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Home My Public Portal AboutORD11219 BILL NO. $9-10 SPONSORED BY COUNCILMAN HALSEY ® ORDINANCE NO. I l- / I AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LEASE AGREEMENT BETWEEN CITY OF JEFFERSON AND WILMINGTON TRUST COMPANY, CONCERNING MODIFICATION OF A LEASE BETWEEN INTERCO, INCORPORATED, AND THE CITY OF JEFFERSON. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized to execute an agreement with Wilmington Trust Company, concerning modification of a lease between Interco, Incorporated, and the City of Jefferson. Section 2 . The agreement shall be substantially the same in form and content as that agreement attached hereto as Exhibit A. Section 3 . This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed /, /5'�'S Approved AIL residin fficer Mayo ATTEST: City Clerk AGREEMENT AGREEMENT (this "Agreement") dated as of 3AK=XTX May W'f 1989 between the CITY OF JEFFERSON CITY, MISSOURI, a municipal corporation of Cole County, Missouri (herein, together with its successors and assigns, called the "Landlord") , and INTERCO INCORPORATED, a Delaware corporation (herein, together with its successors and assigns, called the "Tenant") , for the benefit of WILMINGTON TRUST COMPANY, a Delaware trust company, as Corporate Trustee and MICHAEL M. LEDYARD, as Individual Trustee, jointly and severally in such capacities under that certain Trust Agreement hereinafter described (herein, together with their respective successors in such capacities under said Trust Agreement, individually and collectively, called the "Leasehold Lender") . WITNESSETH: WHEREAS, Landlord has granted a certain Lease (herein, together with all amendments, modifications, exten- sions, replacements and renewals thereof, called the "Lease") dated as of June 1, 1967 between Landlord and Tenant (herein, ® together with its successors and assigns, which Lease was recorded in Book 204 at page 553 Office of Recorder of Deeds, Cole County, Missouri (the "Lease") ; and WHEREAS, the Tenant has granted a certain Leasehold Deed of Trust and Assignment of Rents, Leases and Leasehold Interests (herein, together with all amendments, modifica- tions, extensions, replacements and renewal thereof, called the "Leasehold Deed of Trust") dated as of ��yX� " 1989 from the Tenant to a trustee for the benefit of the Leasehold Lender acting under the Trust Agreement described in the Leasehold Deed of Trust; NOW, THEREFORE, for One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Landlord hereby agrees for the benefit of the Leasehold Lender as follows: 1. Provisions Applicable to the Leasehold Lender. Notwithstanding anything to the contrary in the Lease, as long as the Leasehold Deed of Trust remains in force and effect: (a) Upon serving the Tenant with any notice of default under, or termination of, the Lease, the Landlord shall simultaneously serve a copy of such notice upon the Leasehold Lender by registered or certified mail, return receipt requested, at its address specified in Section 2 hereof which notice shall state the nature of the default and the amounts, if any, which are in default and, if the Landlord shall not serve such notice upon the Leasehold Lender, such notice shall not be effec- tive. (b) The Leasehold Lender shall be entitled on behalf of the Tenant, or on its own behalf, to cure any default by the Tenant within the same grace period given to the Tenant therefor plus an addi- tional period after notice from the Landlord to the Leasehold Lender that the Tenant has failed to cure such default, which period shall be thirty (30) days in the case of a default in the payment of rent or additional rent and forty-five (45) days in all other cases and, except in the case of the payment of rent or additional rent, as long as the Leasehold Lender has, within said period, given the ® Landlord notice of its intention to cure and there- after is diligently engaged in curing, within such further period as may be reasonably necessary therefor; and, until the expiration of such periods, the Landlord shall not terminate the Lease or otherwise take any action to repossess the Facility (as defined in the Lease) and will accept the performance by the Leasehold Lender. (c) If there is any default by the Tenant which the Leasehold Lender cannot cure, the Landlord shall not terminate the Lease or otherwise take any action to repossess the Facility if the Leasehold Lender (i) pays the Landlord all rent and additional rent then due from the Tenant under the Lease within the grace period given the Tenant therein plus an additional thirty (30) days, (ii) pays the Landlord any money damages which the Landlord reasonably and actually incurs by reason of such default, and (iii) is diligently curing all other defaults which it can cure within the grace period given the Tenant under the Lease plus the additional periods available to the Leasehold Lender under paragraph (b) above. For the purposes of paragraph (b) above and this paragraph, the time -2- to cure shall be extended by delays beyond the Leasehold Lender's reasonable control, and, if either control of the Tenant or possession of the Facility is necessary to cure, the Leasehold Lender will be deemed to be diligently curing if it or its designee is diligently attempting to obtain control of the Tenant or possession of the Facility through foreclosure, receivership, assignment in lieu of foreclosure or other appropriate acts or proceed- ings. (d) If the Lease shall terminate for any reason or be rejected or disaffirmed pursuant to any bankruptcy or other law affecting creditors' rights the Leasehold Lender or its designee shall have the right, exercisable by notice to the Landlord given within thirty (30) days after notice from the Landlord to the Leasehold Lender (given on or before effective date of such termination) that the Lease has been terminated, to enter into a new lease of the Facility with the Landlord. The term of said new lease shall begin on the date of the termination of the Lease and shall continue for the remainder of the term hereof. Such new lease shall otherwise contain the same provisions