HomeMy Public PortalAboutORD15749BILL NO. 2017-92
SPONSORED BY COUNCILMAN Mihalevich
ORDINANCE NO. 15749
AN ORDINANCE APPROVING A PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT FOR
AXIUM PLASTICS, LLC, CONSISTING OF THE IMPROVEMENT AND EXPANSION OF
THE COMPANY'S EXISTING MANUFACTURING FACILITY AND THE ACQUISITION
AND INSTALLATION OF CERTAIN REAL PROPERTY THEREIN; AUTHORIZING THE
CITY OF JEFFERSON, MISSOURI, TO ISSUE ITS TAXABLE INDUSTRIAL
DEVELOPMENT REVENUE BONDS (AXIUM PLASTICS PROJECT), SERIES 2017, IN
A PRINCIPAL AMOUNT NOT TO EXCEED $26,000,000 TO FINANCE THE COSTS OF
SUCH PROJECT; AUTHORIZING AND APPROVING CERTAIN DOCUMENTS; AND
AUTHORIZING CERTAIN OTHER ACTIONS IN CONNECTION WITH THE ISSUANCE
OF THE BONDS.
WHEREAS, The City of Jefferson, Missouri (the "City"), is authorized under the provisions of Article
VI, Section 27 of the Missouri Constitution, as amended, and Sections 100.010 to
100.200, inclusive, of the Revised Statutes of Missouri, as amended (collectively, the
"Act"), to purchase, construct, extend and improve certain projects (as defined in the
Act) for the purposes set forth in the Act and to issue industrial development revenue
bonds for the purpose of providing funds to pay a portion of the costs of such projects
and to lease or otherwise dispose of such projects to private persons or corporations for
manufacturing, commercial, warehousing and industrial development purposes upon
such terms and conditions as the City shall deem advisable; and
WHEREAS, The City, in accordance with Section 100.050 of the Act, has prepared a plan for
industrial development (the "Plan") for the benefit of Axium Plastics, LLC, a Delaware
limited liability company ("Axium"), with respect to (a) the acquisition by PJP Holdings,
LLC, a Delaware limited liability company, and affiliate of the Company ("PJP"), of real
property in the City (the "Project Site"), (b) making certain real property improvements to
the Project Site (the "Project Improvements"), and (c) equipping the Project Site with
certain equipment and machinery (the "Project Equipment") (the Project Improvements,
Project Site, and Project Equipment are collectively referred to as the "Project") (Axium
and PJP are collectively referred to herein as the "Company"), and the City Council
determined and declared the official intent of the City to finance the costs of the Project
out of the proceeds of industrial development revenue bonds to be issued under the Act
(the "Bonds"), contingent upon preparation and approval of a plan for industrial
development with respect to the Project (the "Plan") as required by Section 100.050 of
the Act: and
WHEREAS, The City desires to finance the costs of the Project out of the proceeds of one or more
series of industrial development revenue bonds to be issued under the Act; and
WHEREAS, The City has and does hereby find and determine that it is desirable for the economic
development of the City and within the public purposes of the Act that the City proceed
with the issuance of the bonds for the purpose described above, and
WHEREAS, The City further finds and determines that it is necessary and desirable in connection with
the issuance of the bonds that the City enter into certain documents, and that the City
take certain other actions and approve the execution of certain other documents as
herein provided,
NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE CITY OF
JEFFERSON, MISSOURI, AS FOLLOWS:
Section 1. Promotion of Economic Development. The Council hereby finds and
determines that the Project will promote the economic welfare and the development of the City, and the
issuance of the Bonds (defined below) by the City to pay the costs of the Project will be in furtherance of
the public purposes set forth in the Act.
Section 2. Approval of Plan. The Council hereby approves the Plan for Industrial
Development Project attached hereto as Exhibit A in accordance with Section 100.050 of the Act.
Section 3. Authorization and Sale of the Bonds. The City is hereby authorized to issue
and sell one or more series of its Taxable Industrial Development Revenue Bonds (Axium Plastics
Project), Series 2017A and 2017B, in an aggregate principal amount not to exceed $26,000,000 (the
"Bonds"), for the purpose of providing funds to pay the costs of the Project. The Bonds shall be issued
and secured pursuant to the herein authorized Trust Indenture and shall bear such date, shall mature at
such time, shall be in such denominations, shall bear interest at such rate, shall be in such form, shall be
subject to redemption, shall have such other terms and provisions, shall be issued, executed and
delivered in such manner and shall be subject to such provisions, covenants and agreements as are
specified in the Trust Indenture upon the execution thereof, and the signatures of the officers of the City
executing the Trust Indenture shall constitute conclusive evidence of their approval and the City's
approval thereof. The sale of the Bonds to the Company at private sale pursuant to the provisions of
Section 108.170 of Revised Statutes of Missouri, as amended, at the interest rate and upon the terms set
forth in the Trust Indenture is hereby approved.
Section 4. Limited Obligations. The Bonds and the interest thereon shall be limited
obligations of the City payable solely out of the payments, revenues and receipts derived by the City from
the herein authorized Lease Agreement, and such payments, revenues and receipts shall be pledged and
assigned to the Trustee as security for the payment of the Bonds as provided in the Trust Indenture. The
Bonds and interest thereon shall not be deemed to constitute a debt or liability of the City within the
meaning of any constitutional provision, statutory limitation or City Charter provision and shall not
constitute a pledge of the full faith and credit of the City. The issuance of the Bonds shall not, directly,
indirectly or contingently, obligate the City to levy any form of taxation therefor or to make any
appropriation for their payment.
Section 5. Approval and Authorization of Documents. The following documents (the
"City Documents") are hereby approved in substantially the forms presented to the Council at this meeting
(copies of which documents shall be filed in the records of the City), and the City is hereby authorized to
execute and deliver the City Documents with such changes therein as shall be approved by the officials of
the City executing such documents, such officials' signatures thereon being conclusive evidence of their
approval thereof:
(a) Trust Indenture dated as of the date set forth therein (the "Trust Indenture"), between the City and
BOKF, N.A. (the "Trustee"), pursuant to which the Bonds shall be issued and the City shall pledge
and assign the payments, revenues and receipts received pursuant to the Lease Agreement to
the Trustee for the benefit and security of the owners of the Bonds upon the terms and conditions
as set forth in the Trust Indenture;
(b) Lease Agreement dated as of the date set forth therein (the "Lease Agreement"), by and among
the City, the Company, and PJP under which the City will provide funds for the purchase and
installation of the Project and lease the Project to the Company pursuant to the terms and
conditions in the Lease Agreement, in consideration of rental payments by the Company which
will be sufficient to pay the principal of, premium, if any, and interest on the Bonds;
(c) Bond Purchase Agreements dated as of the date set forth therein, between the City and Axium
and the City and PJP, pursuant to which Axium and PJP agree to purchase their respective series
of the Bonds, and
(d) Performance Agreement dated as of the date set forth therein, between the City and the
Company, pursuant to which the City has granted the Company certain rights with respect to the
abatement of ad valorem personal property taxes on the Project in consideration for the
Company's expectation to create and maintain a certain level of employment at the Project site.
Section 6. Execution of Documents. The Mayor is hereby authorized and directed to
execute the Bonds and to deliver the Bonds to the Trustee for authentication for and on behalf of and as
the act and deed of the City in the manner provided in the Indenture. The Mayor is hereby authorized and
directed to execute the City Documents and such other documents, certificates and instruments as may
be necessary or desirable to carry out and comply with the intent of this Ordinance, for and on behalf of
and as the act and deed of the City. The City Clerk is hereby authorized and directed to attest to and affix
the seal of the City to the Bonds and the City Documents and such other documents, certificates and
instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance.
Section 7. Further Authority. The City shall, and the officials, agents and employees of the
City are hereby authorized and directed to, take such further action, and execute such other documents,
certificates and instruments as may be necessary or desirable to carry out and comply with the intent of
this Ordinance and to carry out, comply with and perform the duties of the City with respect to the Bonds
and the City Documents.
Section 8. Effective Date. This Ordinance shall take effect and be in full force and effect
from and after its passage by the City Council and approval by the Mayor.
Passed:
Presiding Officer
Approved: 1�2 - 17 • 17
Mayor Carrie Tergin
APPROVED AS TO FORM:
City ou elor
EXHIBIT A
TO ORDINANCE
PLAN FOR INDUSTRIAL DEVELOPMENT PROJECT
FOR AXIUM PLASTICS, LLC
CITY OF JEFFERSON, MISSOURI
PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT
AND
COST-BENEFIT ANALYSIS
FOR
AXIUM PLASTICS, LLC
&
GILMOI\._EBELL
TABLE OF CONTENTS
I. PURPOSE OF THIS PLAN ••.••••••••••••••.•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 1
II. DESCRIPTION OF CHAPTER 100 FINANCINGS •••••.•••••..••••••••••.•••••••••.•••••.•••.•••.•••••••.••••••••.. 1
General •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 1
Issuance and Sale of Bonds .....••...••••......•....•••••....•.......•••.•.•••••.•••..•••••.••••••••....••.•••..•.•••••••••..•••••••.• 1
Property Tax Abatement ..••••.••••...••••..•••••••.••••••••••••••••••••••.•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2
III. DESCRIPTION OF THE PARTIES .•.••.....••.•..••••......••.•..•••••..•••..••••..•••.•••••.••••.••...•••••••••••.••..••••.• 2
Axiom Plastics, LLC ••••••..•••••.••••••••••••.•••••••••••.•••••••••••••••••..•••••••••••••••••.•••••••••••••••••••••••••••••••••••••••••• 2
City of Jefferson, Missouri •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 2
IV. REQUIREMENTS OF THE ACT ••••..•••.•.•••..•..••••.•••••••........••••..•••••..•••...••...•....•...••.......••...•..••.... 2
Description of the Project ••••••.•••••••••••••••••••••••••••••••••••••••••••••••••••••.•••••••••••••••••••.•••••••••.•••••••.••••.•••.•• 2
Estimate of the Costs of the Project •••••.•.•••••.•••••••.•.••••••.•••••.•••••.•••••..••••••••••••••••••••••••••••••••••••••••.•• 3
Source of Funds to be Expended for the Project ..•.••••••...•••...•••...•••...•••..••..•••••••.•••••••••.••.••••••.••.•• 3
Statement of the Terms Upon Which the Project is to be Leased or Otherwise
Disposed of by the City ••••.•.••...•••••.••••••••••.•..•••••.•.•••••.••.••...•••.•.•••.••••.•.•.••..•••.•••..••...••...•..••...••..•• 3
Affected Taxing Jurisdictions •••.•••••..•••••.••••••..•••••••.•••••.••••••••••••••••••••••••.••••••••••.•••••••.•••••••..•...••••.•• 3
Current Assessed Valuation •.•••••••••••..•••••.•••••••••••••••••••••.••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 3
Payments in Lieu of Taxes ••••••••.•••••.••••••••••••.•••••••.•••••••.•••••••••••••••••••••••••••••••••••••••••••••••••••.•••••••••••• 4
Cost-Benefit Analysis and Discussion of Exhibits •••••.•.•••••••••.••••••••••••••••••••••••••••••••••••••••••••••••••••• 4
V. ASSUMPTIONS AND BASIS OF PLAN ••••••••••••.•••••••••••••••••.•••••.•••••••••••••••••••••••••••••••••••••.••••••••• 5
ATf ACHMENT A-SUMMARY OF KEY ASSUMPTIONS
EXHIBIT 1 -PROJECT ASSUMPTIONS
EXHIBIT 2 -StJMMARY OF COST BENEI<'IT ANALYSIS (REAL AND PERSONAL PROPERTY)
EXHIBIT 3-PROJECTED TAX REVENUES ON PROJECT SITE WITH NO PROJECT
EXHIBIT 4 -PROJECTED TAX REVENUES WITHOUT ABATEMENT ON PROJECT SITE WITH REAL
PROPERTY PROJECT IMPROVEMENTS
EXHIBIT 5 -PROJECTED TAX ABATEMENT ON PROJECT SITE WITH REAL PROPERTY PROJECT
IMPROVEMENTS
EXHIBIT 6 - PROJECTED PILOT ~\IOUNTS ON PROJECT SITE WITH REAL PROPERTY PROJECT
IMPROVEMENTS
EXHIBIT 7 -PROJECTED TAX REVENUES WITHOUT ABATEMENT ON PROJECT EQUIPMENT
EXHIBIT 8 -PROJECTED TAX ABATEMENT ON PROJECT EQUIPMENT
EXHIBIT 9-PROJECTED PILOT AMOUNTS ON PROJECT EQUIPMENT
CITY OF JEFFERSON, MISSOURI
PLAN FOR AN INDUSTRIAL DEVELOPMENT PROJECT
AND
COST-BENEFIT ANALYSIS
FOR
AXIUM PLASTICS, LLC
I. PURPOSE OF THIS PLAN
The City Council of the City of Jefferson, Missouri (the "City") will consider the issuance by the
City of its taxable industrial development revenue bonds, which may be issued as two separate series of
bonds (the '"Bonds"), in an aggregate principal amount not to exceed $26,000,000 to finance the costs of
constructing, improving and equipping an industrial development project (the "Project") for Axium
Plastics, LLC, a Delaware limited liability company (the "Company"), as more fully described and defined
herein. The Bonds will be issued pursuant to the provisions of Sections 100.010 to 100.200 of the Revised
Statutes of Missouri, as amended, and Article VI. Section 27(b) of the Missouri Constitution, as amended
(collectively, the "Act").
Gilmore & Bell, P.C. has prepared this Plan for an Industrial Development Project and Cost-Benefit
Analysis (the "Plan") to satisfy requirements of the Act and to analyze the potential costs and benefits,
including the related tax impact on all affected taxing jurisdictions, of using industrial development revenue
bonds to finance the Project and to facilitate abatement of ad valorem taxes on the bond-financed property.
II. DESCRIPTION OF CHAPTER 100 FINANCINGS
General. The Act authorizes cities, counties, towns and villages to issue industrial development
bonds to finance the purchase, construction, extension and improvement of warehouses, distribution
facilities, research and development facilities, office industries, agricultural processing industries, service
facilities that provide interstate commerce, industrial plants and other commercial facilities. Bond proceeds
may be used to finance land, buildings, fixtures and machinery.
Issuance and Sale of Bonds. Revenue bonds issued pursuant to the Act do not require voter
approval and are payable solely from revenues received from the project. The municipality issues its bonds
pursuant to a trust indenture entered into between the municipality and a bank or trust company acting as
trustee. In exchange, the benefited company promises under a lease agreement to make rental payments
that are sufficient to pay the principal of and interest on the bonds as they become due. Thus, the
municipality merely acts as a conduit for the financing.
If proceeds of the revenue bonds are to be used to pay the costs, or reimburse the costs, of making
improvements to real property and purchasing and installing personal property, concurrently with the
closing of the bonds, the company will convey to the municipality title to ( 1) the site on which the industrial
development project will be located and the Existing Facilities as defined below and (2) the personal
property included in the project. (The municipality must be the legal owner of the property while the bonds
are outstanding for the property to be eligible for tax abatement, as further described below.) At the same
time, the municipality will lease the project site, the improvements thereon and the personal property, back
to the benefited company pursuant to a lease agreement. The lease agreement will require the company,
acting on behalf of the municipality, to use the bond proceeds to pay, or reimburse, the costs of purchasing,
constructing, improving and installing the project, as applicable.
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GILMOI\.E BELL
Under the lease agreement, the company typically: ( 1) will unconditionally agree to make payments
sufficient to pay the principal of and interest on the bonds as they become due; (2) will agree, at its own
expense, to maintain the project, to pay all taxes and assessments with respect to the project, and to maintain
adequate insurance; (3) has the right, at its own expense, to make certain additions, modifications or
improvements to the project; ( 4) may assign its interests under the lease agreement or sublease the project
while remaining responsible for payments under the lease agreement; (5) will covenant to maintain its
corporate existence during the term of the bond issue; and ( 6) will agree to indemnify the municipality for
any liability the municipality might incur as a result of its participation in the transaction.
Property Tax Abatement. Under Article X, Section 6 of the Missouri Constitution and Section
137.100 of the Revised Statutes of Missouri, all property of any political subdivision is exempt from
taxation. In a typical transaction, the municipality holds fee title to the project and leases the project to the
benefited company. Although the Missouri Supreme Court has held that the leasehold interest is taxable.
it is taxable only to the extent that the economic value of the lease is less than the actual market value of
the lease. See Iron County v. State Tax Commission, 437 S.W.2d 665 (Mo. 1968) (en bane) and St. Louis
County v. State Tax Commission, 406 S.W.2d 644 (Mo. 1966) (en bane). If the rental payments under the
lease agreement equal the actual debt service payments on the bonds, the leasehold interest should have no
"bonus value" and the bond-financed property should be exempt from ad valorem taxation and personal
property taxation so long as the bonds are outstanding.
If the municipality and the company determine that partial tax abatement is desirable, the company
may agree to make "payments in lieu of taxes." The amount of payments in lieu of taxes is negotiable. The
payments in lieu of taxes are payable by December 31 of each year, and are distributed to the municipality
and to each political subdivision in the same manner and in the same proportion as property taxes would
otherwise be distributed under Missouri law.
III. DESCRIPTION OF THE PARTIES
Axium Plastics, LLC. The Company is a Delaware limited liability company authorized to conduct
business in the State of Missouri, which provides manufacturing solutions for plastic container, caps and
closure needs. The Company intends to establish a new facility in the City to serve new markets in St.
Louis and Kansas City. PJP Holdings, LLC ("PJP") is an affiliated holding company that will own the real
property where the Project is located and lease the property to the Company.
City of Jefferson, Missouri The City is a home rule charter city and municipal corporation
organized and existing under the laws of the State of Missouri. The City is authorized and empowered
pursuant to the provisions of the Act to purchase, construct, extend and improve certain projects (as defined
in the Act) and to issue industrial development revenue bonds for the purpose of providing funds to pay the
costs of such projects and to lease or otherwise dispose of such projects to private persons or corporations
for manufacturing, commercial, warehousing and industrial development purposes upon such terms and
conditions as the City deems advisable.
IV. REQUIREMENTS OF THE ACT
Description ofthe Project. The project to be financed by the Bonds consists of: (1) acquiring real
property, (2) making certain real property improvements, and (3) acquiring and installing certain machinery
and equipment. The real property improvements being financed by the Bonds are referred to herein as the
"Project Improvements" which are located on certain real estate referred to herein as the "Project Site."
The new equipment and machinery being purchased and installed is referred to herein as the "Project
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Equipment." The Project Improvements located on the Project Site, together with the Project Equipment,
are collectively referred to herein as the uProject."
Estimate of the Costs of the Project. The Company expects (1) the investment in Project
Equipment for the Project to be approximately $19,898,260 and occur in 2017, 2018, and 2019 and (2) the
purchase of the Project Site and the investment in Project Improvements for the Project to be approximately
$6,000,000 and occur in year 2017. The Cost-Benefit Analysis is based on this expected investment. The
Bonds will be issued in an aggregate principal amount not to exceed $26,000,000 to allow for a reasonable
contingency.
Source of Funds to be Expended for the Project. The sources of funds to be expended for the
Project will be the proceeds of the Bonds in the maximum principal amount of $26,000,000, to be issued
by the City and purchased by the Company. as bondholder, and, if needed, other available funds of the
Company. The Bonds will be payable solely from the revenues derived by the City from the lease or other
disposition of the Project (as further described below). The Bonds will not be an indebtedness or general
obligation, debt or liability of the City or the State of Missouri. The Bonds shall be issued upon such terms,
in such amounts and at such time as shall be satisfactory to the City and the Company.
Statement of the Terms Upon Which the Project is to be Leased or Otherwise Disposed of by the
City. P JP will deed the Project Site and the Project Improvements to the City subject to permitted
encumbrances. The Company will also transfer the Project Equipment to the City pursuant to a bill of sale,
subject to any permitted encumbrances. The City will lease the Project to the Company and P JP under a
lease agreement (the "Lease"). The lease payments under the Lease will equal, and will be used to pay, the
principal of and interest on the Bonds. The Company will also make certain payments in lieu of taxes to the
City for distribution to the affected taxing districts, as further described herein. Under the terms of the
Lease with the City, the Company will have the option to purchase the Project at any time. The Lease will
terminate on December 31, 2032, unless terminated sooner pursuant to the terms thereof.
Affected Taxing Jurisdictions. The following are the taxing jurisdictions affected by the Project:
• City of Jefferson (includes Fire Pension Fund)
• Cole County (General Revenue and Road & Bridge)
• Cole County Special Services (Developmental Disabilities Board)
• Library District
• Jefferson City School District
• State of Missouri Blind Pension Fund
• Surtax
Current Assessed Valuation. The most recent equalized assessed valuation of the Project Site is
$322,220. The most recent equalized assessed valuation of the personal property included in the Project is
$0 (because no existing personal property is included in the Project).
The estimated total equalized assessed valuation of the Project Site after the Project Improvements
are made (20 18) is $1,440,000. The estimated equalized assessed valuation of the 2017 investment in
Project Equipment is $4,136,172 (20 18 value), after deducting for depreciation in the first year. The
estimated equalized assessed valuation of the 2018 investment in Project Equipment is $892,811 (20 19
value), after deducting for depreciation in the first year. The estimated equalized assessed valuation of the
2019 investment in Project Equipment is $892,811 (2020 value), after deducting for depreciation in the first
year.
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These valuations were calculated based upon an appraised value of $4,500,000 for the Project Site
(75% of construction costs) and an investment of $19,898,260 in Project Equipment, minus depreciation,
multiplied by the assessment rate of 32% for the Project Site and Project Improvements and 33-1/3% for
the Project Equipment.
Payments in Lieu of Taxes.
Real Property. If this Plan is approved by the City Council. the City intends to issue the
Bonds and to extend tax abatement to the Company. PJP will convey the entire Project Site to the
City in 2017. For the Project Site, including the Project Improvements, the Company will receive
fifteen years of abatement of 75% for the period 2018 through 2032. In year 2017, the Company
will be required to make a payment in lieu of taxes in an amount equal to 100% of the amount of
ad valorem real property taxes which would have been paid in 2017 had the Project Site not been
exempt from such taxes. Beginning in 2018 and continuing through 2032, the Company will be
required to make payments in lieu of taxes in an amount equal to 25% of the amount of ad valorem
real property taxes which would have been paid in each year had the Project Site not been exempt
from such taxes.
