HomeMy WebLinkAboutRES.974.08-15-1994 J
BILL NO. 94-211 RESOLUTION NO. � �'��f
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
ENTER INTO A LOAN AGREEMENT WITH THE MISSOURI
DEPARTMENT OF ECONOMIC DEVELOPMENT AND SIX-
THIRTY, INCORPORATED FOR CONSTRUCTION OF A
SANITARY SEWER LINE.
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU,
MISSOURI , AS FOLLOWS :
ARTICLE 1 . The City Manager, for and on behalf of the City of
Cape Girardeau, Missouri, is hereby authorized to enter into a Loan
Agreement with the Missouri Department of Economic Development and
Six-Thirty, Incorporated for construction of a sanitary sewer line.
A copy of said Loan Agreement is attached to this Resolution and
made a part hereof.
i
PASSED AND ADOPTED THIS /J � DAY OF �' �' '�' , 19�f
�
A. . p adling, III
Mayor
ATTEST:
,
, �= �,1. '
Gayle L. Conrad
Deputy City Clerk
LOAN AGREEMENT
LOAN AGREEMENT dated as of August . 1994, between Six-Thirty Incorporated, a
Missouri Corporation ("Borrower"), the Missouri Department of Economic Development
("DED"), an agency of the State of Missouri, and the City of Cape Girardeau, Missouri,
("City"), a municipal corporation. The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the following meanings (terms defined in the singular to have the same meaning
when used in the plural and vice versa):
"After Tax Cash Flows" is defined to include the Original Basis in the property (as
specified in 4.07), together with the cost of improvements to the Subject Property since
the date of acquisition of the Subject Property by the Borrower, together with revenues
less operating expenses and interest (excluding principal payments) since the date of
acquisition of the Subject Property by the Borrower, and related tax shelter and taxation.
The tax shelter and taxation will consist of corporate profits and losses allocated to the
partners by the corporation for federal income tax purposes since the date of property
acquisition using the actual federal and Missouri tax rates for each applicable year. All
such revenues and expenses shall coincide with the Borrower's federal tax returns.
"Agreement" means this Loan Agreement, as amended, supplemented, or modified
from time to time.
"Application" means the information and documents submitted by the City and the
Borrower to DED regarding the proposed use of funds from the CDBG "Emergency
Industrial Infrastructure" program for the benefit of a Project by Mid-South Steel Products,
Inc.
"8usiness Day" means any day other than a Saturday, Sunday, or other day on
which commercial banks in Missouri are authorized or required to close under the laws
of the State of Missouri.
"CDBG" means Communiiy Gevelopment Block Grant program.
"DED" means the Missouri Department of Economic Development, a state agency
in Jefferson City, Missouri.
"Event of Default" means any of the events specified in Section 6.01, provided that
any requirement for the giving of notice, lapse of time, or both, or other condition, has
been satisfied.
"GAAP" means generally accepted accounting principles in the United States.
"Head Office" means the principal place of DED at P.O. Box 118, Room 720, Harry
S Truman State Office Building, Jefferson City, MO 65102.
"Internal Rate of Return" will be established at an agreed upon rate of six and
twenty-five hundredths percent (6.25%) for the purpose of determining a Payment on the
Loan in 2.06. The Internal Rate of Return calculation will be made by discounting the
annual After Tax Cash Flows (excluding indebtedness of the corporation and related debt
service incurred in connection with acquisition of the Subject Property) by the established
rate of return. Such calculation shall be made from the date of the acquisition of the
Subject Property by the Borrower to the date specified for the calculation of a payment
on the Loan in 2.06.
"Loan" means the principal amount of $337,500 from the New Grant and Prior
Grant, and interest, as described in Section 2.03.
"Loan Documents" means this Agreement and the Note.
"New Grant" means the $75,500 grant by DED to the City for the benefit of Mid-
South Steel Products, Inc., which Borrower acknowledges will enhance the value of the
Subject Property.
"Original Basis" means the value of the Subject Property claimed by the Borrower
(specified in 4.07) as defined by the U.S. Internal Revenue Service for federal income tax
purposes, less the value of land provided to Dana Corporation in the amount of $225,000.
"Payments" mean any principal or interest paid by the Borrower to DED to satisfy
the requirements of the Loan.
