R2K,LLC, as Grantor and W.ERIC CUNNINGHAM, � as Grantee and CITY OF CAPE GIRARDEAU,MISSOURI DATED: JANUARY_,2006 � 5 � 3 FIRST DEED OF TRUST � � � � THIS FIRST DEED OF TRUST, made and entered as of the day of January, 2006, by and between R2K, LLC, a Missouri limited liability company (the "Grantor"), W. ERIC CUNNINGHAM, an individual citizen of the State of Missouri who resides in Cape Girardeau County, Missouri, as Grantee (together with his successors in trust collectiveIy called the "Mortgage Trustee"), and the CITY OF CAPE GIItARDEAU, MISSOURI, a home rule city and political subdivision of the State of Missouri,as beneficiary(the"City"),and its suecessors and assigns or as beneficiary and the legat owner from time to time of the debt secured hereby. WITNESSETH: WHEREAS, the Grantor has purchased from the City certain real estate located at 19 N. Kingshighway and 120 N. Broadview in the�City (the "Property"), which encompasses those parcels formerly occupied by the City as its public works building,pursuant to an Agreement�or the Sale of Real Property(the"Sale Agreement"); and WAEREAS, the Grantor has executed a Promissory Note (the "Note") in favor of the City for the purchase price of the Property,a copy of the Note being attached hereto as Eahibit B; and • WHEREAS,the City has required that the Grantor enter into this First Deed of Trust in order to ' secure the Grantor's payments and performance under the Note; NOW, THEREFORE, in consideration of entering into the Sale Agreement and accepting the � Note by the City, the trust hereinafter created and the sum of ONE DOLLAR ($1.00) to it paid by the Mortgage Trustee, and of other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and as security for the prompt payment when due of the principal of and interest on the Note, whether at the stated maturity thereof, or upon maturity by acceleration, and all other amounts payable by the Grantor under the Note and this First Deed of Trust, according to their respective terms and conditions, and for the performance by the Grantor of the agreements, conditions, covenants, provisions and stipulations contained herein and therein, the Grantor does hereby GRANT,BARGAIN AND SELL, CONVEY AND CONFIRM unto the Mortgage Trustee, and unto his successors and assigns foreyer, in trust, all of the real estate described in Ezhibit A attached hereto and made a part hereof together with all buildings, structures and improvements now or hereafter constructed or located thereon, including but not limited to, all heating, lighting, air conditioning and plumbing apparatus; and all other fixtures appertaining thereto, situated in the County of Cape Girardeau, State of Missouri (the "Premises"),and possession of said Premises now delivered unto the Mortgage Trustee. TO HAVE AND TO HOLD THE SAME, with all appurtenances thereto, unto the Mortgage Trustee, and unto his successor or successors in trust and assigns forever. AND TO FURTHER SECURE its payments and performance under Lhe Note, the Grantor has covenanted and agreed and does hereby covenant and agree, herein and in the Note, as follows: 1. Payment of Obligations. Grantor will duly pay the Note secured hereby and all interest thereon,as and when the same shall become due and payable,according to the terms thereof. � 2. Dne on Sale or Encumbrance. Grantor will not,without the prior written consent of City, transfer, convey or otherwise part with title to any of the Premises, or any portion thereof or ownership interest therein, or create or permit or allow to exist or to be created any mortgage, deed of trust,pledge or �„� other lien or encumbrance on any of the Premises, other than this First Deed of Trust and any other mortgages, deeds of trust and pledges in favor of the City, and Grantor will not suffer or permit any mechanic's or materialmen's lien or any other lien of any nature whatsoever to attach to any of the Premises or to remain outsta�ding against the same or any part thereof. 3. Insurance. Grantor shall obtain and maintain or cause to be obtained and maintained(at . no cost or expense to the City) a policy or policies of insurance to keep the Premises constantly insured against loss or damage by fire, lightning and all other risks covered by the extended coverage insurance endorsement then in use in the State of Missouri in an amount equal to the replacement costs of the Premises(subject to reasonable loss deductible clauses not to exceed $10,000 or such greater deductible amount approved by the City). The City shall also maintain or cause to be maintained at all times while the Note is outstanding general aecident and public liability insurance (including but not limited to • coverage for all losses whatsoever arising from the ownership, maintenance, operation or use of any automobile, tntck or otheT