Personal Property. It is expected that the Company will purchase Project Equipment in
the amounts and years as follows: (I) $13,898,260 in 2017, (2) $3,000,000 in 2018, and (3)
$3,000,000 in 2019. Assuming a seven year recovery period, for each annual investment in Project
Equipment the Company will receive seven years of abatement of 75% beginning in the year
following each annual investment. For each of the seven years of the abatement period for each
annual investment in Project Equipment (20 18 to 2024 for the 2017 investment, 20 19 to 2025 for
the 2018 investment, and 2020 to 2026 for the 2019 investment) the Company will be required to
make payments in lieu of taxes in an amount equal to 25% of the amount of ad valorem personal
property taxes which would have been paid in each year had the Project Equipment not been exempt
from such taxes. Beginning in the year following the seven year period of abatement for each
annual investment in Project Equipment (2025 for the 20 17 investment, 2026 for the 2018
investment, and 2027 for the 2019 investment), the Company will make payments in lieu of taxes
on the Project Equipment in an amount equal to I 00% of the personal property taxes that would
otherwise be due on the Project Equipment until the term of the Lease ends in 2032.
Distribution. Such payments in lieu of taxes would, after reduction for actual costs of the
City for distributing such payments, be distributed among the taxing jurisdictions in proportion to
the amount of taxes which would have been paid in each year had the Project not been exempt
from taxation, pursuant to Section I 00.050.3 of the Act.
Cost-Benefit Analysis and Discussion of Exhibits. In compliance with Section 100.050.2(3) of the
Revised Statutes of Missouri, as amended, this Plan has been prepared to show the costs and benefits to the
City and to other taxing jurisdictions affected by the tax abatements and exemptions of the Project. The
following is a summary of the exhibits attached to this Plan that show the direct tax impact the Project is
expected to have on each taxing jurisdiction. This Plan does not attempt to quantify the overall economic
impact of the Project.
Project Assumptions. Exhibit 1 presents a list of the assumptions related to the
determination of assessed valuations and the tax formulas.
Summary of Cost-Benefit Analysis. Exhibit 2 presents a summary for each affected taxing
district of ( 1) the total estimated tax revenues that would be generated if the Project did not occur,
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(2) the total estimated tax revenues that would be generated if the Project occurred but did not
receive tax abatement, (3) the total estimated value of the payments in lieu of taxes ("PILOT
Amounts") to be made by the Company for the proposed abatement period, and (4) the total
estimated value of the abatement to the Company.
Real Property Tax Revenues. Exhibit 3 provides the projected tax revenues that would be
generated from the Project Site without tax abatement and prior to the Project Improvements.
Exhibit 4 provides the projected tax revenues that would be generated from the Project Site with
the Project Improvements but without tax abatement. Exhibit 5 provides the projected value of the
real property tax abatement to the Company. Exhibit 6 provides the project PILOT Amounts on
the Project Site.
Personal Property Tax Revenues. Exhibit 7 provides the projected tax revenues that would
be generated from the Project Equipment without tax abatement. Exhibit 8 provides the projected
value of the personal property tax abatement to the Company. Exhibit 9 provides the project
PILOT Amounts on the Project Equipment.
V. ASSUMPTIONS AND BASIS OF PLAN
In preparing this Plan, we have made some key assumptions to estimate the fiscal impact of the
abatement and exemptions proposed for the Project. See ATTACHMENT A for a summary of these
assumptions.
In addition to the foregoing, in order to complete this Plan, we have generally reviewed and relied
upon information furnished to us by, and have participated in conferences with, representatives of the City,
representatives of the Company, and other persons as we have deemed appropriate. We do not assume any
responsibility for the accuracy, completeness or fairness of any of the information provided to us and make
no representation that we have independently verified the accuracy, completeness or fairness of such
information.
I#
GILMOI\.E BELL
* * *
-5-
ATTACHMENT A
SUMMARY OF KEY ASSUMPTIONS
1. The cost of acquiring the Project Site and constructing the Project Improvements is
estimated to be $6,000,000 and the cost of acquiring the Project Equipment is estimated at $19,898,260.
2. The construction ofthe Project Improvements will be completed by the end of2017.
3. The equipping of the Project will occur as follows: (1) $13,898,260 in 2017, (2) $3,000,000
in 2018, and (3) $3,000,000 in 2019.
4. The Project will be owned by the City and leased to the Company and P JP with an option
to purchase. As long as the Project is owned by the City, it will be exempt from ad valorem taxes.
5. The Project Site and the Project Improvements will be excluded from the calculation of ad
valorem real property taxes from 20 18 through 2032.
6. Assuming a seven year recovery period, the Project Equipment placed in service in the year
following each annual investment in the Project Equipment will be excluded from the calculation of ad
valorem personal property taxes for a period of seven years.
7. During the entire term of the Bonds through 2032. the Company will make payments in
lieu of taxes in accordance with that portion of Section IV above in the Plan entitled "Payments in Lieu of
Taxes."
8. Commercial real property taxes are calculated using the following formula:
(Assessed Value* Tax Rate)/100
9. The assessed value of the Project Site is calculated using the following formula:
Estimated Value* Assessment Ratio of32%
10. The assessed value ofthe Project Equipment is calculated using the following formula:
(Cost* Depreciation Factor)* Assessment Ratio of33-1/3%
11. In determining the assessed valuation of the personal property comprising the Project, a
depreciation factor is applied at the end of each year which depends on the recovery period of such personal
property. The Company has represented that all personal property comprising the Project has a seven-year
recovery period. The depreciation factors for personal property with a seven-year recovery period are as
follows:
Depreciation Depreciation
Year Factor Year Factor
0 100.00% 6 18.38%
1 89.29 7 10.00
2 70.16
3 55.13
4 42.88
5 30.63
12. After development. the assessed value of the Project Site is subject to growth at an
A-I
estimated rate of2% every year an assessment is made (every odd year).
13. The tax rates used in this Plan reflect the rates in effect for the tax year 20 17. The tax rates
were held constant through the 2032 tax year.
* * *
The Cost/Benefit Analysis bas been prepared on the basis of factual information and assumptions
provided to Gilmore & Bell, P.C. by, or on behalf of, the City and the Company. This information is
provided in conjunction with our legal representation of the City, as its bond counsel, for this
transaction. It is not intended as financial advice or a financial recommendation to the Company,
the City or any other taxing jurisdiction that may be affected by the Project. Gilmore & Bell, P.C. is
not a financial advisor or a "municipal advisor" as defined in the Securities Exchange Act of 1934,
as amended.
A-2
City of Jefferson, Missouri
(Axiom Plastics, LLC)
COST BENEFIT ANALYSIS
PLAN FOR INDUSTRIAL DEVELOPMENT PROJECT
//;
GILMORE BELL
Table of Contents
I Project Assumptions
II Summary of Cost Benefit Analysis (Real and Personal Property)
III Projected Tax Revenues on Project Site With No Project
IV Projected Tax Revenues Without Abatement on Project Site with Real Property Project Improvements
V Projected Tax Abatement on Project Site with Real Property Project Improvements
VI Projected PILOT Amounts on Project Site with Real Property Project Improvements
VII Projected Tax Revenues Without Abatement on Project Equipment
VIII Projected Tax Abatement on Project Equipment
IX Projected PILOT Amounts on Project Equipment
2
3
4
5
6
7
8
9
This information is provided based on the factual information and assumptions provided to Gilmore & Bell, P.C. by a party to or a representative of a party
to the proposed transaction. This information is intended to provide factual information only and is provided in conjunction with our legal representation. It
is not intended as financial advice or a financial recommendation to any party. Gilmore & Bell, P.C. is not a financial advisor or a "municipal advisor" as
defined in the Securities Exchange Act of 1934, as amended.
City of Jefferson, Missouri
(Axium Plastics, LLC)
Cost Benefit Analysis 1111012017
• Current Assessed Value of Project Site
• Real Property Project Improvements
Exhibit 1
Project Assumptions
Appraised Value for the Project Site with Project Improvements (75% of
• construction costs)
• Annual investments of project equipment
• Bi-annual growth rate of appraised value of real property
• Assessed value as a percentage of appraised value (real property)
• Assessed value as a percentage of appraised value (project equipment)
• Assessed Value of Project Site with Real Property Project Improvements
• Terms of abatement:
Real Property Project Improvements
Years 1 to 15
Project Equipment
Years 1-7
75.0%
75.0%
$
2017 $
$
2017 $
2018
2019
$
• Project Equip
Year
ment is depreciated using the following 7 year recovery period schedule:
0
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17 and on
City of Jefferson, Missouri
(Axium Plastics, LLC)
Cost Benefit Analysis
3
100.00%
75.00%
37.50%
12.50%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5.00%
5
100.00%
85.00%
59.50%
41.65%
24.99%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
10.00%
Recovery Period in Years
7 10 15
100.00% 100.00% 100.00%
89.29% 92.50% 95.00%
70.16% 78.62% 85.50%
55.13% 66.83% 76.95%
42.88% 56.81% 69.25%
30.63% 48.07% 62.32%
18.38% 39.33% 56.09%
10.00% 30.59% 50.19%
10.00% 21.85% 44.29%
10.00% 15.00% 38.38%
10.00% 15.00% 32.48%
10.00% 15.00% 26.57%
10.00% 15.00% 20.67%
10.00% 15.00% 15.00%
10.00% 15.00% 15.00%
10.00% 15.00% 15.00%
10.00% 15.00% 15.00%
10.00% 15.00% 15.00%
-1-
322,220
6,000,000
4,500,000
13,898,260
3,000,000
3,000,000
2.0%
32.0%
33.33%
1,440,000
20
100.00%
96.25%
89.03%
82.35%
76.18%
70.46%
65.18%
60.29%
55.77%
51.31%
46.85%
42.38%
37.92%
33.46%
29.00%
24.54%
20.08%
20.00%
1111012017
Tax Distribution
Jefferson City School District
City of Jefferson
Cole County General Revenue
Cole County Road & Bridge
Cole County Special Services
Library District
State of Missouri Blind Pension Fund
Surtax
City of Jefferson, Missouri
(Axium Plastics, LLC)
Cost Benefit Analysis
Tax Rate
4.5428
0.5561
0.0821
0.2716
0.0906
0.2000
0.0300
0.5800
6.3532
Exhibit 2
Summary of Cost Benefit Analysis
(Real and Personal Property)
Projected Tax
Projected Tax Revenues Without Projected Tax
Revenue on Abatement on Project Revenues Without
Project Site with Site with Real Property Abatement on Project
No Project Project Improvements Equipment
$ 219,567 $ 1,057,516 $ 1,180,868
26,878 129.454 144.554
3,968 19,112 21.341
13,127 63.226 70.600
4.379 21,091 23,551
9,667 46,558 51,989
1,450 6.984 7.798
28,033 135,018
$ 307,069 $ 1,478,958 $ 1.500,702
-2-
Projected Tax Projected PILOT
Abatement on Project Amounts on Project
Site with Real Property Site with Real Property
Project Improvements Project Improvements
and on Project and on Project
Equipment Equipment
$ 1,508,239 $ 730.145
184,629 89,380
27,258 13,196
90.173 43,653
30,080 14,562
66,401 32,145
9,960 4,822
101,263 33,754
$ 2,018,003 $ 961,657
1111012017
Estimated Assessed Value of ProJect Site
With No Project
Taxang Junsd1c11on
Jefferson C11y School District
Cily of Jefferson
Cole Counly General Revenue
Cole Counly Road &:. Bridge
Cole County Special Services
Library D1strict
State of Missouri Bhnd Pension Fund
Surta"
City of Jef/nNon, Missouri
(Axium Plastia, LL(.)
Co.Jt B~nqil Anaf)'$is
$322,220
3.'< ale
per SIOO 2018
4.5428 14,638
0.5561 1,792
0 0821 265
0 2716 875
0.0906 292
0.:!.000 644
0.0300 97
0 5800 1,869
6.3532 s 20,471
$322,220 $322,220
2019 2020
$ 14,638 14,638
1,792 1,792
265 265
875 875
292 292
644 644
97 97
1,869 1,869
s 20.471 s :!.0,471
Exhibit 3
Projrclffi Tax Revrnues on Projecl Sile Wilh No Projrcl
$322,220 $322,220 $322,220 $322,220 $322,220 $322.220
2021 2022 2023 2024 2025 2026
s 14.638 14,638 14,638 s 14,638 14,638 14,638
1,792 1,792 1,792 1,792 1,792 1,792
265 265 265 265 265 265
875 875 875 875 875 875
292 292 292 292 292 :!.92
644 644 644 644 644 644
97 97 97 97 97 97
1,869 1,869 1,869 1,869 1,869 1.869
s 20,471 s 20.471 s 20.471 s 20.471 s 20,471 s 20,471
-3-
$322.220 $322.220 $322,220 $322.220 $322.220 $322.220
2027 2028 2029 2030 2031 2032 Total
14,638 14,638 14,638 14,638 14,638 14,638 $::!19,567
1,792 1,792 1,792 1,792 1,792 1,792 26,878
265 265 265 265 265 265 3,968
875 875 875 875 875 875 13,127
292 :!.92 292 2'>2 292 292 4,379
644 644 644 644 644 644 <l,667
97 97 97 97 97 97 1,450
1,869 1,869 1,869 1,869 1,869 1,869 28,033
s 20,471 s 20.471 s 20.471 s 20.471 s 20.471 s 20,471 $307,069
/111011017
Esrimated Assessed Value of Real Property
Project Improvements
Taxing Jurisdiction
Jefferson City School Districr
City of Jefferson
Cole County General Revenue
Cole County Road & Bridge
Colt County Special Services
Library District
State of Missouri Blind Pension Fund
Surtax
(ity nf Jeffnson, Missouri
(Axium Plostics, UC)
Co~ Benefit Ant~!)•m
Tax Rate
per SIOO
4.5428
0.5561
0.0821
02716
OO'l06
0.2000
0.0300
0 5800
63532
s 1,440,000
2018
65,416
8,008
1.182
3,911
1,305
2,880
432
8,352
91 486
$1,468,800 $1,468,800 $1,498,176
2019 2020 .:!021
66,7.:!5 66,725 68,059
8,168 8,168 8,331
1,206 1,206 1,230
3,989 3,'l8'l 4.06'l
1.331 l,Bl 1.357
2.938 2,938 2,9CJ6
441 441 449
8,519 8,519 8,689
93!316 931316 95 182
E1hibil4
Projected Tu Revenues Witboul Abatement
On Projrct Sire With Real Properly Project lmpronments
$1,498,176 SI,S.:!8,140 s 1,528,140 $1,558,702 Sl,:\58,702
2022 2023 2024 2025 2026
68,059 69,420 69,420 70,809 70,809
8,331 8,498 8,498 8,668 8,668
1.230 1,255 1,255 1,.:!80 1,280
4,06'l 4,150 4.150 4 • .:!33 4,233
1,357 1,384 1,384 1.412 1,412
2,996 3,056 3,056 3,117 3,117
449 458 458 468 468
8,689 8,863 8.863 9,040 9,040
95,182 97,086 97,086 99,027 99,027
-1-
$1,589,876 $1,589,876 Sl,b.:!l,674 $1,621,674 $1,654,107 $1,654,107
.:!027 2028 2029 2030 2031 2032 Total
7.:!,225 72,225 73,669 73,669 75,143 75,143 $1,057,516
8,841 8,841 9,018 9,018 9,198 9,198 129,454
1,305 1.305 1,331 1,331 1,358 1,358 19,112
4,318 4,318 4,404 4,404 4,4'l3 4,493 63,226
1,440 1.440 1,469 1,46Q 1,499 1,4QQ 21,0'll
3,180 3.180 3,243 3,243 3.308 3,308 46,558
477 477 487 487 496 496 6,984
'l.221 9,221 9,406 9,406 9.594 C),594 135,018
101 008 101,008 103,028 1031028 105!089 105,089 $11478 958
1/11012017
Estimated Assessed Value ofReall'roperty Project
Improvements
Abatement Percentage
Taxing Jurisdiction
Jefferson City School District
City of Jefferson
Cole County General Revenue
Cole County Road & Bridge
Cole County Special Services
library District
State of Missouri Blind Pension Fund
Surtnx
Cil) of J~.fl"son, Mwouri
(Axium Plastirs, l.L()
Cost Ben~fit AnoiJ•m
Tax Rate
per SIOO
4.5428
0.5561
0.0821
0.2716
0.0906
0.2000
0.0300
0.5800
63532
$1,440,000
75.oo•v.
2018
49,062
6,006
887
2,()33
978
2,160
324
6,264
68,615
$1,468,800 $1,468,800
75 00"'• 75 00"/o
201Q 2020
50,043 50,043
6,126 6,126
904 904
2,()<)2 2,1)1)2
91)8 998
2,203 2,203
330 330
6,389 6,389
69,987 69987
ExhibitS
Projttltd Tax Abatement
On Projul Site With Real Proptrly Project Improvements
$1,498,176 $1,498,176 $1,528,140 $1,528,140 $1,558,702 $1,558,702
75.~'.. 75 o~• 75.00"/o 7S.W-·• 75.00% 75.00%
2021 2022 2023 2024 2025 2026
51,044 51,044 52,065 52,065 5.1,107 53,107
6,249 6,249 6,373 6,373 6,501 6,501
923 923 941 941 960 960
3,052 3,052 3,113 3,113 .1,175 3,175
1,018 1,018 1,038 1,038 1,059 1,059
2,247 2,247 2,292 2,292 2,338 2,338
337 337 344 344 351 351
6,517 6,517 6,647 6,647 6,780 6,780
71,387 71,387 72,814 72814 74,271 74,271
-5-
$1,589,876 $1,589,87(> $1,621,674 $1,621,674 51,654,107 $1,654,107
75.0~'.. 75.00~· 75.0~· 75.00"/o 7500% 75.00"/o
2027 2028 2029 2030 2031 2032 Total
54,169 54,169 55,252 55,252 56,357 56,357 793,137
6,631 6,631 6,764 6,764 6,899 6,899 97,091
979 979 ()91) 999 1,019 1,019 14,334
3,239 .1,23() 3,303 3,303 .1,369 3,369 47,41()
1,080 1,080 1,102 1.102 1.124 1,124 15,818
2,385 2,385 2,433 2.433 2,481 2,481 34,918
358 358 365 365 372 372 5,238
6,916 6,916 7,054 7,054 7,1'l5 7,195 101,263
75 756 75,756 77,271 77.271 78,817 78,817 $1,109219
IIIUI/2017
Estimnted Assessed Value of Real Property Project
lmpro\'ements
PILOT Payment
Taxing Jurisdiction
Jefferson City School District
City of Jefferson
Cole County General Revenue
Cole County Road & Bridge
Cole County Special Scl"\iccs
Library District
State of Missouri Blind Pension Fund
Surtax
Oty of Jeffenon, Missouri
(Axium Plastics, ll()
Con R~n~Jit Anal)'sir
Tax Rate per
SIOO
4.5428
0.5561
0.0821
0.2716
0.0906
0.2000
0.0300
0.5800
6.3532
$1,440,000 $1,468,800
25.0~· 25.0~~
2018 :!OIQ
s 16,354 s 16,681
2,002 2,042
296 301
978 997
326 333
720 734
108 110
2,088 2,130
s 22,872 $ 23,329
Exhibil6
Proj«ttd PILOT Amounts On Proj«t Silt With Real Property Project Improvements
$1,468,800 $1,498,176 $1,498,176 Sl,S28,140 $1,528.140 $1,558,702 SI,SS8,702 $1,589,876
25 00"/o 2500% 25.00"/o 25 oo•;. 25.00% 25 oo·~• 25.00% 25.00"1.
2020 :!021 :!0:!2 2023 2024 20:!5 2026 2027
s 16,681 s 17,015 s 17,015 s 17,3S5 s 17,355 s 17,702 s 17.702 s 18,056
2,042 2,083 2,083 2,124 2,124 2,167 2.167 2,210
301 308 308 314 314 320 320 326
997 1,017 1.017 1.038 1,038 1,058 1.058 1,080
333 339 339 346 346 JSJ 353 360
7).1 749 749 764 764 779 779 795
110 112 112 liS liS 117 117 119
2,130 :!,172 2,172 2,216 2,216 2,260 2,260 2,305
$ 23,329 s 23,796 s 23,796 s 24.271 s 24,271 s 24,757 $ 24,757 s 25,252
-6-
$1,589,876 $1,621,674 $1,621,674 $1,654,107 $1,654,107
25.0~· 25 oo~• 25.0~~ 25.00~· 25.00~·
:!0:!8 202Q :!030 2031 2032 Total
$ 18,056 s 18,417 s 18,417 s 18,786 s 18,786 $264,379
2,210 2.255 2,255 2,300 2,300 32,364
326 333 333 340 340 4.778
1,080 1,101 1,101 1,123 1.123 15.806
360 367 367 375 375 5,273
795 811 811 827 827 11,639
119 122 122 124 124 1,746
2,305 2,351 2,351 2,398 2,398 33,754
$ 25,252 $ 25,757 $ 25,757 s 26,272 s 26,272 $369,740
1111011017
.1!#
a}y�!\
■§f (
,2l�
§){|
|)\7
}/§
)
Estimated Assessed Value of Project Equipment
Acquired in 2017
Abatement Percentage
Esllmated Assessed Value of ProJect Equ1pment
Acquired m 2018
Abatement Percentage
Esllmated Assessed Value of ProJect Equipment
Acquired in 2019
Abnten1ent Percentage
Taxing Jurisdiction
Jefferson City School District
City of Jefferson
Cole County General Revenue
Cole County Road & Bridge
Cole County Special SeP•Ices
L1brary District
State of M1ssoun Bhnd Pcns1on Ftmd
Cil]• nf Jrffnsnn, Missouri
(Axium Plastics, LL£.)