"Prior Grant" means the CDBG grant made by DED to the City for the improvement
of the Subject Property, as described in a Grant Agreement dated May 1, 1989, in the
amount of $487,000, less the value of land provided by Borrower to Dana Corporation in
the amount of $225,000, resulting in a net benefit to the Borrower of $262,000, which is
added to this Loan. -
Project means the proposed development of an industrial park at the Subject
„ „
Property as outlined in the Application and subsequent amendments submitted by the
Borrower and City under the CDBG program.
"Subject Property" means the acres, more or less, owned by the Borrower which
is offered for sale as industrial or commercial property. Such property is more specifically
described in Exhibit B.
SECTION 1.02. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with Generally Accepted Accounting Principles
consistent with those applied in the preparation of the financial statements, and all
financial data submitted pursuant to this Agreement shall be prepared in accordance with
such principles.
ARTICLE II
AMOUNT AND TERMS OF THE LOAN
SECTION 2.01. Loan. The DED, under to the terms and conditions set forth in
the New Grant, will provide funds in the amount of Seventy-Five Thousand Five Hundred
Dollars ($75,500) to the City from the Community Development Block Grant ("CDBG")
"Emergency Industrial Infrastructure program. The New Grant will be in addition to the
funding made previously available from DED to the City from the Prior Grant, making the
Loan to the Borrower in the amount of Three Hundred Thirty-Seven Thousand Five
Hundred Dollars ($337,500). The Borrower hereby acknowledges the New Grant and
Prior Grant have materially increased the value of the Subject Property; therefore, agrees
to the conditions of this Agreement.
SECTION 2.02. Term. The term on principal amount of $262,000 (representing
the amount of the Prior Grant) plus accrued interest of this Loan will expire after any
payment due on March 31, 2000, unless the Loan balance is completely paid as
described in 2.06. The term on principal of $75,500 (representing the amount of the New
Grant) plus accrued interest of this Loan will expire after any payment due on March 31,
2005, unless the Loan balance is completely paid as described in 2.06. In the event
there is a balance of the Loan after Payments made as described in the calculation in
2.06 upon March 31, 2005, any Loan balance is cancelled.
SECTION 2.03. Interest. Interest on the outstanding balance of the Loan will
accrue at a rate of five and four tenths percent (5.4%) calculated on the basis of 365
days for the actual number of days elapsed since disbursed by DED to the City.
However, any payment amount not paid when due shall bear interest thereafter until paid
at a rate of twelve percent (12%) per annum, calculated on a basis of 365 days.
SECTION 2.04. Prepayments. The Borrower may prepay the Loan in whole or
in part with no penalty.
SECTION 2.05. Use of Proceeds. The proceeds of the New Grant acknowledged
hereunder shall be used by the City to construct certain public infrastructure, as specified
in the Application and as approved in a Grant Agreement between the City and DED.
SECTION 2.06. Calculation of Payments. Calculation of a payment on the Loan will
be made based on the transactions since the date of acquisition of the Subject Property
by the Borrower to the tax year ending December 31, 1999 for principal of $262,000
(representing the amount of the Prior Grant) plus accrued interest, and December 31,
2004 for principal of $75,500 (representing the amount of the New Grant) plus accrued
interest, or the date when the entire Subject Property is sold, whichever is first. Upon the
calculation of a payment as herein defined, the Borrower shall submit documentation
(specified in 5.08(1)) of After Tax Cash Flows since the acquisition of the Subject
Property. Payment on the Loan will be in the amount of funds (up to the amount of the
principal and accrued interest of such loans) that exceeds the Internal Rate of Return (as
defined in 1.01). Payment is due to DED by the Borrower within thirty (30) days of a
notice of payment by DED to the Borrower as described in 5.08(1}.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Condition Precedent to the Loan. The obligation of the DED to
make the New Grant to the City, and the Loan to Borrower is subject to the condition
precedent that the DED and City shall have received on or before the day of such Loan
each of the following, in form and substance satisfactory to the DED and City and its
counsel:
(1) Note in the Form of Exhibit A duly executed by the Borrower.
(2) Corporate resolution authorizing execution of the Loan Documents (Exhibit B).