as those set forth in the Lease and this Agreement (including the rights to extend and purchase) , except for provisions which are no longer applicable or have already been performed, provided that the Leasehold Lender (i) pays the Landlord all rent and addi- tional rent then due from the Tenant under the Lease, (ii) pays the Landlord any money damages the Landlord reasonably or actually incurs by reason of any such termination and (iii) agrees in such new lease to cure all other defaults in accordance with the provisions of and within the periods provided in paragraphs (b) and (c) above. It is the inten- tion of the parties that such new lease shall have the same priority relative to other rights or interests to or in the Facility as the Lease and the Landlord shall discharge or cause to be subor- dinated to such new lease any lien or encumbrance which is subject or subordinate to the Lease. The provisions of this paragraph shall survive any termination of the Lease and shall continue in full force and effect thereafter to the same extent as if this paragraph were a separate and independent agreement between the Landlord and the Leasehold Lender. From the date on which the Leasehold -3- Lender serves notice that it exercises its right to have a new lease under this paragraph, the Leasehold Lender may use and enjoy the Facility subject to the provisions of this paragraph, without hindrance by the Landlord or any one claim- ing by, through or under the Landlord. (e) If the Leasehold Lender, its designee or a purchaser in or in lieu of foreclosure becomes the holder of the the Tenant's interest under the Lease (or any new lease entered into pursuant to paragraph (d) above) by foreclosure or assignment in lieu thereof or otherwise, obtains control of the Tenant or obtains possession of the Facility, such condition shall not require the consent of the Landlord or otherwise violate any provision of the Lease. (f) If the Leasehold Lender, its designee or a purchaser in or in lieu of foreclosure becomes the the holder of the Lease (or any new lease entered into pursuant to paragraph (d) above) by foreclosure, assignment in lieu thereof or other- wise, (a) such holder and any subsequent assignee ® pursuant to this paragraph may assign the Lease (or such new lease) without the Landlord's consent and be released from all liability hereunder, except obligations accruing during its tenure and prior to the effective date of assignment, provided that such assignee shall agree in writing to assume and perform all of the Tenant's obligations under the Lease (or such new lease) accruing from and after such date during such assignee's tenure and the Landlord shall receive a true copy of such agreement; and (ii) such holder and such subsequent assignee may sublease all or any part of the Facility without the Landlord's consent. (g) The Landlord shall not amend, modify, cancel or consent to the surrender of this Lease without the prior written consent of the Leasehold Lender and any such action without such consent shall not be effective. 2. Notices. Upon serving the Tenant with any notice of default under the Lease, any notice of termination of the Lease or any notice of a change of the Landlord's address under the Lease, the Landlord shall serve a copy of such Notice upon the Leasehold Lender in the manner provided -4- in the Lease and, if the Landlord fails to do so, such notice shall not be effective. Any and all notices required to be given to the Leasehold Lender under the Lease shall be in writing and shall be given in the manner specified in the Lease for notices to the Landlord or the Tenant addressed to the Leasehold Lender as follows: Wilmington Trust Company Rodney Square North Wilmington Delaware 19890 Attention: Corporate Trust Administration and a copy sent simultaneously to: Davis Polk & Wardwell 1 Chase Manhattan Plaza New York, New York 10005 Attention: Joseph J. Sperber, Esq. The Leasehold Lender may change such address by giving notice to the Landlord and the Tenant 3. Estoppel. The Landlord hereby certifies to the Leasehold Lender and the other Secured Parties described in the Leasehold Deed of Trust that (i) the Lease is in full force and effect and has not been amended or otherwise modified; (ii) all rent and other sums due under the Lease as of the date hereof have been paid; and (iii) to the best knowledge of the Landlord, there in no default under the Lease. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of the date first above written. CITY OF JEFFERSON CITY, (Corporate Seal) MISSOURI ATTEST: By ame: Brenda Cirtin Name: Lou ' Gardner Title: City Clerk Title: Ma -5- (corporate NTERCO INCORPORATED �orate Seal� ATTEST: By: a e: ja►«es K.Po��l/�kK Name: E.F 5•�,, � t vEo (Zola: ASSs� � S'ec�e7 y Title:�,rec,fsv� d«/-ipsia�vt{ a`Y��oa pE: CN —6 ® STATE OF MISSOURI ) ) : COUNTY OF �p�t, 813.C n this 4 day of , 1989 before me appeared to me personally known, who, being by me duly sworn, crid say that-h& Ys the of the CITY OF JEFFERSON, MISSOURI, a municipal co orat on of Cole County, Missouri, and that said instrument was signed in behalf of said corporation by authority of its board of directors, and said acknowledged said instru- ment to be the free act and deed of said corporation. IN TESTIMONY WHEREOI', I have hereunto set my- hand and affixed my official seal in the day and year first above written. Notary c My commission expires: BONNIE' K. �CHRt?0F WJI:QRY P1I81_10 COLE COUAI 'r. my (701MMUSIV1.4 1-771, 7� -7- ® STATE OF MISSOURI ) SS. COUNTY OF X On this s day of �F2tY3+ ry. 1989 before me appeared E F to me personally known, ho, being by me duly sworn, did say that he is the INTERCO INCORPORATED, a Delaware corporation, and that said instrument was signed in behalf of said corporation by authority of its board of directors, and said E. S~,W acknowledged said instrument to be the free act and deed of said corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the day and year first above written. Notary P c ® My commission expires: ROBERT F. WIEGERT NnTARY PJIBI-IC—STATE OF rAISSOURI ST. LOUIS COUNTY MY COMMISSION EXPIRES NOV. 18, 1992 • -8-