Cnst Renejil Analysis
Tax Rnte
per$100
4.5428
0.5561
0.08:!1
0.2716
0.0906
02000
0 0300
5.7732
$ 4,136,172
75.00'/o
2018
140,924
17,251
2,547
8,425
2,811
6,204
931
179,092
$3,250,015 $2,553,782
75 o~• 750~1•
892,811 701,530
75 00'1o 75 oot·•
892,811
750~·
2019 2020
141,150 141,331
17,279 17,301
2,551 2,554
8,439 8,450
2,815 2,819
6.214 6,222
<)32 933
179 380 179,610
E1bibit8
Projerted T111 Abatement On Project Equipment
$1,986,326 $1,418,870 851.415 463,229 s 463,229
75.00'/o 75 00'/o 75 ooe,. 75.00'/o 0.00%
551,245 428,757 306,269 183,782 99,990
75.0~1• 75 00'/o 75 ooo,;. 75.00'/o 75.00'/o
$ 701,530 551,245 428,757 306,269 s 183,782
75.00% 7500% 75.00'/o 75.00% 7500%
2021 2022 2023 2024 2025
110,359 81,732 54,052 32,479 9,668
13,509 10,005 6,617 3,976 1,184
1,994 1,477 977 587 175
6,598 4,886 3,232 1,942 578
2,201 1,630 1,078 648 193
4,859 3,598 2,380 1,430 426
729 540 357 214 64
140,250 103 869 68,691 41 276 s 12 287
-R-
$463,229 $463.229 $463,229 $463.229 $463,229 $463,229 $463,229
0.00% 0.00% 0.00% 000% 0.00% 0.00'% 0.00'/o
99,990 s 99,990 s 99,990 s 99,990 s 99,990 s 99,990 s 99,990
000'/o 0.00% 000'/o 000% O.O~o 00~·· OO~'o
$ 99,990 s 99,990 s 99,990 $ 99,990 $ 99,990 s 99,990 s 99,990
7500% 0.000/o 0.00% 0.00% 0.00"/o 0 00'/o 0 00"/o
2026 2027 2028 2029 2030 2031 2032 Total
$ 3,407 s $715,102
417 87,538
62 12,924
204 42,754
68 14,262
ISO 31,483
23 4,722
4,329 $908 784
Jl/1011017
(lly .. , J,g,..,., J.fm-ri
(Ax/uno l'~a, LLC) C._ llnufit AIMI,.U
E•UnutA:d A"""•'""' Valu• nfl~ntccl Equtl"'t<nl
Acquued m 2017
Pll.Uf Po)m<nt
Estunoled Asxsx>d Value of l~nJoc:l Equtpmml
Acquued m lOIK
I'll J Jf Po)ln<nt
Estmuled Asx.-1 V a1uc nf l'rnJCCI Eqwpment
A«jWIOO m 20 19
I'II.OT Po)m<nt
To• Rate
Taxutg Ju:nJd2ctu-.~ I!! SIOO
Jefferaon Ctty S.:ho.>l()!.tnet 4)4211
C•l)•ofJciTenoo 0 SS61
CuJc Count)· (icnual E\.c:\-cnue 00811
Cole Cowlly R<,.d A Hndjte 0 2711'.
Cole Co!UIIY Spectal Sa\1<: .. 00906
l.!klll)' IJIIU!CI 0 211110
St•tc ofM!dOUII llhnd l'cnsum Fund 011.100
57712
$4,11fo,l12 $ l,l.SO,OIS
lSIIIWo 2SC~~
s II'JZ,XII
!5«~··
2018 21119
s 46,'Ji.S s 47,11511
S.HO S,it.U
1\4') 8511
2.8011 1.111'
9]7 'llK
!_06M 2.1171
110 .111
s S•J.6'l7 S S•J.7tJ1
Ellllbit9
Proj .. tcd Pli.OT A"*"'IJ On Project E4julpmmt
S 2.55.1,78Z SI.?K6,Hfo $1,4111,1170 S K51,415 $ 4(ol,l2') $ 46.1,229 S 4M,22'l
2SUIJ'I'i 25 OO"Io 251~· 25 IXJO!. 25~'i ICHJ~'i 1001111~·
s 701.BO S 551.HS S 42lC,iS7 $ 11Jfo,lM $ 1111,7!12 $ 'l9,9'JO s 'I'J,'J')()
25 IJJ'\Io 251MI'\'i 2Soo•;, 2S rKWe 2SOCWo 2Siml tun~~
s R'l2.RII S 701.)10 S HUH S HR.iS7 S 1U•I.21o9 $ 1!11,7!12 s 9'>,•)C)(}
2SI~o 25 Ull'\'i 25 Ull'\lo 25Ull'\'i 2SUll'\'i 251~· 2SIKI'\•'i
2020 2Ul1 202~ 2llll 2024 21125 2021>
s 47,110 s l6,7AA S 2i,2U s 111,017 s 10,112/i s 2.J,2M s zto.n2
5.767 UOl UJS ~.20ti U15 2.971 1.171
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JJtJDI1on
Prepared By:
Gilmore & Bell, P.C.
Kansas City, Missouri
Approval Version
PERFORMANCE AGREEMENT
Dated as of December 1, 2017
AMONG
CITY OF JEFFERSON, MISSOURI
AND
PJP HOLDINGS, LLC
AND
AXIUM PLASTICS, LLC
PERFORMANCE AGREEMENT
THIS PERFORMANCE AGREEMENT, dated as of December 1, 2017 as from time to time
amended and supplemented in accordance with the provisions hereof (this "Agreement"), is between
CITY OF JEFFERSON, MISSOURI, a home rule charter city and municipal corporation organized and
existing under the laws of the State of Missouri (the "City"), PJP HOLDINGS, LLC, a Delaware
limited liability company ("PJP"), and AXIUM PLASTICS, LLC, a limited liability company organized
and existing under the laws of the State of Delaware ("Axiom"), (PJP and Axium are collectively referred
to herein as the ''Company'~).
RECITALS:
1. The City is authorized and empowered pursuant to the provtstons of Article VI,
Section 27(b) of the Missouri Constitution and Sections 100.010 through 100.200, inclusive, of the
Revised Statutes of Missouri, as amended (collectively, the "Act"), to purchase, construct, extend and
improve certain projects (as defined in Section 100.010 of the Revised Statutes of Missouri, as amended)
and to issue industrial development revenue bonds for the purpose of providing funds to pay the costs of
such projects and to lease or otherwise dispose of such projects to private persons or corporations for
manufacturing, commercial, research and development, warehousing and industrial development purposes
upon such terms and conditions as the City shall deem advisable.
2. Following notice to affected taxing jurisdictions in accordance with Section 100.059.1 of
the Act, the City Council adopted Ordinance No. on (the "Ordinance"), (i)
approving a plan for the Company's economic development project, and (ii) authorizing the issuance of
$6,000,000 principal amount of Taxable Industrial Development Revenue Bonds (Axium Plastics
Project), Series 2017A (the "Series 2017A Bonds"), to pay the costs of a portion of the Project consisting
of (a) acquiring real property in the City (the "Project Site," as more fully described on Exhibit A
hereto), (b) making certain real property improvements to the Project Site (the "Project Improvements")
and (iii) authorizing the issuance of $20,000,000 principal amount of Taxable Industrial Development
Revenue Bonds (Axium Plastics Project), Series 20 17B (the "Series 2017B Bonds")(the Series 2017 A
Bonds and Series 2017B Bonds, collectively, the "Bonds"), to pay the costs of a portion of the Project
consisting of equipping the Project Site with certain personal property (the "Project Equipment").
3. Pursuant to the Ordinance the City is authorized to execute and deliver (a) a Trust
Indenture of even date herewith (the "Indenture"), between the City and BOKF, N.A. as trustee (the
"Trustee"), for the purpose of issuing and securing the City's Bonds, (b) a Lease Agreement of even date
herewith (the "Lease") with the Company, as lessee, under which the City, as lessor, will purchase,
construct, improve and equip the Project and will lease the Project to the Company, in consideration of
rentals which will be sufficient to pay the principal of and interest on the Bonds, and (c) this Agreement
for the purpose of setting forth the terms and conditions of the Project's exemption from ad valorem real
and personal property taxes and certain payments in lieu of taxes to be made by the Company with respect
to the Project.
4. Pursuant to the foregoing, the City desires to enter into this Agreement with the Company
in consideration of the Company's desire to purchase, construct, improve and equip the Project 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 hereby represent, covenant and
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Words and Terms. In addition to the words and terms defined in
the Recitals, the following words and terms as used herein shall have the following meanings:
"Agreement" means this Performance Agreement dated as of December I, 2017, between the
City and the Company, as from time to time amended and supplemented in accordance with the
provisions hereof.
"Annual Compliance Report" means the Annual Compliance Report required to be filed by the
Company by Section 3.3 hereof, a copy of which is attached hereto as Exhibit B.
"County Assessor" means the Assessor of Cole County, Missouri.
"Event of Default" means any Event of Default as provided in Section 6.1 hereof.
"Job" means a full-time equivalent position with the Company of not less than 37.5 hours per
week at the Project Site, which shall include normal full-time employee benefits offered by the Company.
Positions filled by workers who are not directly employed by the Company do not qualify as "Jobs" for
purposes of this definition.
"New Jobs" means those new Jobs created as a result of the Project.
"Leased Property" means the Project, including the Project Site.
"PILOT Payments" means the payments in lieu of taxes provided for in Article III hereof.
"Project" means, collectively, (i) the Project Improvements to be constructed on the Project Site,
and (ii) the Project Equipment, and all additions, modifications, improvements, replacements and
substitutions made to the Project pursuant to the Lease as they may at any time exist, the costs of which
will be paid in whole or in part, or for which the Company will be reimbursed in whole or in part, from
the proceeds of the sale of the Bonds.
"Project Costs" means all costs of purchasing, constructing, improving and installing the
Project.
"Project Equipment" shall have the same meaning as provided in Exhibit C to the Indenture.
"Project Improvements" shall have the same meaning as provided in Exhibit B to the
Indenture.
"Project Site" means all of the real estate described in Exhibit A attached hereto and by this
reference made a part hereof.
"Test Date" means October 31 of each year, beginning on October 31, 2020 and ending on
October 3 I, 2032.
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ARTICLE II
REPRESENTATIONS
Section 2.1. City's Representations. The City hereby represents that the Project will
significantly benefit the City and the State of Missouri by (i) stimulating economic development in the
City and the State through the retention of permanent jobs; and (ii) increasing local and state tax revenues.
Section 2.2. Company's Representations. The Company hereby represents that the Project
will significantly benefit the City and the State of Missouri by (i) stimulating economic development in
the City and the State through the retention of permanent jobs; and (ii) increasing local and state tax
revenues.
ARTICLE III
PROPERTY TAX EXEMPTION;
PILOT PAYMENTS
Section 3.1. Property Tax Exemption. So long as the City owns title to the Leased Property,
the City expects that the Leased Property will be exempt from ad valorem taxes on real and personal
property. The first year of the exemption period shall begin in 2017. Notwithstanding any other
provision of this Agreement to the contrary, the last year of such exemption period shall be 2031. The
Company covenants and agrees that, during each year the Leased Property is exempt from ad valorem
taxes by reason of the City owning title, the Company will make annual payments in lieu of taxes to the
City (each such payment, a "PILOT Payment") as described in this Article III relating to the Project.
The City and the Company hereby agree that the tax abatement provided by this Agreement shall only
apply to the property financed with the proceeds of the Bonds (i.e., property constituting a part of the
Project) and shall not apply to property not financed with proceeds of the Bonds.
Section 3.2. Payments in Lieu of Taxes.
(a) Real Property. The City intends to issue the Bonds and to extend tax abatement to the
Company. The Company will convey the entire Project Site to the City in 2018. For the Project Site,
including the Project Improvements, the Company will receive fifteen years of abatement of 75% for the
period 20 I8 through 2032. Beginning in 2018 and continuing through 2032, the Company will be
required to make payments in lieu of taxes in an amount equal to 25% of the amount of ad valorem real
property taxes which would have been paid in each year had the Project Site not been exempt from such
taxes. The Company covenants and agrees to make PILOT Payments to the City on or before each
December 3 I, commencing December 3 1, 2018.
(b) Personal Property. It is expected that the Company will purchase Project Equipment in
the amounts and years as follows: (I) $I3,898,260 in 2017, (2) $3,000,000 in 2018, and (3) $3,000,000 in
2019. Assuming a seven year recovery period, for each annual investment in Project Equipment the
Company will receive seven years of abatement of 75% beginning in the year following each annual
investment. For each of the seven years of the abatement period for each annual investment in Project
Equipment (20 18 to 2024 for the 2017 investment, 20 I 9 to 2025 for the 2018 investment, and 2020 to
2026 for the 2019 investment) the Company will be required to make PILOT Payments in an amount
equal to 25% of the amount of ad valorem personal property taxes which would have been paid in each
year had the Project Equipment not been exempt from such taxes. Beginning in the year following the
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seven year period of abatement for each annual investment in Project Equipment (2025 for the 2017
investment, 2026 for the 2018 investment, and 2027 for the 2019 investment), the Company will make
payments in lieu of taxes on the Project Equipment in an amount equal to 100% of the personal property
taxes that would otherwise be due on the Project Equipment until the term of the Lease ends in 2031.
(c) The Company shall exercise its option pursuant to Section 11.4 of the Lease to purchase
the Project no later than December 31, 203 I. If title to the Project or the applicable portion thereof as
described in the preceding sentence has not been transferred by the City to the Company before
December 31, 2031, then on December 31, 32, and each year thereafter until title to the Project or the
applicable portion thereof as described in the preceding sentence is transferred to the Company, the
Company shall pay to the City a PILOT Payment equal to 100% of the amount that would otherwise be
payable to each taxing jurisdiction but for the City's ownership thereof.
(d) The County Assessor will, until this Agreement is terminated, determine an assessed
valuation with respect to the Project in accordance with Article X, Section 4(b) of the Missouri
Constitution and Section 13 7.115 of the Revised Statutes of Missouri, as amended, as if title to the Project
were in the name of the Company and not the City. Such assessment shall be performed as of January 1
of each year. To facilitate the assessment, the Company agrees to provide to the County Assessor each
year, by the same date on which property declarations are required by law to be made, a report that
includes the following information:
(I) a list of Project Equipment acquired during the calendar year;
(2) a list of the Project Improvements completed during the calendar year; and
(3) such other information as the County Assessor may reasonably require to
complete the assessment of the Project.
The itemization shall be consistent with the information provided to the City and the Trustee under
Section 4.4 of the Lease.
(e)
writing.
The County Assessor shall notify the City and the Company of the assessed valuation in
Section 3.3. Adjustment of Payments In Lieu of Taxes for Failure to Maintain Jobs.
(a) The City and the Company understand and agree that the property tax abatement set forth
in Section 3.1 above is conditioned upon the Company's creating and maintaining at least 70 New Jobs
with an average annual wage of $32,650, plus benefits customary in the industry, on or before the first
Test Date, and continuing for so long as the abatement described herein is in effect.
(b) If the Company fails to create and maintain at least 70 New Jobs at the Project Site as
certified by the Company to the Annual Compliance Report described in subsection (d) of this Section
(measured by determining the actual number of New Jobs on that last day of each month on each of the
immediately preceding 12 months ending on each Test Date and then calculating the 12-month average,
or, for the first Test Date only, the actual number of New Jobs on such first Test Date), the Company shall
also pay a PILOT Payment (the ''New Job PILOT") due to the City on or before December 31 of each
such calendar year in an amount equal to the formula percentage calculated below times the amount of ad
valorem taxes which would otherwise be due with respect to the Project:
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.75 -(.75 X Actual Number of New Jobs
70 ) New Job
PILOT%
(c) If the Company fails to create and maintain an average annual wage of $32,650 for the
New Jobs as certified by the Company in the Annual Compliance Report described in subsection (d) of
this Section (measured by determining the highest average annual wage for the New Jobs on the last day
of each month on each of the immediately preceding 12 months ending on each Test Date and then
calculating the 12-month average), the Company shall also pay a PILOT Payment (the "Annual Wage
PILOT") due to the City on or before December 31 of each such calendar year in an amount equal to the
formula percentage calculated below times the amount of ad valorem taxes which would otherwise be due
with respect to the Project:
.75 ( .75 X Average Annual Wage ofNew Jobs
32,650 ) Annual Wage
PILOT o/o
(d) The Company shall file with the City annually, commencing on November 10,2019, and
continuing . on each November 1 0 thereafter while this Agreement remains in effect, an Annual
Compliance Report in the form attached hereto as Exhibit B. The Company also agrees to provide
reasonable access to the Company's payroll records for purposes of verifying the number of Jobs.
(e) The calculations set forth in this Section 3.3 shall be performed on each Test Date, with
any resulting PILOT due as a result of such calculation to be applicable for the year in which such Test
Date occurs. In no event shall the Company's PILOT(s) calculated pursuant this section and to Section
3.2 hereof exceed 1 00% of the actual property taxes that would have otherwise been payable on the
Project, but for the City's ownership thereof, for the given year. To the extent the Company would be
required to pay an additional PILOT under both the calculation stated in subsection (b) of this Section and
the calculation stated in subsection (c) of this Section, then the Company shall only be obligated to pay
the additional PILOT that is the higher of the two calculations.
Section 3.4. Distribution of PILOTS. Within 30 days of the date of receipt of the Base
PILOT and each PILOT Payment, the City or other designated billing/collection agent shall distribute the
Base PILOT and each PILOT Payment, after reduction for the administrative costs of the City as provided
by Section 3.6 below, among the taxing jurisdictions in proportion to the amount of taxes which would
have been paid in each year had the Leased Property not been exempt from taxation pursuant to this
Agreement.
Section 3.5. Obligation of City to Effect Tax Abatement. The City agrees to take all
actions within its control to obtain and/or maintain in effect the exemption referred to in Section 3.1
above, including any filing required with any governmental authorities; provided, however, the City shall
not be liable for any failure of any governmental taxing authority to recognize the exemption provided
herein. The City covenants that it will not voluntarily take any action that may cause or induce the levy
or assessment of ad valorem taxes on the Leased Property. In the event such a levy or assessment should
occur, the City shall, at the Company's request and at the Company's expense, fully cooperate with the
Company in all reasonable ways to prevent and/or remove any such levy or assessment against the Leased
Property.
Section 3.6. Administration Costs. Under Section 100.050 of the Act, the City may require
the Company to reimburse the City for its actual costs of issuing the Bonds and administering the plan
including costs associated with this Performance Agreement, in an amount of no greater than $1,000 per
year. The City will provide a statement for such costs to the Company not later than November 15th of
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each year and the Company will reimburse the City for its costs on or before December 31 of each year
continuing until December 31 of the year in which this Agreement expires or is tenninated.
Section 3.7. Other Property Taxes In Connection with the Leased Property. The real and
personal property tax exemption provided by the City's ownership of the Leased Property is expected to
apply to all interests in the Leased Property during the period it is owned by the City. If any ad valorem
property taxes are levied by or on behalf of any taxing jurisdiction against any interest in the Leased
Property during the period the City owns the Leased Property (including, without limitation, any ad
valorem taxes levied against the Company's rights in the Lease), the amount of ad valorem tax payments
related to such levy or levies which are paid by the Company and received by the City shall be credited
against and reduce on a pro rata basis the amount of the PILOT Payments the Company is obligated to
pay pursuant to this Agreement. The Company shall be responsible for any taxes related to any interest in
the Leased Property which the Company owns in its own name or granted to the Company other than
pursuant to the Lease.
Section 3.8. No Sales Tax Exemption. The purchase and installation of the Project shall not
be exempt from any sales taxes imposed by any governmental authority by virtue of the City's ownership
of the Project, and neither the City nor the Company shall request any such exemption. Nothing herein
shall limit the Company's right to any exemption of sales taxes not resulting from the City's ownership of
title to the Project.
Section 3.9. Credits for Certain Tax Payments. Nothing in this Agreement shall be
construed to require the Company to make duplicate tax payments. The Company shall receive a credit
hereunder to such extent it has made any payment for ad valorem property taxes on the Leased Property
to the City.
Section 3.10. Company's Right To Protest Taxes. Notwithstanding any other provision of
this Agreement to the contrary, nothing in this Agreement shall be construed to limit or in any way
restrict the availability of any provision of Missouri law which confers upon the Company the right to
appeal, protest or otherwise contest any property tax valuation, assessment, classification or similar
action~ provided, however, the Company agrees that it will not appeal, protest or otherwise contest any
personal property tax valuation or assessment unless the amount of such valuation or assessment relative
to the Project will cause the total assessed valuation of the Project for such year to be greater than 1 05%
of the total amount of assessed valuation of the Project set forth in the cost-benefit analysis contained in
the Chapter 1 00 Plan.
Section 3.11. Cessation of Operations at the Project Site. If for any reason the Company
completely vacates, abandons or ceases operations at the Project Site during the tenn of this Agreement,
and fails to exercise its option to purchase the Project within 90 days after such vacancy, abandonment or
cessation of operations, the Company shall make a PILOT Payment to the City (to be distributed as
provided in Section 3.3) equal to I 00% of the amounts that would otherwise be payable to each taxing
jurisdiction if the Project was not owned by the City. Such payment shall be made on or before
December 31 in the year in which the Company ceases operations and on each December 31 thereafter for
each year in which the Project is, on January I of such year, still titled in the name of the City, and the
Company has ceased operations.
Section 3.12. No Abatement on Special Assessments, Licenses or Fees. The City and the
Company hereby agree that the property tax exemptions described in this Agreement shall not apply to
special assessments and shall not serve to reduce or eliminate any other licenses or fees owing to the City
or any other taxing jurisdiction with respect to the Leased Property. The Company hereby agrees to make
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payments with respect to all special assessments, licenses and fees which would otherwise be due with
respect to the Leased Property if such Leased Property was not owned by the City.
ARTICLE IV
COVENANTS, REPRESENTATIONS AND AGREEMENTS OF THE COMPANY
Section 4.1. Inspection. The Company agrees that the City and its duly authorized agents
shall have the right at reasonable times (during business hours), subject to at least 48 hours advance notice
and to the Company's usual business proprietary, safety and security requirements, to enter upon the
Project Site to examine and inspect the Project and the records of the Company which demonstrate
compliance with this Agreement.
Section 4.2. Compliance with Laws. To the best of the Company's knowledge, the Leased
Property is and will be in material compliance with all applicable federal, state and local laws, statutes,
ordinances, rules, regulations, executive Ordinances and codes pertaining to or affecting the Leased
Property, including environmental laws, subject to all applicable rights of the Company to contest the
same.
Section 4.3. Purchase, Construction, Improvement, Installation and Operation. The
Project will be purchased, constructed, improved, installed and operated in a manner that is consistent
with the description of the Project herein and in the Lease. In the event the Project purchased,
constructed, improved and installed is materially inconsistent with the description of the Project contained
herein and in the presentation to the City Council, the City reserves the right to declare an Event of
Default in accordance with Section 6.1 hereof.