(3) Certificate of Incumbency of Officers (Exhibit C);
(3) Opinion of counsel for the Borrower. A favorable opinion of counsel for the
Borrower, in substantialiy the form of Exhibit D and as to such other matters as DED and
the City may reasonabiy request;
(4) Legal description of Subject Property (Exhibit E).
(5) Additional documentation. The DED and the City shall have received such
other approvals, opinions, or documents as the DED and or/the Ciry may reasonably
request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the DED and City that:
SECTION 4.01. Legally Enforceable Agreement. This Agreement is, and each of
the other Loan Documents when delivered under this Agreement will be, legal, valid, and
binding obligations of the Borrower except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, and other similar laws affecting creditors'
rights generally.
SECTION 4.02. Factual Information. The information submitted by the Borrower
in the Application is complete and correct as at such dates, and there has been no
material adverse change in the condition (financial or otherwise), business, or operations
of the Borrower. No information, exhibit, or report furnished by the Borrower to the DED
in connection with the negotiation of this Agreement contained any material misstatement
of fact or omitted to state a material fact or any fact necessary to make the statement
contained therein not materially misleading.
SECTION 4.03. Labor Disputes and Acts of God. The properties of the Borrower
are not affected by any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God, or of the public enemy, or other
casualty (whether or not covered by insurance) materially and adversely affecting such
properties or the operation of the Borrower.
SECTION 4.04. Litigation. There is no pending or threatened action or proceeding
against or affecting the Borrower before any court, governmental agency, or arbitrator,
which may, in any one case or in any aggregate, materially adversely affect the financial
condition, operations, properties, or business of the Borrower or any Subsidiary or the
ability of the Borrower to perform its obligation under the Loan Documents to which it is
a party.
SECTION 4.05. No Defaults on Outstanding Judgments or Orders. The Borrower
has satisfied all judgments, and neither the Borrower nor any Subsidiary is in default with
respect to any judgment, writ, injunction, decree, rule, or regulation of any court,
arbitrator, or federal, state, municipal, or other governmental authority, commission,
board, bureau, agency, or instrumentality, domestic or foreign.
SECTION 4.06. Taxes. The Borrower has filed ail tax returns (federal, state, and
local) required to be filed and have paid all taxes, assessments, and governmental
charges and levies thereon to be due, including interest and penalties.
SECTION 4.07. Original Basis. The Borrower represents the Original Basis for the
Subject Property is $ , and the date of acquisition of the Subject
Property was , 19
ARTICLE V
AFFIRMATIVE COVENANTS
So long as the Loan shall remain unpaid, the Borrower will:
SECTION 5.01. Maintenance of Existence. Preserve and maintain, and cause
each Subsidiary to preserve and maintain, its corporate existence and good standing in
the jurisdiction of its incorporation, and qualify and remain qualified, and cause each
Subsidiary to qualify and remain qualified, as a foreign corporation in each jurisdiction in
which such qualification is required.
SECTION 5.02. Maintenance of Records. Keep, and cause each Subsidiary to
keep, adequate records and books of account, in which complete entries will be made in
accordance with GAAP consistently applied, reflecting all financial transactions of the
Borrower and its Subsidiaries.
SECTION 5.03. Maintenance of Properties. Maintain, keep, and preserve, and
cause each Subsidiary to maintain, keep, and preserve, the property necessary or useful
in the proper conduct of its business in good working order and condition, ordinary wear
and tear excepted.
SECTION 5.04. Conduct of Business. Continue, and cause each Subsidiary to
continue, to engage in an efficient and economical manner in a business of the same
general type as now conducted by it on the date of this Agreement.
SECTION 5.05. Maintenance of Insurance. Maintain, and cause each Subsidiary
to maintain, insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated, which
insurance may provide for reasonable deductibility from coverage thereof.
SECTION 5.06. Compliance With Laws. Comply, and cause each Subsidiary to
comply, in all respects with all applicable laws, rules, regulations, and orders, such
compliance to include, without limitation, paying before the same become delinquent all
taxes, assessments, and governmental charges imposed upon it or upon its property.
SECTION 5.07. Right of Inspection. At any reasonable time and from time to
time, permit the DED, City, or any agent or representative thereof to examine and make
copies of and abstracts from the records and books of account of, and visit the properties
of, the Borrower and any Subsidiary, and to discuss the affairs, finances, and accounts
of the Borrower and any Subsidiary with any of their respective officers and directors and
the Borrower's independent certified accountants.