motor vehicle) related to the operation, management and maintenance of its property, under which the City shall be named as an additional insured, properly protecting and indemnifying the City, in an amount not less than $1,000,000 for bodily injury (including death) and property damage combined single limit each occurrence (with a deductible of not more than $10,000 or such greater deductible amount as is approved by the City). All insurance moneys received on account of any loss or damage to the Premises, after deducting therefrom the reasonable charges and expenses paid or incurred in connection with the collection and disbursement of said moneys shall be used to repair the Premises to its original condition. If the insurance mon�y is not used to repair the Premises, such money shall be paid to the City to retire the Note. In the event of loss or damage to the Premises,Grantor shall give immediate written norice to the insurance carrier and to the City. Grantor hereby grants to the City full � power and authority to•make proof of loss under any and all insurance policies, either in the name of Grantor, or in the name of the City,and to adjust,settle,collect and receipt for all insurance,and to endorse for and in behalf and in the name�of Grcantor any check, draft or other instrument received therefor, and to collect the proceeds thereof, and also,if an event of default shall occur hereunder,to collect and receipt for any unearned premiums and to apply same on the Note secured hereby in such order and manner as the may elect. In the event of foreclosure sale, any and all insurance policies may be assigned without consent of Grantor, and Grantor authorizes the City to assign said policies to the purchaser or purchasers at such foreclosure sale,or if the City so elects,the City may collect any unearned premiums and apply the same on the Note secured hereby in such order and manner as the City may elect. . 4. Indemnity. Grantor will protect, indemnify, defend and hold harmless the City from and against any and all claims, causes of action, suits, liabilities, damages, losses,costs and expenses(including attorneys' fees), of whatever nature,which may arise or result, directly or indirectly by reason of the use or occupation of the Premises or any part thereof or any failure by Grantor to comply with the covenants . contained herein. 5. Repairs. Grantor will at all times keep and maintain the Premises and every part thereof in good order, repair and condition, without any liability of the City to any person for damage for failure to repair or for any other cause, and Grantor will promptly make all needed and proper repairs, restorations, renewals and replacements thereof,so that at all times the value of the Premises and evety part thereof shall be fully preserved and maintained, and Grantor will not cause or permit any waste on or of the Premises or� otherwise allow the Premises,or any part thereof,to depreciate in value by any act or negle¢t. � . -2- . � � 6. Compliance. Grantor will not use or suffer or permit to be used the Premises or any part thereof in any manner inconsistent with the ri�ts of the C�ty hereunder, or in violation of the provisions of � any insurance policy or any rules or regulations of insurance underwriters, and will comply with, and maintain, use and cause the Premises to at all times be in compliance with all laws, ordinances, rules, regulations, orders and directions of any legislative, executive, administrative or judicial body, officer or department applicable to the Premises or to the uses or purposes thereof. 7. Condemnation. If the Premises, or any part thereof, are taken through condemnation proceedings or by virlue of the exercise of the right of eminent domain or pursuant to govemmental action, . any and all amounts awarded in any such condemnation proceeding for the talcing of the Premises, or any part thereof,shall be paid first to the City in an amount sufficient to retire the remaining principal amourit of - the Note,together with interest due thereon, and any condemnation proceedings remaining shall be paid to the Grantor. 8. Damage by Third Parties. If any part of the Premises is destroyed or damaged by any party or from any cause whereby Granto�beeomes entitled to indemnity or recovery therefor from any third person or persons,all of such surn or sums so due from any such third person or persons shall used to repair and restore the Premises to its original condition. If such money is not used to repair or restore the Premises to its or�ginal condition , then such money shall be paid to the City in an amount sufficient to rerire the remaining principal amount of the Note,together with interest due thereon. 