EXHIBIT 10.4
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XXXX XX XXXXXX XXXX, XXXXXXXX,
AS LESSOR,
AND
MASTERCARD INTERNATIONAL, LLC,
AS LESSEE
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LEASE AGREEMENT
DATED AS OF APRIL 1, 2003
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RELATING TO:
NOT TO EXCEED $45,000,000
CITY OF KANSAS CITY, MISSOURI
TAXABLE INDUSTRIAL REVENUE BONDS
(MASTERCARD INTERNATIONAL PROJECT)
SERIES 2003D
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The interest of the City of Kansas City, Missouri (the "City"), in this Lease
Agreement has been pledged and assigned to UMB Bank, N.A., as Trustee under the
Trust Indenture dated as of April 1, 2003, between the City and the Trustee.
LEASE AGREEMENT
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms........................................................ 2
Section 1.2. Rules of Interpretation............................................................... 3
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by the City........................................................... 4
Section 2.2. Representations by the Company........................................................ 5
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate.......................................................... 6
Section 3.2. Lease Term............................................................................ 6
Section 3.3. Possession and Use of the Project..................................................... 7
Section 3.4. Title to the Project.................................................................. 7
ARTICLE IV
ACQUISITION, IMPROVEMENT AND
INSTALLATION OF THE PROJECT
Section 4.1. Issuance of the Bonds................................................................. 8
Section 4.2. Acquisition, Improvement and Installation of the Project.............................. 8
Section 4.3. Project Costs......................................................................... 9
Section 4.4. Payment for Project Costs............................................................. 9
Section 4.5. Establishmentment of Completion Date.................................................. 10
Section 4.6. Surplus or Deficiency in Project Fund................................................ 11
Section 4.7. Project Property of City.............................................................. 11
Section 4.8. Machinery and Equipment Purchased by the Company...................................... 11
ARTICLE V
RENT PROVISIONS
Section 5.1. Basic Rent............................................................................ 12
Section 5.2. Additional Rent....................................................................... 12
Section 5.3. Obligations of Company Absolute and Unconditional..................................... 13
Section 5.4. Prepayment of Basic Rent.............................................................. 14
Section 5.5. Redemption of Bonds................................................................... 14
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Section 6.1. Maintenance and Repairs............................................................... 14
Section 6.2. Taxes, Assessments and Other Governmental Charges..................................... 15
Section 6.3. Utilities............................................................................. 16
Section 6.4. Property Tax Exemption................................................................ 16
ARTICLE VII
INSURANCE
Section 7.1. Casualty Insurance.................................................................... 17
Section 7.2. Public Liability Insurance............................................................ 17
Section 7.3. Blanket Insurance Policies ........................................................... 18
Section 7.4. Workers Compensation Insurance........................................................ 18
Section 7.5 Failure to Provide Insurance.......................................................... 18
ARTICLE VIII
ALTERATION OF THE PROJECT
Section 8.1. Additions, Modifications and Improvements of the Project.............................. 19
Section 8.2. Permits and Authorizations............................................................ 19
Section 8.3. Mechanics' Liens...................................................................... 19
Section 8.4. Additional Improvements on Project Site............................................... 20
Section 8.5. Removal of Parts of Project........................................................... 20
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage and Destruction................................................................ 22
Section 9.2. Condemnation or Insured Deficiency of Title........................................... 23
ARTICLE X
SPECIAL COVENANTS
Section 10.1. No Warranty of Condition or Suitability by the City; Exculpation and Indemnification.. 23
Section 10.2. Surrender of Possession............................................................... 23
Section 10.3. City's Right of Access to the Project................................................. 24
Section 10.4. Permitted Encumbrances; Leasehold Deeds of Trust...................................... 24
Section 10.5. Financing Documents................................................................... 24
Section 10.6. Indemnification of City and Trustee................................................... 27
Section 10.7. Depreciation, Investment Tax Credit and Other Tax Benefits............................ 27
Section 10.8. Company to Maintain its Corporate Existence........................................... 27
Section 10.9. Security Interests.................................................................... 28
Section 10.10. Environmental Matters................................................................. 28
Section 10.11. Obligatons under Indenture............................................................ 29
Section 10.12. Equal Opportunity in Employment....................................................... 29
Section 10.13. Sales Taxes........................................................................... 29
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT
Section 11.1. Option to Purchase the Project........................................................ 29
Section 11.2. Conveyance of the Project............................................................. 30
Section 11.3. Relative Position of Option and Indenture............................................. 31
Section 11.4. Obligation to Purchase the Project.................................................... 31
ARTICLE XII
DEFAULTS AND REMEDIES
Section 12.1. Events of Default..................................................................... 31
Section 12.2. Remedies on Default................................................................... 32
Section 12.3. Survival of Obligations............................................................... 34
Section 12.4. Performance of the Company's Obligations by the City.................................. 34
Section 12.5. Rights and Remedies Cumulative........................................................ 35
Section 12.6. Waiver of Breach...................................................................... 35
Section 12.7. Notice of Defaults Under Section 12.1; Opportunity of Company to Cure Defaults........ 35
Section 12.8. Trustee's Exercise of the City's Remedies............................................. 36
ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Section 13.1. Assignment; Sublease.................................................................. 36
Section 13.2. Assignment of Revenues by City........................................................ 37
Section 13.3. Restrictions on Sale or Encumbrance of Project by City................................ 37
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications................................................. 37
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Notices............................................................................... 37
Section 15.2. City Shall Not Unreasonably Withhold Consents and Approvals........................... 39
Section 15.3. Net Lease............................................................................. 39
Section 15.4. No Pecuniary Liability................................................................ 39
Section 15.5. Governing Law......................................................................... 39
Section 15.6. Binding Effect........................................................................ 39
Section 15.7. Severability.......................................................................... 40
Section 15.8. Execution in Counterparts............................................................. 40
Signatures..................................................................................... S-1
Acknowledgements............................................................................... S-2
EXHIBIT A - PROJECT SITE
EXHIBIT B - PROJECT IMPROVEMENTS AND EQUIPMENT
EXHIBIT C - FORM OF REQUISITION CERTIFICATE
EXHIBIT D - PILOT SCHEDULE
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated as of April 1, 2003 (the "LEASE"), between
the CITY OF KANSAS CITY, MISSOURI, a constitutional charter city and municipal
corporation organized and existing under the laws of the State of Missouri (the
"CITY"), as lessor, and MASTERCARD INTERNATIONAL, LLC, a Delaware limited
liability company (the "COMPANY"), as lessee;
WITNESSETH:
WHEREAS, the City is authorized and empowered under Article VI, Section
27 of the Missouri Constitution, as amended, and Sections 100.010 to 100.200,
inclusive, of the Missouri Revised Statutes, as amended (the "ACT") to issue
revenue bonds to provide funds for the carrying out of a "project" under the Act
and to sell, lease or mortgage to private persons, partnerships or corporations
the facilities purchased, constructed or extended by the City for manufacturing,
commercial, warehousing and industrial development purposes pursuant to the Act;
and
WHEREAS, pursuant to the Act, the governing body of the City adopted
Resolution No. 021333 on November 7, 2002, expressing the intent of the City to
issue industrial development revenue bonds in the principal amount not to exceed
$45,000,000 for the purpose of acquiring, improving and equipping the data
processing facility and associated real estate in the City (the "PROJECT SITE"
as described on Exhibit A attached hereto), and the acquisition, construction,
renovation and installation of certain real and personal property, including,
without limitation, the "PROJECT IMPROVEMENT" AND "PROJECT EQUIPMENT" (as
defined in the Indenture and on Exhibit B attached hereto), and together with
any additions, alterations, replacements, substitutions thereto, now or
hereafter acquired and installed within the facility located on the Project Site
by the Company (the "PROJECT") and authorizing the City to lease the Project to
the Company; and
WHEREAS, the governing body of the City has heretofore passed an
ordinance (the "ORDINANCE"), authorizing the City to issue its Taxable
Industrial Revenue Bonds (MasterCard International, LLC, Project) Series 2003D,
in the maximum principal amount not to exceed $45,000,000 (the "BONDS"), for the
purpose of financing the costs of the Project, and authorizing the City to lease
the Project to the Company; and
WHEREAS, pursuant to such Ordinance, the City is authorized to enter
into a Trust Indenture of even date herewith (the "INDENTURE"), with UMB Bank,
N.A., as Trustee (the "TRUSTEE"), for the purpose of issuing and securing the
Bonds, as therein provided, and to enter into this Lease with the Company under
which the City will improve and equip the Project and will lease the Project to
the Company in consideration of rental payments by the Company which will be
sufficient to pay the principal of and interest on the Bonds; and
WHEREAS, pursuant to the foregoing, the City desires to lease the
Project to the Company and the Company desires to lease the Project from the
City, for the rentals and upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, covenants and agreements herein contained, the City and the
Company do hereby represent, covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS OF WORDS AND TERMS. In addition to any words
and terms defined elsewhere in this Lease and the words and terms defined in
Section 101 of the Indenture which definitions are hereby incorporated herein by
reference, and terms defined, the following words and terms as used in this
Lease shall have the following meanings:
"ADDITIONAL RENT" means the additional rental described in Sections 5.2
and 6.2 of this Lease.
"BASIC RENT" means the rental described in Section 5.1 of this Lease.
"CLOSING DATE" means April 17, 2003
"COUNTY" means Platte County, Missouri.
"EVENT OF DEFAULT" means any Event of Default as described in Section
12.1 of this Lease.
"FINANCING DOCUMENTS" means any Leasehold Deed of Trust, Assignment of
Rents and Leases and Security Agreement relating to the Project and any other
leasehold mortgage or deed of trust document permitted pursuant to the
provisions of Sections 10.4 hereof.
"FULL INSURABLE VALUE" means the actual replacement cost of the Project
less physical depreciation.
"INDENTURE" means the Trust Indenture, dated as of April 1, 2003,
between the City and the Trustee, as from time to time amended and supplemented
in accordance with the provisions thereof.
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"LEASE" means this Lease Agreement, between the City and the Company,
as from time to time amended and supplemented in accordance with the provisions
of this Lease and Article XII of the Indenture.
"LEASEHOLD DEED OF TRUST" means any leasehold deed of trust relating to
the Project permitted pursuant to the provisions of Section 10.4(b) hereof.
"LEASE TERM" means the period from the Closing Date until the
expiration thereof pursuant to Section 3.2 of this Lease.
"NET PROCEEDS" means, when used with respect to any insurance or
condemnation award with respect to the Project, the gross proceeds from the
insurance or condemnation award with respect to which the term is used remaining
after the payment of all expenses (including attorneys' fees, trustee's fees and
any extraordinary expenses of the City and the Trustee) incurred in the
collection of such gross proceeds.
"PERMITTED ENCUMBRANCES" means, as of any particular time (a) liens for
ad valorem taxes and special assessments not then delinquent, (b) the Indenture,
(c) this Lease, (d) any Leasehold Deed of Trust permitted by Section 10.4(b),
(e) such minor defects, irregularities, encumbrances, easements, mechanic's
liens, rights-of-way and clouds on title as normally exist with respect to
properties similar in character to the Project and as do not in the aggregate
materially impair the property affected thereby for the purpose for which it was
acquired or is held by the City, and (f) any other lien, encumbrance, lease,
easements, restrictions or covenants consented to in writing by the Owner of
100% of the outstanding principal amount of the Bond.
"PILOTS" means the payments in lieu of tax to be made by the Company
pursuant to Section 6.4 hereof.
"PROJECT" means the Project Site, Project Equipment and Project
Improvements.
"PROJECT EQUIPMENT" means all items of personal property, including,
without limitation, furniture, fixtures, machinery, equipment or other personal
property acquired or installed or acquired or to be acquired for installation in
the Project Improvements or elsewhere on the Project Site pursuant to Article IV
of this Lease and paid for in whole or in part from the proceeds of the Bonds,
as described in Exhibit B attached hereto, and all replacements thereof and
substitutions therefor made pursuant to this Lease.
"PROJECT IMPROVEMENTS" means all buildings, structures, improvements
and fixtures located on or to be purchased, constructed and other improved on
the Project Site.
"PROJECT SITE" means all of the real estate described in Exhibit A
attached hereto.
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SECTION 1.2. RULES OF INTERPRETATION.
(a) Words of the masculine gender shall be deemed and construed to
include correlative words of the feminine and neuter genders.
(b) Unless the context shall otherwise indicate, words importing
the singular number shall include the plural and vice versa,
and words importing persons shall include firms, associations
and corporations, including governmental entities, as well as
natural persons.
(c) Wherever in this Lease it is provided that either party shall
or will make any payment or perform or refrain from performing
any act or obligation, each such provision shall, even though
not so expressed, be construed as an express covenant to make
such payment or to perform, or not to perform, as the case may
be, such act or obligation.
(d) All references in this instrument to designated "Articles,"
"Sections" and other subdivisions are, unless otherwise
specified, to the designated Articles, Sections and
subdivisions of this instrument as originally executed. The
words "herein," "hereof," "hereunder" and other words of
similar import refer to this Lease as a whole and not to any
particular Article, Section or other subdivision.
(e) The Table of Contents and the Article and Section headings of
this Lease shall not be treated as a part of this Lease or as
affecting the true meaning of the provisions hereof.
ARTICLE II
REPRESENTATIONS
SECTION 2.1. REPRESENTATIONS BY THE CITY. The City makes the following
representations as the basis for the undertakings on its part herein contained:
(a) The City is a constitutional charter city and municipal
corporation duly organized and validly existing under the laws
of the State of Missouri. Under the provisions of the Act, the
City has lawful power and authority to enter into the
transactions contemplated by this Lease and to carry out its
obligations hereunder. By proper action of its governing body,
the City has been duly authorized to execute and deliver this
Lease, acting by and through its duly authorized officers.
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(b) The City proposes to provide, or cause to be provided, funds
for the acquisition, construction renovation and installation
of the Project. The City proposes to lease the Project to the
Company and sell the Project to the Company if the Company
exercises its option to purchase the Project, all for the
purpose of furthering the public purposes of the Act, and the
governing body of the City has found and determined that the
acquisition, construction, renovation and installation of the
Project will further the public purposes of the Act.
(c) To finance the costs of the Project, the City proposes to
issue the Bonds which will be scheduled to mature as set forth
in Article II of the Indenture and will be subject to
redemption prior to maturity in accordance with the provisions
of Article III of the Indenture.
(d) The Bonds are to be issued under and secured by the Indenture,
pursuant to which the Project, including all rents, revenues
and receipts to be derived by the City from the leasing or
sale of the Project, will be pledged and assigned to the
Trustee as security for payment of the principal of and
interest on the Bonds.
(e) The City will not mortgage the Project or pledge the revenues
derived therefrom for any bonds or other obligations other
than the Bonds except with the written consent of the
Authorized Company Representative.
(f) The City shall, during the Lease Term, have no authority to
operate the Project as a business or in any other manner
except as the lessor thereof.
(g) The acquisition, improvement and installation of the Project
and the leasing of the Project by the City to the Company will
further the public purposes of the Act.
(h) No member of the governing body of the City or any other
officer of the City has any significant or conflicting
interest, financial, employment or otherwise, in the Company
or in the transactions contemplated hereby.