SECTION 5.08. Reporting Requirements. Furnish to DED:
(1) After Tax Cash Flows. Within 90 days after December 31, 1999, and
December 31, 2004, the Borrower shall submit copies of all federal tax returns relative
to the Subject Property since the date of acquisition of the Subject Property together with
a calculation of After Tax Cash Flows (as defined in 1.01). Upon the submission of such
information, DED shall submit to the Borrower a statement of the amount of payment on
the Loan, as defined in 2.06. In the event the Borrower fails to completely provide such
information to determine After Tax Cash Flows in the time period stated, the principal and
accrued interest of such Loan(s) are immediately due and payable in full, or at a lesser
amount as DED in its sole discretion may determine.
(2) Notice of litigation. Promptly after the commencement thereof, notice of all
actions, suits, and proceedings before any court or governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign, affecting the
Borrower or any Subsidiary which, if determined adversely to the Borrower or such
Subsidiary, could have a material adverse effect on the financial condition, properties, or
operations of the Borrower or such Subsidiary;
(3) Notice of Defaults and Events of Default. As soon as possible and in any
event within ten (10) days after the occurrence of each Default or Event of Default, a
written notice setting forth the details of such Default or Event of Default and the action
which is proposed to be taken by the Borrower with respect thereto;
(4) Reports to other creditors. Promptly after the furnishing thereof, copies of
any statement or report furnished to any other party pursuant to the terms of any
indenture, loan, or credit or similar agreement (related to Subject Property) and not
otherwise required to be furnished to DED pursuant to any other clause of this Section
5.08; ,
(5) General information. Such other information respecting the condition or
operations, financial or otherwise, of the Borrower as the DED and the City may from time
to time reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur:
(1) The Borrower should fail to pay the principal and interest of the Loan, as and when
due and payable;
(2) Any representation or warranty made or deemed made by the Borrower in this
Agreement or which is contained in any certificate, document, opinion, or financial or
other statement furnished at any time under or in connection with any Loan Document
shall prove to have been incorrect in any material respect on or as of the date made or
deemed made;
(3) The Borrower shall fail to perform or observe any term, covenant, or agreement
contained in any Loan Document (other than the Loan) to which it is a party on its part
to be performed or observed;
then, and in any such event, the DED may, by notice to the Borrower, declare the Loan,
all interest thereon, and all the amounts payabie under this Agreement to be forthwith due
and payable, whereupon the Loan, all such interest, and all such amounts shall become
and be forthwith due and payable to DED, without presentiment, demand, protest, or
further notice of any kind, all of which are hereby expressly waived by the 8orrower.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc. No amendment, modification, termination, or
waiver of any provision of any Loan Document to which the Borrower is a party, nor
consent to any departure by the Borrower from any Loan Document to which it is a party,
shall in any event be effective unless the same shall be in writing and signed by the DED
and the City, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 7.02. Notices, Etc. All notices and other communications provided for
under this Agreement and under the other Loan Documents to which the Borrower is a
party shall be in writing (including telegraphic communication) and mailed or telegraphed
or delivered, if to the Borrower, at its address at Box 2105, Cape Girardeau, MO 63702;
If to DED at its address at P.O. Box 118, Jefferson City, MO 65102, Attention: Finance
Section; If to the City, at its address at City Hall, Cape Girardeau, MO, Attention: City
Planner; or as to each party, at such other address as shall be designated by such written
notice to the other party complying as to delivery with the terms of this Section 7.02. All
such notices and communications shall, when mailed be effective when deposited in the
mails or delivered to the telegraph company, respectively, addressed as aforesaid, except _
that notices to the DED pursuant to the provisions of Article II shall not be effective until
received by the DED.
SECTION 7.03. No Waiver, Remedies. No failure on the part of the DED or the
City to exercise, and no delay in exercising, any right, power, or remedy under any Loan
Documents shall operate as a waiver thereof; nor shall any single or partial exercise of
any right under any Loan Documents preclude any other or further exercise thereof or the
exercise of any other right. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law.
SECTION 7.04. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Borrower, DED, and the City and their respective
successors and assigns, except that the Borrower may not assign or transfer any of its
rights under any Loan Document to which the Borrower is a party without the prior written
consent of the DED and the City.