Section 4.4. Indemnification. The Company shall indemnify and save and hold harmless the
City and the County Assessor from and against all claims, demands, costs, liabilities, damages or
expenses, including reasonable attorneys' fees, 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 and the
Project Site, as applicable, during the term of the Lease, and against and from all claims, demands, costs,
liabilities, damages or expenses, including reasonable attorneys' fees, arising during the term of the Lease
from any event described in Section 10.5 of the Lease to the extent and subject to the limitations provided
therein.
Section 4.5. Costs of Issuance of the Bonds. The Company agrees to pay on the date of the
initial issuance of the Bonds, all costs of issuance incurred in connection therewith, provided that a
closing memorandum detailing all costs of issuance is provided to the Company for review at least two
Business Days prior to the initial issuance of the Bonds.
Section 4.6. Joint and Several Liability. Axium and P JP shall be jointly and severally liable
for the payment and performance of all obligations of the Company hereunder.
ARTICLE V
SALE AND ASSIGNMENT
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The benefits granted by the City to the Company pursuant to this Agreement shall belong solely
to the Company, and such benefits shall not be transferred (other than to an affiliate of the Company),
assigned, pledged or in any other manner hypothecated without the express written consent of the City,
except that the Company shall have the right to assign or transfer its interest hereunder, including the
benefits hereunder, in connection with any assignment or transfer of its interest in the Leased Property
that is permitted pursuant to the Lease; but nothing herein shall preclude the Company from assigning or
pledging its interest in the Leased Property so long as the Company continues to occupy the Leased
Property and otherwise remains responsible for its undertakings herein.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.1. Events of Default. If any one or more of the following events occurs and is
continuing, it is hereby defined as and declared to be and to constitute an Event of Default hereunder:
(a) the Company fails to make the Base PILOT or any PILOT Payments required to
be paid hereunder within 10 days after written notice and demand by the City;
(b) the Company shall fail to perform any of its obligations hereunder for (i) a period
of 60 days (or such longer period as the City and the Company may agree in writing) following
written notice to the Company from the City of such failure which notice shall include a specific
description of the Company's failure hereunder), or (ii) if such failure is not subject to cure within
such 60 days, Company shall have failed to initiate action to cure such default and shall pursue
such action diligently; or
(c) any representation of the Company contained herein proves to be materially false
or erroneous and is not corrected or brought into compliance within 30 days (or such longer
period as the City and the Company may agree in writing) after the City has given written notice
to the Company specifying the false or erroneous representation and requiring it to be remedied;
provided, that if such matter is not subject to cure within such 30 days after such notice, the
Company fails to initiate action to cure the default within such 30 days after such notice and fails
to pursue such action diligently.
Section 6.2. Remedies on Default. Upon an Event of Default hereunder this Agreement may
be terminated by written notice to the Company from the City. Upon such termination the Company shall
make a PILOT to the City equal to (i) the pro rata amount payable pursuant to Section 3.3 hereof from
January I of the year in question through the effective date of termination, plus (ii) the pro rata amount of
taxes that would be due for the remaining portion of the year assuming the Leased Property was placed on
the tax rolls effective on the date of termination through December 31; provided, however, the payment of
PILOTS following cessation of operations shall be governed by Section 3.11.
Upon any termination of this Agreement the Company agrees to pay interest and penalties on all
amounts due hereunder to the same extent as if such payments were taxes under Missouri law.
Section 6.3. Payments on Defaulted Amounts. Any amounts due hereunder which are not
paid when due shall bear interest at the interest rate imposed by Missouri law on overdue ad valorem real
estate taxes from the date such payment was first due. In addition, amounts payable hereunder in lieu of
ad valorem real personal property taxes which are not paid when due shall be subject to penalties imposed
by Missouri law on overdue ad valorem real estate taxes.
-8-
Section 6.4. Enforcement. In addition to the remedies specified in Section 6.2, upon the
occurrence of an Event of Default, the City or any taxing jurisdictions that would benefit from the Base
PILOT and the PILOT Payments provided for in this Agreement may bring an action for specific
performance to enforce such payments. In the event of litigation pertaining to the enforcement of this
Agreement, the losing party shall pay all costs of litigation, including reasonable attorneys' fees.
Section 6.5. Failure of the City to Perform its Obligations. In the event the City shall fail
to perform any of its obligations hereunder for (i) a period of 60 days (or such longer period as the
Company and the City may agree in writing) following written notice to the City from the Company of
such failure which notice shall include a specific description of the City's failure hereunder}, or (ii) if
such failure is not subject to cure within such 60 days, the City shall have failed to initiate action to cure
such default and shall pursue such action diligently; the Company may declare that the City is in default
under this Agreement and may pursue any legal remedy available to it to enforce this Agreement.
ARTICLE VII
TERM OF AGREEMENT
This Agreement shall become effective upon execution, and subject to earlier termination
pursuant to the provisions of this Agreement (including particularly the following paragraph and
Article VI hereof), shall have an initial term commencing as of the date of this Agreement and
terminating on December 31, 2031 (the "Stated Expiration Date"). This Agreement shall automatically
terminate prior to the Stated Expiration Date in the event the Bonds (or any Bonds issued to refund the
Bonds) are no longer outstanding.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Severability. If for any reason any provision of this Agreement shall be
determined to be invalid or unenforceable, the validity and enforceability of the other provisions hereof
shall not be affected thereby.
Section 8.2. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Missouri.
Section 8.3. Execution in Counterparts. This Agreement 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.
Section 8.4. Waiver. The City and the Company acknowledge and agree that the amounts
payable hereunder shall constitute payments due the City under the Lease executed in connection with the
Bonds. The Company shall not be entitled to any extension of payment of such amounts as a result of a
filing by or against the Company in any bankruptcy court.
Section 8.5. Entire Agreement. This Agreement constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, between the City and the
Company with respect to the subject matter hereof.
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Section 8.6. Electronic Storage of Documents. The City and the Company agree that the
transaction described herein may be conducted and related documents may be stored by electronic means.
Section 8. 7. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be given in the manner specified in the Indenture.
Section 8.8. Employee Verification. The Company will comply with and satisfy the
requirements of Section 285.530.2, RSMo., as amended, which requires (I) any business entity receiving
tax abatement to, by sworn affidavit and provision of documentation, annually affirm its enrollment and
participation in a federal work authorization program with respect to the employees working in
connection with the business entity receiving tax abatement, and (2) every such business entity to
annually sign an affidavit affirming that it does not knowingly employ any person who is an unauthorized
alien in connection with the entity receiving tax abatement. The Company shall provide such affidavits
and documentation to the City on or before November 15 of each year during the term of this Agreement,
beginning November 15, 20 18, and also upon execution of this Agreement.
Section 8.9. Complete Agreement. The Company and the City understand that oral or
unexecuted agreements or commitments to loan money, extend credit or to forbear from enforcing
repayment of a debt including promises to extend or renew such debt are not enforceable. To protect the
Company and the City from misunderstanding or disappointment, any agreements the Company and the
City reach covering such matters are contained in this Performance Agreement and in the Lease, which
are the complete and exclusive statements of the agreement between the Company and the City, except as
the Company and the City may later agree in writing to modify this Performance Agreement and the
Lease.
[Remainder of this page intentionally left blank]
-10-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
their respective corporate names, all as of the date first above written.
[SEAL]
ATTEST:
By: __________________________ _
Name: Phyllis Powell
Title: City Clerk
CITY OF JEFFERSON, MISSOURI
By: ______________________ __
Name: Carrie Tergin
Title: Mayor
APPROVED AS TO FORM:
[Remainder of this page intentionally left blank]
S-1
Perfonnance Agreement
Axium Plastics Project, Series 2017
.i
·. ~.
/, .
...,.
AXIUM PLASTICS, LLC
By:
Name:
Title:
S-2
Perfonnance Agreement
Axitim Plastics Project, Series 2017
PJP HOLDINGS, LLC
By: -------------------------------Name:
Title:
S-3
.. ; '~ . . Performance Agreement
~um Plastics Project, Series 2017
ACKNOWLEDGMENT AND AGREEMENT
The County Assessor of Cole County, Missouri, acknowledges receipt of this Agreement and
agrees to perform the duties imposed on the County Assessor by Article ill of this Agreement.
S-3
Perfonnance Agreement
Axium Plastics Project. Series 2017
OFFICE OF COLE COUNTY, MISSOURI
ASSESSOR
By:
Name: Christopher Estes
Title: County Assessor
EXHIBIT A
LEGAL DESCRIPTION
,'
EXHffiiTB
ANNUAL COMPLIANCE REPORT
Date: November __ , 20_
A. COMPANY INFORMATION.
Name: _____________________________________________________ _
Address: -----------------------------------------------------
City: ___________ State: _____ Zip Code: _______ _
Contact: ______________ Telephone: _______ _
Title: Fax: -------------------------------------------
B. EMPLOYMENT INFORMATION.
The highest number of total "Jobs" at the Project on the last day of each of the immediately
preceding 12 months ending on October 31, 20 _(the October 3 I st prior to this Report) is set forth below
in the column labeled "Total Jobs."
The highest number of "New Jobs" at the Project on the last day of each of the immediately
preceding 12 months ending on October 31, 20 _ (i.e. highest number of total "Jobs" at the Project Site
less Ill) is set forth below in the column labeled "New Jobs."
The average annual wage of the "New Jobs" at the Project on the last day of each of the
immediately preceding 12 months ending on October 31, 20_ (i.e. the sum of the annual wage of each
"New Job" divided by the number of"New Jobs") is set forth below in the row labeled "Average Wage."
The 12-month average of the actual number of "'Jobs" and "New Jobs" on the last day of each
month on each of the immediately preceding 12 months ending on October 31, 20 _ is set forth below
under the row labeled "12-Month Average."
Total Jobs New Jobs Average Wage
November
December
January
February
March
April
May
June
July
August
September
I October
12-Month Average
Attached is a copy of a report verifying the above calculation containing at a minimum the following
information for each Job:
1. Name or Social Security Number (last 4 digits only).
2. Hire Date.
3. Termination Date.
4. Annual Wage (however, for privacy purposes, all annual wages may be listed in a manner
that does not match a specific wage with a particular employee).
C. CERTIFICATION.
The undersigned hereby represents and certifies that, to the best knowledge and belief of the
undersigned, this Annual Compliance Report contains no information or data, contained herein or in the
exhibits or attachments, that is false or incorrect in any material respect.
Dated this_ day of _______ _
Signature: -------------
Name: --------------
Title: --------------
$6,000,000
AMONG
CITY OF JEFFERSON, MISSOURI,
As Lessor,
AND
PJP HOLDINGS, LLC
As Company
AND
AXIUM PLASTICS, LLC,
As Company
LEASE AGREEMENT
Dated as of December 1, 2017
Approval Version
$20,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Axiom Plastics Project)
Series 2017 A
Taxable Industrial Development Revenue Bonds
(Axiom Plastics Project)
Series 2017B
The interest of City of Jefferson, Missouri (the "City"), in this Lease Agreement has been pledged
and assigned to BOKF, N.A., Kansas City, Missouri, as Trustee under the Trust Indenture dated as
of Decem her 1, 2017, between the City and the Trustee.
Section 1.1.
Section 1.2.
Section 1 .3.
Section 2.1.
Section 2.2.
Section 2.3.
Section 3 .I.
Section 3.2.
Section 3.3.
Section 3.4.
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.6.
Section 4.7.
Section 4.8.
Section 4.9.
LEASE AGREEMENT
TABLE OF CONTENTS
Parties ............................................................................................................................. l
Recitals ........................................................................................................................... I
ARTICLE I
DEFINITIONS
Definitions of Words and Terms .................................................................................... 2
Rules of Interpretation ................................................................................................... 3
Acceptance of Indenture ................................................................................................ 3
ARTICLE II
REPRESENTATIONS
Representations by the City ........................................................................................... 4
Representations by Axium ............................................................................................. 4
Representations by P JP .................................................................................................. 5
ARTICLE III
GRANTING PROVISIONS
Granting of Leasehold Estate ......................................................................................... 6
Lease Term ..................................................................................................................... 6
Possession and Use of the Project .................................................................................. 6
Title to the Project .......................................................................................................... 7
ARTICLE IV
PURCHASE, CONSTRUCTION AND EQUIPPING OF THE PROJECT
Issuance of the Bonds .................................................................................................... 7
Purchase, Construction and Equipping of the Project.. .................................................. 7
Project Costs .................................................................................................................. 8
Payment for Project Costs .............................................................................................. 8
Establishment of Completion Date ................................................................................ 8
Surplus or Deficiency in Project Fund ........................................................................... 9
Project Property of City ................................................................................................. 9
Non-Project Improvements, Machinery and Equipment Property
of the Company .............................................................................................................. 9
Environmental Matters ................................................................................................... 9
Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 6.1.
Section 6.2.
Section 6.3.
Section 6.4.
Section 7.1.
Section 7.2.
Section 7.3.
Section 7.4.
Section 7.5.
Section 8.1.
Section 8.2.
Section 8.3.
Section 8.4.
Section 8.5.
Section 9.1.
Section 9.2.
Section 9.3.
Section I 0.1.
Section 1 0.2.
Section 1 0.3.
ARTICLEV
RENT PROVISIONS
Basic Rent .................................................................................................................... 1 0
Additional Rent. ........................................................................................................... 1 0
Obligations of Company Absolute and Unconditional ................................................ 11
Prepayment of Basic Rent ............................................................................................ 11
ARTICLE VI
MAINTENANCE, TAXES AND UTILITIES
Maintenance and Repairs ............................................................................................. 12
Taxes, Assessments and Other Governmental Charges ............................................... 12
Utilities ......................................................................................................................... 13
Property Tax Exemption .............................................................................................. 13
ARTICLE VII
INSURANCE
Title Commitment or Report ........................................................................................ 13
Property Insurance ....................................................................................................... 13
Commercial General Liability Insurance ..................................................................... 14
Workers' Compensation .............................................................................................. 14
Blanket Insurance Policies; Self-Insurance .................................................................. 14
ARTICLE VIII
ALTERATION OF THE PROJECT
Additions, Modifications and Improvements to the Project ........................................ 14
Removal and Replacement of Portions ofthe Project Equipment. .............................. l5
Additional Improvements on the Project Site .............................................................. 15
Permits and Authorizations .......................................................................................... 15
Mechanics' Liens ......................................................................................................... 16
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Damage or Destruction ................................................................................................ 16
Condemnation .............................................................................................................. 18
Bondowner Approval ................................................................................................... 19
ARTICLE X
SPECIAL COVENANTS
No Warranty of Condition or Suitability by the City; Exculpation
and Indemnification ..................................................................................................... 19
Surrender of Possession ............................................................................................... 19
City's Right of Access to the Project ........................................................................... 20
(ii)
Section 1 0.4.
Section I 0.5.
Section I 0.6.
Section I0.7.
Section I 0.8.
Section I 0.9.
Section I I .1.
Section 11.2.
Section I 1.3.
Section 11.4.
Section 11.5.
Section 12.1.
Section 12.2.
Section 12.3.
Section 12.4.
Section 12.5.
Section 12.6.
Section 12.7.
Section 13.1.
Section I3.2.
Section I3.3.
Section 13.4.
Section I4.I.
Section 15.1.
Section I5.2.
Section 15.3.
Section 15.4.
Section 15.5.
Granting of Easements; Leasehold Mortgages and Financing
Arrangements ............................................................................................................... 20
Indemnification of City and Trustee ............................................................................ 22
Depreciation, Investment Tax Credit and Other Tax Benefits ..................................... 23
Company to Maintain its Corporate Existence ............................................................ 23
Security lnterests .......................................................................................................... 24
Joint and Several Liability ........................................................................................... 24
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT
Option to Purchase the Project ..................................................................................... 24
Conveyance of the Project ........................................................................................... 25
Option to Purchase Portions of the Project Site ........................................................... 25
Relative Position of Option and Indenture ................................................................... 26
Obligation to Purchase the Project ............................................................................... 26
ARTICLE XII
DEFAULTS AND REMEDIES
Events of Default ......................................................................................................... 26
Remedies on Default .................................................................................................... 27
Survival of Obligations ................................................................................................ 27
Performance of the Company's Obligations by the City ............................................. 27
Rights and Remedies Cumulative ................................................................................ 28
Waiver of Breach ......................................................................................................... 28
Trustee's Exercise of the City's Remedies .................................................................. 28
ARTICLE XIII
ASSIGNMENT AND SUBLEASE
Assignment; Sublease .................................................................................................. 28
Assignment of Revenues by City ................................................................................. 29
Prohibition Against Fee Mortgage of Project .............................................................. 29
Restrictions on Sale or Encumbrance of Project by City ............................................. 29
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Amendments, Changes and Modifications .................................................................. 29
ARTICLE XV
MISCELLANEOUS PROVISIONS
Notices ......................................................................................................................... 30
City Shall Not Unreasonably Withhold Consents and Approvals ............................... 30
Net Lease ..................................................................................................................... 30
Limitation on Liability of City ..................................................................................... 30
Governing Law ............................................................................................................ 30
(iii)
Section 15.6.
Section 15.7.
Section 15.8.
Section 15.9.
Section 15.1 0.
Binding Effect .............................................................................................................. 30
Severability .................................................................................................................. 30
Electronic Storage ........................................................................................................ 31
Execution in Counterparts ............................................................................................ 31
Complete Agreement ................................................................................................... 31
Signatures and Seal .................................................................................................... S-1
Exhibit A: Project Site
Exhibit 8: Project Improvements
Exhibit C: Project Equipment
Exhibit D: Form of Requisition Certificate
Appendix 1: Performance Agreement
(iv)
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated as of December 1, 2017 (the "Lease"), is between CITY
OF JEFFERSON, MISSOURI, a home rule charter city and municipal corporation organized and
existing under the laws of the State of Missouri, as lessor (the "City"), PJP HOLDINGS, LLC, a
Delaware limited liability company ("PJP"), and AXIUM PLASTICS, LLC, a Delaware limited
liability company ("'Axiom"), as lessee (P JP and Axium are collectively referred to herein as the
"Company'~);
RECITALS:
1. The City is authorized under Article VI, Section 27(b) of the Missouri Constitution and
Sections 100.010 through 100.200 of the Revised Statutes of Missouri, as amended (the "Act"), to
purchase, construct, extend and improve certain "projects" (as defined in Section 100.010 of the Act) and
to issue industrial development revenue bonds for the purpose of providing funds to pay the costs of such
projects and to lease or otherwise dispose of such projects to private persons or corporations for
manufacturing, commercial, warehousing and industrial development purposes upon such terms and
conditions as the City shall deem advisable.
2. Following notice to affected taxing jurisdictions in accordance with Section 100.059.1 of
the Act, the City Council adopted Ordinance No. (the "Ordinance") on , (i)
approving a plan for the Company's economic development project, and (ii) authorizing the issuance of
$6,000,000 aggregate maximum principal amount of Taxable Industrial Development Revenue Bonds
(Axium Plastics Project), Series 2017 A (the "Series 2017 A Bonds"), to pay the costs of a portion of the
Project consisting of (a) acquiring real property in the City (the "Project Site," as more fully described on
Exhibit A hereto), (b) making certain real property improvements to the Project Site (the "Project
Improvements", as more fully described on Exhibit B hereto) and (iii) authorizing the issuance of
$20,000,000 aggregate maximum principal amount of Taxable Industrial Development Revenue Bonds
(Axium Plastics Project), Series 20 17B (the "Series 2017B Bonds," together with the Series 2017 A
Bonds, collectively, the "Bonds"), to pay the costs of a portion of the Project consisting of equipping the
Project Site with certain personal property (the "Project Equipment," as more fully described on
Exhibit C hereto). References herein to the Project shall be construed to mean that the acquisition of the
Project Site and the making of the Project Improvements thereon shall be the obligation of PJP and the
equipping of the Project with the Project Equipment shall be the obligation of Axium, however, both
Axium and P JP will be jointly and severally liable for the payment and performance of all obligations of
the Company hereunder.
3. Pursuant to the Ordinance, the City is authorized to execute and deliver (a) the Trust
Indenture dated as of even date herewith (the "Indenture"), between the City and BOKF, N.A., as bond
trustee (the "Trustee"), for the purpose of issuing and securing the Bonds, (b) this Lease with the
Company, as lessee, under which the City, as lessor, will purchase, construct, improve and equip the
Project and will lease the Project Site, the Project Improvements and the Project Equipment (collectively,
the "Project") to the Company, in consideration of rentals which will be sufficient to pay the principal of
and interest on the Bonds, and (c) the Performance Agreement dated as of even date herewith (the
"Performance Agreement"), among the City, the Company and the Assessor (as defined in the
Indenture), for the purpose of setting forth the terms and conditions of the Project's exemption from ad
valorem real and personal property taxes and certain payments in lieu of taxes to be made by the
Company with respect to the Project.
4. 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.
"Environmental Law" means and includes the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act, the Supetfund
Amendments and Reauthorization Act of 1986, any other "Supetfund" or "Superlien" law, or any other
federal, state or local statute, law, ordinance, code, rule, regulation, Ordinance or decree regulating,
relating to, or imposing liability or standards of conduct concerning any Hazardous Materials, as now or
at any time hereafter in effect.
"Equipment Financing" means any financings which the Company may undertake with an
Equipment Lender with respect to the Project or any portion thereof.
"Equipment Financing Documents" means all loan agreements, notes, security documents,
UCC financing statements, acknowledgements, assignments and other documents securing, evidencing or
otherwise pertaining to any Equipment Financing.
"Equipment Lender" means all third parties entering into any Equipment Financing Documents
or receiving delivery of or the benefit from any Equipment Financing Documents, including the
Equipment Lender's designee, nominee, assignee, transferee, purchaser in foreclosure or receiver.
"Full Insurable Value" means the actual replacement cost of the Project less physical
depreciation as determined in accordance with Section 7.2(a) hereof.
"Lease Term" means the period from the effective date of this Lease 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 remaining after
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.
-2-
"Permitted Encumbrances" means, as of any particular time, as the same may encumber the
Project (a) liens for ad valorem taxes and special assessments not then delinquent, (b) the Indenture, the
Lease and the Performance Agreement, (c) utility, access and other easements and rights-of-way, mineral
rights, restrictions, exceptions and encumbrances that will not materially interfere with or impair the
operations being conducted on the Project Site or easements granted to the City, (d) 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 Site 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, (e) liens or security interests affecting the fee interest in the Project existing prior to the date of
conveyance of the Project to the City, and (t) liens and security interests granted pursuant to any
Leasehold Mortgage or any Financing Documents. Nothing in this definition shall authorize or permit
any party other than the Company to create or consent to the creation of any Permitted Encumbrance.