9. Tages. Grantor hereby covenants and agrees to pay any and all taxes, assessments, liens and other charges that may be levied or assessed against the Premises,or any part thereof,prior to the time the same become delinquent,and Grantor shall promptly provide the City with proof of payment thereof. � 10. Environmental Compliance. Grantor shall at its expense comply and maintain the Premises in compliance with any and a11 narional, state, local,judicial or other laws, rules, regulations and orders applicable to the Premises with respect to the investigation, remediation, monitoring, release, handling, storage, transportation, discharge and/or removal of Regulated Substances (collectively, "`Environmental Laws"`),pay immediately when due the cost of removal of any such Regulated Substance that may be located on, in, under or about the Premises, and keep the Premises free of any lien imposed pursuant to any such Environmental Law. If Grantor fails to do so, after notice to Grantor and the expiration of one-half of any cure period permitted under applicable law, rule,regulation or executive order, the City may declaze an event of default to have occurred under this First Deed of Trust and cause the Premises to be freed from and decontaminated of the Regulated Substance or take or cause to be taken any other action with respect to any such Regulated Substance or the Premises to protect its interest therein. Grantor shall give the City immediate written notice of any environmental enforcement action or any investigation with respect to the existence or potential existence of any Regulated Substance instituted or threatened with respect to the Premises. Grantor shall also give the City immediate written notice of any condition or occurrence on the Premises which constitutes a violation of any Environmental Law or would justify a demand for removal or remediation under any Environmental Law. Grantor hereby grants to the � City, its agents and employees access to the Premises and the right to(but in no case shall the City be in any way obligated or required to) remove any Regulated Substance on, in, under or about the Premises in violation of the Environmental Laws and to perform such investigation and/or remediation thereon, all at Grantor's expense and as the City shall see fit if Grantor fails to do so within a reasonable period of time after written demand therefor from the City. Grantor agrees to protect,indemnify,defend and hold harmless the City to the fullest extent allowed by law, from and against a11 claims, demands, causes of action, suits, losses, damages (including, vvithout limitation, punitive damages), violations of any Environmental•Law, environmental response and clean-up costs, fines, penalties and expensss (including, without limitation, � -3- reasonable counsel fees, cost and expenses incurred in investigating and defending against the assertion of such liabilities), of any nature whatsoever, which may be sustained, suffered or incurred by the City based upon, or in connection with, or relating to, (i)the ownership or operation of the Premises and al) activities �„J� relating thereto, (ii)any knowing or material misrepresentation or material breaeh of warranty by Grantor, (iii)any compliance with or investigation, action or proceeding under or violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (as amended) or any other Environmental Law, (iv)the presence, remediation, clean-up or removal of any Regutated Substance or evaluation or investigarion of any release or threat of release of any Regulated Substance, (v)any loss of or damage to natural resources, including damages to air,surface or ground water, soi) and biota, and(vi)any private or governmental suits or court or administrative orders or injunctions relating in any way to any Regulated Substances on, in, under or about the Premises,or emanating therefrom. The specific indemnity and covenants contained in this paragraph aze in addition to and shall not be construed to narrow or in any way restrict the application of the other indemnities and covenants contained in this First Deed of Trust, notwithstanding any overlap in coverage. 11. InspecHons. The City,or its agents,representatives or workrnen,aTe authorized to enter at any reasonable time upon or in any part of the Premises for the purpose of inspecting the same and/or for the purpose of performing any of the acts it is authorized to perform hereunder. 