SECTION 7.05. Costs, Expenses, and Taxes. The Borrower agrees to pay on
demand all cost and expenses in connection with the preparation, execution, delivery,
filing, recording, and administration of any of the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the DED and
City, and local counsel who may be retained by said counsel, with respect thereto and
with respect to advising the DED and City as to its rights and responsibilities under any
of the Loan Documents, and all costs and expenses, if any, in connection with the
enforcement of any of the Loan Documents. In addition, the Borrower shall pay any and
all stamp and other taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing, and recording of any of the Loan Documents and the
other documents to be delivered under any such Loan Documents, and agrees to save
the DED and the City harmless from and against any and ail liabilities with respect to or
resulting from any delay in paying or omission to pay such taxes and fees.
SECTION 7.06. Enforcement by DED or City. All provisions of this agreement
shall be enforceable by DED or the City independently, except that Loan Payments shall
be made to DED only.
SECTION 7.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Missouri.
SECTION 7.08. Severability of Provisions. Any provision of any Loan Document
which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of such Loan Document or affecting the validity or enforceability of
such provision in any other jurisdiction.
SECTION 7.09. Headings. Article and Section headings in the Loan Documents
are included in such Loan Documents for the convenience of reference only and shall not
constitute a part of the applicable Loan Documents for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by their respective officers thereunto duly authorized, as of the date first above written.
MISSOURI DEPARTMENT OF ECONOMIC DEVELOPMENT ("DED"):
Garry E. Taylor, Deputy Director
CITY OF CAPE GIRARDEAU ("City"): ATTEST:
AI Spradling, III, Mayor Gayle Conrad, Deputy City Clerk (Seal)
SIX-THIRTY INCORPORATED, a Missouri Corporation ("Borrower")
,
On this day of August, 1994, before me, a Notary Public, personally
appeared Ernest Buessink, known to me to be the person who executed this Agreement.
Notary Public
(SEAL)
My commission expires
gree uessm
EXHIBIT A
N OTE
AMOUNT OF LOAN: $337,500.00 Date of Note: August , 1994
FOR VALUE RECEIVED, the undersigned, Six-Thirty Incorporated, a Missouri corporation
(the "Borrower"), hereby promises to pay to the order of Missouri Department of
Economic Development (the "DED"), at its office located at P.O. Box 118, Room 720,
Harry S Truman State Office Building, Jefferson City, Missouri 65102, and the City of
Cape Girardeau, MO (the "City") in lawful money of the United States and in immediately
available funds in an amount determined by a formula stated in the Loan Agreement
dated August , 1994 executed by DED, the Borrower, and the City of Cape Girardeau,
� MO. Any amount of principal hereof which is not paid when due, whether at stated
maturity, by acceleration, or otherwise, shall bear interest from the date when due until
said principal amount is paid �n full, payable on demand, at a rate per annum of twelve
percent (12%).
If any installment of this Note becomes due and payable on a Saturday, Sunday,
or business holiday in the State of Missouri, the maturity thereof shall be extended to the
next succeeding business day, and interest shall be payable thereon at the rate herein
specified during such extension.
This Note is the Note referred to in, and is entitled to the benefits of, the Loan
Agreement, dated as of August , 1994, between the Borrower, the DED, and the City
(the "Loan Agreement").
This Note shall be governed by the laws of the State of Missouri provided that, as
to the maximum rate of interest which may be charged or collected, if the laws applicable
to the DED permit it to charge or collect a higher rate than the laws of the State of
Missouri, then such law applicable to the DED shall apply to the DED under this Note.
Six-Thirty Incorporated ("Borrower")
Emest Buessink, President
EXHIBIT B
RESOLUTION OF BORROWER'S BOARD
I,the undersigned, Secretary of the Board of Directors of Six-Thirty Incorporated, hereby certify that
the following is a true and correct copy of a resolution adopted by the Board of Directors of said corporation
in a meeting held , 1994, in accordance with the Bylaws of said corporation, in St. Charles
County, Missouri, at which meeting a quorum of the directors were present in person:
RESOLVED, that the Board of Directors of Six-Thirty Incorporated does hereby approve the Loan
Agreement and Note in connection with the $337,500 loan provided by the Missouri Department of
Economic Development and the City of Cape Girardeau, MO, and President Emest Buessink and the
Secretary are authorized and empowered to execute and deliver such documents to DED and execute such
other instruments on behalf of Borrower and perform such as other acts as may be reasonabiy necessary
to effect the intent of such documents.