"Plans and Specifications" means the plans and specifications prepared for and showing the
Project, as amended by the Company from time to time prior to the Completion Date, the same being duly
certified by the Company, and on file with the Company, or with the architect/engineers retained by the
Company for the Project, and which shall be available for reasonable inspection by the City, the Trustee
and their duly appointed representatives.
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.
(f) Whenever an item or items are listed after the word "including," such listing is not
intended to be a listing that excludes items not listed.
Section 1.3. Acceptance of Indenture. The Company acknowledges that it has received an
executed copy of the Indenture and that it is familiar with the terms and conditions of the Indenture. The
Company further covenants that it will comply with all the conditions and covenants contained in the
Indenture relating to the Company and the Project, and that it will not take any action which would cause
a default thereunder or jeopardize the rights of the Trustee, the City or the Bondholders.
-3-
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 home rule charter city and municipal corporation organized and
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;
(b) As of the date of delivery hereof, the City agrees to acquire the Project Site,
subject to Permitted Encumbrances, and purchase, construct, improve and equip or cause to be
purchased, constructed, improved and equipped thereon the Project Improvements and the Project
Equipment. The City agrees to lease the Project to the Company and sell the Project to the
Company if the Company exercises its option to purchase the Project or upon tennination of this
Lease, all for the purpose of furthering 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 and the net earnings therefrom, 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 penn it a lien to be placed on 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;
(t) The City shall have no authority to operate the Project as a business or in any
other manner except as the lessor thereof;
(g) The purchase, construction, improvement and equipping of the Project and the
leasing of the Project by the City to the Company will further the public purposes of the Act; and
(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.
Section 2.2. Representations by the Axiom. Axium makes the following representations as
the basis for the undertakings on its part herein contained:
-4-
(a) Axium is a limited liability company duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is authorized to conduct business in
the State of Missouri;
(b) Axium has lawful power and authority to enter into this Lease and to carry out its
obligations hereunder and by proper action of its Board of Directors of Axium has been duly
authorized to execute and deliver this Lease, acting by and through its duly authorized officers;
(c) The execution and delivery of this Lease, the consummation of the transactions
contemplated hereby, and the perfonnance of or compliance with the tenns and conditions of this
Lease by Axium 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 Axium is a party
or by which it or any of its property is bound, or Axium's Articles of Incorporation or bylaws, or
any Ordinance, rule or regulation applicable to Axium 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 Axium under the tenns of any instrument or agreement to
which Axium is a party;
(d) The estimated costs of the purchase, construction, improvement and equipping of
the Project are in accordance with sound engineering and accounting principles;
(e) The Project will comply in all material respects with all presently applicable
building and zoning, health, environmental and safety Ordinances and laws and all other
applicable laws, rules and regulations; and
(f) The Project is located wholly within City of Jefferson, Missouri.
Section 2.3. Representations by the PJP. PJP makes the following representations as the
basis for the undertakings on its part herein contained:
(a) PJP is a limited liability company duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and is authorized to conduct business in the
State of Missouri;
(b) P JP has lawful power and authority to enter into this Lease and to carry out its
obligations hereunder and by proper action of its Board of Directors of PJP has been duly
authorized to execute and deliver this Lease, acting by and through its duly authorized officers;
(c) The execution and delivery of this Lease, the consummation of the transactions
contemplated hereby, and the perfonnance of or compliance with the tenns and conditions of this
Lease by PJP will not conflict with or result in a material breach of any of the tenns, 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 PJP is a party or by which it
or any of its property is bound, or PJP's Articles of Incorporation or bylaws, or any Ordinance,
rule or regulation applicable to PJP 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
-5-
any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or
assets of P JP under the terms of any instrument or agreement to which P JP is a party;
(d) The estimated costs of the purchase, construction, improvement and equipping of
the Project are in accordance with sound engineering and accounting principles;
(e) The Project will comply in all material respects with all presently applicable
building and zoning, health, environmental and safety Ordinances and laws and all other
applicable laws, rules and regulations; and
(f) The Project is located wholly within City of Jefferson, Missouri.
ARTICLE III
GRANTING PROVISIONS
Section 3.1. Granting of Leasehold Estate. The City hereby rents, leases and lets the
Project to the Company, and the Company 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 become effective upon its delivery, and subject to
sooner termination pursuant to the provisions of this Lease, shall have a term commencing as of the date
of this Lease and terminating on December 1, 2031.
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) 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
hereof, 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 Ordinance 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, this Lease and the
Performance Agreement. The Company shall comply in all material respects with all statutes, laws,
ordinances, Ordinances, 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. In the event of demonstrated noncompliance with such statutes, laws, ordinances, Ordinances,
judgments, decrees, regulations, directions and requirements the Company will take all reasonable steps
to comply with such statutes, laws, ordinances, Ordinances, judgments, decrees, regulations, directions
and requirements. The Company shall also comply with the mandatory requirements, rules and
-6-
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 contest or review by legal or other appropriate procedures the
validity or legality of any such governmental statute, law, ordinance, Ordinance, judgment, decree,
regulation, direction or requirement, or any such requirement, rule or regulation of an 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 during the
Lease Term.
ARTICLE IV
PURCHASE, CONSTRUCTION AND EQUIPPING OF THE PROJECT
Section 4.1. Issuance of the Bonds. To provide funds for the payment of Project Costs, the
City agrees that it will issue, sell and cause to be delivered to the applicable purchaser thereof the Bonds
in accordance with the provisions of the Indenture and the Bond Purchase Agreements. 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 Lease and in the Indenture, which deposit may be recorded via a
transaction entry on the trust records held by the Trustee.
Section 4.2. Purchase, Construction and Equipping 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, purchase, construct and equip the Project as follows:
(a) The City will acquire the Project Site at the execution hereof. Concurrently with
the execution of this Lease, ( i) a deed and any other necessary instruments of transfer will be
delivered to the City and placed of record, and (ii) the commitment for title insurance or
ownership and encumbrance report required by Article VII hereof will be delivered to the City
and the Trustee;
(b) On behalf of the City, the Company will purchase, improve and construct the
Project Improvements on the Project Site and otherwise improve the Project Site in accordance
with the Plans and Specifications. The Company may revise the Plans and Specifications from
time to time as it deems necessary to carry out the Project, but revisions that would alter the
intended purpose of the Project may be made only with the prior written approval of the City.
The Company agrees that the aforesaid construction and improvement will, with such changes
and additions as may be made hereunder, result in facilities suitable for use by the Company for
its purposes, and that all real and personal property described in the Plans and Specifications,
with such changes and additions as may be made hereunder, is desirable and appropriate in
connection with the Project. The provisions of this paragraph are in addition to and do not
supersede the provisions of Section 8.3;
(c) The Company will purchase and install the Project Equipment in the Project
Improvements on the Project Site. Except as provided in the next sentence, title to the Project
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Equipment shall be evidenced by bills of sale or other instruments of transfer, including purchase
Ordinances or other instruments pursuant to which the City acquires title to personal property
directly from the vendor thereof. Subject to Section 8.2, all portions of the Project Equipment
substituted by the Company shall automatically become part of the Project Equipment subject to
this Lease, and full title and ownership of such Project Equipment shall be automatically vested in
the City, without the requirement of a bill of sale or other instrument of conveyance unless
otherwise requested by the City. In any event, on or before March I of each year, the Company
shall furnish to the City and the Trustee a list of items (based on the Company's internal record
keeping) comprising the Project Equipment as of January 1 of such year (the City and the
Company agree that the Trustee has no duty or obligation to review any such lists and is merely
holding them as a repository). The improper inclusion or exclusion of any item in the Project
Equipment pursuant to such list may be rectified by the Company within 30 days after notice of
such improper inclusion or exclusion. The improper inclusion or exclusion of an item on or from
such list shall not affect the items comprising the Project Equipment for the purpose of this Lease
or title thereto as intended by the parties hereto. The City and the Company agree that, pursuant
to Section 4.8, property purchased by the Company with its own funds and not Bond proceeds,
shall not constitute part of the Project Improvements or the Project Equipment and shall remain
the property of the Company and therefore subject to taxation;
(d) The Company will comply with the provisions of Section 107.170 ofthe Revised
Statutes of Missouri, as amended, to the extent applicable to the construction of the Project; and
(e) The Company agrees that it will use reasonable efforts to cause the purchase,
construction, improvement and equipping of the Project to be completed as soon as practicable
with all reasonable dispatch. In the event such purchase, construction, improvement and
equipping commences prior to the receipt of proceeds from the sale of the Bonds, the Company
agrees to advance all funds necessary for such purpose.
Section 4.3. Project Costs. The City hereby agrees to pay for, but solely from the Project
Fund, and hereby authorizes and directs the Trustee to pay for, but solely from 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. All Project Costs as specified in Section 4.3 hereof
shall be paid by the Trustee from the Series 20 17 A Project Account and Series 20178 Project Account, as
applicable, within the Project Fund as more fully provided in the Indenture, and the City hereby
authorizes and directs the Trustee to make disbursements from the Series 20 17 A Project Account and
Series 20 178 Project Account, as applicable, within the Project Fund upon receipt by the Trustee of
certificates in substantially the form attached hereto as Exhibit D, signed by an Authorized Company
Representative, which disbursements may be recorded via a transaction entry on the trust records held by
the Trustee. The Trustee may rely conclusively on any such certificate and shall not be required to make
any independent investigation in connection therewith. The submission of any requisition certificate by
an Authorized Company Representative shall constitute unto the Trustee an irrevocable determination that
all conditions precedent to the payments requested have been satisfied.
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) the purchase,
construction, improvement and installation of the Project has been completed in accordance with the
Plans and Specifications, (b) that all costs and expenses incurred in the purchase, construction,
improvement and installation of the Project have been paid except costs and expenses the payment of
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which is not yet due or is being retained or contested in good faith by the Company, and (c) amounts to be
retained by Trustee with respect to item (b) above. 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 Series 2017 A Project
Account or Series 20 17B Project Account within the Project Fund to the applicable subaccount within the
Bond Fund to be applied as directed by the Company solely to ( 1) the payment of principal and premium,
if any, of the applicable series of Bonds through the payment (including regularly scheduled principal
payments, if any) or redemption thereof at the earliest date permissible under the terms of the Indenture,
or (2) at the option of the Company, to the purchase of applicable series of Bonds at such earlier date or
dates as the Company may elect. Any amount so deposited in the Bond Fund may be invested as
permitted by Section 702 of the Indenture.
(b) If the Project Fund shall be insufficient to pay fully all Project Costs and to complete the
Project free of liens and encumbrances other than Permitted Encumbrances, the Company shall pay, in
cash, the full amount of any such deficiency by making payments thereof directly to the contractors and to
the suppliers of materials and services as the same shall become due, 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 Site, the Project Improvements and the
Project Equipment located thereon at the execution hereof and which the Company desires to convey to
the City, all work and materials on the Project Improvements as such work progresses, and all additions or
enlargements thereto or thereof, the Project as fully completed, anything under this Lease which becomes,
is deemed to be, or constitutes a 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 erected or installed become the absolute property of the City,
subject only to this Lease, the Indenture, Permitted Encumbrances and the Leasehold Mortgage, if any.
Section 4.8. Non-Project Improvements, Machinery and Equipment Property of the
Company. Any improvements or items of machinery or equipment which do not constitute part of the
Project Improvements or the Project Equipment and 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 this Lease in the Project Fund, shall be the property of the
Company and shall not constitute a part of the Project for purposes of Section 6.4 and therefore are
subject to taxation, to the extent otherwise provided by law.
Section 4.9. Environmental Matters. The Company acknowledges that is it responsible for
maintaining the Project in compliance with all Environmental Laws. In the event that the Company fails
to undertake to comply with any final, non-appealable Ordinance issued by any local, state or federal
authority under applicable Environmental Law, the City or the Trustee, immediately after notice to the
Company, may elect (but shall not be required) to undertake such compliance. Any moneys expended by
the City or the Trustee in efforts to comply with any applicable Environmental Law (including the
reasonable cost of hiring consultants, undertaking sampling and testing, performing any cleanup
necessary or useful in the compliance process and reasonable attorneys' fees) shall be due and payable as
Additional Rent hereunder with interest thereon at the average rate of interest per annum on the Bonds,
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plus two (2) percentage points, from the date such cost is incurred. There shall be unlimited recourse to
the Company to the extent of any liability incurred by the City or the Trustee with respect to any breaches
of the provisions of this section.
The Company shall and does hereby indemnify the City, the Trustee and the Bondowners and
agree to defend and hold them harmless from and against all loss, cost, damage and expense (including,
without limitation, reasonable attorneys' fees and costs associated incurred in the investigation, defense
and settlement of claims) that they may incur, directly or indirectly, as a result of or in connection with
the assertion against them or any of them of any claim relating to the presence on, escape or removal from
the Project during the term of this Lease of any hazardous substance or other material regulated by any
applicable Environmental Law, or compliance with any applicable Environmental Law, whether such
claim is raised before, during or after the term of this Lease, including claims relating to personal injury
or damage to property; provided, however, this indemnity shall only relate to claims resulting from the
City's ownership of the Project and the Trustee's acceptance of its duties as Trustee hereunder.
ARTICLEV
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 the 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 December 1, commencing December 1, 2018 and
continuing until the principal of and interest on the Bonds shall have been fully paid, an amount which,
when added to any collected funds then on deposit in the Bond Fund and available on such Payment Date,
shall be equal to the total amount payable on each December 1 as interest on the Bonds. On December I,
203 1 (or such earlier date as the Company may elect to redeem the Bonds), the Company shall also pay
an amount equal to all principal then due on the Bonds in connection with such maturity or redemption.
All payments of Basic Rent provided for in this Section shall be paid directly to the Trustee 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,
provided that if the Company is the Owner of all the Bonds Outstanding, payment of Basic Rent as
provided for in this Section may be made via a transaction entry on the trust records held by the Trustee
and the Paying Agent consistent with Section 204(d) of the Indenture. Any Basic Rent paid by the
Company which exceeds the total amount payable on such payment dates shall be immediately paid to the
Company by wire transfer. At its option, on the final Payment Date, the Company may deliver to the
Trustee for cancellation Bonds not previously paid and the Company shall receive a credit against the
Basic Rent payable by the Company in an amount equal to the principal amount of the Bonds so tendered
for cancellation plus accrued interest thereon.
Section 5.2. Additional Rent. The Company shall pay as Additional Rent, within 30 days
after receiving an itemized invoice therefor, the following amounts as and when the same become due:
(a) all reasonable fees, charges and expenses, including agent and counsel fees, of
the Trustee incurred under the Indenture, this Lease, or any other document entered into in
connection with the Bonds, as and when the same become due;
(b) all costs incident to 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;
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(c) all reasonable costs which are reasonably incurred in connection with the
enforcement of any rights against the Company or the Project or in connection with a failure of
the Company to perform its obligations under this Lease, the Indenture or the Performance
Agreement by the City, the Trustee or the Bondowners, including counsel fees and expenses;
(d) all amounts payable under the Performance Agreement; or
(e) all other payments of whatever nature which Company has agreed to pay or
assume under the provisions of this Lease.
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 circumstance 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, 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 the 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 Ordinance 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 and from time to
time prepay all or any part of the Basic Rent provided for hereunder (subject to the limitations of
Section 301(a) of the Indenture relating to the partial redemption of the Bonds). During such times as the
amount held by the Trustee in the Bond Fund shall be sufficient to pay, at the time required, the principal
of and interest on all the Bonds then remaining unpaid, the Company shall not be obligated to make
payments of Basic Rent under the provisions of this Lease. At its option, the Company may deliver to the
Trustee for cancellation Bonds owned by the Company and not previously paid, and the Company shall
receive a credit against amounts payable by the Company for the redemption of Bonds in an amount equal
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to the principal amount of the Bonds so tendered for cancellation, plus accrued interest thereon (principal
to be credited against principal and interest to be credited against interest).
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 operation thereof will permit, and
keep the Project in good repair and in good operating condition, making from time to time all necessary
repairs thereto and renewals and replacements thereof it determines to be necessary. Without limiting the
generality of the foregoing, the Company shall at all times remain in compliance with all provisions of the
City's code relating to maintenance and appearance.
Section 6.2. Taxes, Assessments and Other Governmental Charges.
(a) Subject to subsection (b) of this Section, 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 any buildings, improvements, machinery and equipment at
any time installed thereon by the Company, or the income therefrom, 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 at
least I 0 days before the tax, assessment or other governmental charge complained of becomes delinquent
if and provided ( 1) the Company, before instituting any such contest, gives the City and the Trustee
written notice of its intention so to do, (2) 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
(3) 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 save and
hold harmless the City and the Trustee from any costs and expenses the City and the Trustee may incur
related to any of the above.
(c) Nothing in this Lease shall be construed to require the Company to make duplicate tax
payments. The Company shall r~ceive a credit against any payments in lieu of taxes due under the
Performance Agreement to the extent of any ad valorem taxes imposed and paid by the Company with
respect to the Project paid pursuant to this Section.
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Section 6.3. Utilities. All utilities and utility services used by the Company in, on or about
the Project shall be paid for by the Company and shall be contracted for by the Company in the
Company's own name (or the name(s) of its Affiliates), and the Company shall, at its sole cost and
expense, procure any and all permits, licenses or authorizations necessary in connection therewith.
Section 6.4. Property Tax Exemption. The City and the Company agree that while the
Project is owned by the City and is subject to this Lease, the Project and the leasehold interest of the
Company in the Project will be exempt from all ad valorem real and personal property taxes by reason of
such ownership, and the City agrees that it will (at the expense of the Company) cooperate with the
Company to defend such exemption against all parties in accordance with the Performance Agreement
attached hereto as Appendix I. Notwithstanding the foregoing, Company will annually pay to the City the
payments with respect to the Project set forth in the Performance Agreement.
ARTICLE VII
INSURANCE
Section 7.1. Title Commitment or Report. Before conveying title to any real property to the
City, the Company will purchase, from a title insurance company reasonably acceptable to the City, a
commitment for title insurance or provide such other report in a form reasonably acceptable to the City
showing the ownership of and encumbrances on the Project Site. Copies of such report shall be provided
to the City and the Trustee. The Trustee has no duty to review or analyze the sufficiency of such
commitment or report and shall hold such documents solely as a repository.
Section 7.2. Property Insurance.
(a) The Company shall at its sole cost and expense obtain and shall maintain throughout the
Lease Term, a policy or policies of insurance (including, if appropriate, builder's risk insurance) to keep
the Project constantly insured against loss or damage by fire, lightning and all other risks covered by the
extended coverage insurance endorsement then in use in the State of Missouri in an amount equal to the
Full Insurable Value thereof (subject to reasonable loss deductible provisions). The insurance required
pursuant to this Section shall be maintained with a generally recognized responsible insurance company
or companies authorized to do business in the State of Missouri or generally recognized international
insurers or reinsurers with an A.M. Best rating of B+ or the equivalent thereof or better as may be
selected by the Company. All such policies of insurance pursuant to this Section, and all renewals
thereof, shall name the Company as insured and the City and the Trustee shall be named as loss payees, as
their respective interests may appear, and shall contain a provision that the issuer of such insurance will
provide at least 10 days' advance written notice to, the Company of the cancellation of such insurance.
Company agrees it shall immediately forward any notice of cancellation it receives from the issuer of
such insurance to the City and Trustee. The Company shall provide the City and the Trustee, on an annual
basis, commencing on December 1, 20 18 with a certificate of an Authorized Company Representative
certifying compliance with this Section. The Trustee shall be entitled to rely upon said certificate as to
the Company's compliance with the insurance requirements. The Trustee makes no representation as to,
and shall have no responsibility for the sufficiency or adequacy of, the insurance.
(b) In the event of loss or damage to the Project, the Net Proceeds of property insurance
carried pursuant to this Section shall be applied as provided in Article IX of this Lease, or as may be
directed by, or on behalf of, the Owners of 1 00% in principal amount of the Bonds outstanding.
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Section 7.3. Commercial General 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 general accident and commercial general liability insurance under which the
City, the Company and the Trustee shall be named as additional insureds, properly protecting and
indemnifying the City and the Trustee, in an amount not less than $1,000,000 per occurrence (subject to
reasonable liability retention amounts not to exceed the amounts normally or generally carried by the
Company or its affiliates). The policies of said insurance shall contain a provision that the issuer of such
insurance will provide at least 10 days' advance written notice to the Company of the cancellation of such
insurance. Company agrees it shall immediately forward any notice of cancellation it receives from the
issuer of such insurance to the City and Trustee. The Company shall provide the City and the Trustee, on
an annual basis, commencing on December I, 2018 with a certificate of an Authorized Company
Representative certifying compliance with this Section. The Trustee shall be entitled to rely upon said
certificate as to the Company's compliance with the insurance requirements. The Trustee makes no
representation as to, and shall have no responsibility for the sufficiency or adequacy of, the insurance.
(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 7.4. Workers' Compensation. The Company agrees throughout the Lease Term to
maintain or cause to be maintained the Workers' Compensation coverage required by the laws of the State
of Missouri.
Section 7.5. Blanket Insurance Policies; Self-Insurance. 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 complied with.
Nothing in this Lease shall be construed from prohibiting the Company from self-insuring provided the
Company, or in combination with its parent corporation, has a net worth in excess of $200,000,000, as
determined by generally accepted accounting principles.
ARTICLE VIII
ALTERATION OF THE PROJECT
Section 8.1. Additions, Modifications and Improvements to 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 will comply in all material respects 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; provided, however, that additions of machinery and equipment installed on the Project Site
by the Company not purchased or acquired from funds deposited with the Trustee hereunder and not
constituting repairs, renewals or replacements of the Project shall remain the property of the Company
and may be removed by the Company. Such property shall be subject to ad valorem taxes.
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Section 8.2. Removal and Replacement of Portions of the Project Equipment.