(i) The Project is located wholly within the corporate limits of
the City of Kansas City, Missouri.
SECTION 2.2. REPRESENTATIONS BY THE COMPANY. The Company makes the
following representations as the basis for the undertakings on its part herein
contained:
(a) The Company is a limited liability company duly formed,
validly existing and in good standing under the laws of the
State of Delaware and is
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qualified to do business and is in good standing under the
laws of the State of Missouri.
(b) The Company has lawful power and authority to enter into this
Lease and to carry out its obligations hereunder, and by
proper corporate action the individual who executes and
delivers this Lease on behalf of the Company is and shall be
duly authorized to do so and the same shall constitute the
valid, binding obligation of the Company.
(c) The execution and delivery of this Lease, the consummation of
the transactions contemplated hereby, and the performance of
or compliance with the terms and conditions of this Lease by
the Company will not conflict with or result in a material
breach of any of the terms, conditions or provisions of, or
constitute a material default under, any mortgage, deed of
trust, lease or any other corporate restrictions or any
agreement or instrument to which the Company is a party or by
which it or any of its property is bound, or the Company's
Certificate of Formation or Limited Liability Company
Agreement or any order, rule or regulation applicable to the
Company or any of its property of any court or governmental
body, or constitute a material default under any of the
foregoing, or result in the creation or imposition of any
prohibited lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Company
under the terms of any instrument or agreement to which the
Company is a party.
(d) The estimated costs of acquiring, improving and installing the
Project are in accordance with sound engineering, management
and accounting principles.
(e) The Company's operation of the Project will comply with all
presently applicable building and zoning, health,
environmental and safety ordinances and laws and, to the best
of its knowledge, without independent investigation, with all
other applicable laws, rules and regulations.
(f) The Project shall be located wholly within the corporate
limits of the City.
ARTICLE III
GRANTING PROVISIONS
SECTION 3.1. GRANTING OF LEASEHOLD ESTATE. Effective as of the Closing
Date, the City hereby rents, leases and lets the Project to the Company, and the
Company
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hereby rents, leases and hires the Project from the City, subject to Permitted
Encumbrances, for the rentals and upon and subject to the terms and conditions
herein contained.
SECTION 3.2. LEASE TERM. This Lease shall have an initial term (the
"LEASE TERM") commencing on the Closing Date and terminating December 31, 2013,
subject to sooner termination pursuant to the provisions of this Lease.
SECTION 3.3. POSSESSION AND USE OF THE PROJECT.
(a) The City covenants and agrees that as long as neither the City
nor the Trustee has exercised any of the remedies set forth in
Section 12.2(b) or 12.2(c) following the occurrence and
continuance of an Event of Default, the Company shall have
sole and exclusive possession of the Project (subject to
Permitted Encumbrances and the City's and the Trustee's right
of access pursuant to Section 10.3 hereof) and shall and may
peaceably and quietly have, hold and enjoy the Project during
the Lease Term. The City covenants and agrees that it will not
take any action, other than expressly pursuant to Article XII
of this Lease, to prevent the Company from having quiet and
peaceable possession and enjoyment of the Project during the
Lease Term and will, at the request and expense of the
Company, cooperate with the Company in order that the Company
may have quiet and peaceable possession and enjoyment of the
Project and will defend the Company's enjoyment and possession
thereof against all parties.
(b) Subject to the provisions of this Section, the Company shall
have the right to use the Project for any lawful purpose
allowed by law and contemplated by the Act. The Company shall
comply with all statutes, laws, ordinances, orders, judgments,
decrees, regulations, directions and requirements of all
federal, state, local and other governments or governmental
authorities, now or hereafter applicable to the Project or to
any adjoining public ways, as to the manner of use or the
condition of the Project or of adjoining public ways. The
Company shall also comply with the mandatory requirements,
rules and regulations of all insurers under the policies
carried under the provisions of Article VII hereof. The
Company shall pay all costs, expenses, claims, fines,
penalties and damages that may in any manner arise out of, or
be imposed as a result of, the failure of the Company to
comply with the provisions of this Section. Notwithstanding
any provision contained in this Section, however, the Company
shall have the right, at its own cost and expense, to in good
faith contest or review by legal or other appropriate
procedures the validity or legality of any such governmental
statute, law, ordinance, order, judgment, decree, regulation,
direction or requirement, or any such requirement, rule or
regulation of an
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insurer, and during such contest or review the Company may
refrain from complying therewith.
SECTION 3.4. TITLE TO THE PROJECT. The City shall be the sole owner of
the Project; provided, however, that the Company alone shall be entitled to
deduct all depreciation on the Project on the Company's income tax returns, and
the City agrees to provide reasonable cooperation with the Company, at the
expense of the Company, in obtaining favorable federal or state income tax or
sales tax treatment of the lease, sale or repurchase of the Project.
ARTICLE IV
ACQUISITION, IMPROVEMENT AND INSTALLATION OF THE PROJECT
SECTION 4.1. ISSUANCE OF THE BONDS.
In order to provide funds for the payment of the Project Costs, the
City agrees that it will issue, sell and cause to be delivered to the purchaser
thereof the Bonds in accordance with the provisions of the Indenture and the
Bond Purchase Agreement. The proceeds of the sale of the Bonds, when received,
shall be paid over to the Trustee for the account of the City. The Trustee shall
promptly deposit such proceeds, when received, as provided in the Indenture, to
be used and applied as hereinafter provided in this Article and in the
Indenture.
SECTION 4.2. ACQUISITION, IMPROVEMENT AND INSTALLATION OF THE PROJECT.
The City and the Company agree that the City will (and the Company as the agent
of the City shall), but solely from the Project Fund, proceed with the
acquisition, improvement and installation of the Project as follows:
(a) The City will acquire full and complete absolute title in and
to the Project at the execution hereof which the Company
desires to convey to the City and from time to time will
acquire additional improvements and equipment to be installed
at the Project. The Company will, on behalf of the City, cause
the Project Improvements to be made in the Project on the
Project Site.
(b) Prior to or concurrently with the execution of this Lease a
xxxx of sale and any other necessary instruments of transfer
will be delivered to the City. An additional xxxx of sale for
Project Equipment acquired after the Closing Date will be
delivered to the City from time to time along with the
requisition seeking reimbursement pursuant to Section 4.4
hereof or upon completion of the acquisition of the Project on
behalf of the City. The City and the Company recognize that
the Project Equipment is subject to change pursuant to the
provisions of this Lease, and agree that the definitive list
of the Project
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Equipment shall be the list maintained by the Trustee pursuant
to Section 10.9 of this Lease.
(c) The Company agrees that it will use its best efforts to cause
the Project to be completed as soon as practicable with all
reasonable dispatch. In the event the acquisition and
installation of Project commences prior to the receipt of
proceeds from the sale of the Bonds, the Company agrees to
advance all funds necessary for such purpose.
(d) The Project Site, all Project Improvements and all Project
Equipment shall be owned by the City and the Company agrees to
execute and deliver to the City all deeds, bills of sale and
any other necessary instruments of transfer to vest title to
the Project Site, the Project Improvements and the Project
Equipment in the City.
(e) The City will (i) cooperate with the Company so that any
applicable sales tax will apply to the equipment as purchased
rather than through taxation of lease payments, (ii) sign
exemption certificates for those portions of the Project
exempt from sales tax and (iii) cooperate with the Company
with respect to any audit by any taxing authority in
connection with the Project but solely at the expense of the
Company.
SECTION 4.3. PROJECT COSTS. The City hereby agrees to pay for, but
solely from moneys available therefor in the Project Fund, and hereby authorizes
and directs the Trustee to pay for, but solely from moneys available therefor in
the Project Fund, all Project Costs upon receipt by the Trustee of a certificate
pursuant to Section 4.4 hereof.
SECTION 4.4. PAYMENT FOR PROJECT COSTS. Subject to Section 503 of the
Indenture, all Project Costs as specified in Section 4.3 hereof shall be paid by
the Trustee from the Project Fund. The City hereby authorizes and directs the
Trustee to make disbursements from moneys available therefor in the Project
Fund, upon receipt by the Trustee of certificates in substantially the form
attached hereto as Exhibit C, signed by an Authorized Company Representative:
(a) requesting payment of a specified amount of such funds and
stating the name and address of the person, firm or
corporation to whom such amount shall be paid or has been paid
in the event the Company is requesting reimbursement;
(b) describing in reasonable detail each item of Project Costs for
which payment is being requested;
(c) stating that each item for which payment is requested is or
was necessary and appropriate in connection with the
acquisition, improvement and installation of the Project, has
been properly incurred and is a proper charge against the
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Project Fund, that the amount requested either has been paid,
or is justly due, and has not been the basis of any previous
requisition certificate from the Project Fund;
(d) stating that, except for the amounts, if any, stated in said
certificate, to the best of their knowledge there are no
outstanding statements which are then due and payable for
labor, wages, materials, supplies or services in connection
with the acquisition and installation of the Project which, if
unpaid, might become the basis of a vendors', mechanics',
laborers' or materialmen's statutory or other similar lien
upon the Project or any part thereof, unless such lien is
being contested pursuant to Section 8.3(b) hereof; and
(e) having attached thereto for the purpose of proper direction of
payment a xxxx of sale or other written evidence of the
acquisition.
The Trustee may rely conclusively on any such certificate delivered by
the Company pursuant to this Section and shall not be required to make any
independent investigation in connection therewith. The Trustee may rely
conclusively upon each such xxxx of sale or written evidence so presented and
shall have no duty or responsibility to determine the accuracy, adequacy or
appropriateness thereof or to identify the items of personal property to which
such may apply.
The Company shall deliver to the Trustee all bills of sale or other
written evidence of the acquisition of the Project on behalf of the City at the
time of delivery of such requisition certificates.
Notwithstanding the foregoing, at any time the Company is the sole
Bondowner, if the Bondowner advances funds directly for the Project Costs in
connection with the Company's expenditures, the City and the Company acknowledge
that such funds shall not be required to be deposited into the Project Fund, but
shall be deemed to be nonetheless a deposit by the Bondowner into the Project
Fund and shall be an Additional Payment within the meaning of Section 5.02 of
the Indenture, and a draw equal to such sums therefrom, as provided in this
Section 4.4, upon which the Trustee may conclusively rely, based upon the
Company's delivery to the Trustee of a requisition certificate otherwise
conforming to the requirements contained in this Section 4.4 that confirms the
amount of such advances by the Bondowner.
SECTION 4.5. ESTABLISHMENT OF COMPLETION DATE. The Completion Date
shall be evidenced to the Trustee by a certificate signed by the Authorized
Company Representative stating (a) that the Project has been completed,
$45,000,000 of Project has been acquired pursuant to this Lease, or the Lease
Term has expired, (b) that all costs and expenses incurred in the Project have
been paid except costs and expenses the payment of which is not yet due or is
being retained or contested in good faith by the Company, (c) amounts to
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be retained by Trustee with respect to item (b) above, and (d) an itemized
descriptive list of all Project Costs. Notwithstanding the foregoing, such
certificate shall state that it is given without prejudice to any rights against
third parties which exist at the date of such certificate or which may
subsequently come into being. The Company and the City agree to cooperate in
causing such certificate to be furnished to the Trustee.
SECTION 4.6. SURPLUS OR DEFICIENCY IN PROJECT FUND.
(a) Upon receipt of the certificate described in Section 4.5
hereof, the Trustee shall, as provided in Section 504 of the
Indenture, transfer any remaining moneys then in the Project
Fund to the Bond Fund, and the Company agrees to cooperate
with the Trustee and take all required action necessary to
redeem a portion of the Bonds.
(b) If the Project Fund shall be insufficient to pay fully all
Project Costs and to complete the acquisition and installation
of the Project lien free, the Company shall pay to the Trustee
for deposit in the Project Fund the full amount of such
deficiency for disbursement by the Trustee pursuant to the
procedures set forth in Section 4.4 hereof, and the Company
shall save the City and the Trustee whole and harmless from
any obligation to pay such deficiency.
SECTION 4.7. PROJECT PROPERTY OF CITY. The Project at the execution
hereof and which the Company purchases hereafter, and all additions to the
Project are deemed to be, or constitute part of the Project, and the Project as
repaired, rebuilt, rearranged, restored or replaced by the Company under the
provisions of this Lease, except as otherwise specifically provided herein,
shall immediately when purchased become the absolute property of the City,
subject only to this Lease and the Indenture. The Company shall deliver to the
City and the Trustee by April 1 of each year, a detailed listing of all of the
Project as required by Section 10.9, certified to the City and the Trustee by
the Authorized Company Representative and this listing may be conclusively
relied upon by the Trustee. The City shall have the right to request and review
such reasonable supporting documentation from the Company with respect to such
Project. The inadvertent failure by the Company to include or exclude an item in
such list shall not constitute an Event of Default under this Lease.
SECTION 4.8. MACHINERY AND EQUIPMENT PURCHASED BY THE COMPANY. Except
for the Project, any other personal property, including without limitation,
furniture, fixtures, machinery or equipment, the entire purchase price of which
is paid for by the Company with the Company's own funds, and no part of the
purchase price of which is paid for from funds deposited pursuant to the terms
of the Indenture or this Lease in the Project Fund, or from funds provided by
the City pursuant to Section 4.3 of this Lease, shall be the property of the
Company.
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ARTICLE V
RENT PROVISIONS
SECTION 5.1. BASIC RENT. The Company covenants and agrees to pay to the
Trustee in same day funds for the account of City during this Lease Term, for
deposit in the Bond Fund on or before 10:00 A.M., Trustee's local time, on or
before each February 1 during the Lease Term commencing February 1, 2004, and in
the appropriate amounts, the next occurring payments of principal and the
interest on the Bonds in accordance with the provisions of the Indenture, as
Basic Rent for the Project, in an amount which, when added to any collected
funds then on deposit in the Bond Fund and available for the payment of
principal on the Bonds and the interest thereon on such payment date, shall be
equal to the amount payable on such payment date as principal of the Bonds and
the interest thereon as provided in the Indenture. All payments of Basic Rent
provided for in this Section shall be paid directly to the Trustee, or as
otherwise provided in Section 204 of the Indenture, and shall be deposited in
accordance with the provisions of the Indenture into the Bond Fund and shall be
used and applied by the Trustee in the manner and for the purposes set forth in
this Lease and the Indenture.
Subject to the other provisions of this Agreement and the Indenture, at
any time that the Company is the sole Bondowner, the Company may at its option
make principal and/or interest payments of Basic Rent by tendering a portion of
the principal amount of the Bonds and interest thereon equal to such principal
payment and interest thereon to the Trustee for cancellation.
SECTION 5.2. ADDITIONAL RENT. The Company shall pay to the appropriate
party as Additional Rent the following amounts:
(a) all reasonable fees, costs, charges and expenses, including,
without limitation, agent and counsel fees, of the Trustee and
the Paying Agent incurred under the Indenture, as and when the
same become due after the Company's receipt of an invoice
therefor;
(b) all reasonable fees, charges, expenses and costs including,
without limitation agent and counsel fees, incident to the
issuance of the Bonds and the payment of the principal of and
interest on the Bonds as the same becomes due and payable,
including all costs and expenses in connection with the call,
redemption and payment of all outstanding Bonds;
(c) all reasonable fees, charges, costs and expenses (including,
without limitation, attorney's fees and expenses) reasonably
incurred in connection with the enforcement of any rights
against the Company or the Project
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under this Lease or the Indenture by the City, the Trustee or
the Bondowners after the Company's receipt of an invoice
therefor;
(d) An amount sufficient to reimburse the City for all expenses
reasonably incurred by the City hereunder and in connection
with the performance of its or the Company's obligations under
this Lease or the Indenture;
(e) The PILOTs required by Section 6.4 hereof; and
(f) All other payments of whatever nature which the Company has
agreed to pay or assume under the provisions of this Lease.