12. Title Disputes. If the City is named as a defendant in any suit involving the title to any of the Premises,or involving the validity or priority of the lien of this First Deed of Trust,then it is agreed that in every such case an attorneys' fee in a reasonable amount sha11 be fixed by the court in which said suit may be pending, and may be adjudged in favor of the attorney or attorneys of record representing said parties, which fee shall be adjudged against the Grantor, on morion made therein therefor as a part of the costs of such proceedings, and that such reasonable costs and expenses of said parties, shall also be fixed and adjudged as costs therein by the court, and it is agreed that all such fees, costs and expenses of every � such proceeding shall be adjudged against said Grantor(if not charged against a party other than the City, their successors and assigns),and when so adjudged shall be secured by this First Deed of Trust. 13. Cure Payments. If Grantor shalt fail to pay any tax, assessment, lien or other charge levied or assessed against the Premises, or any part thereof, or shall fail to keep and perform any of the covenants and conditions herein conta.ined or if there is a legal proceeding that may significantly alter the City's rights in the Premises(such as a proceeding in bankruptcy,probate,or condemnation or forfeiture, or to enforce laws or regulations), the City shall be privileged, but shall not be obligated,to pay any such tax, assessment, lien, rent or other charge,to redeem such property from any sale or foreclosure for ta�ces or assessments or liens, to effect and pay for insurance reyuired hereunder, to perform or pay for any other obligations, appear in court,pay reasonable attorney fees and enter onto the Premises to make repairs,and to make such ott►er disbursements as are necessary or advisable in the opinion of the City to cure any default of Grantor hereunder or protect the lien or the rigtits of the City hereunder; any and all such sums of money advanced for such purposes by the City(including reasonable attorneys fees and expenses)shall be deemed additional Note secured by this Deed of Trust and shall be payable on demand with interest accruing from the time so advanced at the rate per annum set forth under the Note, and failure on the part of Grantor to repay the amounts so advanced on demand shall constitute ar� event of default hereunder; provided, however, nothing herein contained shall be construed as reyuiring the City to effect such insurance or to advance or expend money or talce any action for any of the purposes aforesaid. 14. Rent Assignment. This instrument is intQnded to create an absolute and present assignment to the City of the rents,revenues,royalties,income, �ssues and profits arising from the Premises, and not merely the passing of a security interest; provided, that so long as no event of default exists � . -4- hereunder,Grantor shall have the right and license to collect said rents, revenues royalties, ijncom�, issues � and profits as the same sha11 accrue. 15. Conditions for Release of Portions of the Mortgaged Property. (a� General Provisions for Release. So long as no default has occurred and is continuing under the Note or this First Deed of Trust, the City and the Mortgage Trustee shall release any portion of the Premises subject to the lien of this First Deed of Trust upon � receipt by the City of the following: (1) Re�uest of Grantor. A written request of the Grantor for such release,describing the property to be released (referred to in this Section as the "Released Property"). (2) Certificate of Mort�a�or. A certificate of the Grantor to the City certifying: (i) The fair market value of the Releaseil Property; (ii) The disposition or use to be made of the Released Property and the consideration to be received for the Released Property; and (iii) That the cash to be received is at least equal to the fair mazket value of the Released Property; (3) Appraisal of the Released Propertv. An independent appraisal of the fair market � value of the Released Properly and of the Premises remaining after the release of the Released Property (the "Remaining Property"). The appraisal shall be prepared by a member of the American Institute of Real Estate Appraisers licensed in Missouri(an "MAI appraiser") acceptable to the City. The appraisal must show that the value of the Remaining Property is greater than or equal to the outstanding principal amount of the Note after prepayment of a portion thereof as provided in(b)below. (4) Documents of Conveyance. Such documents reasonably requested by, and in form satisfactory to, the City to release the Released Property from the lien of this First Deed of Trust. (b) Disposition of Proceeds from Sale of Released Property. The Grantor agrees that any proceeds from the sale of the Released Property shall be used to prepay the Note in accordance with the terms thereof. PROVIDED, HOWEVER, if the amounts due under the Note are paid when due, and the agreements therein and herein contained are faithfulty performed as aforesaid, these presents shall be void, and the Premises shall be released at the cost of the Grantor;but if the amounts due under the Note, or any part thereof, are not so paid when due according to the