(a) The Company may, if it is not in default in making payments of Basic Rent or Additional
Rent hereunder, remove from the Project and sell, exchange, replace or otherwise dispose of, without
responsibility or accountability to the City or the Trustee with respect thereto, any items of machinery and
equipment, or parts thereof, which constitute a part of the 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. Prior to any such
removal, the Company shall deliver to the City and the Trustee a certificate signed by an Authorized
Company Representative containing a complete description, including the make, model and serial
numbers, if any, of any machinery or equipment constituting a part of the Project Equipment that the
Company proposes to remove. The Trustee shall amend the list of machinery or equipment comprising
the Project Equipment held by it pursuant to Section 4.2(c) hereof upon receipt of such certificate. Upon
request, the City will execute and deliver a bill of sale that transfers full and complete title to the
Company of such portion of the Project Equipment removed. Notwithstanding anything contained herein
to the contrary, title to any item of the Project Equipment removed from the Project Site shall
automatically vest in the Company without further instrument or action, and such vesting of title shall be
self-operative effective upon removal. Upon any removal of portions of the Project Equipment, the
portions of the Project Equipment so removed shall no longer be entitled to the benefits of the
Performance Agreement.
(b) In all cases, the Company shall pay all of the costs and expenses of any such removal and
shall immediately repair at its expense all damage to the Project caused thereby. The Company's rights
under this Section to remove machinery and equipment constituting a part of the Project Equipment is
intended only to permit the Company to maintain an efficient operation by the removal of machinery and
equipment which is no longer suitable 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.
Section 8.3. Additional Improvements on the Project Site. The Company may, at its sole
cost and expense, construct on portions of the Project Site not theretofore occupied by buildings or
improvements 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, and not paid for with Bond proceeds, pursuant to the authority of this
Section shall not be included as Project Improvements and, during the life of this Lease, shall remain the
property of the Company and may be added to, altered or razed and removed by the Company at any
time. All additional buildings and improvements shall be made in a good and workmanlike manner and
in strict compliance with all material laws, Ordinances and ordinances applicable thereto. 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, alteration or removal of said additional buildings or improvements, and
(b) to promptly and with due diligence either raze and remove or repair, replace or restore any of said
additional buildings and improvements as may from time to time be damaged by fire or other casualty.
The Company shall pay all ad valorem taxes and assessments payable with respect to such additional
buildings and improvements which remain the property of the Company. If for any reason the Assessor
determines that such additional buildings and improvements are not subject to ad valorem taxes, the
Company shall make payments in lieu of taxes in an amount equal to the taxes that would otherwise be
due under this Section.
Section 8.4. 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,
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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 material compliance with all applicable building, zoning and other
laws, ordinances, governmental regulations. In the event of demonstrated noncompliance with such laws,
ordinances, governmental regulations and requirements the Company will take all reasonable steps to
comply with laws, ordinances, governmental regulations and requirements.
Section 8.5. Mechanics' Liens.
(a) The Company will not directly or indirectly create, incur, assume or suffer to exist any
lien on or with respect to the Project, except Permitted Encumbrances, and the Company shall promptly
notify the City of the imposition of such lien of which the Company is aware and shall promptly, at its
own expense, take such action as may be necessary to fully discharge or release any such 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. Notice is hereby given
that the City shall not be liable for any labor or 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 may contest any such mechanics' or
other similar lien if the Company (i) within 60 days notifies the City in writing of its intention so to do,
(ii) diligently prosecutes such contest, (iii) 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, (iv) promptly pays
or otherwise satisfies any final judgment adjudging or enforcing such contested lien claim and (v)
thereafter promptly procures record release or satisfaction thereof. The Company may permit the lien so
contested to remain unpaid during the period of such contest and any appeal therefrom unless the
Company is notified by the City that, in the opinion of counsel, by nonpayment of any such items, the
interest of the City in the Project will be subject to loss or forfeiture. In that event, the Company shall
promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such
mortgage, pledge, lien, charge, encumbrance or claim if the same shall arise at any time. The Company
shall save and hold harmless the City from any loss, costs or expenses the City may incur related to any
such contest. The Company shall reimburse the City for any expense incurred by it in Ordinance to
discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim. The City shall
cooperate fully with the Company in any such contest.
ARTICLE IX
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 9.1. Damage or Destruction.
(a) If the Project shall be damaged or destroyed by fire or any other casualty, whether or not
covered by insurance, the Company, as promptly as practicable, shall either (i) make the determination
described in subsection (f) below, or (ii) repair, restore, replace or rebuild the same so that upon
completion of such repairs, restoration, replacement or rebuilding the Project is of a value not less than
the value thereof immediately before the occurrence of such damage or destruction or, at the Company's
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option, construct upon the Project Site new buildings and improvements thereafter together with all new
machinery, equipment and fixtures which are either to be attached to or are to be used in connection with
the operation or maintenance thereof, provided that (i) the value thereof shall not be less than the value of
such destroyed or damaged Project Improvements and/or Project Equipment immediately before the
occurrence of such damage or destruction and (ii) the nature of such new buildings, improvements,
machinery, equipment and fixtures will not impair the character of the Project as an enterprise permitted
by the Act.
If the Company elects to construct any such new buildings and improvements, for all purposes of
this Lease, any reference to the words "Project Improvements" shall be deemed to also include any such
new buildings and improvements and all additions thereto and all replacements and alterations thereof and
any reference to the words "Project Equipment" shall be deemed to include any such new machinery,
equipment and fixtures which are either attached to or are used in connection with the operation or
maintenance of such new buildings and improvements and all additions or replacements thereof.
Unless the Company makes the determination described in subsection (f) below, the Net Proceeds
of casualty insurance required by Article VII hereof received with respect to such damage or loss to the
Project shall be used to pay the cost of repairing, restoring, replacing or rebuilding the Project or any part
thereof. Insurance monies in an amount less than $1,000,000 may be paid to or retained by the Company
to be held in trust and used as provided herein. Insurance monies in any amount of $1,000,000 or more
shall be (i) paid to the Trustee and deposited in the Project Fund and shall be disbursed as provided in
Section 4.4 hereof to pay the cost of repairing, restoring, replacing or rebuilding the Project or any part
thereof, or (ii) applied as directed by, or on behalf of, the Owners of 100% in principal amount of the
Bonds outstanding. If the Company makes the determination described in subsection (f) below, the Net
Proceeds shall be deposited with the Trustee and used to redeem Bonds as provided in subsection (f).
(b) If any of the insurance monies paid by the insurance company as hereinabove provided
remain after the completion of such repairs, restoration, replacement or rebuilding, and this Lease has not
been terminated, the excess shall be deposited in the Bond Fund, subject to the rights of any leasehold
mortgagee or Financing Party. Completion of such repairs, restoration, replacement or rebuilding shall be
evidenced by a certificate of completion in accordance with the provisions of Section 4.5 hereof. If the
Net Proceeds are insufficient to pay the entire cost of such repairs, restoration, replacement or rebuilding,
the Company shall pay the deficiency.
(c) Except as otherwise provided in this Lease, in the event of any such damage by fire or
any other casualty, the provisions of this Lease shall be unaffected and the Company shall remain and
continue liable for the payment of all Basic Rent and Additional Rent and all other charges required
hereunder to be paid by the Company, as though no damage by fire or any other casualty has occurred.
(d) The City and the Company agree that they will cooperate with each other, to such extent
as such other party may reasonably require, in connection with the prosecution or defense of any action or
proceeding arising out of, or for the collection of any insurance monies that may be due in the event of,
any loss or damage, and that they will execute and deliver to such other parties such instruments as may
be required to facilitate the recovery of any insurance monies.
(e) The Company agrees to give prompt notice to the City and the Trustee with respect to all
fires and any other casualties occurring in, on, at or about the Project Site which damages a material
portion of the Project.
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(f) If the Company determines that rebuilding, repairing, restoring or replacing the Project is
not practicable or desirable, any Net Proceeds of casualty insurance required by Article VII hereof
received with respect to such damage or loss shall, after payment of all Additional Rent then due and
payable, be paid into the Bond Fund 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, all subject to rights of the
mortgagee under the Leasehold Mortgage (if any) and the Financing Party under the Financing
Documents (if any). The Company agrees to be reasonable in exercising its judgment pursuant to this
subsection (f). Alternatively, if the Company is the sole owner of the Bonds and it has determined that
rebuilding, repairing, restoring or replacing the Project is not practicable or desirable, it may tender Bonds
to the Trustee for cancellation in a principal amount equal to the Net Proceeds of the casualty insurance,
and retain such proceeds for its own account.
(g) 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 rentals payable 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.
(a) If during the Lease Term, 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, to such extent that the claim or loss resulting from such condemnation is greater than
$1 ,000,000, the Company shall, within 90 days after the date of entry of a final Ordinance in any eminent
domain proceedings granting condemnation or the date of sale under threat of condemnation, notify the
City, the Trustee, the mortgagee under the Leasehold Mortgage (if any) and the Financing Party under the
Financing Document (if any) 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 determines 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 before the exercise of the said power of eminent domain, including the acquisition or
construction of other improvements suitable for the Company's operations at the Project (which
improvements will be deemed a part of 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 improvements
will be acquired by the City subject to no liens, security interests or encumbrances before the lien and/or
security interest afforded by the Indenture and this Lease other than Permitted Encumbrances. In such
case, any Net Proceeds received from any award or awards with respect to the Project or any part thereof
made in such condemnation or eminent domain proceedings, or of the sale proceeds, shall be applied in
the same manner as provided in Section 9.1 hereof (with respect to the receipt of casualty insurance
proceeds).
(c) If the Company determines that it is not practicable or desirable to acquire or construct
substitute improvements, any Net Proceeds of condemnation awards received by the Company shall, after
payment of all Additional Rent then due and payable, be paid into the Bond Fund and shall be used to
redeem Bonds on the earliest practicable redemption date or to pay the principal of any Bonds as the same
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becomes due and payable, all subject to the rights of the mortgagee under the Leasehold Mortgage (if
any) and Financing Party under the Financing Documents (if any).
(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 rentals payable by the Company under this Lease nor of any
other obligations hereunder except as expressly provided in this Section.
(e) The City shall 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 proceeding 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.
Section 9.3. Bondowner Approval. Notwithstanding anything to the contrary contained in
this Article IX, the proceeds of any insurance received subsequent to a casualty or of any condemnation
proceedings (or threats thereof) may prior to the application thereof by the City or the Trustee be applied
as directed by the Owners of 100% of the principal amount of Bonds outstanding, subject and subordinate
to the rights of the City and the Trustee to be paid all their 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. For purposes of this Section only, any person to whom Bonds have been pledged in good faith
shall be deemed to be the Owner of the Bonds.
ARTICLE X
SPECIAL COVENANTS
Section 10.1. No Warranty of Condition or Suitability by the City; Exculpation and
Indemnification. The City makes 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 the Project or the use thereof; unless such loss is the
result of the City's or the Trustee's respective negligence or willful misconduct. This provision shall
survive termination of this Lease.
Section 10.2. Surrender of Possession. Upon accrual of the City's right of re-entry to the
extent provided in Section 12.2(b ), the Company shall peacefully surrender possession of the Project to
the City in good condition and repair; provided, however, the Company shall have the right within 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 owned by
the Company and not constituting part of the Project. All repairs to 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 said 90-day (or extended) period the Company shall bear the sole responsibility for
and bear the sole risk of loss for said buildings, improvements, furniture, trade fixtures, machinery and
equipment owned by the Company and not constituting part of the Project. All buildings, improvements,
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furniture, trade fixtures, machinery and equipment owned by the Company and which are not so removed
from the Project before the expiration of said period shall be the separate and absolute property of the
City.
Section 1 0.3. 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 24 hours' advance written notice and 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 purchase and
installation provided for in Section 4.2 hereof, (c) performing such work in and about the Project Site
made necessary by reason of the Company's default under any of the provisions of this Lease, and (d)
exhibiting the Project to prospective purchasers, lessees or trustees.
Section 1 0.4. Granting of Easements; Leasehold Mortgages and Financing Arrangements.
(a) Subject to Sections 10.4(c) and (d), if no Event of Default under this Lease has happened
and is continuing, the Company may at any time or times (i) grant subleases (as permitted in
Section 13.l(b) hereof), 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 or terminate existing subleases, 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 Company may take such actions
and may execute any applicable documents in the Company's own name. No separate signature of or
authorization from the City shall be required for the execution and delivery of any such document,
although the City agrees to execute and deliver such confirming documents as are described below, under
the procedures described below, if the Company chooses to make such a request. All third parties
entering into agreements with the Company or receiving delivery of or the benefit of such agreements or
documents shall be entitled to rely upon the same as having been executed and delivered by the City,
unless such third party has actual or constructive notice, expressly in writing, that the agency herein
granted by the City to the Company has been terminated by the City because of an uncured Event of
Default hereunder. 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, release or terminate
any such sublease, 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: (i) a copy of the instrument of grant,
release or termination or of the agreement or other arrangement, (ii) a written application signed by an
Authorized Company Representative requesting such instrument, and (iii) a certificate executed by an
Authorized Company Representative stating that 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, will not materially adversely affect the security intended to be
given by or under the Indenture and will be a Permitted Encumbrance. If no Event of Default has
happened and is 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, subject to Sections 10.4(c) and (d),
upon (i) termination of this Lease for any reason other than the redemption of the Bonds and/or the
purchase of the Project by the Company or (ii) the occurrence and continuance of an Event of Default by
the Company, 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.
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(b) The Company may mortgage the leasehold estate created by this Lease, with prior notice
to but without the consent of the City, provided and upon condition that a duplicate original or certified
copy or photostatic copy of each such mortgage, and the note or other obligation secured thereby, is
delivered to the City within thirty (30) days after the execution thereof.
(c) The City acknowledges and agrees that the Company may finance and refinance its rights
and interests in the Project, this Lease and the leasehold estate created hereby and, in connection
therewith, the Company may execute Financing Documents with one or more Financing Parties.
Notwithstanding anything contained to the contrary in this Lease, the Company may, at any time and
from time to time, with prior notice to but without the consent of the City (i) execute one or more
Financing Documents upon the terms contained in this Section 10.4 and (ii) sublease or assign this Lease,
the leasehold estate, any sublease and rights in connection therewith, and/or grant liens or security
interests therein, to any Financing Party. Any further sublease or assignment by any Financing Party
shall be subject to the provisions of Section 13.1(c).
(d) Upon notice by the Company to the City in writing that it has executed one or more
Financing Documents under which it has granted rights in this Lease to a Financing Party, which includes
the name and address of such Financing Party, then the following provisions shall apply in respect of each
such Financing Party:
( 1) there shall be no merger of this Lease or of the leasehold estate created hereby
with the fee title to the Project, 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 such
Financing Party;
(2) the City shall serve upon each such Financing Party (at the address, if any,
provided to the City) a copy of each notice of the occurrence of an Event 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 Financing Party;
(3) each Financing Party shall have the same period of time which the Company has,
after the service of any required notice upon it, within which to remedy or cause to be remedied
any payment default under this Lease which is the basis of the notice plus thirty (30) days, and
the City shall accept performance by such Financing Party as timely performance by the
Company;
( 4) the City may exercise any of its rights or remedies with respect to any other
Event of Default by the Company, subject to the rights of the Financing Parties under this
Section 10.4(d) as to such other events of default;
(5) upon the occurrence and continuance of an Event 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 notice
thereof to each such Financing Party and permitting such Financing Party (or its designee,
nominee, assignee or transferee) a reasonable time within which to remedy such default in the
case of an Event of Default which is susceptible of being cured (provided that the period to
remedy such event of default shall continue beyond any period set forth in the Lease to effect said
cure so long as the Financing Party (or its designee, nominee, assignee or transferee) is diligently
prosecuting such cure); provided that the Financing Party (or its designee, nominee, assignee or
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transferee) shall pay or cause to be paid to the City and the Trustee all expenses, including
reasonable counsel fees, court costs and disbursements incurred by the City or the Trustee in
connection with any such default; and
(6) the Financing Parties (and their designees, nominees, assignees or transferees)
shall have the right to enter, possess and use the Project at such reasonable times and manner as
are necessary or desirable to effectuate the remedies and enforce their respective rights under the
Financing Documents.
(e) In connection with the execution of one or more Financing Documents, upon the request
of the Company, the City agrees to execute such documents as shall be reasonably requested by a
Financing Party and which are usual and customary in connection with the closing of the financing or
refinancing pursuant to the Financing Documents. The Company agrees to reimburse the City for any
and all costs and expenses incurred by the City pursuant to this Section, including reasonable attorneys'
fees and expenses, in complying with such request.
(t) The Company's obligations under any mortgage or Financing Document relating to the
Project shall be subordinate to the Company's obligations under this Lease.
Section 10.5. Indemnification of City and Trustee. The Company shall indemnify and save
and hold harmless the City and the Trustee and their governing body members, officers, agents and
employees (collectively, the "Indemnified Parties") from and against all claims, demands, costs,
liabilities, damages or expenses, including attorneys' fees, by or on behalf of any person, firm or
corporation arising from the issuance of the Bonds and the execution of this Lease, the Indenture or any
other documents entered into in connection with the Bonds and from the conduct or management of, or
from any work or thing done in or on the Project during the Lease Term, and against and from all claims,
demands, costs, liabilities, damages or expenses, including attorneys' fees, arising during the Lease Term
from (a) any condition of the Project, (b) any breach or default on the part of the Company in the
performance of any of its obligations under this Lease or any related document, (c) any contract entered
into by the Company in connection with the purchase, construction, extension or improvement of the
· Project, (d) any act of negligence of the Company or of any of its agents, contractors, servants, employees
or licensees, (e) unless the Company has been released from liability pursuant to Section 13.1(c), 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, (f) obtaining any applicable state
and local sales and use tax exemptions for materials or goods that become part of the Project, and (g) any
claim relating to the presence on, escape or removal from the Project during the term of the Lease of any
hazardous substance or other material regulated by any applicable Environmental Law, or compliance
with any applicable Environmental Law, whether such claim arises before, during or after the term of this
Lease, including claims relating to personal injury or damage to property; provided, however, the
indemnification contained in this Section 10.5 shall not (i) extend to the City if such claims, demands,
costs, liabilities, damages or expenses, including attorneys' fees, are the result of work being performed at
the Project by employees of the City or the result of negligence or willful misconduct by the City, or (ii)
extend to the Trustee if such claims, demands, costs, liabilities, damages or expenses, including attorneys'
fees, are the result of the negligence or willful misconduct of the Trustee or (iii) the performance or
failure to perform by the City or the Trustee of its obligations under this Lease, the Performance
Agreement or any related documents. Upon notice from the City or the Trustee, the Company shall
defend them or either of them in any such action or proceeding. This Section 10.5 shall survive any
termination of this Lease or the satisfaction and discharge of the Indenture.
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In case any action shall be brought against one or more of the Indemnified Parties based upon the
foregoing indemnification and in respect of which indemnity may be sought against the Company, the
Indemnified Parties shall promptly notify the Company in writing and the Company shall promptly
assume the defense thereof, including the employment of counsel, the payment of all reasonable expenses
and the right to negotiate and consent to settlement. If the Company shall have wrongfully failed to
assume the defense of such action, the reasonable fees and expenses of counsel retained by the
Indemnified Party shall be paid by the Company. If any of the Indemnified Parties is advised by counsel
retained by the Company to defend such action that there may be legal defenses available to it which are
adverse to or in conflict with those available to the Company or any other Indemnified Party, and that the
defense of such Indemnified Party should be handled by separate counsel, the Company shall not have the
right to assume the defense of such Indemnified Party, but shall be responsible for the reasonable fees and
expenses of counsel retained by such Indemnified Party in assuming its own defense, provided, such
counsel shall be acceptable to the Company. Any one or more of the Indemnified Parties shall have the
right to employ separate counsel in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties
unless employment of such counsel has been specifically authorized by the Company. The Company
shall not be liable for any settlement of any such action effected without its consent by any of the
Indemnified Parties, but if settled with the consent of the Company or if there be a final judgment for the
plaintiff in any such action against the Company or any of the Indemnified Parties, with or without the
consent of the Company, the provided that the Company was given prompt written notice and the ability
to assume the defense thereof as required by this paragraph, the Company agrees to indemnify and hold
harmless the Indemnified Parties to the extent provided herein.
Section 1 0.6. 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 10.7. 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 corporate 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 corporation (i.e., a corporation incorporated and
existing under the laws of one of the states of the United States) or permit one or more other domestic
corporations to consolidate with or merge into it, or may sell or otherwise transfer to another domestic
corporation all or substantially all of its assets as an entirety and thereafter dissolve, provided, the
surviving, resulting or transferee corporation either (A) becomes, in connection with the consolidation,
merger or sale of assets becomes the Owner of 1 00% in principal amount of the Bonds outstanding and
expressly assumes in writing all of the obligations of the Company contained in this Lease and the
Performance Agreement, or (8) if not the Owner of 100% in principal amount of the Bonds outstanding,
expressly assumes in writing all the obligations of the Company contained in this Lease; and, further
provided, that if not the Owner of I 00% in principal amount of the Bonds outstanding, the surviving,
resulting or transferee corporation, as the case may be, has a consolidated net worth (after giving effect to
said consolidation, merger or transfer) at least (i) equal to or greater than that of the Company
immediately prior to said consolidation, merger or transfer, or (b) $1 00,000,000. 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. In any
such consolidation, merger or transfer the Company shall comply with the provisions of Section 10.1
hereof to the extent applicable.
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Section 10.8. Security Interests. At the written request of the Owner of the Bonds, 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. Upon the written instructions of the Owner of the Bonds, the Trustee,
at the Company's expense, shall file all instruments the Owner of the Bonds shall deem necessary to be
filed and 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 I iens.
Section 10.9. Joint and Several Liability. Axium and P JP shall be jointly and severally liable
for the payment and performance of all obligations of the Company hereunder.
ARTICLE XI
OPTION AND OBLIGATION TO PURCHASE THE PROJECT
Section 11.1. Option to Purchase the Project. The Company shall have, and is hereby
granted, the option to purchase the Project at any time, upon payment in full of all Bonds then outstanding
or provision for their payment having been made pursuant to Article Xlll of the Indenture. To exercise
such option the Company shall give written notice to the City and to the Trustee, and shall specify therein
the date of closing such purchase, which date shall be no.t less than 15 nor more than 90 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. Notwithstanding the forgoing, if the City or the Trustee provides notice of
its intent to exercise its remedies hereunder (a "Remedies Notice"), the Company shall be deemed to have
exercised its repurchase option under this Section on the 29'11 day following the issuance of the Remedies
Notice without any further action by the Company; provided said notice has not been rescinded by such
date (such option to take place on the 29'11 day following the issuance of the Remedies Notice). The
Company may rescind such exercise by providing written notice to the City and the Trustee on or prior to
the 29 111 and by taking such action as may be required to cure the default that led to the giving of the
Remedies Notice. 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, will be sufficient to redeem all the then outstanding Bonds on the earliest redemption
date next succeeding the closing date, including, without limitation, principal and interest to
accrue to said redemption date and redemption expense; plus
(b) an amount of money equal to the Trustee's agreed to and reasonable fees, charges
and expenses under the Indenture accrued and to accrue until such redemption of the Bonds; plus
(c) an amount of money equal to all payments due and payable pursuant to the
Performance Agreement through the end of the calendar year in which the date of purchase
occurs; plus
(d) the sum of $1 00.00.