In each instance in which this Lease, whether in this Section 5.2 or
elsewhere, provides for compensation, reimbursement or indemnification
of the Trustee, such provision shall be deemed to provide for, whether
or not expressly so stated, the payment of all reasonably related fees,
costs, charges, advances and expenses of the Trustee (including,
without limitation, attorney's fees and expenses), unless the context
shall clearly indicate otherwise.
SECTION 5.3. OBLIGATIONS OF COMPANY ABSOLUTE AND UNCONDITIONAL.
(a) The obligations of the Company under this Lease to make
payments of Basic Rent and Additional Rent on or before the
date the same become due, and to perform all of its other
obligations, covenants and agreements hereunder shall be
absolute and unconditional, without notice or demand, and
without abatement, deduction, set-off, counterclaim,
recoupment or defense or any right of termination or
cancellation arising from any circumstances whatsoever,
whether now existing or hereafter arising, and irrespective of
whether the Project shall have been started or completed, or
whether the City's title thereto or to any part thereof is
defective or nonexistent, and notwithstanding any damage to,
loss, theft or destruction of, the Project or any part
thereof, or any failure of consideration or frustration of
commercial purpose, the taking by eminent domain of title to
or of the right of temporary use of all or any part of the
Project, legal curtailment of the Company's use thereof, the
eviction or constructive eviction of the Company, any change
in the tax or other laws of the United States of America, the
State of Missouri or any political subdivision thereof, any
change in the City's legal organization or status, or any
default of the City hereunder, and regardless of the
invalidity of any action of the City, and regardless of the
invalidity of any portion of this Lease.
(b) Nothing in this Lease shall be construed to release the City
from the performance of any agreement on its part herein
contained or as a waiver by the Company of any rights or
claims the Company may have against
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City under this Lease or otherwise, but any recovery upon such
rights and claims shall be had from the City separately, it
being the intent of this Lease that the Company shall be
unconditionally and absolutely obligated to perform fully all
of its obligations, agreements and covenants under this Lease
(including the obligation to pay Basic Rent and Additional
Rent) for the benefit of the Bondowners. The Company may,
however, at its own cost and expense and in its own name or in
the name of the City, prosecute or defend any action or
proceeding or take any other action involving third persons
which the Company deems reasonably necessary in order to
secure or protect its right of possession, occupancy and use
hereunder, and in such event the City hereby agrees to
cooperate fully with the Company and to take all action
necessary to effect the substitution of the Company for the
City in any such action or proceeding if the Company shall so
request.
SECTION 5.4. PREPAYMENT OF BASIC RENT. The Company may at any time
prepay all or any part of the Basic Rent provided for hereunder in accordance
with Section 302(a) of the Indenture. The Company shall prepay the amount of
Basic Rent provided for hereunder to cause the mandatory redemption of all or
part of the Bonds in accordance with the provisions of Section 302(b) of the
Indenture.
SECTION 5.5. REDEMPTION OF BONDS. If the Company is not in default in
the payment of Basic Rent, the City and the Trustee, at the written direction of
the Company, at any time that the aggregate moneys in the Bond Fund are
sufficient for such purposes, shall (a) if the same are then redeemable under
the provisions of Article III of the Indenture, take all steps that may be
necessary under the applicable redemption provisions of the Indenture to effect
the redemption of all or such part of the then Outstanding Bonds as may be
specified by the Company, on such redemption date as may be specified by the
Company, (b) cause such moneys in the Bond Fund or such part thereof as the
Company shall direct, to be applied by the Trustee as is reasonably possible,
pursuant to the written direction of the Company, for the purchase of Bonds in
the open market for the purpose of cancellation at prices not exceeding the
principal amount thereof plus accrued interest thereon to the date of delivery
for cancellation, or (c) a combination of (a) and (b) as provided in such
direction.
The Bonds shall be subject to mandatory redemption upon the termination
or expiration of the Lease.
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
SECTION 6.1. MAINTENANCE AND REPAIRS. Throughout the Lease Term the
Company shall, at its own expense, keep the Project in as reasonably safe
condition as the
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operation thereof will permit, and keep the Project in good repair and in good
operating condition ordinary wear and tear and damage by fire or other casualty
excepted, making from time to time all necessary repairs thereto and renewals
and replacements thereof.
SECTION 6.2. TAXES, ASSESSMENTS AND OTHER GOVERNMENTAL CHARGES.
(a) The Project is expected to be exempt from ad valorem taxes as
more fully described in Section 6.4 hereof. The Company shall
promptly pay and discharge, as the same become due, all taxes
and assessments, general and special, and other governmental
charges of any kind whatsoever that may be lawfully taxed,
charged, levied, assessed or imposed upon or against or be
payable for or in respect of the Project, or any part thereof
or interest therein (including the leasehold estate of the
Company therein) or the income therefrom or Basic Rent and
other amounts payable under this Lease, including any new
taxes and assessments not of the kind enumerated above to the
extent that the same are lawfully made, levied or assessed in
lieu of or in addition to taxes or assessments now customarily
levied against real or personal property, and further
including all utility charges, assessments and other general
governmental charges and impositions whatsoever, foreseen or
unforeseen, which if not paid when due would impair the
security of the Bonds or encumber the City's title to the
Project; provided that with respect to any special assessments
or other governmental charges that are lawfully levied and
assessed which may be paid in installments, the Company shall
be obligated to pay only such installments thereof as become
due and payable during the Lease Term.
(b) The Company shall have the right, in its own name or in the
City's name, to contest the validity or amount of any tax,
assessment or other governmental charge which the Company is
required to bear, pay and discharge pursuant to the terms of
this Article by appropriate legal proceedings instituted on
the later of (1) the day that is at least 10 days before the
tax, assessment or other governmental charge complained of
becomes delinquent and (2) the expiration date of the
applicable contest period, if and provided (i) the Company,
before instituting any such contest, gives the City written
notice of its intention so to do, (ii) the Company diligently
prosecutes any such contest, at all times effectively stays or
prevents any official or judicial sale therefor, under
execution or otherwise, and (iii) the Company promptly pays
any final judgment enforcing the tax, assessment or other
governmental charge so contested and thereafter promptly
procures record release or satisfaction thereof. The City
agrees to cooperate fully with the Company in connection with
any and all administrative or judicial proceedings related to
any tax, assessment or other governmental charge. The Company
shall hold the
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City whole and harmless from any costs and expenses the City
may incur related to any of the above.
SECTION 6.3. UTILITIES. All utilities and utility services used by the
Company in, on or about the Project Site shall be paid for by the Company and
shall be contracted for by the Company in the Company's own name, and the
Company shall, at its sole cost and expense, procure any and all permits,
licenses or authorizations necessary in connection therewith.
So long as the Company is not in default under this Lease, all
easements, leases and license agreements that comprise a part of the Project
shall insure to the benefit of and be a burden upon the Company. The Company is
authorized to exercise all rights and perform all obligations under all such
easements, leases and license agreements in the Company's own name at the
Company's sole cost. The City shall provide the Company with such confirmation
of the foregoing authority as reasonably may be required from time to time.
SECTION 6.4. PROPERTY TAX EXEMPTION.
(a) The City and the Company agree that while the Project is owned
by the City and is subject to this Lease, the Project is
expected to be exempt from ad valorem taxes by reason of such
ownership. Notwithstanding the foregoing, the Company will
annually pay to the City and the County the PILOTs with
respect to the Project in accordance with the terms and
provisions and in the amounts set forth on Exhibit D. Each
PILOT shall be paid no later than December 31st of each year
commencing December 31, 2004, in which the Company would be
required to pay real and personal property taxes if the
Project had not been owned by the City. The amount of PILOTS
to be paid hereunder shall be reduced in any year by any
amounts paid by the Company on account of ad valorem taxes on
the Project and/or personal property taxes levied against the
Company's interest in the Project (including its leasehold
interest), except for special assessments.
(b) The City and the Company intend that at least 25 jobs shall be
created by the Project. The Company shall certify to the City
the number of new jobs created by the Project on the date that
the PILOT is paid as provided in subsection (a) of this
Section. If the number of new jobs created by the Project is
less than 25 or the aggregate salary for the new jobs is less
than $837,500, the Company shall pay the City an additional
PILOT payment ("Additional PILOT") according to the "Clawback"
schedule set forth on Exhibit D attached hereto. The
Additional PILOT payment shall be made on the date that the
PILOT payment is made. The Company agrees to
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apply for, and submit to the City, a withholding tax
identification number exclusively for the Project Site.
(c) The Company agrees to pay to the City to the City Treasurer on
each January 1st after the Company's receipt of an invoice
therefor, commencing on January 1, 2004, an annual
administrative fee of $1,500 to reimburse the City for all
expenses reasonably incurred by the City in connection with
the performance of its obligations under this Lease and the
Indenture.
(d) In the event the PILOTs, are not paid by the due date,
December 31 of the applicable year as provided in subsection
(a) of this Section, the PILOTS shall bear interest commencing
on their due date at 1 1/2% per month until paid.
ARTICLE VII
INSURANCE
SECTION 7.1. CASUALTY INSURANCE. The Company shall at its sole cost and
expense obtain and shall maintain throughout the Lease Term, a policy or
policies of insurance on an all-risk policy form to keep the Project constantly
insured against loss or damage by fire, lightning and all other comparable
insurable risks in an amount equal to the replacement value thereof (subject to
loss deductible provisions no greater than $100,000 without the prior written
consent of the Bondowner). The insurance required pursuant to this Section shall
be maintained at the Company's sole cost and expense and shall be maintained
with generally recognized responsible insurance company rated A or higher by AM
Best and authorized to do business in the State of Missouri as may be selected
by the Company. Certificates of insurance for the policies required under this
Section, each bearing notations evidencing payment of the premiums or other
evidence of such payment, shall be delivered by the Company to the Trustee on
the date of execution of this Lease and not less than ten days prior to the
expiration date of each insurance policy. All such policies of insurance
pursuant to this Section, and all renewals thereof, shall name the City, the
Company and the Trustee as insureds as their respective interests may appear,
and shall state that the carrier will endeavor to notify the certificate holder
of any cancellations by the insurer with at least thirty (30) days' prior
written notice to the City, the Company and the Trustee.
SECTION 7.2. PUBLIC LIABILITY INSURANCE.
(a) The Company shall at its sole cost and expense maintain or
cause to be maintained at all times during the Lease Term
commercial general accident and public liability insurance
(including but not limited to
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coverage for all losses whatsoever arising from the ownership,
maintenance, operation or use of any automobile, truck or
other motor vehicle), properly protecting and indemnifying the
Company, the City and the Trustee, in an amount not less than
$3,000,000 combined single limit for bodily injury (including
death) and property damage for each occurrence (subject to
reasonable loss deductible clauses not to exceed $500,000).
All such policies of insurance pursuant to this Section, an
all renewals thereof, shall name the City, the Company and the
Trustee as additional insured and state that the carrier will
endeavor to notify the certificate holder of any cancellations
by the insurer with at least thirty (30) prior written notice
to the City, the Company and the Trustee. Certificates of
insurance shall be furnished to the Trustee.
(b) In the event of a public liability occurrence, the Net
Proceeds of liability insurance carried pursuant to this
Section shall be applied toward the extinguishment or
satisfaction of the liability with respect to which such
proceeds have been paid.
SECTION 7.3. BLANKET INSURANCE POLICIES. The Company may satisfy any of
the insurance requirements set forth in this Article by using blanket policies
of insurance, provided each and all of the requirements and specifications of
this Article respecting insurance are unfulfilled.
SECTION 7.4. WORKERS COMPENSATION INSURANCE. The Company will maintain
workers compensation insurance in accordance with the laws of the State of
Missouri at all times during the Lease Term and shall deliver certificates
demonstrating such to the Trustee.
SECTION 7.5. FAILURE TO PROVIDE INSURANCE. Unless the Company provides
the evidence of insurance coverage required by this Lease, the City or the
Trustee may purchase insurance at the expense of the Company to protect the
interests of the City, the Trustee and the Bondowners in the Project. Prior to
purchasing the insurance notice shall be given to the Company of such failure to
provide evidence of insurance coverage and Company shall have three business
days after receipt of such notice to provide evidence of such insurance. This
insurance may, but need not, protect the interests of the Company. The coverage
that the City or the Trustee purchase may not pay any claim that the Company may
make or that is made against the Company in connection with the Project. The
Company may later cancel or cause to be cancelled any insurance purchased by the
City or the Trustee, but only after providing evidence to the City and the
Trustee that the Company has obtained insurance as required by this Lease. If
the City or the Trustee purchase insurance relating to the insurance coverage
required by this Lease, the Company will be responsible for the costs of that
insurance, including the insurance premium, interest and any other charges that
the City or the Trustee may impose in connection with the placement of the
insurance, until the effective date of the cancellation
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or expiration of the insurance. The costs of the insurance may be added to the
total balance or obligation due hereunder. The costs of the insurance may be
more than the cost of insurance that the Company may be able to obtain on its
own.
ARTICLE VIII
ALTERATION OF THE PROJECT
SECTION 8.1. ADDITIONS, MODIFICATIONS AND IMPROVEMENTS OF THE PROJECT.
The Company shall have and is hereby given the right, at its sole cost and
expense, to make such additions, modifications and improvements in and to any
part of the Project as the Company from time to time may deem necessary or
desirable for its business purposes. All additions, modifications and
improvements made by the Company pursuant to the authority of this Section shall
(a) be made in workmanlike manner and in compliance with all laws and ordinances
applicable thereto, (b) when commenced, be prosecuted to completion with due
diligence, and (c) when completed, be deemed a part of the Project.
Notwithstanding the foregoing, all severable items of machinery and equipment
installed in the Project by the Company not purchased or acquired from funds
deposited with the Trustee (or funds deemed deposited with the Trustee if the
Company is the sole Bondowner pursuant to Section 4.4 hereof) shall remain the
property of the Company and may be removed by the Company.
SECTION 8.2. PERMITS AND AUTHORIZATIONS. The Company shall not do or
permit others under its control to do any work on the Project related to any
repair, rebuilding, restoration, replacement, modification or addition to the
Project, or any part thereof, unless all requisite municipal and other
governmental permits and authorizations shall have been first procured. All such
work shall be done in a good and workmanlike manner and in compliance with all
applicable building, zoning and other laws, ordinances, governmental regulations
and requirements and in accordance with the requirements, rules and regulations
of all insurers under the policies required to be carried under the provisions
of Article VII hereof.
SECTION 8.3. MECHANICS' LIENS.