I further certify that said resolution has not been modified or amended and is in full force and effect
as of the date hereof.
WITNESS my hand and seal of said corporation this day of August, 1994.
(SEAL)
Secretary, Board of Directors
Six-Thirty Incorporated
EXHIBIT C
Six-Thirty Incorporated
CERTIFICATE OF INCUMBENCY
The undersigned Secretary of Six-Thirty Incorporated, a Missouri corporation, do hereby certify that the
foilowing named persons, on August _, 1994, and at all time subsequent thereto, and including the date
hereof, were duly elected to, qualified for, and held the offices indicated after their names, and the following
are specimen signatures of such officers:
NAME OFFICE SPECIMEN SIGNATURE
Emest Buessink PRESIDENT
SECRETARY
IN WITNESS WHEREOF, I have hereunto affixed my signature and the corporate seal of this corporation
as of the day of August, 1994.
Six-Thirty Incorporation
BY:
Secretary
Exhibit D
FORM OF OPINION OF BORROWER'S COUNSEL
(Date)
Missouri Department of Economic Development
Post Office Box 118
Jefferson City, MO 65102
RE: Loan Opinion
Gentiemen:
I have acted as counsel to Six Thirty Incorporated, a Missouri Corporation (the "Borrower"), in connection
with the execution and delivery of that certain Loan Agreement of even date herewith by and between you
and the City of Cape Girardeau, MO (the "Lenders") and BoRower and the other Agreements, copies of
which are exhibits thereto, (collectively, the "Loan Agreements") and in connection with the consummation
of the transactions contemplated thereby.
We have examined originals or copies of the following:
(a) Articles of Incorporation of the Borrower, as amended;
(b) Bylaws of the Borrower, as amended;
(c) Minutes of ineetings and resolutions of the Borrower;
(d) Loan Agreement and Note dated as of August_, 1994 (the "Loan Agreement"), between
the Borrower, City, and DED;
(e) Description of Subject Property.
(f) Such other records and instruments of the Borrower, together with applicable cert'rficates
of public officials and such other documents as we deem relevant in rendering this opinion.
Based upon such examination, it is our opinion that:
1. The Borrower is a corporation and is validly existing under the laws of the State of Missouri and
is duly qualified to transact business in the State of Missouri.
2. The Loan Agreement has each been duly authorized by the Borrower, have been duly and
properly executed and delivered by the valid and legally binding Agreements of the Borrower
enforceable in accordance with their respective terms (except as the enforcement thereof may be
limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting
credito�s' rights generally).
3. The execution, delivery and compliance with the provisions of the Loan Documents by the
Borrower have not and will not (with the passage of time or the giving of notice, or both) result in or
constitute a breach of or default under any indenture, mortgage, deed of trust, loan lease or other
Agreement or inst�ument to which the Borrower is a party or by which it or any of its property is
bound, or violate any provision of the Articles of Incorporation of the Borrower, or of any constitutional
or statutory provision, or of any order, rule or regulation of any court or govemmental authority
applicable to the Borrower or its property.
4. Based on presently existing requirements, the Borrower has obtained all necessary govemmental
approvals for the construction and operation of the Project in the manner contemplated by the
Application submitted to the Department by the Borrower and the City of Cape Girardeau (the
"Application"), and all consents, approvals, authorizations or orders of, or registrations or filings with,
any court or govemmental agency execution and delivery by the Borrower of, or the performance of
its obligations under, the Loan Documents have been obtained or made.
5. There is no action, suit or other proceeding pending or, to the best of our (my] knowledge,
threatened against the Borrower, at law or in equity or before any govemmental authority, which might
adversely affect the validity or enforceability of the Loan Documents or the ability of the Borrower to
perform its obligations thereunder, or which might adversely affect the condition, financial or
otherwise, of the Borrower.
6. To the best of my knowledge, information and belief, after reasonable investigation, nothing has
come to my attention which leads me to believe that the Application contains any untrue statement
of a material fact or omits to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made, not
misleading.
Very truly yours,
[Bonower's Counsel]
Exhibit E
Legal Description of Subject Property