At its option, to be exercised at least 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
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receive a credit against the purchase price payable by the Company in an amount equal to 1 OOo/o of the
principal amount of the Bonds so delivered for cancellation, plus the accrued interest thereon.
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 and this Lease and
appropriate termination of financing statements as required under the Uniform Commercial Code;
and
(b) Documents, including without limitation a special warranty deed as to the Project
Site, conveying to the Company legal title to the Project, as it then exists, in recordable form,
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
agreements 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. Option to Purchase Portions of the Project Site. The City hereby grants to the
Company the right at any time and from time to time to purchase any portion or portions of the Project Site
including any improvements which may be located thereon. As conditions to such purchase, the City and
the Trustee shall receive from the Company at least 30 days prior to the proposed date for completing the
purchase the following ( 1) a written certificate from the Company to the effect (i) that the Company desires
to purchase a portion of the Project Site and any improvements located thereon, (ii) the proposed date for
completing the purchase, and (iii) that the Company is not in default under any of the provisions of this
Lease or the Performance Agreement, (2) providing the City and the Trustee with an adequate legal
description of that portion (together with the interest in such portion) of the property to be purchased and a
copy of a title commitment with respect to such property, (3) a certificate of an independent engineer or
surveyor, dated not more than 30 days prior to the date of the request stating that, in the opinion of the
person signing such certificate the proposed purchase will not impair the usefulness of the Project for its
intended purposes and will not destroy the means of ingress thereto and egress therefrom, and ( 4) the written
consent of the Owners of all of the Bonds.
The purchase price for such portion of the Project Site shall be determined by the Owners of all of
the Bonds and shall be received in writing by the City and the Trustee at least 10 days prior to the proposed
date for completing the purchase. Such purchase price shall be paid to the Trustee at the time the City
executes and delivers a Special Warranty Deed conveying the property which is to be purchased to the
Company. The Trustee shall deposit such amount (if any) into the Bond Fund. If such amount is more than
$1,000, such amount shall be used by the Trustee to redeem Bonds in accordance with Section 302(a) of the
Indenture. If such amount is $1,000 or less the Trustee shall apply such amount to the next interest payment
on the Bonds.
Upon the City's receipt of written notice from the Trustee that the Trustee has received all of the
items required by this Section, the Mayor and City Clerk of the City shall execute a Special Warranty Deed
conveying such property to the Company and shall deliver such deed to the Company. Such Special
Warranty Deed shall be subject to the following: (1) those liens and encumbrances, if any, to which title to
-25-
that portion of the Project Site was subject when conveyed to the City; (2) those liens and encumbrances
created by the Company or to the creation or suffering of which the Company consented; (3) those liens and
encumbrances resulting from the failure of the Company to perform or observe any of the agreements on its
part contained in this Lease; (4) Permitted Encumbrances other than the Indenture and this Lease; and (5) if
the Project Site or any part thereof is being condemned, the rights and title of any condemning authority.
Upon any purchase of portions of the Project Site and any improvements thereon pursuant to this
Section, the portions of the Project Site so purchased shall no longer be entitled to the benefits of the
Performance Agreement.
Section 11.4. 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 and
further provided that all options herein granted shall terminate upon the termination of this Lease.
Section 11.5. Obligation to Purchase the Project. As additional consideration for the
Company's use of the Project, the Company hereby agrees to purchase, and the City hereby agrees to sell,
the Project upon the occurrence of (a) the expiration 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, and (b) the final payment due under the Performance Agreement. The amount of the purchase
price under this Section shall be $1 00 plus an amount sufficient to redeem all the then Outstanding Bonds,
plus accrued interest and the reasonable fees and expenses of the City and the Trustee.
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; or
(b) Default in the due and punctual payment of Additional Rent for a period of 30
days following written notice to the Company by the City or the Trustee; or
(c) 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, and
such default shall continue for 30 days after the City or the Trustee has given the Company
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 (2) the Company diligently prosecutes such cure to completion); or
(d) The Company: (1) admits in writing its inability to pay its debts as they become
due; or (2) files 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 files
a pleading asking for such relief; or (3) make an assignment for the benefit of creditors; or (4)
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consents to the appointment of a trustee, receiver or liquidator for all or a major portion of its
property or fails to have the appointment of any trustee, receiver or liquidator made without the
Company's consent or acquiescence, vacated or set aside; or (5) is finally adjudicated as bankrupt
or insolvent under any federal or state law; or (6) is subject to any proceeding, or suffers the entry
of a final and non-appealable court Ordinance, under any federal or state law appointing a trustee,
receiver or liquidator for all or a major part of its property or Ordinanceing 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 Ordinance or proceeding, if not consented to by it, is not
dismissed, vacated, denied, set aside or stayed within 90 days after the day of entry or
commencement; or (7) suffers 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 60 days after
the final entry, or levy or after any contest is finally adjudicated or any stay is vacated or set
aside; or
(e) the Company vacates, abandons, ceases operations, fails to occupy or is ejected
from the Project Site or any material portion thereof, and the same remains uncared for or
abandoned for a period of 90 days; or
(t) The occurrence and continuance of an "Event of Default" by the Company under
the Performance Agreement following any applicable notice and grace period provided therein.
Section 12.2. Remedies on Default. If any Event of Default referred to in Section 12.1 hereof
has occurred and continues beyond the period provided to cure, 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 default continues, take any one
or more of the following actions:
(a) cause all amounts payable with respect to the Bonds for the remainder of the term
of this Lease to become due and payable after giving ten (I 0) days prior written notice thereof to
the Company, as provided in the Indenture; or
(b) give the Company written notice of the City's intention to terminate this Lease
on a date specified therein, which date shall not be earlier than 30 days after such notice is given,
and if all defaults have not then been cured, on the date so specified, the Owners shall tender or
be deemed to have tendered the outstanding principal amount of the Bonds for cancellation with
instruction that such tender is in lieu of payment in accordance with Section 11.1 hereof and this
Lease shall thereupon be terminated, and the City will promptly convey the Project in accordance
with Section 11.2 hereof.
Section 12.3. Survival of Obligations. The Company covenants and agrees with the City and
Owners that those of its obligations under this Lease which by their nature require performance after the
end of the term of this Lease, or which are expressly stated herein as intended to survive expiration or
termination of this Lease, shall survive the cancellation and termination of this Lease, for any cause.
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 30 days after written
notice of such failure is given the Company by the City or the Trustee, and without waiving or releasing
-27-
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 incidental reasonable costs and expenses incurred by the City or the Trustee (including, without
limitation, attorneys' fees and expenses) in performing such obligations shall be deemed Additional Rent
and shall be paid to the City or the Trustee on demand, 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
Trustee, 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 Trustee, 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 Trustee or the City may nevertheless accept
from the Company any payment or payments hereunder without in any way waiving the Trustee or the
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 Trustee or the City.
Section 12. 7. 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.
(a) The Company may assign, transfer, encumber or dispose of this Lease or any interest
therein or part thereof for any lawful purpose under the Act. With respect to any assignment, the
Company shall comply with the following conditions:
(I) Such assignment shall be in writing, duly executed and acknowledged by the
assignor and in proper form for recording;
(2) Such assignment shall include the entire then unexpired term of this Lease; and
(3) A duplicate original of such assignment shall be delivered to the City and the
Trustee within I 0 days after the execution thereof, together with an assumption agreement, duly
executed and acknowledged by the assignee in proper form for recording, by which the assignee
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shall assume all of the tenns, covenants and conditions of this Lease on the part of the Company
to be perfonned and observed.
(b) The Company shall have the right to sublet all or any part of the Project to a single entity
for any lawful purpose under the Act. The Company shall, within 10 days after the delivery thereof,
furnish or cause to be furnished to the City and the Trustee a true and correct copy of each such
sublease. Any sublease may provide, at the Company's option, that the City's consent shall not be
required in respect of any further subletting thereunder if such further subletting is for a similar purpose
as the original sublease and is for a purpose pennissible under the Act.
(c) Notwithstanding the foregoing, the right of the Company to assign or sublease any
interests in this Lease without the prior written consent of the City shall only apply to assignments made
(A) to any entity whose long-tenn debt, or the long-tenn debt of an entity controlled by, under common
control with or controlling such entity has at least a rating in any of the top three long tenn debt rating
categories by any nationally recognized rating agency; (B) so long as the Company shall remain
secondarily liable, to any such entity; (C) to an entity controlled by or under common control with or
controlling the Company, so long as such entity has a net worth of at least $5,000,000 at the time of such
assignment or sublease; or (D) to any purchaser of the Project Site from PJP, so long as Axium remains
liable for all obligations under this Lease and the purchaser of the Project Site assumes the obligations of
P JP under this Lease and agrees to be bound by the tenns of this Lease and any other documents related
to the issuance of the Bonds. Except as provided in subsection (D) hereof, upon such assignment of all
the rights of the Company and agreement by the assignee to be bound by the tenns of this Lease and any
other documents related to the Bonds, the Company shall be released from and have no further
obligations under this Lease or any agreement related to the issuance of the Bonds.
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. The City and the Company recognize that the Trustee is a third party
creditor-beneficiary of this Lease.
Section 13.3. Prohibition Against Fee Mortgage of Project. The City shall not mortgage its
fee interest in the Project, but may assign its interest in and pledge any moneys receivable under this
Lease to the Trustee pursuant to the Indenture as security for payment of the principal of and interest on
the Bonds.
Section 13.4. Restrictions on Sale or Encumbrance of Project by City. During this Lease
Tenn, the City agrees that, except to secure the Bonds to be issued pursuant to the Indenture, it will not
sell, assign, encumber, transfer or convey the Project or any interest therein, but may assign its interest in
and pledge any moneys receivable under this Lease to the Trustee pursuant to the Indenture as security for
payment of the principal of and interest on the Bonds.
ARTICLE XIV
AMENDMENTS, CHANGES AND MODIFICATIONS
Section 14.1. Amendments, Changes and Modifications. Except as otherwise provided in
this Lease or in the Indenture, subsequent to the issuance of Bonds 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
-29-
Indenture), this Lease may not be effectively 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 governed by Section 1403 of the Indenture.
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 or refuse to give such approvals or consents or refuse to execute such supplemental agreements
or schedules; provided, however, that nothing in this Lease shall be interpreted to affect the City's rights
to approve or deny any additional project or matter unrelated to the Project subject to zoning, building
permit or other regulatory approvals by the City.
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
(including the fees and expenses of the City and the Trustee) have been paid in full 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. Limitation on Liability of City. No provision, covenant or agreement contained
in this Lease, the Indenture or the Bonds, 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 or the State of Missouri.
Section 15.5. Governing Law. This Lease shall be construed in accordance with and governed
by the laws of the State 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.
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Section 15.8. Electronic Storage. The parties hereto agree that the transaction described
herein may be conducted and related documents may be stored by electronic means. Copies, telecopies,
facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be
authentic and valid counterparts of such original documents for all purposes, including the filing of any
claim, action or suit in the appropriate court of law.
Section 15.9. 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.
Section 15.10 Complete Agreement. THE COMPANY AND THE CITY UNDERSTAND
THAT ORAL OR UNEXECUTED AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE.
TO PROTECT THE COMPANY AND THE CITY FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS THE COMPANY AND THE CITY REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS LEASE AND IN THE
PERFORMANCE AGREEMENT, WHICH ARE THE COMPLETE AND EXCLUSIVE
STATEMENTS OF THE AGREEMENT BETWEEN THE COMPANY AND THE CITY,
EXCEPT AS THE COMPANY AND THE CITY MAY LATER AGREE IN WRITING TO
MODIFY THIS LEASE AND THE PERFORMANCE AGREEMENT.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed in their
respective names by their duly authorized signatories, all as of the date first above written.
[SEAL]
ATTEST:
By: ------------------------------Name: Phyllis Powell
Title: City Clerk
CITY OF JEFFERSON, MISSOURI
By: ------------------------------
Name: Carrie Tergin
Title: Mayor
APPROVED AS TO FORM:
ACKNOWLEDGMENT
STATE OF MISSOURI )
) ss.
CITY OF COLE )
On this day of , 2017, before me, the undersigned, a Notary Public,
appeared Carrie Tergin and Phyllis Powell, to me personally known, who, being by me duly sworn, did
say that they are the Mayor and City Clerk, respectively, of CITY OF JEFFERSON, MISSOURI, and
that the seal affixed to the foregoing instrument is the corporate seal of said City, and that said instrument
was signed and sealed on behalf of said City by authority of its governing body, and said officers
acknowledged said instrument to be executed for the purposes therein stated and as the free act and deed
of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day
and year last above written.
[SEAL]
My commission expires: ______________ _
Axium Plastics, Series 2017
Lease Agreement
Typed or Printed Name: _____________ _
Notary Public in and for said State
S-1
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AXIUM PLASTICS, LLC,
a Delaware limited liability company
By: ----------------------------
Name:
Title:
ACKNOWLEDGMENT
STATE OF _______ _
CITY OF _____ _
)
)SS.
)
On this __ day of , 2017, before me, the undersigned, a Notary Public,
appeared , to me personally known, who, being by me duly sworn, did say that he is the
of AXIUM PLASTICS, LLC, a Delaware limited liability company, and that the seal
affixed to the foregoing instrument is the corporate seal of said limited liability company, and that said
instrument was signed in behalf of said limited liability company by authority of its Board of Directors,
and said officer acknowledged said instrument to be executed for the purpose therein stated and as the
free act and deed of said limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day
and year last above written.
[SEAL]
My commission expires: _______ _
Axium Plastics, Series 2017
Lease Agreement
Typed or Printed Name: _______ __
Notary Public in and for said State
S-2
PJP HOLDINGS, LLC,
a Delaware limited liability company
By: ----------------------------
Name:
Title:
ACKNOWLEDGMENT
STATE OF ____ _
CITY OF ------
)
)SS.
)
On this __ day of , 20 17, before me, the undersigned, a Notary Public,
appeared , to me personally known, who, being by me duly sworn, did say that he is the
of PJP HOLDINGS, LLC, a Delaware limited liability company, and that the seal
affixed to the foregoing instrument is the corporate seal of said limited liability company, and that said
instrument was signed in behalf of said limited liability company by authority of its Board of Directors,
and said officer acknowledged said instrument to be executed for the purpose therein stated and as the
free act and deed of said limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the day
and year last above written.
[SEAL]
My commission expires:
Axium Plastics, Series 20 17
Lease Agreement
-----------
Typed or Printed Name: _______ _
Notary Public in and for said State
S-3
EXHIBIT A
LEGAL DESCRIPTION
A-1
EXIDBITB
PROJECT IMPROVEMENTS
The Project Improvements consist of all improvements made to the Project Site and paid for with
Bond proceeds.
B-1
EXHIBITC
PROJECT EQUIPMENT
All equipment and personal property items designated by the Company now or hereafter
procured, assembled, manufactured or installed on the Project Site by the Company and paid for with
Bond proceeds and all additions, replacements, alterations, substitutions thereto now or hereafter effected
and specifically designated by the Company. A replacement item may be included by the Company as a
part of the Project Equipment under the conditions set forth in the Lease.
C-1
EXHIBITD
FORM OF REQUISITION CERTIFICATE
Requisition No. __
Date: _____ _
REQUISITION CERTIFICATE
TO: BOKF, N.A., AS TRUSTEE UNDER A TRUST INDENTURE DATED AS OF
DECEMBER 1, 2017, BETWEEN CITY OF JEFFERSON, MISSOURI, AND THE
TRUSTEE, AND LEASE AGREEMENT DATED AS OF DECEMBER 1, 2017,
BETWEEN CITY OF JEFFERSON, MISSOURI, PJP HOLDINGS, LLC, AND AXIUM
PLASTICS, LLC
The undersigned hereby requests that a total of$. ______ be paid for Project Costs (as
defined in said Lease) relating to (select one):
0 Project Site or Project Equipment (to be paid from Series 2017A Project Account within the Project Fund)
0 Project Equipment (to be paid from Series 2017 B Project Account within the Project Fund)
in such amounts, to such payees and for such purposes as set forth on Schedule 1 attached hereto.
I hereby state and certify that: (i) the amounts requested are or were necessary and appropriate in
connection with the acquisition, installation and equipping of the Project, have been properly incurred and
are a proper charge against the Series 2017 A Project Account and/or Series 20 17B Project Account, as
applicable, within the Project Fund, and have been paid by the Company for the assets listed on Schedule
1, and have not been the basis of any previous requisition from the Series 2017 A Project Account and/or
Series 20 17B Project Account, as applicable, within the Project Fund; (ii) as of this date, except for the
amounts referred to above, there are no, to the best of our knowledge, outstanding statements which are
due and payable for labor, wages, materials, supplies or services in connection with the acquisition,
installation and equipping 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; and
(iii) 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.
AXIUM PLASTICS, LLC
By: ---------------Name: ____________________________ _
Title: -----------------------------
PJP HOLDINGS, LLC
By: --------------
D-1
Name: __________________________ __
Title: _____________ _
SCHEDULE 1 TO REQUISITION CERTIFICATE
PROJECT COSTS
Payee and Address Description
D-2
Amount
APPENDIX I
Form of Performance Agreement
See Document No. 4
'' . ..:. it;~~:
,, ·. ·:~;.;:;:~1!ft::~
$6,000,000
(Aggregate Maximum Principal Amount)
CITY OF JEFFERSON, MISSOURI
Approval Version
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(AXIUM PLASTICS PROJECT)
City of Jefferson, Missouri
City Hall
320 E. McCarty St.
Jefferson City Missouri 65101
Ladies and Gentlemen:
SERIES 2017 A
DATED AS OF DECEMBER 1, 2017
BOND PURCHASE AGREEMENT
On the basis of the representations and covenants and upon the terms and conditions contained in
this Bond Purchase Agreement, PJP Holdings, LLC, a Delaware limited liability company (the
"Purchaser"), offers to purchase from City of Jefferson, Missouri (the "City"), the above-referenced
series of Taxable Industrial Development Revenue Bonds (Axium Plastics Project), Series 2017 A (the
"Series 2017 A Bonds"), to be issued by the City under and pursuant to Ordinance No. passed
by the governing body of the City on , 2017 (the "Ordinance") and a Trust Indenture
dated as of December 1, 2017 (the "Indenture"), by and between the City and BOKF, N.A., Kansas City,
Missouri, as trustee (the "Trustee"). Simultaneously with the issuance of the Series 2017 A Bonds, the
City will issue under the Indenture "City of Jefferson City, Missouri, Taxable Industrial Development
Revenue Bonds (Axium Plastics Project), Series 2017B" (the "Series 2017B Bonds") in the maximum
aggregate principal amount of $20,000,000 on a parity with the Series 2017A Bonds (collectively, the
"Bonds"), which will be sold to Axium Plastics, LLC. Capitalized terms not otherwise defined herein
shall have the meanings set forth in Section 101 of the Indenture.
SECTION 1. REPRESENTATIONS AND AGREEMENTS
(a) By the City's acceptance hereof, the City hereby represents to the Purchaser that:
( 1) The City is a home rule charter city and municipal corporation duly organized
and validly existing under the laws of the State of Missouri. The City is authorized under Article
VI, Section 27(b) of the Missouri Constitution and Sections 100.010 through 100.200 of the
Revised Statutes of Missouri, as amended, to authorize, issue and deliver the Bonds and to
consummate all transactions contemplated by this Bond Purchase Agreement, the Ordinance, the
Indenture, the Lease, the Performance Agreement and any and all other agreements relating
thereto. The proceeds of the Bonds shall be used to finance the Project for P JP Holdings, LLC, a
Delaware limited liability company, and Axium Plastics, LLC, a Delaware limited liability
company (collectively, the "Company"}, and to pay for the costs incurred in connection with the
issuance of the Bonds;
(2) There is no controversy, suit or other proceeding of any kind pending or
threatened wherein or whereby any question is raised or may be raised, questioning, disputing or
affecting in any way the legal organization of the City or its boundaries, or the right or title of any
of its officers to their respective offices, or the legality of any official act leading up to the
issuance of the Bonds or the constitutionality or validity of the obligations represented by the
Bonds or the validity of the Bonds, the Ordinance, the Lease, the Indenture or the Performance
Agreement; and
(3) Any certificate signed by an authorized representative of the City and delivered
to the Purchaser shall be deemed a representation and warranty by the City to such party as to the
statements made therein.
(b) The Purchaser represents as follows:
( 1) Organization. The Purchaser is a limited liability company duly organized and
validly existing under the laws of the State of Delaware and is authorized to do business in and is
in good standing under the laws of the State of Missouri;
(2) No Conflict or Breach. The execution, delivery and performance of this Bond
Purchase Agreement by the Purchaser has been duly authorized by all necessary action of the
Purchaser and does not and will not conflict with or result in the breach of any of the terms,
conditions or provisions of, or constitute a default under, its organizational documents, any law,
court or administrative regulation, decree or Ordinance applicable to or binding upon the
Purchaser, or, insofar as it has knowledge, any agreement, indenture, mortgage, lease or
instrument to which the Purchaser is a party or by which it is bound;
(3) Documents Legal, Valid and Binding. When executed and delivered by the
Purchaser, this Bond Purchase Agreement will be, and is, a legal, valid and binding obligation,
enforceable in accordance with its terms, subject, as to enforcement, to any applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of
creditors' rights generally and further subject to the availability of equitable remedies; and
(4) Purchaser's Certificates. Any certificate signed by an authorized officer or agent
of the Purchaser and delivered to the City shall be deemed a representation and warranty by the
Purchaser to such party as to the statements made therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SERIES 2017 A BONDS
On the basis of the representations and covenants contained herein and in the other agreements
referred to herein, and subject to the terms and conditions herein set forth and in the Indenture, the
Purchaser agrees to purchase from the City and the City agrees to sell to the Purchaser the Series 20 17 A
Bonds on the terms and conditions set forth herein.