(a) Neither the City nor the Company shall do or suffer anything
to be done whereby the Project, or any part thereof, may be
encumbered by any mechanics' or other similar lien. Whenever
and as often as any mechanics' or other similar lien is filed
against the Project, or any part thereof, purporting to be for
or on account of any labor done or materials or services
furnished in connection with any work in or about the Project,
the Company shall discharge the same of record within sixty
(60) days after the date the Company receives written notice
of filing. Notice is hereby given that the City and the
Trustee shall not be liable for any labor or
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materials furnished the Company or anyone claiming by, through
or under the Company upon credit, and that no mechanics' or
other similar lien for any such labor, services or materials
shall attach to or affect the reversionary or other estate of
the City in and to the Project or any part thereof.
(b) Notwithstanding paragraph (a) above, the Company shall have
the right to contest any such mechanics' or other similar lien
if within said 60-day period stated above it notifies the City
and the Trustee in writing of its intention so to do, and
provided the Company diligently prosecutes such contest, at
all times effectively stays or prevents any official or
judicial sale of the Project, or any part thereof or interest
therein, under execution or otherwise, and pays or otherwise
satisfies any final judgment enforcing such contested lien
claim and thereafter promptly procures record release or
satisfaction thereof. The Company shall hold the City and the
Trustee whole and harmless from any loss, costs or expenses
the City or the Trustee may incur related to any such contest.
The City shall cooperate fully with the Company in any such
contest.
SECTION 8.4. ADDITIONAL IMPROVEMENTS ON THE PROJECT SITE. The Company
shall have and is hereby given the right, at its sole cost and expense, to
construct on unimproved portions of the Project Site such additional buildings
and improvements as the Company from time to time may deem necessary or
desirable for its business purposes. All additional buildings and improvements
constructed on the Project Site by the Company pursuant to the authority of this
Section shall, during the Lease Term, remain the property of the Company and may
be added to, altered or razed and removed by the Company at any time. The
Company covenants and agrees (a) to make any repairs and restorations required
to be made to the Project because of the construction of, addition to,
alternation or removal of such additional buildings or improvements, (b) to keep
and maintain such additional buildings and improvements in good condition and
repair, ordinary wear and tear excepted, and (c) to promptly and with due
diligence either raze and remove in a good and workmanlike manner, or repair,
replace or restore any of such additional buildings and improvements as may from
time to time be damaged by fire or other casualty.
SECTION 8.5. REMOVAL OF PARTS OF PROJECT. The Company shall have the
right, provided the Company is not in default in the payment of Basic Rent or
Additional Payments hereunder, to remove and (on behalf of the City) sell,
exchange or otherwise dispose of, without responsibility or accountability to
the City or the Trustee with respect thereto, any items of Project Equipment and
which have become inadequate, obsolete, worn out, unsuitable, undesirable or
unnecessary or which, in the sound discretion of the Company, are otherwise no
longer useful to the Company in its operations conducted on the Project Site;
provided that with respect to the proposed removal of such Project Equipment
that originally cost $1,000,000 or more, the Company shall either:
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(a) Prior to any such removal, deliver to the Trustee a
certificate signed by the Authorized Company Representative
(i) containing a complete description of the Project Equipment
which it proposes to remove, (ii) stating the reason for such
removal, (iii) stating what disposition of the Project is to
be made by the Company after such removal and the names of the
party or parties to whom such disposition is to be made and
the consideration to be received by the Company therefor, if
any, and (iv) setting forth the proposed sale price (or
trade-in credit to be received) and the fair market value
(original cost of such machinery or equipment less
depreciation at rates calculated in accordance with generally
accepted accounting principles) of such Project Equipment; and
pay the greater of (i) the proceeds from the sale of such
Project (or trade-in credit received therefor) or (ii) the
fair market value of such Project Equipment as set forth in
said certificate to the Trustee for deposit in the Bond Fund;
and deliver to the City a xxxx of sale for such Project
Equipment to be executed and delivered by the City upon
deposit of such sale proceeds in the Bond Fund; or
(b) Promptly replace any such Project Equipment so removed with
Project Equipment of the same or a different kind but with a
value equal to or greater than the fair market value of the
Project Equipment so removed, and such Project Equipment shall
be deemed a part of the "Project"; and within thirty (30) days
after any such replacement, deliver to the Trustee a
certificate signed by the Authorized Company Representative
(i) setting forth a complete description, including make,
model and serial numbers, if any, of the Project Equipment
which the Company has acquired to replace the Project
Equipment so removed by the Company, (ii) stating the cost
thereof, and (iii) stating that the Project Equipment
described in said certificate are fully paid for and have been
installed as a part of the Project.
The Trustee shall amend the list of the Project maintained by it
pursuant to Section 10.9 hereof upon receipt of any such certificate. All
machinery and equipment which replaces machinery and equipment so removed by the
Company pursuant to paragraph (b) of this Section shall become and be deemed a
part of the Project.
In all cases, the Company shall pay all the costs and expenses of any
such removal and shall immediately repair at its expense all damage to the
Project Equipment caused thereby. The Company's rights under this Section to
remove machinery and equipment constituting a part of the Project is intended
only to permit the Company to maintain an efficient operation by the removal of
machinery and equipment which is no longer suitable to the Company's use for any
of the reasons set forth in this Section, and such right is not to be construed
to permit a removal under any other circumstances and specifically is not to be
construed to permit the Company to make a wholesale removal of the Project
Equipment. The Company will not remove (i) all or part of the Project Equipment
except as provided in
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this Section 8.5 and (ii) cease or substantially reduce the level of its
operations at the Project during the Lease Term.
It is understood and agreed that the Company intends to purchase
additional Project Equipment and/or other components of the Project to replace
Project Equipment and/or other components of the Project which have become
obsolete, and to pay and retire the applicable principal amount of Bonds
associated with the obsolete Project Equipment and/or other components of the
Project upon its disposal.
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
SECTION 9.1. DAMAGE AND DESTRUCTION.
(a) If during the Lease Term, the a portion of the Project is
damaged or destroyed, in whole or in part, by fire or other
casualty, to such extent that the claim for loss (including
any deductible amount pertaining thereto) resulting from such
damage or destruction is greater than $250,000, the Company
shall promptly notify the City and the Trustee in writing as
to the nature and extent of such damage or loss and whether it
is practicable and desirable to rebuild, repair, restore or
replace such damage or loss.
(b) If the Company shall determine that such rebuilding,
repairing, restoring or replacing is practicable and
desirable, the Company shall proceed promptly with and
complete with reasonable dispatch such rebuilding, repairing,
restoring or replacing of the property damaged or destroyed so
as to place the Project in substantially the same condition as
existed prior to the event causing such damage or destruction,
with such changes, alterations and modifications (including
the substitution and addition of other property) as may be
desired by the Company and as will not impair the operating
unity or productive capacity of the Project or the character
of the Project. If the Net Proceeds of casualty insurance
required by Article VII hereof are not sufficient to pay in
full the costs of such replacement, repair, rebuilding or
restoration, the Company shall nonetheless complete the same
and shall pay the costs thereof in excess of the Net Proceeds.
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(c) If the Company shall determine that rebuilding, repairing,
restoring or replacing some portion of the Project is not
practicable and desirable, any Net Proceeds of casualty
insurance required by Article VII hereof received with respect
to such damage or loss shall be paid into the Bond Fund
pursuant to Section 602 of the Indenture and shall be used to
redeem Bonds on the earliest practicable redemption date or to
pay the principal of any Bonds as the same become due. The
Company agrees to be reasonable in exercising its judgment
pursuant to this subsection (c). If the Company is the
Bondowner, the Bondowner may waive the payment of Net Proceeds
of casualty insurance into the Bond Fund.
(d) The Company shall not, by reason of its inability to use all
or any part of the Project during any period in which the
Project is damaged or destroyed or is being repaired, rebuilt,
restored or replaced, nor by reason of the payment of the
costs of such rebuilding, repairing, restoring or replacing,
be entitled to any reimbursement from the City, the Trustee or
the Bondowners or to any abatement or diminution of the Basic
Rent by the Company under this Lease or of any other
obligations of the Company under this Lease except as
expressly provided in this Section.
SECTION 9.2. CONDEMNATION OR INSURED DEFICIENCY OF TITLE.
(a) If during the Lease Term, (i) title to, or the temporary use
of, all or any part of the Project shall be condemned by or
sold under threat of condemnation to any authority possessing
the power of eminent domain, or (ii) title to all or any part
of the Project shall be found to be deficient or nonexistent,
or such extent that the claim or loss resulting from such
condemnation or loss of title is greater than $25,000, the
Company shall, within ninety(90) days after the date of entry
of a final order in any eminent domain proceedings granting
condemnation, or the date of sale under threat of
condemnation, proceedings determining such loss of title,
notify the City and the Trustee in writing as to the nature
and extent of such condemnation or loss of title and whether
it is practicable and desirable to acquire or construct
substitute improvements.
(b) If the Company shall determine that such substitution is
practicable and desirable, the Company shall proceed promptly
with and complete with reasonable dispatch the acquisition or
construction of such substitute improvements, so as to place
the Project in substantially the same condition as existed
prior to the exercise of the power of eminent domain or loss
of title, including the acquisition or construction of other
improvements suitable for the Company's operations in
connection with the Project and available for use and
occupancy by the Company without the payment of any rent other
than herein provided, to the same extent as if such other
improvements were specifically described herein and demised
hereby; provided, that such
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improvements will be acquired by the City subject to no liens,
security interests or encumbrances prior to the lien and/or
security interest afforded by the Indenture other than
Permitted Encumbrances.
(c) If the Company shall determine that it is not practicable and
desirable to acquire or construct substitute improvements, any
Net Proceeds of condemnation awards or title insurance
received by the Company shall be paid into the Bond Fund
pursuant to Section 602 of the Indenture and shall be used to
redeem bonds on the earliest practicable redemption date or to
pay the principal of any Bonds as the same become due. The
Company agrees to be reasonable in exercising its judgment
pursuant to this subsection (c).
(d) The Company shall not, by reason of its inability to use all
or any part of the Project during any such period of
restoration or acquisition nor by reason of the payment of the
costs of such restoration or acquisition, be entitled to any
reimbursement from the City, the Trustee or the Bondowners or
to any abatement or diminution of the Basic Rent by the
Company under this Lease nor of any other obligations
hereunder except as expressly provided in this Section.
(e) The City agrees to cooperate fully with the Company in the
handling and conduct of any prospective or pending
condemnation proceedings with respect to the Project or any
part thereof, and shall, to the extent it may lawfully do so,
permit the Company to litigate in any such proceedings in the
name and on behalf of the City. In no event will the City
voluntarily settle or consent to the settlement of any
prospective or pending condemnation proceedings with respect
to the Project or any part thereof without the prior written
consent of the Company.
ARTICLE X
SPECIAL COVENANTS
SECTION 10.1. NO WARRANTY OF CONDITION OR SUITABILITY BY THE CITY;
EXCULPATION AND INDEMNIFICATION. The City and the Trustee make no warranty,
either express or implied, as to the condition of the Project or that it will be
suitable for the Company's purposes or needs. The Company releases the City and
the Trustee from, agrees that the City shall not be liable for and agrees to
hold the City and the Trustee harmless against, any loss or damage to property
or any injury to or death of any person that may be occasioned by any cause
whatsoever pertaining to accrual of the City's right of re-entry because of the
Company's default hereunder or upon the Project or the use thereof; unless such
loss is the result of the City's gross negligence or willful misconduct.
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SECTION 10.2. SURRENDER OF POSSESSION. Upon the cancellation or
termination of this Lease for any reason (after any applicable cure period
provided in this Lease or in the Indenture) other than the Company's purchase of
the Project pursuant to Article XI hereof, the Company shall peacefully
surrender possession of the Project to the City in good condition and repair,
ordinary wear and tear excepted; provided, however, the Company shall have the
right within ninety (90) days or such later date as the City may agree to) after
the termination of this Lease to remove from the Project Site any buildings,
improvements, furniture, trade fixtures, machinery and equipment and
restorations of the Project required to be made because of such removal shall be
made by and at the sole cost and expense of the Company, and during such 90-day
(or extended) period the Company shall bear the sole responsibility for and bear
the sole risk of loss for such buildings, improvements, furniture, trade
fixtures, machinery and equipment. All buildings, improvements, furniture, trade
fixtures, machinery and equipment owned by the Company and which are not so
removed from the Project prior to the expiration of such period shall be the
separate and absolute property of the City.
SECTION 10.3. CITY'S RIGHT OF ACCESS TO THE PROJECT. The Company agrees
that the City and the Trustee and their duly authorized agents shall have the
right at reasonable times during business hours, subject to the Company's usual
safety and security requirements, to enter upon the Project Site (a) to examine
and inspect the Project without interference or prejudice to the Company's
operations, (b) as may be reasonably necessary to cause to be completed the
acquisition provided for in Section 4.2 hereof, and (c) performing such work in
and about the Project made necessary by reason of the Company's default under
any of the provisions of this Lease.
SECTION 10.4. SECTION 10.4. PERMITTED ENCUMBRANCES; LEASEHOLD DEEDS OF
TRUST.
(a) If no Event of Default under this Lease shall have happened
and be continuing, the Company may at any time or times (i)
grant easements, licenses, rights-of-way (including the
dedication of public highways) and other rights or privileges
in the nature of easements that are for the direct use of the
Project, or part thereof, by the grantee, (ii) release
existing easements, licenses, rights-of-way and other rights
or privileges, all with or without consideration and upon such
terms and conditions as the Company shall determine, or (iii)
incur Permitted Encumbrances. The City agrees that it will
execute and deliver and will cause and direct the Trustee to
execute and deliver any instrument necessary or appropriate to
confirm and grant or release any such easement, license,
right-of-way or other right or privilege or any such agreement
or other arrangement, upon receipt by the City and the Trustee
of: (A) a copy of the instrument of grant or release or of the
agreement or other arrangement, (B) a written application
signed by an Authorized Company Representative requesting such
instrument, and (C) a certificate executed by an Authorized
Company Representative stating that
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such grant or release is not detrimental to the proper conduct
of the business of the Company, will not impair the effective
use or interfere with the efficient and economical operation
of the Project, and will not materially adversely affect the
security intended to be given by or under the Indenture. If
the instrument of grant shall provide that any such easement
or right and the rights of such other parties thereunder shall
be superior to the rights of City and the Trustee under this
Lease and the Indenture and shall not be affected by any
termination of this Lease or default on the part of the
Company hereunder then such easement shall not have any effect
whatsoever without the written consent of the City. If no
Event of Default shall have happened and be continuing beyond
any applicable grace period, any payments or other
consideration received by the Company for any such grant or
with respect to or under any such agreement or other
arrangement shall be and remain the property of the Company,
but, in the event of the termination of this Lease or during
the continuation of an Event of Default, all rights then
existing of the Company with respect to or under such grant
shall inure to the benefit of and be exercisable by the City
and the Trustee.
(b) The Company may grant a Leasehold Deed of Trust on the
leasehold estate created by this Lease, without the City's
consent, provided and upon condition that:
(i) a duplicate original or certified copy or photostatic
copy of each such Leasehold Deed of Trust, and the
note or other obligation secured thereby, is
delivered to the City and the Trustee within thirty
(30) days after the execution thereof; and
(ii) such Leasehold Deed of Trust shall contain a covenant
to the effect that the net proceeds of all insurance
policies and the condemnation award shall be held,
used and applied for the purposes and in the manner
provided for in this Lease.