terms of the Sale Agreement,the Note or this First Deed of Trust and any applicable grace.periods herein or therein contained,or if default is made in the faithful performance of said covenants and agreements, or any of them, as therein and herein set forth, then the whole of the Note shall.become due and be paid as hereinafter provided, and this First � Deed of Trust shall remain in force and effect and the Mortgage Trustee or his successors in trust as -5- hereinafter provided shall at the request of the holder of the Note proceed to sell the Premises hereinbefore described, and any and every part thereof, at public vendue, to the highest bidder at the usuat door of the Cape Girardeau Count}+ Courthouse where such sales are usually held at the City of � Jackson in the County of Cape Girardeau, State of Missouri,for cash,first giving twenty(20)days public notice of the time, terms and place of sale, and of the Premises to be sold, by advertisement in a newspaper printed and published in the County and State aforesaid, and upon such sale, the Mortgage Trustee shall execute and deliver to the purchaser or purchasers thereof a deed of conveyance of the property sold, and shall receive the proceeds of said sale or sales, and out of the same shall pay: FIRST, . the reasonable cost and expenses of executing this trust including compensation to the Mortgage Trustee for his services; SECOND, to the City or to the Mortgage Trustee or their respective successors or assigns, upon the delivery of the usual vouchers therefor, all moneys paid for insurance or taxes or judgments upon statutory liens,claims and interest thereon,together with interest thereon as hereinbefore provided; THIRD, the principal due under the Note represented by the Note with all interest due thereunder to the time of such payment;AND THE BALANCE of such proceeds, if any, shall be paid to the Grantor or its successors and assigns. The City, its successors or assigns, at any time it or they may desire, may, by an instrument in writing executed and recorded according to law appoint a substitute trustee to act instead of the Mortgage Trustee named herein; and is further authorized so to appoint other substitute mortgage trustees successively, during the life of this First Deed of Trust, and such mortgage trustees shall each and all succeed to the rights and power of the Mortgage Trustee named herein, and the Grantor does hereby ratify and confirm any and all acts the said Mortgage Trustee, or his suecessors or successors in trust, may lawfully do by virtue hereof. In case of any sale hereunder, it is agreed that the recitals in any deeds to the purchasers shall be accepted in any Court as prima facie evidenee of the truth of the matters therein stated, and it shall be presumed that all acts essential to the validity of the sale have been performed. � And the Mortgage Trustee hereby covenants faithfully to perform the trust herein created, and hereby lets the Premises unto the Grantor until a sale occ�rs under the foregoing provisions upon the following terms and conditions to wit: The Grantor, its successors and assigns, will pay rent therefor during said term at the rate of one cent(1¢)per month,payable monthly upon demand,and shall and will surrender peaceable possession of the Premises,and every part thereof, sold under said provisions,to the Mortgage Trustee, its successors or assigns, or any purchaser or purchasers under such sale, within ten (10)days after the making of such sale,without notice or demand therefor. This First Deed of Trust shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. IN WITNESS WHEREOF, the Grantor has caused this First Deed of Trust to be signed in its name and behalf by its Member and its corporate seal to be hereunto affixed and to be attested by its Secretary, all as of the day and year first above written. R2K,LLC,as Grantor By: Name: • � . -6- ACKNOWLEDGMENT � STATE OF MISSOURI ) )SS. COUNTY OF CAPE GIRARDEAU ) r ` On this day of January 2006,before me, , a Notary Public in and for said State,personally appeared ,to me personally known,who, being hy me duly sworn, did say that he is a Member of R2K, LLC, a limited liability company, and that the seal affixed to the foregoing instrument is the corporate seal of said company, and that said instrument was signed and sealed in behalf of said company by authority of its Board of Directors, and said officer acknowledged said instrument to be the free act and deed of said eorporation. IN TESTIlVIONY WHEREOF, I have hereunto set my hand and affixed my notarial seal the day and year last above written. � Name: Notary Public-State of Missouri Commissioned in County My commission expires � � � . -8- . E?�IT A � The following described real estate situated in the County of Cape Girardeau,State of Missouri: � �