(c) Notwithstanding anything contained to the contrary in this
Lease, (i) the Company shall have the right to assign its
interest in this Lease and any subleases to any beneficiary of
the Leasehold Deed of Trust or to the designee or nominee of
such beneficiary of the Leasehold Deed of Trust, without the
consent of the City, and (ii) if the beneficiary of the
Leasehold Deed of Trust or its designee or nominee shall
acquire ownership of the leasehold estate, either following
foreclosure of such Leasehold Deed of Trust or in liquidation
of the indebtedness and in lieu of foreclosure thereof, the
beneficiary of the Leasehold Deed of Trust or its designee or
nominee shall have the further right to further assign this
Lease and any subleases, with the consent of the City and such
assignee shall enjoy all
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rights, powers and privileges granted herein to beneficiaries
of leasehold deeds of trust.
(d) If (i) the Company shall execute and deliver a Leasehold Deed
of Trust, and (ii) the provisions and conditions of subsection
(b) above shall have been fully complied with and observed
with respect to such Leasehold Deeds of Trust, and (iii) the
Company or the beneficiary of such Leasehold Deeds of Trust
shall have notified the City and the Trustee in writing of the
making thereof and of the name and address of beneficiary of
such Leasehold Deed of Trust; then:
(i) this Lease may not be modified, amended, canceled or
surrendered by agreement between the City and the
Company, without the prior written consent of
beneficiary of such Leasehold Deed of Trust;
(ii) there shall be no merger of this Lease or of the
leasehold estate created hereby with the fee title to
the Project Site, notwithstanding that this Lease or
said leasehold estate and said fee title shall be
owned by the same person or persons, without the
prior written consent of beneficiary of such
Leasehold Deed of Trust;
(iii) the City shall serve upon each beneficiary of the
Leasehold Deed of Trust a copy of each notice of
default and each notice of termination given to the
Company under this Lease, at the same time as such
notice is served upon the Company. No such notice to
the Company shall be effective unless a copy thereof
is thus served upon each beneficiary of the Leasehold
Deed of Trust;
(iv) each beneficiary of the Leasehold Deed of Trust shall
have the same period of time after the service of
such notice upon it within which the Company may
remedy or cause to be remedied the default which is
the basis of the notice plus ninety (90) days; and
the City shall accept performance by such beneficiary
of the Leasehold Deed of Trust as timely performance
by the Company;
(v) such beneficiary of the Leasehold Deed of Trust shall
not be required to continue possession or continue
foreclosure proceedings under paragraph (vii) of this
subsection if the particular default has been cured;
(vi) the City may exercise any of its rights or remedies
with respect to any other default by the Company
occurring during the period of such forbearance
provided for under paragraph (viii), subject to the
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rights of the beneficiary of the Leasehold Deed of
Trust under this Section as to such other defaults;
(vii) in case of default by the Company under this Lease,
other than a default in the payment of money, the
City shall take no action to effect a termination of
this Lease by service of a notice or otherwise,
without first giving to such beneficiary of the
Leasehold Deed of Trust a reasonable time within
which either to obtain possession of the Project and
to remedy such default in the case of a default which
is susceptible of being cured when such beneficiary
of the Leasehold Deed of Trust has obtained
possession of the Project, or to institute and with
reasonable diligence to complete foreclosure
proceedings or otherwise acquire the Company's
leasehold estate under this Lease in the case of a
default which is not so susceptible of being remedied
by such beneficiary of the Leasehold Deed of Trust,
provided that the Leasehold Deed of Trust shall
deliver to the City within thirty (30) days after the
expiration of the grace period applicable to the
particular default, an instrument unconditionally
agreeing to remedy such default other than a default
not susceptible of being remedied by the beneficiary
of such Leasehold Deed of Trust. The City's right to
terminate this Lease by reason of a default which is
not susceptible of being remedied by such beneficiary
of the Leasehold Deed of Trust shall end with respect
to such default when the beneficiary of the Leasehold
Deed of Trust obtains possession of the Project as
aforesaid, which possession shall be deemed to
include possession by a receiver;
(viii) if this Lease shall terminate prior to the expiration
of the Lease Term, the City shall enter into a new
lease for the Project (which shall be deemed to have
continued or been reinstated as if this Lease had
never been terminated), with any such beneficiary of
the Leasehold Deed of Trust or its designee or
nominee, for the remainder of the term, effective as
of the date of such termination, at the same rent and
upon the same terms, covenants and conditions
contained herein, except that such new lease shall
not guarantee possession of the Project to the new
tenant as against the Company and/or anyone claiming
under the Company, and the City, simultaneously with
the execution and delivery of such new lease, shall
turn over to the new tenant all monies, if any, then
held by the City under this Lease on behalf of the
Company, on condition that:
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(A) such beneficiary of the Leasehold Deed of
Trust shall make written request for such
new lease within thirty (30) days after the
date of such termination, and
(B) on the commencement date of the term of the
new lease, such beneficiary of the Leasehold
Deed of Trust shall cure all defaults of the
Company under this Lease (susceptible of
being cured by such beneficiary of the
Leasehold Deed of Trust) which remain
uncured on that date, and shall pay or cause
to be paid all unpaid sums which at such
time would have been payable under this
Lease but for such termination, and shall
pay or cause to be paid to the City on that
date all expenses, including reasonable
counsel fees, court costs and disbursements,
incurred by the City in connection with any
such default and termination as well as in
connection with the execution and delivery
of such new lease;
(ix) if such beneficiary of the Leasehold Deed of Trust or
its designee or nominee shall become the owner of
this Lease either following foreclosure of such
Leasehold Deed of Trust or in liquidation of the
indebtedness and in lieu of foreclosure thereof and
such Leasehold Deed of Trust or its designee or
nominee shall have assigned this Lease, such
beneficiary of the Leasehold Deed of Trust or its
designee or nominee so assigning shall be released
from all liability accruing from and after the date
of such assignment.
If more than one beneficiary of the Leasehold Deed of Trust shall
request such new lease, such new lease shall be made with and delivered to the
beneficiary of the Leasehold Deed of Trust (or its nominee or designee) whose
deed of trust is prior in lien to those of any others. The opinion of a
reputable title insurance company, licensed to insure title to real property in
the State of Missouri, setting forth the order of priority of such mortgage
liens, may be relied on by the City as conclusive evidence of such priority.
SECTION 10.5. FINANCING DOCUMENTS. The Company, from time to time, may
request the City to (i) pledge, assign or otherwise hypothecate all or a portion
of its interest in and to the Project in connection with any financings which
the Company may undertake with respect to the Project ("Project Financing"),
and/or (ii) acknowledge any Project Financing and the rights and remedies of any
Project Equipment Lender, as hereinafter in this Section defined, thereunder.
Subject to the terms and conditions of this Section 10.5, the City promptly
shall execute and deliver, at the Company's request, all UCC financing
statements, security documents, acknowledgements, assignments and other
Financing Documents securing, evidencing or otherwise pertaining to the Project
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Financing; provided, however, that the City and the Trustee shall not be liable
for any of the indebtedness evidencing the Project Financing or for any other
obligations of the Company, as borrower, under the Financing Documents in the
Company's own name or as the authorized agent for the City even if such agency
is not specified. No separate signature or authorization from the City shall be
required for the execution and delivery of any such Financing Documents. All
third parties entering into any Financing Documents or other documents executed
in connection therewith or receiving delivery of or the benefit from any
Financing Documents or other such documents ("PROJECT EQUIPMENT LENDER") shall
be entitled to rely upon the same as having been executed by the Company as the
agent for the City, unless the Project Equipment Lender has actual notice that
the agency granted herein has been terminated because of an uncured Event of
Default hereunder. The City hereby names, appoints and constitutes the Company
as its irrevocable attorney-in-fact, coupled with and interest, to execute and
deliver on behalf of the City each and every of the Financing Documents, subject
to the limitation of liability set forth above.
In the event that the Company consummates a Project Financing with
respect to the Project and collateralizes all or a portion of the Project under
the Financing Documents, then the following provisions shall be applicable in
addition to, but not exclusive of, the Financing Documents or any additional
documents to which the City becomes a party with respect to the Project
Financing:
(a) This Lease may not be modified, amended, cancelled or
surrendered by agreement between the City and the Company,
without the prior written consent of the Project Equipment
Lender of which the City and the Trustee have received written
notice;
(b) There shall be no merger of title between the leasehold estate
created under this Lease and the ownership interest held by
the City in and to the Project notwithstanding that this Lease
or said leasehold estate and ownership interest shall be owned
by one and the same person or persons, without the prior
written consent of the lender providing financing for the
Project (the "Project Lender");
(c) Provided that the mailing address of the Project Lender is
provided to the City and the Trustee in writing, the City
shall send each Project Lender a copy of each notice of
default and each notice of termination given to the Company
under this Lease at the same time as such notice is sent to
the Company. No such notice to the Company shall be effective
unless a copy thereof is served upon each Project Lender;
(d) Each Project Lender shall have the same time period which the
Company has after service of any required notice upon it,
within which to remedy or cause to be remedied, any payment
default under this Lease plus thirty
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(30) days, and the City shall accept performance by the
Project Lender as timely performance by the Company.
(e) Such Project Lender shall not be required to continue
possession or continue foreclosure proceedings hereunder if
the particular default has been cured.
(f) The City may exercise any of its rights or remedies with
respect to any other default by the Company, subject to the
rights of Project Lender;
(g) In the case of default by the Company under this Lease, other
than a default in the payment of money, the City shall take no
action to effect termination of this Lease by service of a
notice or otherwise, without first giving notice to the
Project Lender and a reasonable time within which either to
obtain possession of the Project and to remedy such default or
to institute and to prosecute diligently foreclosure
proceedings or otherwise acquire the Company's leasehold
estate under this Lease, provided, however, that the City's
right to terminate this Lease by reason of a default which is
not susceptible to being remedied by the Project Lender shall
be null and void and not effective against the Project Lender,
its designee, or a purchaser in foreclosure that acquires
title to all or a portion of the Project;
(h) If this Lease shall terminate prior to the expiration of the
Lease Term, the City may in its sole and absolute discretion
enter into a new lease for the Project with the Project Lender
or its designee, for the remainder of the Lease Term effective
as of the date of termination, upon the same terms and
conditions as contained in this Lease, except that such new
lease shall not guarantee possession of the Project to the new
tenant as against the Company or anyone claiming by or through
the Company, and the City, simultaneous with the execution and
delivery of such new lease, shall turn over to the new tenant
all monies, if any, then held by the City under the Lease on
behalf of the Company, on condition that:
(i) The Project Lender shall make written notice of its
election to enter into such new lease within thirty
(30) days after such termination; and
(ii) On the commencement date of the term of the new
lease, the new tenant shall cure all defaults of the
Company under the Lease susceptible being cured by
the payment of money by the Project Lender and shall
pay or cause to be paid to the City and the Trustee
on that date all reasonable fees, costs, charges and
expenses, including reasonable counsel fees and
expenses, court costs and
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disbursements, incurred by the City and the Trustee
in connection with any such default and termination
as well as in connection with the execution and
delivery of such new lease;
(i) If the Project Lender, its designee or purchaser in
foreclosure shall become the new tenant either following
foreclosure or in liquidation of the indebtedness, or in lieu
of the foreclosure, and thereafter the Project Lender, its
nominee or purchaser in foreclosure shall assign its interest
in this Lease or any new lease, the same shall be released
from all liability occurring from and after the date of such
assignment with the express written consent of the City.
In the event that the City or the Trustee engages counsel to review any
Financing Documents in connection with any request for the City to execute any
of the Financing Documents or otherwise collateralize the Project, then the
Company shall reimburse the City or the Trustee for its reasonable counsel fees
and expenses incurred in connection with such review.
SECTION 10.6. INDEMNIFICATION OF CITY AND TRUSTEE. The Company shall
indemnify and save the City and the Trustee harmless from and against all
claims, demands, liabilities and losses by or on behalf of any person, firm or
corporation arising from the conduct or management of, or from any work or thing
done in, on or about, the Project during the Lease Term, and against and from
all claims arising during the Lease Term from (a) any condition of the Project
caused by the Company, (b) any breach or default on the part of the Company in
the performance of any of its obligations under this Lease, (c) any contract
entered into in connection with the improvement and installation of the Project,
(d) any act of negligence of the Company or of any of its agents, contractors,
servants, employees or licensees, (e) any act of negligence of any assignee or
sublessee of the Company, or of any agents, contractors, servants, employees or
licensees of any assignee or sublessee of the Company, and (f) ownership of the
Project by the City. The Company shall indemnify and save the City and the
Trustee harmless from and against all fees, penalties, costs, claims, demands,
liabilities, losses and expenses including but not limited to, those items
referenced in Sections 6.2(b) and 8.3(b) of this Lease (except those which have
arisen from the willful misconduct or gross negligence of the City or the
Trustee) incurred in or in connection with any action or proceeding brought
thereon, to this Lease, the Indenture and the Bonds, and upon notice from the
City or the Trustee, the Company agrees to defend them or any of them in any
such action or proceeding (except those which have arisen from the willful
misconduct or gross negligence of the City or the Trustee). The Trustee shall
notify the Company in writing within 14 days after receipt of any claim
described in this Section. Provided that neither the City or the Trustee shall
suffer any loss, cost or liability, the Company shall have complete control of
any payment in settlement or compromise of a claim or satisfaction of a judgment
resulting from a claim described in this Section. This Section 10.6 shall
survive the expiration or other termination of this Lease.
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SECTION 10.7. DEPRECIATION, INVESTMENT TAX CREDIT AND OTHER TAX
BENEFITS. The City agrees that any depreciation, investment tax credit or any
other tax benefits with respect to the Project or any part thereof shall be made
available to the Company, and the City will fully cooperate with the Company in
any effort by the Company to avail itself of any such depreciation, investment
tax credit or other tax benefits.
SECTION 10.8. COMPANY TO MAINTAIN ITS CORPORATE EXISTENCE. The Company
agrees that until the Bonds are paid or payment is provided for in accordance
with the terms of the Indenture, it will maintain its existence, and will not
dissolve or otherwise dispose of all or substantially all of its assets;
provided, however, that the Company may, without violating the agreement
contained in this Section, consolidate with or merge into another domestic
entity (i.e., an entity formed and existing under the laws of one of the states
of the United States) or permit one or more other domestic entities to
consolidate with or merge into it, or may sell or otherwise transfer to another
domestic entity all or substantially all of its assets as an entirety and
thereafter dissolve, provided, the surviving, resulting or transferee entity
expressly assumes in writing all the obligations of the Company contained in
this Lease; and, further provided, that the surviving, resulting or transferee
entity, as the case may be, has a consolidated net worth (after giving effect to
said consolidation, merger or transfer) at least equal to or greater than that
of the Company immediately prior to said consolidation, merger or transfer and
there shall be delivered to the City and the Trustee a certificate of an
independent certified public accountant to such effect or the surviving or
transferee entity is otherwise reasonably acceptable to the City, such
acceptability being evidenced to the Trustee by a certificate of the City for
such effect. The term "net worth", as used in this Section, shall mean the
difference obtained by subtracting total liabilities (not including as a
liability any capital or surplus item) from total assets of the Company and all
of its subsidiaries. Merger or consolidation with an affiliate of the Company
shall not require compliance with this Section 10.8. In any such consolidation,
merger or transfer the Company shall comply with the provisions of Section 13.1
hereof to the extent applicable.
SECTION 10.9. SECURITY INTERESTS. The City and the Company agree to
enter into all instruments (including financing statements and statements of
continuation) necessary for perfection of and continuance of the perfection of
the security interests of the City and the Trustee in the Project. The City
shall cause to be filed all such instruments which the Owner of the Bonds shall
deem necessary to be filed and the Trustee shall continue or cause to be
continued the liens of such instruments for so long as the Bonds shall be
Outstanding. The City and the Company shall cooperate with the Trustee in this
regard by executing such continuation statements and providing such information
as the Trustee may require to renew such liens. Additionally, the Trustee shall
maintain a file showing the description of all machinery and equipment
constituting a part of the Project, said file to be compiled from the
certificates furnished to the Trustee pursuant to Section 4.4, Section 4.7 and
Section 8.5 hereof and upon which certification the Trustee may conclusively
rely.
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If, at any time during the term of this Lease, the Company changes its
state of formation, changes its form of organization, changes its name, or takes
any other action which could affect the proper location for filing of Uniform
Commercial Code financing statements or continuation statements or which could
render existing filings seriously misleading or invalid, the Company shall
immediately provide written notice of such change to the City and the Trustee,
and thereafter promptly deliver to the City or the Trustee such additional
information or documentation regarding such change as the City or the Trustee
may reasonably request for the purpose of amendment and/or refilling, at the
expense of the Company, as may be reasonably determined to be necessary by City
or the Trustee, and their respective attorneys.
SECTION 10.10. ENVIRONMENTAL MATTERS. The Company covenants, represents
and warrants to the City and the Trustee, and their respective successors and
assigns, that the Project Site and its existing uses have at all times during
the period the Company and/or the City has owned the Project Site complied with,
and the Project shall comply with, and the Company is not in violation and shall
not violate, in connection with the ownership, use, maintenance or operation of
the Project and the conduct of the business related thereto, any applicable
"Environmental Law", as hereinafter defined, relating to "Hazardous Materials",
as hereinafter defined. The term "Environmental Laws" shall mean all Federal,
State and local environmental, land use, zoning, health, chemical use, safety
and sanitation laws, statutes, ordinances and codes relating to the protection
of the environment or governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of Hazardous
Materials and the rules, regulations, policies, guidelines, interpretations,
decisions, orders and directives of federal, state and local governmental
agencies and authorities with respect thereto, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, the Hazardous Materials Transportation Act, as amended, the Resource
Conservation and Recovery Act, as amended, the Toxic Substances Control Act, as
amended, the Clean Air Act, the Federal Water Pollution Control Act of 1972, and
the Superfund Amendments and Reauthorization Act of 1986. The term "Hazardous
Materials" shall mean any flammable explosives, radon, radioactive materials,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum, petroleum-based products, methane, hazardous materials, hazardous
wastes, hazardous or toxic substances or related materials as set forth in any
Environmental Law or other materials which may or could pose a hazard to the
health and safety of the occupants of the Project or the occupants and/or owners
of property near the Project. Without limiting the generality of the foregoing:
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(a) The Company, its agents, employees and independent
contractors, (i) have and shall operate the Project and have
and at all times will receive, handle, use, store, treat,
transport and dispose of all Hazardous Materials in strict
compliance with all applicable Environmental Laws and other
health or safety statutes, ordinances, orders, rules,
standards, regulations or requirements, and (ii) have removed
from the Project any Hazardous Materials that do not comply
with the foregoing;
(b) There are no existing or pending statutes, orders, standards,
rules or regulations relating to environmental matters
requiring any remedial actions or other work, repairs,
construction or capital expenditures with respect to the
Project, nor has the Company received any notice of any of the
same;
(c) No Hazardous Materials have, to the knowledge of the Company,
been or will be released into the environment, or have been
spilled, discharged, or disposed of at or on the Project Site
except as previously disclosed in writing to City by or on
behalf of Company, nor has the Project Site been, or will it
be, used at any time by any person as a landfill or a disposal
site for Hazardous Materials or for garbage, waste or refuse
of any kind;
(d) There are no electrical transformers, except as disclosed in
the environmental report provided to the City and the Trustee,
or other equipment containing dielectric fluid containing
polychlorinated biphenyls located in the Project, on or under
the Project Site, nor is there any friable asbestos contained
in the Project, nor will the Company permit the installation
of same;
(e) There are no underground storage tanks under the Project Site
nor, to the knowledge of the Company, have any been removed
from the Project Site;
(f) No notices of any violation of any of the matters referred to
in the foregoing sections relating to the Project Site or the
Project or their use have been received by the Company, and
there are no writs, injunctions, decrees, orders or judgments
outstanding, and to the knowledge of the Company no lawsuits,
claims, proceedings or investigations pending or threatened,
relating to the ownership, use, maintenance or operation of
the Project, nor is there any basis for any such lawsuit,
claim, proceeding or investigation being instituted or filed;
and
(g) The Project Site is not listed in the United States
Environmental Protection Agency's National Priorities List of
Hazardous Waste Sites nor any other log, list, schedule,
inventory or record of Hazardous Materials or Hazardous Waste
sites whether maintained by the United States, or any state or
local governmental unit.
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The Company agrees to indemnify and reimburse the City and the Trustee,
and their respective successors and assigns, for any breach of these
representations and warranties and from any loss, damage, expense or cost
arising out of or incurred by the City or the Trustee which is the result of a
breach of, misstatement of or misrepresentation of the above covenants,
representations and warranties, or for any loss, damage, expense or cost
sustained as a result of there being located on the Project any Hazardous
Materials or dangerous, toxic or hazardous pollutants, chemicals, wastes or
substances, together with all attorneys' fees incurred in connection with the
defense of any action against the City, the Trustee or the Company arising out
of the above. These covenants, representations, warranties and indemnities shall
be deemed continuing covenants, representations, warranties and indemnities
running with the land for the benefit of the City and the Trustee, and their
respective successors and assigns, including any purchaser at a foreclosure
sale, any transferee of the title of the City or the Trustee or any subsequent
purchaser thereof at a foreclosure sale, and any subsequent owner of the Project
claiming through or under the title of the City or the Trustee and shall survive
any acquisition of title of the City or the Trustee. The amount of all such
indemnified loss, damage, expense or cost, shall bear interest thereon at the
Prime or Base Rate of the Trustee plus two percent (2%), and shall become
immediately due and payable in full on demand of the City or the Trustee and
their respective successors and assigns. The Company shall be notified in
writing of any event requiring indemnification hereunder and the Company shall
have the right to defend the City or the Trustee with counsel approved by the
City or the Trustee, as the case may be.
SECTION 10.11. OBLIGATIONS UNDER INDENTURE. The Company will perform
the obligations assigned to it in the Indenture.
SECTION 10.12. EQUAL OPPORTUNITY IN EMPLOYMENT.
(a) General. The Company will refrain from any unlawful employment
practice as presently defined in the Code of Ordinances of the City. The Company
will post at its office of employment notices of the provisions of Section
38-132 of the Code of Ordinances of the City. The Company will implement the
Certificate of Compliance or Affirmative Action Program submitted to the City.
The Company is bound by the terms of Sections 38-81 through 38-82 and Rules and
Regulations promulgated for the administration of these sections.
(b) Access to Information. Upon request, the Company will permit
the Director of Human Relations of the City, or his designee,
to preview documents as necessary to ascertain compliance at
the Project Site with the Affirmative Action Program required
in connection with this Lease.
(c) Failure to Comply. If the Company shall fail or refuse to
comply with the terms of this Article, the Company will be
subject to the enforcement provisions of Section 38-83 of the
Code of Ordinances of Kansas City, Missouri and the Rules and
Regulations promulgated thereunder.
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(d) Transmittals. HRD Form 1016-026 will be fully executed and
submitted prior to issuance of the Bonds.
SECTION 10.13. SALES TAX OBLIGATION. Notwithstanding any provision to
the contrary contained in this Lease, if any taxing authority shall deny the
City's exemption from the payment of sales tax on any Project, the Company may,
at its costs, contest such denial and if it is ultimately determined that the
contested sales tax is due on the Project then the Company shall pay all
applicable sales tax on such Project.
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT
SECTION 11.1. OPTION TO PURCHASE THE PROJECT. The Company or its
successors under this Lease shall have, and is hereby granted, the option to
purchase all or a portion of the Project at any time, prior to the expiration of
the Lease Term upon payment in full of all or a portion of the Bonds then
outstanding or provision for their payment having been made pursuant to Article
XIII of the Indenture. To exercise such option the Company shall give written
notice to the City and to the Trustee, if any of the Bonds shall then be unpaid
or provision for their payment shall not have been made in accordance with the
provisions of the Indenture, and shall specify therein the date of closing such
purchase, which date shall be not less than thirty (30) nor more than 180 days
from the date such notice is mailed, and in case of a redemption of the Bonds in
accordance with the provisions of the Indenture the Company shall make
arrangements satisfactory to the Trustee for the giving of the required notice
of redemption. The purchase price payable by the Company in the event of its
exercise of the option granted in this Section shall be the sum of the
following:
(a) an amount of money which, when added to the amount then on
deposit in the Bond Fund (or the amount deemed then on deposit
in the Bond Fund if the Company is the sole Bondowner), will
be sufficient to redeem all the then outstanding Bonds on the
earliest redemption date as defined in Article III of the
Indenture next succeeding the closing date of the purchase,
including, without limitation, principal and interest to
accrue to said redemption date and redemption expense; plus
(b) an amount of money equal to the Additional Rent due for the
remaining Lease Term; plus
(c) an amount of money equal to the Trustee's and the Paying
Agent's agreed to and reasonable fees and expenses under the
Indenture accrued and to accrue until such redemption of the
Bond; plus
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(d) the sum of $100.00 for the purchase of all the Project.
At its option, to be exercised at least five (5) days prior to the date
of closing such purchase, the Company may deliver to the Trustee for
cancellation Bonds not previously paid, and the Company shall receive a credit
against the purchase price payable by the Company in an amount equal to 100% of
the principal amount of the Bonds so delivered for cancellation.
SECTION 11.2. CONVEYANCE OF THE PROJECT. At the closing of the purchase
of the Project pursuant to this Article, the City will upon receipt of the
purchase price deliver to the Company the following:
(a) If the Indenture shall not at the time have been satisfied in
full, a release from the Trustee of the Project from the lien
and/or security interest of the Indenture, in such form as
reasonably requested by the Company.
(b) Documents, in such form as reasonably requested by the
Company, conveying to the Company or its successors under this
Lease legal title to the Project, as it then exists, subject
to the following: (i) those liens and encumbrances, if any, to
which title to the Project was subject when conveyed to the
City; (ii) those liens and encumbrances created by the Company
or to the creation or suffering of which the Company
consented; (iii) those liens and encumbrances resulting from
the failure of the Company to perform or observe any of the
agreement on its part contained in this Lease; (iv) Permitted
Encumbrances other than the Indenture and this Lease; and (v)
if the Project or any part thereof is being condemned, the
rights and title of any condemning authority.
SECTION 11.3. RELATIVE POSITION OF OPTION AND INDENTURE. The options
and obligation to purchase the Project granted to the Company in this Article
shall be and remain prior and superior to the Indenture and may be exercised
whether or not the Company is in default under this Lease, provided that such
default will not result in nonfulfillment of any condition to the exercise of
any such option.
SECTION 11.4. OBLIGATION TO PURCHASE THE PROJECT. The Company or its
successors under this Lease hereby agrees to purchase, and the City hereby
agrees to sell, all of the Project for the sum of $100.00 at the expiration or
termination of the Lease Term following full payment of the Bonds or provision
for payment thereof having been made in accordance with the provisions of the
Indenture. As a result, the City shall not sell, transfer or convey an interest
in the Project except as provided in this Article XI.
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ARTICLE XII
DEFAULTS AND REMEDIES
SECTION 12.1. EVENTS OF DEFAULT. If any one or more of the following
events shall occur and be continuing, it is hereby defined as and declared to be
and to constitute an "Event of Default" or "default" under this Lease:
(a) Default in the due and punctual payment of Basic Rent on the
date due or failure to pay Additional Rent within ten (10)
days after the Trustee has given the Company written notice of
a default in the payment of Additional Rent; or
(b) Default in the due observance or performance of any other
covenant, agreement, obligation or provision of this Lease on
the Company's part to be observed or performed, which default
shall continue for thirty (30) days after the City or the
Trustee has given the Company's written notice specifying such
default (or such longer period as shall be reasonably required
to cure such default; provided that (i) the Company has
commenced such cure within said 30-day period, and (ii) the
Company diligently prosecutes such cure to completion);
(c) The Company shall: (i) admit in writing its inability to pay
its debts as they become due; or (ii) file a petition in
bankruptcy or for reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
the Bankruptcy Code as now or in the future amended or any
other similar present or future federal or state statute or
regulation, or file a pleading asking for such relief; or
(iii) make an assignment for the benefit of creditors; or (iv)
consent to the appointment of a trustee, receiver or
liquidator for all or a major portion of its property or shall
fail to have the appointment of any trustee, receiver or
liquidator made without the Company's consent or acquiescence,
vacated or set aside; or (v) be finally adjudicated as
bankrupt or insolvent under any federal or state law; or (vi)
be subject to any proceeding, or suffer the entry of a final
and nonappealable court order, under any federal or state law
appointing a trustee, receiver or liquidator for all or a
major part of its property or ordering the winding-up or
liquidation of its affairs, or approving a petition filed
against it under the Bankruptcy Code, as now or in the future
amended, which order or proceeding, if not consented to by it,
shall not be dismissed, vacated, denied, set aside or stayed
within sixty (60) days after the day of entry or commencement;
or (vii) suffer a writ or warrant of attachment or any similar
process to be issued by any court against all or any
substantial portion of its property, and such writ or warrant
of attachment or any similar process is not contested, stayed,
or is not released within sixty (60) days after the final
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entry, or levy or after any contest is finally adjudicated or
any stay is vacated or set aside; or
(d) The Company shall vacate or abandon the Project, or shall have
been ejected from the Project or any portion thereof by reason
of a defect in title to the Project, and the same shall remain
uncared for and unoccupied for a period of sixty (60) days.
SECTION 12.2. REMEDIES ON DEFAULT. If any Event of Default referred to
in Section 12.1 hereof shall have occurred and be continuing beyond the
applicable cure period, then the City may at the City's election (subject,
however, to any restrictions against acceleration of the maturity of the Bonds
or termination of this Lease in the Indenture), then or at any time thereafter,
and while such Event of Default shall continue, take any one or more of the
following actions:
(a) cause all amounts payable with respect to the Basic Rent and
Additional Rent for the remainder of the term of the Lease to
become due and payable, as provided in the Indenture thirty
(30) days after written notice of its intention to do so; or
(b) give the Company written notice of intention to terminate this
Lease on a date specified therein, which date shall not be
earlier than thirty (30) days after such notice is given, and
if all defaults have not then been cured, on the date so
specified, the Company's rights to possession of the Project
shall cease and this Lease shall thereupon be terminated, and
the City may re-enter and take possession of the Project; or
(c) having terminated the Lease pursuant to Section 12.2(b)
hereof, direct the Trustee to sell the Project; all proceeds
from any such sale shall be applied in accordance with Section
908 of the Indenture; or
(d) without terminating this Lease, take possession of the Project
pursuant to legal proceedings or pursuant to any notice
provided for by law, and having elected to take possession of
the Project without terminating this Lease, the City shall use
reasonable diligence to relet the Project, or parts thereof,
for such term or terms and at such rental and upon such other
terms and conditions as the City may deem advisable, with the
right to make alterations and repairs to the Project, and no
such taking of possession of the Project by the City shall be
construed as an election on the City's part to terminate this
Lease, and no such taking of possession by the City shall
relieve the Company of its obligation to pay Basic Rent or
Additional Rent (at the time or times provided herein), or of
any of its other obligations under this Lease, all of which
shall survive such taking of possession, and the Company shall
continue to pay the Basic Rent and Additional Rent provided
for in this
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Lease until the end of the Lease Term, whether or not the
Project shall have been relet, less the net proceeds, if any,
of any reletting of the Project after deducting all of the
City's reasonable expenses in or in connection with such
reletting, including without limitation all repossession
costs, brokerage commissions, legal expenses, expenses of
employees, alteration costs and expenses of preparation for
reletting. Said net proceeds of any reletting shall be
deposited in the Bond Fund.
Having elected to take possession of the Project without terminating this Lease
under (d) above, the City may (subject, however, to any restrictions against
termination of this Lease in the Indenture), by notice to the Company given at
any time thereafter while the Company is in default in the payment of Basic Rent
or Additional Rent or in the performance of any other obligation under this
Lease, elect to terminate this Lease on a date to be specified in such notice,
which date shall be not earlier than thirty (30) days after taking possession
under (d) above, and if all defaults shall not have then been cured, on the date
so specified this Lease shall thereupon be terminated. If in accordance with any
of the foregoing provisions of this Article the City shall have the right to
elect to take possession of the Project, the City may, subject to the provisions
of Section 11.4 hereof, in accordance with local law, enter the Project and
remove any portion of the Project without being guilty of any manner of trespass
and without prejudice to any remedies for arrears of rent or preceding breach of
covenant. The City may take whatever action at law or in equity including
causing the appointment of a receiver or receivers for the Company and/or its
assets which may appear necessary or desirable to collect rent then due and
thereafter to become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Company under this Lease.
In the enforcement of any remedy provided in this Section, the Trustee
may treat all expenses of enforcement, including reasonable legal, accounting
and advertising fees and expenses, as Additional Rent then due and payable by
the Company.
Any amount collected pursuant to action taken under this Section shall
be paid to the Trustee and applied, first, to the payment of any costs, expenses
and fees incurred by the City or the Trustee as a result of taking such action
and, next, any balance shall be used to satisfy any payment then due by payment
into the Bond Fund and applied in accordance with the Indenture and, then, to
satisfy any other Additional Rent then due or to cure any other Event of
Default.
SECTION 12.3. SURVIVAL OF OBLIGATIONS. The Company covenants and agrees
with the City and Bondowners that its obligations under this Lease shall survive
the cancellation and termination of this Lease, for any cause, and that the
Company shall continue to pay the Basic Rent and Additional Rent and perform all
other obligations provided for in this Lease, all at the time or times provided
in this Lease; provided, however, that upon the payment of all Basic Rent and
Additional Rent required under Article V hereof, and upon the satisfaction and
discharge of the Indenture under
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Section 1301 thereof, the Company's obligation under this Lease shall thereupon
cease and terminate in full, except that obligations with respect to Section
11.4 hereof, compensation and indemnification of the City and the Trustee
required hereunder or in the Indenture shall not so terminate until fully
discharged.
SECTION 12.4. PERFORMANCE OF THE COMPANY'S OBLIGATIONS BY THE CITY. If
the Company shall fail to keep or perform any of its obligations as provided in
this Lease in the making of any payment or performance of any obligation, then
the City, or the Trustee in the City's name, may (but shall not be obligated so
to do) upon the continuance of such failure on the Company's part for thirty
(30) days after written notice of such failure is given the Company by the City
or the Trustee, and without waiving or releasing the Company from any obligation
hereunder, as an additional but not exclusive remedy, make any such payment or
perform any such obligation, and all reasonable sums so paid by the City or the
Trustee and all necessary incidental reasonable fees, costs and expenses
incurred by the City or the Trustee in performing such obligations shall be
deemed Additional Rent and shall be paid to the City or the Trustee on demand,
with interest thereon at the prime rate of the Trustee plus two percent (2%) per
annum, and if not so paid by the Company, the City or the Trustee shall have the
same rights and remedies provided for in Section 12.2 hereof in the case of
default by the Company in the payment of Basic Rent.
SECTION 12.5. RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
reserved by the City and the Company hereunder and those provided by law shall
be construed as cumulative and continuing rights. No one of them shall be
exhausted by the exercise thereof on one or more occasions. The City and the
Company shall each be entitled to specific performance and injunctive or other
equitable relief for any breach or threatened breach of any of the provisions of
this Lease, notwithstanding availability of an adequate remedy at law, and each
party hereby waives the right to raise such defense in any proceeding in equity.
SECTION 12.6. WAIVER OF BREACH. No waiver of any breach of any covenant
or agreement herein contained shall operate as a waiver of any subsequent breach
of the same covenant or agreement or as a waiver of any breach of any other
covenant or agreement, and in case of a breach by the Company of any covenant,
agreement or undertaking by the Company, the City may nevertheless accept from
the Company any payment or payments hereunder without in any way waiving City's
right to exercise any of its rights and remedies provided for herein with
respect to any such breach or breaches of the Company which were in existence at
the time such payment or payments were accepted by the City.
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SECTION 12.7. NOTICE OF DEFAULTS UNDER SECTION 12.1; OPPORTUNITY OF
COMPANY TO CURE DEFAULTS.
(a) Anything herein to the contrary notwithstanding, no default
specified in Section 12.1(b)(c) or (d) shall constitute an
Event of Default until actual notice of such default by
registered or certified mail shall be given by the Trustee or
by the Owners of twenty-five percent (25%) in aggregate
principal amount of all Bonds Outstanding to the Company and
the Company shall have had thirty (30) days after receipt of
such notice to correct said default or cause said default to
be corrected, and shall not have corrected said default or
caused said default to be corrected within such period;
provided, however, if any such default shall be such that it
cannot be corrected within such period, it shall not
constitute an Event of Default if corrective action is
instituted by the Company within such period and diligently
pursued until the default is corrected.
(b) With regard to any alleged default concerning which notice is
given to the Company under the provisions of this Section, the
Company hereby grants the City full authority for account of
the Company to perform any covenant or obligation, the
nonperformance of which is alleged in said notice to
constitute a default, in the name and stead of the Company,
with full power to do any and all things and acts to the same
extent that the Company could do and perform any such things
and acts in order to remedy such default.
SECTION 12.8. TRUSTEE'S EXERCISE OF THE CITY'S REMEDIES. Whenever any
Event of Default shall have occurred and be continuing, the Trustee may, but
except as otherwise provided in the Indenture shall not be obliged to, exercise
any or all of the rights of the City under this Article, upon notice as required
of the City unless the City has already given the required notice. In addition,
the Trustee shall have available to it all of the remedies prescribed by the
Indenture.
ARTICLE XIII
ASSIGNMENT AND SUBLEASE
SECTION 13.1. ASSIGNMENT; SUBLEASE. The Company may assign this Lease
in whole or in part, and may sublease the Project as a whole or in part, without
the necessity of obtaining the consent of the Trustee, subject, however, to each
of the following conditions:
(a) The prior written consent of the City, which consent shall not
be unreasonably withheld; provided, however, the consent of
the City shall
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not be required for a sublease by and between the Company and
Ameritrade or an assignment or sublease to or with any
successor to the Company or any entity owned by or under
common ownership with the Company;
(b) Except upon prior written consent of the City, no assignment
or sublease shall relieve the Company from primary liability
for any of its obligations hereunder, and in the event of any
such assignment or sublease the Company shall continue to
remain primarily liable for payment of the Basic Rent and
Additional Rent specified in Sections 5.1 and 5.2 hereof and
for performance and observance of the other covenants,
warranties, representations and agreements on its part herein
provided to be performed and observed by it to the same extent
as though no assignment or sublease had been made.
(c) Any assignee shall assume the obligations of the Company
hereunder to the extent of the interest assigned;
(d) The Company shall, at least thirty (30) days prior to such
assignment or sublease, furnish or cause to be furnished to
the City and to the Trustee a true and complete copy of each
such assignment and assumption of obligations or sublease, as
the case may be, unless such assignment or sublease is to or
with any successor to the Company or any entity owned by or
under common ownership with the Company.
SECTION 13.2. ASSIGNMENT OF REVENUES BY CITY. The City shall assign and
pledge any rents, revenues and receipts receivable under this Lease, to the
Trustee pursuant to the Indenture as security for payment of the principal of,
interest and premium, if any, on the Bonds and the Company hereby consents to
such pledge and assignment.
SECTION 13.3. RESTRICTIONS ON SALE OR ENCUMBRANCE OF PROJECT BY CITY.
During this Lease Term, the City agrees that, except to secure the Bonds to be
issued pursuant to the Indenture, it will not sell, assign, encumber, mortgage,
transfer or convey the Project or any interest therein.
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
SECTION 14.1. AMENDMENTS, CHANGES AND MODIFICATIONS. Except as
otherwise provided in this Lease or in the Indenture, after the date hereof and
prior to the payment in full of the Bonds (or provision for the payment thereof
having been made in accordance with the provisions of the Indenture), this Lease
may not be effectively
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amended, changed, modified, altered or terminated without the prior written
consent of the Trustee, given in accordance with the provisions of the
Indenture.
ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.1. NOTICES. All notices, certificates or other
communications required or desired to be given hereunder shall be in writing and
shall be deemed duly given when (a) mailed by registered or certified mail,
postage prepaid, or (b) sent by overnight delivery or other delivery service
which requires written acknowledgment of receipt by the addressee, addressed as
follows (except that notices, certificates or communications to the Trustee
shall be effective upon receipt):
(a) To the City:
City of Kansas City, Missouri
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: City Treasurer
Telecopier Number: (000) 000-0000
and to:
City of Kansas City, Xxxxxxxx
Xxxx Xxxx
Xxx Xxxxxxxxxx, 00xx Xxxxx
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: City Attorney
Telecopier Number: (000) 000-0000
(b) To the Company:
MasterCard International, LLC
0000 XxxxxxXxxx Xxxxxxxxx
X'Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx,
Senior Vice President - Global Operations
Administration and Finance
Telecopier Number: (000) 000-0000
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(c) To the Trustee:
UMB Bank, N.A.
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Corporate Trust Department
Telecopier Number: (000) 000-0000
Except as provided above, all notices given by certified or registered
mail as aforesaid shall be deemed fully given as of the date they are so mailed.
A duplicate copy of each notice, certificate or other communication given
hereunder by the City or the Company to the other shall also be given to the
Trustee. The City, the Company and the Trustee may from time to time designate,
by notice given hereunder to the others of such parties, such other address to
which subsequent notices, certificates or other communications shall be sent.
SECTION 15.2. CITY SHALL NOT UNREASONABLY WITHHOLD CONSENTS AND
APPROVALS. Wherever in this Lease it is provided that the City shall, may or
must give its approval or consent, or execute supplemental agreements or
schedules, the City shall not unreasonably, arbitrarily or unnecessarily
withhold, refuse to give or delay such approvals or consents or refuse to
execute or delay the execution of such supplemental agreements or schedules.
SECTION 15.3. NET LEASE. The parties hereto agree (a) that this Lease
shall be deemed and construed to be a net lease, (b) that the payments of Basic
Rent are designed to provide the City and the Trustee funds adequate in amount
to pay all principal of and interest accruing on the Bonds as the same become
due and payable, (c) that to the extent that the payments of Basic Rent are not
sufficient to provide the City and the Trustee with funds sufficient for the
purposes aforesaid, the Company shall be obligated to pay, and it does hereby
covenant and agree to pay, upon demand therefor, as Additional Rent, such
further sums of money, in cash, as may from time to time be required for such
purposes, and (d) that if after the principal of and interest on the Bonds and
all costs incident to the payment of the Bonds have been paid in full and the
Trustee or the City holds unexpended funds received in accordance with the terms
hereof such unexpended funds shall, after payment therefrom of all sums then due
and owing by the Company under the terms of this Lease, and except as otherwise
provided in this Lease and the Indenture, become the absolute property of and be
paid over forthwith to the Company.
SECTION 15.4. NO PECUNIARY LIABILITY. No provision, covenant or
agreement contained in this Lease, the Indenture or the Bond, or any obligation
herein or therein imposed upon the City, or the breach thereof, shall constitute
or give rise to or impose upon the City a pecuniary liability or a charge upon
the general credit or taxing powers of the City of Kansas City or the State of
Missouri. Nothing herein will preclude a proper party in interest from seeking
and obtaining, to the extent permitted by law, specific
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performance against the City for any failure to comply with any term, condition,
covenant or agreement herein or in the Indenture; provided, that no costs,
expenses or other monetary relief will be recoverable from the City.
SECTION 15.5. GOVERNING LAW. This Lease shall be construed in
accordance with and governed by the laws of Missouri.
SECTION 15.6. BINDING EFFECT. This Lease shall be binding upon and
shall inure to the benefit of the City and the Company and their respective
successors and assigns.
SECTION 15.7. SEVERABILITY. If for any reason any provision of this
Lease shall be determined to be invalid or unenforceable, the validity and
enforceability of the other provisions hereof shall not be affected thereby.
SECTION 15.8. EXECUTION IN COUNTERPARTS. This Lease may be executed
simultaneously in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed in their respective corporate names and their respective corporate
seals to be hereunto affixed and attested by their duly authorized officers, all
as of the date first above written.
[The remainder of this page intentionally left blank.]
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THIS LEASE AGREEMENT is hereby executed as of the date first
hereinabove written.
CITY OF KANSAS CITY, MISSOURI
By: /s/ Xxxxx Xxxxx
----------------------------------
Director of Finance
[SEAL]
ATTEST:
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
City Clerk
THIS LEASE AGREEMENT is hereby executed as of the date first
hereinabove written.
MASTERCARD INTERNATIONAL, LLC
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
(SEAL)
ATTEST:
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
ACKNOWLEDGMENT
STATE OF MISSOURI )
) SS.
COUNTY OF XXXXXXX )
On this _____ day of April, 2003, before me, a Notary Public in and for
said State, personally appeared Xxxxx Xxxxx who acknowledged himself to be the
Director of Finance of the CITY OF KANSAS CITY, MISSOURI, and Xxxxx Xxxxxx, who
acknowledged herself to be the City Clerk of the CITY OF KANSAS CITY, MISSOURI,
a constitutional charter city and municipal corporation organized and existing
under the laws of the State of Missouri, and that they, as such Director of
Finance and City Clerk are authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the City by
themselves as Director of Finance and City Clerk.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written.
______________________________________
Notary Public
My Appointment Expires:
______________________________
ACKNOWLEDGMENT
STATE OF _________ )
) SS.
COUNTY OF ________ )
On this _____ day of April, 2003, before me, the undersigned, a Notary
Public, appeared _______________________, to me personally known, who, being by
me duly sworn, did say that he/she is the _______________________ of MasterCard
International, LLC, a Delaware limited liability company, and that said
instrument was signed in behalf of said company by authority of its sole member,
and said ____________________acknowledged said instrument to be executed for the
purposes therein stated and as the free act and deed of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written.
______________________________________
Notary Public
My Appointment Expires:
______________________________
EXHIBIT A
PROJECT SITE
TRACT 1: (THE ESTATE OR INTEREST IN THIS TRACT WHICH IS FEE SIMPLE)
All of LOT 2, T.W.A. ADMINISTRATIVE CENTER, a subdivision in Kansas City, Platte
County, Missouri, according to the recorded plat thereof, filed in Flat Book 17,
Page 88, described as follows: Commencing at the Northwest corner of the
Southeast 1/4 of Section 23, Township 52, Range 34; thence South 89 degrees 42
minutes 46 seconds East along the North line of said Southeast 1/4, 237.97 feet
to the Northwest corner of said LOT 2, said point being the point of beginning
of the tract to be described herein; thence South 89 degrees 42 minutes 46
seconds East, along the North line of said LOT 2, 1087.49 feet to the Westerly
Right-of-Way line of Ambassador Drive; thence South 00 degrees 16 minutes 50
seconds West along said Right-of-Way line, 30.00 feet; thence North 89 degrees
42 minutes 46 seconds West, parallel with the North line of said LOT 2,574.65
feet; thence South 00 degrees 16 minutes 50 seconds West, parallel with the West
line of said Ambassador Drive 626.92 feet; thence North 89 degrees 42 minutes 46
seconds West, parallel with the North line of said Lot 2,493.19 feet to the
Easterly Right-of-Way line of interstate No. 29, said line also being the West
line of said Lot 2; thence Northerly along said line, on a curve to the left,
having a radius of 11,589.16 feet and an Initial tangent bearing of North 00
degrees 11 minutes 33 seconds East, an arc distance of 657.31 feet to the point
of beginning, located as shown on that certain Survey prepared by Xxxxxx X.
Xxxxxx Land Surveyors under seal of Xxxxxxx X. Xxxx, Missouri Registered Land
Surveyor #2379, dated August 22, 2002, last revised October 16, 2002 and
referred to as Job No. P-02117.
TRACT 2: (THE ESTATE OR INTEREST IN THIS TRACT IS EASEMENT)
A non-exclusive, perpetual appurtenant easement for Ingress and Egress and
Parking established in Document No. 14289, in Book 670, Page 517, as amended by
the instrument recorded May 5, 1993, as Document No. 6108, in Book 790, Page 89,
and as amended by the instrument recorded April 29, 1994, in Book 811, Page 904,
as Document No. 7138, over the following described property: Commencing at the
Northwest corner of said Southeast 1/4; thence South 89 degrees 42 minutes 46
seconds East, along the North line of said Southeast 1/4, 750.81 feet to the
point of beginning of the easement to be described herein; thence South 89
degrees 42 minutes 46 seconds East, continuing along said North line, 149.00
feet; thence South 00 degrees 16 minutes 50 seconds West, parallel with the East
line of Lot 1, T.W.A., ADMINISTRATIVE CENTER 498.65 feet; thence South 89
degrees 42 minutes 46 seconds East, parallel with the North line of said
Southeast 1/4, 425.65 feet to the West right-of way line of Ambassador Drive;
thence South 00 degrees 16 minutes 50 seconds West, along said right-of-way
line, 50.00 feet; thence North 89 degrees 42 minutes 46 seconds West, parallel
with the North line of said Southeast 1/4, 494.65 feet; thence South 00 degrees
16 minutes 50 seconds West, 180.00 feet; thence North 89 degrees 42 minutes 46
seconds West 80.00 feet; thence North 00 degrees 16 minutes 50 seconds East
71.73 feet to the Southeast corner of Xxx 0, X.X.X. XXXXXXXXXXXXXX XXXXXX;
thence North 00 degrees 16 minutes 50 seconds East along the Easterly line of
said lot 2 and its Northerly
prolongation, 656.92 feet to the point of beginning, located as shown on that
certain Survey prepared by Xxxxxx X. Xxxxxx Land Surveyors under seal of Xxxxxxx
X. Xxxx, Missouri Registered Land Surveyor #2379, dated August 22, 2002, last
revised October 16, 2002 and referred to as Job No. P-02117.
TRACT 3: (THE ESTATE OR INTEREST IN THIS TRACT IS EASEMENT)
Sanitary sewer easement established in Document No. 14290, in Book 670, Page
518, described as follows: a strip of land 10.00 feet in width in the Southeast
1/4 of Section 23, Township 52, Range 34, Kansas City, Platte County, Missouri,
lying 5.00 feet on each side of the following described centerline: Commencing
at the Northwest corner of the Southeast 1/4 of said Section 23; thence South 89
degrees 42 minutes 46 seconds East along the North line of said Southeast 1/4,
750.81 feet; thence South 0 degrees 16 minutes 50 seconds West, 601.42 feet to
the true point of beginning oE the centerline to be herein described; thence
South 59 degrees 35 minutes 51 seconds East, 57.27 feet to the point of
termination, located as shown on that certain Survey prepared by Xxxxxx X.
Xxxxxx Land Surveyors under seal of Xxxxxxx X. Xxxx, Missouri Registered Land
Surveyor #2379, dated August 22, 2002, last revised October 16, 2002 and
referred to as Job No. P-02117
TRACT 4: (THE ESTATE OR INTEREST IN THIS TRACT IS EASEMENT)
Gas line easement established by the instrument recorded May 5, 1993, as
Document No. 6111, Book 790, Page 92. and as amended and restated ay that
certain instrument recorded April 29, 1994. in Book 811, Page 903, as Document
No. 7137, described as follows: A Strip of land 15 feet in width, over and
across Xxx 0, X.X.X. XXXXXXXXXXXXXX XXXXXX, a subdivision of land in Kansas
City, Platte County, Missouri, according to the recorded plat of such
subdivision, recorded in Deed Book 17, Page 88, Platte County, Missouri,
records, lying 7.5 feet on either side of the following described centerline:
Beginning at a point on the North line of said Xxx 0, xxxx xxxxx xxxxx Xxxxx 00
degrees 42 minutes 46 seconds West along said North line, 276.34 feet from the
Southeast corner of Lot 2, said T.W.A. ADMINISTRATIVE CENTER; thence South 00
degrees 17 minutes 14 seconds West 127.20 feet; thence North 89 degrees 42
minutes 46 seconds West, 217.17 feet to a point on the West line of said Lot 1,
and the point of termination of said centerline. Said centerline and the Gas
line easement being located as shown on that certain Survey prepared by Xxxxxx
X. Xxxxxx Land Surveyors under seal of Xxxxxxx X. Xxxx, Missouri Registered Land
Surveyor #2379, dated August 22, 2002, last revised October 16, 2002 and
referred to as Job No. P-02117.
TRACT 5: (THE ESTATE OR INTEREST IN THIS TRACT IS EASEMENT)
Storm sewer easement established by the instrument recorded May 5, 1993, as
document No. 6113, Book 790, Page 94, and as amended and restated by the certain
instrument recorded April 29, 1994, in Book 811, Page 902, as Document No. 7136,
across a portion of Lot 1. T.W.A. Administrative Center, as more specifically
described therein, and located as shown on that certain Survey prepared by
Xxxxxx X. Xxxxxx Land Surveyors under seat of Xxxxxxx X. Xxxx, Missouri
Registered Land Surveyor #2379, dated August 22, 2002, last revised October 16,
2002 and referred to as Job No. P-02117.
TRACT 6: (THE ESTATE OR INTEREST IN THIS TRACT IS EASEMENT)
Electric line easement established by the instrument recorded May 5, 1993, as
Document No. 6112, Book 790, Page 93, corrected by the instrument recorded
August 12, 1993, as Document No.12098 in Book 796, Page 56, and as amended and
restated by the certain instrument recorded April 29, 1994, in Book 811, Page
905, as Document No. 7139, described as follows: A strip of land 15 feet in
width, over and across Xxx 0, X.X.X. Xxxxxxxxxxxxxx Xxxxxx, a subdivision of
land in Kansas City, Platte County, Missouri, according to the recorded plat of
such subdivision, recorded in Deed Book 17, Page 88, Platte County, Missouri
records, lying 7.5 feet on either side of the following described centerline;
Beginning at a point on the North line of said Lot 1, said point being 50.35
feet East from the Northwest corner of said Xxx 0 xxx xxx Xxxxxxxxx xxxxxx xx
Xxx 0, X.X.X. Administrative Center, recorded in the aforesaid plat of
subdivision; thence South 11 degrees 15 minutes 27 seconds West, 226.24 feet to
a point located 8.12 feet from the West line of said Xxx 0, xx xxx xxxxx xx
xxxxxxxxxxx of said centerline, said point of termination being shown as Manhole
No. 8, which Manhole No. 8, together with centerline and the Electric Line
Easement all being located as shown on that certain Survey prepared by Xxxxxx X.
Xxxxxx Land Surveyors under seal of Xxxxxxx X. Xxxx, Missouri Registered Land
Surveyor #2379, dated August 22, 2002, last revised October 16, 2002 and
referred to as Job No. P-02117.
TRACT 7; (THE ESTATE OR INTEREST IN THIS TRACT WHICH IS LEASEHOLD)
The leasehold estate created by the Conduit Lease executed by Trans World
Airlines, Inc., to Worldspan, L.P. a Delaware limited partnership, for a term of
years commencing May 1,1993 and ending April 30, 2092 (or upon such earlier
date as provided therein) recorded in Book 811, Page 910, as Document No. 7144,
in and to the Tenant Conduits (as defined in such Conduit Lease) and the
electrical lines therein contained located in the Duct Bank (as defined in such
Conduit Lease) such Duct Bank being located in a tract of land being 7.5 feet on
either side of the following described centerline: A strip of land 15 feet in
width, over and across Lot l, T.W.A. Administrative Center, a subdivision of
land in Kansas City, Platte County, Missouri, according to the recorded plat of
such subdivision, recorded in Deed Book 17, Page 88, Platte County, Missouri
records, lying 7.5 feet on either side of the following described centerline:
Beginning at a point on the North line of said Lot 1, said point being 50.35
feet East from the Northwest corner of said Xxx 0 xxx xxx Xxxxxxxxx xxxxxx xx
Xxx 0, X.X.X. Administrative Center, recorded in the aforesaid plat of
subdivision; thence South 11 degrees 15 minutes 27 seconds West, 226.24 feet to
a point located 8.12 feet from the West line of said Xxx 0, xx xxx xxxxx xx
xxxxxxxxxxx of said centerline, said point of termination being shown as Manhole
No. 8, on that certain Plat of Survey dated May 4, 1993, last revised July
20,1993, prepared for PARS Service Partnership by Xxxxxxxx Survey Company, (the
"Xxxxxxxx Survey"), together with a strip of land 15 feet in width, over and
across Xxx 0, X.X.X., Xxxxxxxxxxxxxx Xxxxxx, a subdivision of land in Kansas
City, Missouri, according to the aforesaid recorded plat, lying 7.5 feet on
either side of the following described centerline: Beginning at a point on the
South line of said Lot 2, said point being 50.35 feet East from the Southwest
corner of said Lot 2 and the Northwest corner of Lot 1, as described above;
thence in a Northeasterly direction to Manhole 8A as described and shown on the
Xxxxxxxx Survey, together with a strip of land 15 feet in
width, over and across Xxx 0, X.X.X. Xxxxxxxxxxxxxx Xxxxxx, Xxxxxxxxxx Xxx. 00,
X.X. 000xx Xxxxxx and property known as Kansas City International Airport, being
7.5 feet on either side of the following described centerline: Commencing at
Manhole No. 8 as described above on such Lot 1; thence over and across such Xxx
0, Xxxxxxxxxx Xxx. 00, X.X. 000xx Xxxxxx and Kansas City International Airport
the courses and distances shown and set forth on the Xxxxxxxx Survey along the
Strip of land being thereon identified as the "underground duct bank", to the
point of termination, said point of termination being shown on the Xxxxxxxx
Survey as the Switch Gear Building. The aforesaid centerlines, and the location
of the Tenant Conduits and the Duct Bank being more particularly described and
shown on the Xxxxxxxx Survey
EXHIBIT B
PROJECT IMPROVEMENTS AND PROJECT EQUIPMENT
All buildings, structures, improvements, equipment and machinery
located on or to be acquired or purchased for the construction and improvement
and equipping of the project Site pursuant to Article IV hereof and paid and all
personal property, including, without limitation, furniture, fixtures,
machinery, equipment and parts or other personal property installed or acquired
or to be acquired for installation on the Project Site pursuant to Article IV
hereof and paid for in whole or in part from the proceeds of Bonds and all
replacements thereof and substitutions therefor made pursuant to the Lease.
EXHIBIT C
FORM OF REQUISITION CERTIFICATE
Requisition No. _________
Date: __________________
REQUISITION CERTIFICATE
TO: UMB Bank, N.A., AS TRUSTEE UNDER A TRUST INDENTURE DATED AS OF April 1,
0000, XXXXXXX XXX XXXX XX XXXXXX XXXX, XXXXXXXX, AND THE TRUSTEE, AND
LEASE AGREEMENT DATED AS OF, BETWEEN THE CITY OF KANSAS CITY, MISSOURI,
AND MasterCard International.
The undersigned hereby requests that a total of $_____________ be paid
for Project Costs (as defined in said Lease) in such amounts, to such payees and
for such purposes as set forth on Schedule 1 attached hereto.
We hereby state and certify that: (a) the amounts requested are or were
necessary and appropriate in connection with the acquisition, improvement and
installation of the Project, have been properly incurred and are a proper charge
against the Project Fund, and have been paid by or are justly due to the persons
whose names and addresses are set forth on Schedule 1, for the Project Equipment
detailed on Schedule 2 and have not been the basis of any previous requisition
from the Project Fund; (b) as of this date, except for the amounts referred to
above, there are, to the best of our knowledge, no outstanding statements which
are due and payable for labor, wages, materials, supplies or services in
connection with the acquisition and installation of the Project which, if
unpaid, might become the basis of a vendors', mechanics', laborers' or
materialmen's statutory or similar lien upon the Project or any part thereof,
unless any such lien is being contested pursuant to Section 8.3(b) of the Lease;
and (c) no part of the several amounts paid or due as stated above has been or
is being made the basis for the withdrawal of any moneys from the Project Fund
in any previous or pending application for payment made pursuant to said Lease.
For any payee which is the Company the undersigned hereby instructs the
Trustee to make such payment by electronic transfer to the following account:
Bank Name: ____________________, Bank Location: __________________, ABA No.
________________, Credit Account No. __________________, Account Name
_________________, ([______________]), Contact Person:
______________________________.
MasterCard International, LLC
By: ___________________________________
Name: _________________________________
Authorized Company Representative
SCHEDULE 1 TO REQUISITION CERTIFICATE
Amount Payee and Address Description
------ ----------------- -----------
SCHEDULE 2
PROJECT EQUIPMENT
EXHIBIT D
[Insert PILOT Schedule]