The Series 2017 A Bonds shall be sold to the Purchaser by the City on the Closing Date
(hereinafter defined) upon payment of an amount equal to the Closing Price (hereinafter defined) for the
Series A Bonds, which amount shall be deposited in the applicable Series 2017 A Project Account within
the Project Fund as provided in the Indenture and shall thereafter on the Closing Date immediately be
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applied to the payment of Project Costs related to the Project Site and Project Improvements as provided
in the Lease, which deposit and payment shall be recorded via a transaction entry on the trust records held
by the Trustee and Paying Agent. From time to time after the Closing Date as additional Project Costs
related to the Project Site and Project Improvements are incurred, the Purchaser may make additional
payments with respect to the Bonds ("Additional Payments") to the Trustee, which Additional Payments
shall be deposited in the Series 20 17 A Project Account within the Project Fund and applied to the
payment of such Project Costs, which deposit(s) and payment(s) shall be recorded via a transaction entry
on the trust records held by the Trustee and Paying Agent; provided that the sum of the Closing Price and
all such Additional Payments for the Series 2017 A Bonds shall not, in the aggregate, exceed $6,000,000.
As used herein, the term "Closing Date" shall mean , 20 17, or such other date as
shall be mutually agreed upon by the City and the Purchaser; the term "Closing Price" shall mean, with
respect to the Series 20 17 A Bonds, that certain amount specified in writing by the Purchaser and agreed to
by the City as the amount required to fund the initial disbursement from the Series 2017 A Project Account
within the Project Fund on the Closing Date.
The Series 2017 A Bonds shall be issued, simultaneously with the issuance of the Series 20 17B
Bonds, under and secured as provided in the Ordinance, the Indenture and the Lease authorized thereby
and the Series 20 I 7 A Bonds shall have the maturity, interest rate and shall be subject to redemption as set
forth therein. The delivery of the Series 2017 A Bonds shall be made in definitive form as a fully
registered bond in the maximum aggregate principal denomination of $6,000,000; provided, that the
principal amount of the Series 2017 A Bonds outstanding at any time shall be that amount recorded in the
official bond registration records of the Trustee and further provided that interest shall be payable on the
Series 2017 A Bonds only on the outstanding principal amount of the Series 2017 A Bonds, as more fully
provided in the Indenture.
The Company agrees to indemnify and hold harmless the City, the Trustee, and any member,
officer, official or employee of the City or of the Trustee and any person controlling the Trustee within the
meaning of Section 15 of the Securities Act of 1933, as amended (collectively, the "Indemnified Parties"),
against any and all losses, claims, damages, liabilities or expenses whatsoever to the extent caused by any
violation by the Company of, or failure by the Company to comply with, any federal or state securities
laws in connection with the Bonds.
In case any action shall be brought against one or more of the Indemnified Parties based upon the
foregoing indemnification and in respect of which indemnity may be sought against the Company, the
Indemnified Parties shall promptly notify the Company in writing and the Company shall promptly
assume the defense thereof, including the employment of counsel, the payment of all expenses and the
right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the
right to employ separate counsel in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties
unless employment of such counsel has been specifically authorized by the Company. The Company shall
not be liable for any settlement of any such action effected without its consent by any of the Indemnified
Parties, but if settled with the consent of the Company or if there be a final judgment for the plaintiff in
any such action against the Company or any of the Indemnified Parties, with or without the consent of the
Company, then provided that the Company was given prompt written notice and the ability to assume the
defense thereof as required by this paragraph, the Company agrees to indemnify and hold harmless the
Indemnified Parties to the extent provided herein.
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SECTION 3. CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The Purchaser's obligations hereunder shall be subject to the due performance by the City of the
City's obligations and agreements to be performed hereunder on or prior to the Closing Date and to the
accuracy of and compliance with the City's representations contained herein, as of the date hereof and as
of the Closing Date, and are also subject to the following conditions:
(a) There shall be delivered to the Purchaser on or prior to the Closing Date a duly
executed copy of the Ordinance, the Trust Indenture, the Performance Agreement, this Bond
Purchase Agreement and the Lease and any other instrument contemplated thereby and such
documents shall be in full force and effect and shall not have been modified or changed except as
may have been agreed to in writing by the Purchaser;
(b) The City shall confirm on the Closing Date by a certificate that at and as of the
Closing Date the City has taken all action necessary to issue the Bonds and that there is no
controversy, suit or other proceeding of any kind pending or threatened wherein any question is
raised affecting in any way the legal organization of the City or the legality of any official act
shown to have been done in the transcript of proceedings leading up to the issuance of the Bonds,
or the constitutionality or validity of the indebtedness represented by the Bonds or the validity of
the Bonds or any proceedings in relation to the issuance or sale thereof;
(c) The Company shall execute a certificate, dated the Closing Date, to the effect
that (i) no litigation, proceeding or investigation is pending against the Company or its affiliates
or, insofar as the Company has knowledge, threatened which would (A) contest, affect, restrain or
enjoin the issuance, validity, execution, delivery or performance of the Bonds, or (B) in any way
contest the existence or powers of the Company, (ii) no litigation, proceeding or investigation is
pending or, insofar as the Company has knowledge, threatened against the Company that could
reasonably be expected to adversely affect its ability to perform its obligations hereunder, (iii) the
representations and warranties of the Company herein were and are true and correct in all
material respects and not misleading as of the date made and as of the Closing Date, and (iv) such
other matters as are reasonably requested by the other parties in connection with the issuance of
the Bonds; and
(d) Receipt by the Purchaser and the Company of an approving opm10n from
Gilmore & Bell, P.C., in form and substance satisfactory to the Purchaser and the Company.
SECTION 4. THE PURCHASER'S RIGHT TO CANCEL
The Purchaser shall have the right to cancel its obligation hereunder to purchase the Series 2017 A
Bonds by notifying the City in writing of its election to make such cancellation at any time prior to the
Closing Date.
SECTION 5. CONDITIONS OF OBLIGATIONS
The obligations of the parties hereto are subject to the receipt of the approving opinion of
Gilmore & Bell, P.C., Bond Counsel, with respect to the validity of the authorization and issuance of the
Bonds.
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SECTION 6. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY
All of the representations and agreements by either party shall remain operative and in full force
and effect, and shall survive delivery of the Bonds to the Purchaser.
SECTION 7. PAYMENT OF EXPENSES
The Company shall pay all reasonable expenses and costs to effect the authorization, preparation,
issuance, delivery and sale of the Bonds. To the best of the City's knowledge and belief, the only
expenses payable by the Company in connection with the issuance of the Bonds are the following: ( 1) the
legal fees of Gilmore & Bell, P.C., as Bond Counsel in the amount of $48,500, plus reimbursement for
out-of-pocket expenses of $ , (2) the consultant fee for preparation of the cost-benefit analysis
($5,800), (3) publication costs and filing fees in the amount of$ , and (4) the Trustee's initial
acceptance fee and first year's administrative fee totaling$ __ _
SECTION 8. NOTICE
Any notice or other communication to be given to the City under this Agreement may be given by
mailing or delivering the same in writing to City of Jefferson, Missouri, City Hall, 320 E. McCarty St.,
Jefferson City, Missouri 65101, Attention: City Clerk; any notice or other communication to be given to
the Purchaser or the Company under this Agreement may be given by delivering the same in writing to
Axium Plastics, LLC, 9005 Smith's Mills Rod. N, New Albany, OH 43054.
SECTION 9. APPLICABLE LAW; ASSIGNABILITY
This Bond Purchase Agreement shall be governed by the laws of the State of Missouri and may
be assigned by the Purchaser with the written consent of the City, which consent shall not be
unreasonably withheld, conditioned or delayed.
SECTION 10. EXECUTION OF COUNTERPARTS
This Bond Purchase Agreement may be executed in several counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same document.
[Remainder of this page intentionally left blank]
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Date of Execution:
-----~2017
Bond Purchase Agreement
Axium Plastics Project. Series 2017
Very truly yours,
PJP HOLDINGS, LLC,
as Purchaser
By: --------------------------Name:
Title:
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Accepted and agreed to this ___ day of _____ , 2017.
[SEAL]
ATTEST:
By: ------------------------------
Name: Phyllis Powell
Title: City Clerk
Bond Purchase Agreement
Axium Plastics Project, Series 2017
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CITY OF JEFFERSON, MISSOURI
By: ----------------
Name: Carrie Tergin
Title: Mayor
APPROVED AS TO FORM:
,·
r ·-
Accepted and agreed to this __ day of _____ --" 2017.
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Bond Purchase Agreement
Axium Plastics Project, Series 2017
AXIUM PLASTICS, LLC, as Company
By: -------------------
Name:
Title:
CITY OF JEFFERSON, MISSOURI,
The City,
AND
BOKF, N.A.,
As Trustee
TRUST INDENTURE
Dated as of December 1, 2017
Relating to:
$6,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Axiom Plastics Project)
Series 2017 A
$20,000,000
(Aggregate Maximum Principal Amount)
City of Jefferson, Missouri
Taxable Industrial Development Revenue Bonds
(Axiom Plastics Project)
Series 20 17B
Approval Version
Section 1 0 1.
Section 1 02.
Section 20 1.
Section 202.
Section 203.
Section 204.
Section 205.
Section 206.
Section 207.
Section 208.
Section 209.
Section 21 0.
Section 211 .
Section 30 1.
Section 302.
Section 303.
Section 40 1.
Section 50 1.
Section 502.
TRUST INDENTURE
TABLE OF CONTENTS
Parties .............................................................................................................................. 1
Recitals ............................................................................................................................ 1
Granting Clauses ............................................................................................................. 2
ARTICLE I
DEFINITIONS
Definitions of Words and Terms ....................................................................................... 3
Rules of Interpretation ...................................................................................................... 8
ARTICLE II
THE BONDS
Title and Amount of Bonds ............................................................................................... 9
Nature of Obligation ......................................................................................................... 9
Denomination, Number and Dating of the Bonds ............................................................. 9
Method and Place of Payment ofBonds ........................................................................... 9
Execution and Authentication of Bonds .......................................................................... 1 0
Registration, Transfer and Exchange of Bonds ............................................................... I 0
Persons Deemed Owners of Bonds ................................................................................. 11
Authorization of the Bonds ............................................................................................. 11
[Reserved] ....................................................................................................................... 13
Mutilated, Lost, Stolen or Destroyed Bonds ................................................................... l3
Cancellation and Destruction of Bonds Upon Payment.. ................................................ 13
ARTICLE III
REDEMPTION OF BONDS
Redemption of Bonds ..................................................................................................... 13
Effect of Call for Redemption ......................................................................................... 14
Notice of Redemption ..................................................................................................... 14
ARTICLE IV
FORM OF BONDS
Form Generally ............................................................................................................... 14
ARTICLEV
CUSTODY AND APPLICATION OF BOND PROCEEDS
Creation of Funds ............................................................................................................ IS
Deposits into the Project Fund ........................................................................................ 15
Section 503.
Section 504.
Section 505.
Section 506.
Section 60 1.
Section 602.
Section 603.
Section 604.
Section 605.
Section 606.
Section 70 I.
Section 702.
Section 703.
Section 80 I.
Section 802.
Section 803.
Section 804.
Section 805.
Section 806.
Section 807.
Section 901
Section 902.
Section 903.
Section 904.
Section 905.
Section 906.
Section 907.
Section 908.
Section 909.
Section 91 0.
Disbursements from the Project Fund ............................................................................. l5
Completion of the Project ............................................................................................... 16
Deposits into and Disbursements from the Costs of Issuance Fund ............................... 16
Disposition Upon Acceleration ....................................................................................... 16
ARTICLE VI
REVENUESANDFUNDS
Creation ofthe Bond Fund .............................................................................................. l6
Deposits Into the Bond Fund .......................................................................................... 16
Application of Moneys in the Bond Fund ....................................................................... 17
Payments Due on Days Other Than Business Days ........................................................ 18
Non presentment of Bonds ............................................................................................... 18
Repayment to the Company from the Bond Fund .......................................................... 18
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Moneys to be Held in Trust ............................................................................................. 18
Investment of Moneys in Project Fund and Bond Fund ................................................. 18
Record Keeping .............................................................................................................. 19
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Payment of Principal and Interest ................................................................................... 19
Authority to Execute Indenture and Issue Bonds ............................................................ l9
Performance of Covenants .............................................................................................. 19
Instruments of Further Assurance ................................................................................... 20
Recordings and Filings ................................................................................................... 20
Inspection of Project Books ............................................................................................ 20
Enforcement of Rights Under the Lease ......................................................................... 20
ARTICLE IX
DEFAULT AND REMEDIES
Events of Default; Notice; Opportunity to Cure ............................................................. 21
Acceleration of Maturity in Event of Default; Rescission .............................................. 21
Surrender of Possession of Trust Estate; Rights and Duties of Trustee
in Possession ............................................................................................................... 21
Appointment of Receivers in Event of Default.. ............................................................. 22
Exercise of Remedies by the Trustee .............................................................................. 22
Limitation on Exercise of Remedies by Owners ............................................................ 22
Right of Owners to Direct Proceedings .......................................................................... 23
Application of Moneys in Event of Default .................................................................... 23
Remedies Cumulative ..................................................................................................... 24
Waivers of Events of Default .......................................................................................... 24
(ii)
Section 1 00 1.
Section 1 002.
Section 1 003.
Section 1 004.
Section 1005.
Section 1006.
Section 1007.
Section 1008.
Section 1009.
Section 1010.
Section 1 0 11 .
Section 1 012.
Section 1013.
Section 11 0 1.
Section 1102.
Section 11 03.
Section 1104.
Section 120 1.
Section 1202.
Section 1203.
Section 130 I.
Section 1302.
Section 140 1.
Section 1402.
Section 1403.
Section 1404.
Section I 405.
Section 1406.
Section 1407.
ARTICLE X
THE TRUSTEE
Acceptance of the Trusts ................................................................................................. 25
Fees, Charges and Expenses of the Trustee .................................................................... 27
Notice to Owners if Default Occurs ................................................................................ 27
Intervention by the Trustee ............................................................................................. 28
Successor Trustee Upon Merger, Consolidation or Sale ................................................. 28
Resignation of Trustee .................................................................................................... 28
Removal of Trustee ......................................................................................................... 28
Appointment of Successor Trustee ................................................................................. 28
Vesting of Trusts in Successor Trustee ............................................................................ 28
Right of Trustee to Pay Taxes and Other Charges .......................................................... 29
Trust Estate May be Vested in Co-Trustee ...................................................................... 29
Accounting ...................................................................................................................... 30
Performance of Duties Under the Lease ......................................................................... 30
ARTICLE XI
SUPPLEMENTAL INDENTURES
Supplemental Indentures Not Requiring Consent of Owners ........................................ .30
Supplemental Indentures Requiring Consent of Owners ................................................ 30
Company's Consent to Supplemental Indentures .......................................................... .31
Opinion of Counse1 ......................................................................................................... 31
ARTICLE XII
SUPPLEMENTAL LEASES
Supplemental Leases Not Requiring Consent of Owners ............................................... 31
Supplemental Leases Requiring Consent of Owners ..................................................... .32
Opinion of Counse1 ......................................................................................................... 32
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Satisfaction and Discharge of this Indenture .................................................................. 32
Bonds Deemed to be Paid ............................................................................................... 33
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Consents and Other Instruments by Owners ................................................................... 33
Limitation of Rights Under this Indenture ...................................................................... 34
Notices ............................................................................................................................ 34
Severability ..................................................................................................................... 35
Execution in Counterparts ............................................................................................... 3 5
Governing Law ............................................................................................................... 35
Electronic Storage ........................................................................................................... 35
(iii)
Signatures and Seal ....................................................................................................... S-1
Exhibit A: Project Site
Exhibit B: Project Improvements
Exhibit C: Project Equipment
Exhibit D: Form of Bonds
Exhibit E: Form of Representation Letter
(iv)
TRUST INDENTURE
THIS TRUST INDENTURE dated as of December I, 2017, between CITY OF JEFFERSON,
MISSOURI, a home rule charter city and municipal corporation organized and existing under the laws of
the State of Missouri (the ''City''), and BOKF, N.A. a national banking association duly organized and
existing and authorized to accept and execute trusts of the character herein set forth under the laws of the
United States of America, with a corporate trust office located in Kansas City, Missouri, as Trustee (the
·'Trustee");
RECITALS:
1. The City is authorized and empowered pursuant to the provtstons of Article VI,
Section 2 7(b) of the Missouri Constitution and Sections 1 00.0 I 0 through 1 00.200, inclusive, of the
Revised Statutes of Missouri, as amended (collectively, the "Act"), to purchase, construct, extend and
improve certain projects (as defined in Section I 00.0 I 0 of the Revised Statutes of Missouri, as amended)
and to issue industrial development revenue bonds for the purpose of providing funds to pay the costs of
such projects and to lease or otherwise dispose of such projects to private persons or businesses for
manufacturing, commercial, research and development, warehousing and industrial development purposes
upon such terms and conditions as the City shall deem advisable.
2. Following notice to affected taxing jurisdictions in accordance with Section 100.059.1 of
the Act, the City Council adopted Ordinance No. (the "Ordinance") on , (i)
approving a plan for the Company's economic development project, and (ii) authorizing the issuance of
$6,000,000 aggregate maximum principal amount of Taxable Industrial Development Revenue Bonds
(Axium Plastics Project), Series 2017 A (the "Series 2017 A Bonds"), to pay the costs of a portion of the
Project consisting of (a) acquiring real property in the City (the "Project Site," as more fully described on
Exhibit A hereto), (b) making certain real property improvements to the Project Site (the "Project
Improvements", as more fully described on Exhibit B hereto) and (iii) authorizing the issuance of
$20,000,000 aggregate maximum principal amount of Taxable Industrial Development Revenue Bonds
(Axium Plastics Project), Series 20 17B (the "Series 2017B Bonds," together with the Series 2017 A
Bonds, collectively, the "Bonds"), to pay the costs of a portion of the Project consisting of equipping the
Project Site with certain personal property (the "Project Equipment," as more fully described on
Exhibit C hereto).
3. Pursuant to the Ordinance, the City is authorized to execute and deliver (a) this Trust
Indenture for the purpose of issuing and securing the Bonds, (b) the Lease (defined herein) with the
Company, as lessee, under which the City, as lessor, will acquire, construct, improve and equip the
Project and will lease the Project Site, the Project Improvements and the Project Equipment (collectively,
the "Project") to the Company, as lessee, in consideration of rentals which will be sufficient to pay the
principal of and interest on the Bonds, and (c) the Performance Agreement (defined herein) for the
purpose of setting forth the terms and conditions of the Project's exemption from ad valorem real and
personal property taxes and certain payments in lieu of taxes to be made by the Company with respect to
the Project. References herein to the Project shall be construed to mean that the acquisition of the Project
Site and the making of the Project Improvements thereon shall be the obligation of P JP (as defined in the
Lease) and the equipping of the Project with the Project Equipment shall be the obligation of Axium (as
defined in the Lease), however, both Axium and PJP will be jointly and severally liable for the payment
and performance of all obligations of the Company under the Lease (defined herein).
4. All things necessary to make the Bonds, when authenticated by the Trustee and issued as
in this Indenture provided, the valid and legally binding obligations of the City, and to constitute this
Indenture a valid and legally binding pledge and assignment of the Trust Estate (as hereinafter defined)
herein made for the security of the payment of the principal of and interest on the Bonds, have been done
and performed, and the execution and delivery of this Indenture and the execution and issuance of the
Bonds, subject to the terms hereof, have in all respects been duly authorized;
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
GRANTING CLAUSES
That the City, in consideration of the premises, the acceptance by the Trustee of the trusts hereby
created, the purchase and acceptance of the Bonds by the Owners thereof, and of other good and valuable
consideration, the receipt of which is hereby acknowledged, and in Ordinance to secure the payment of
the principal of and interest on all of the Bonds issued and outstanding under this Indenture from time to
time according to their tenor and effect, and to secure the performance and observance by the City of all
the covenants, agreements and conditions herein and in the Bonds contained, does hereby pledge and
assign to the Trustee and its successors and assigns until this Indenture has been satisfied and discharged,
the property described in paragraphs (a), (b) and (c) below (said property being herein referred to as the
'"Trust Estate''), to-wit:
(a) All right, title and interest in and to the Project together with the tenements,
hereditaments, appurtenances, rights, easements, privileges and immunities thereunto belonging
or appertaining and, to the extent permissible, all permits, certificates, approvals and
authorizations;
(b) All right, title and interest of the City in, to and under the Lease (excluding the
City's right to receive moneys for its own account and the City's rights to indemnification or to
be protected from liabilities by insurance policies required by the Lease, as provided therein or
herein), and all rents, revenues and receipts derived by the City from the Project including,
without limitation, all rentals and other amounts to be received by the City and paid by the
Company under and pursuant to and subject to the provisions of the Lease; and
(c) All moneys and securities from time to time held by or now or hereafter required
to be paid to the Trustee under the terms of this Indenture, and any and all other real or personal
property of every kind and nature from time to time hereafter, by delivery or by writing of any
kind, pledged, assigned or transferred as and for additional security hereunder by the City or by
anyone in its behalf, or with its written consent, to the Trustee, which is hereby authorized to
receive any and all such property at any and all times and to hold and apply the same subject to
the terms hereof.
TO HAVE AND TO HOLD, all and singular, the Trust Estate with all rights and privileges
hereby pledged and assigned or agreed or intended so to be, to the Trustee and its successors and assigns
forever;
IN TRUST NEVERTHELESS, upon the terms and subject to the conditions herein set forth, for
the equal and proportionate benefit, protection and security of all Owners from time to time of the Bonds
outstanding under this Indenture, without preference, priority or distinction as to lien or otherwise of any
of the Bonds over any other of the Bonds except as expressly provided in or permitted by this Indenture;
PROVIDED, HOWEVER, that if the City pays, or causes to be paid, the principal of and
interest on the Bonds, at the time and in the manner mentioned in the Bonds, according to the true intent
and meaning thereof, or provides for the payment thereof (as provided in Article Xlli hereof), and pays
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or causes to be paid to the Trustee all other sums of money due or to become due to it in accordance with
the terms and provisions hereof, then upon such final payments this Indenture and the rights thereby
granted shall cease, determine and be void; otherwise, this Indenture shall be and remain in full force and
effect.
THIS INDENTURE FURTHER WITNESSETH, and it is hereby expressly declared,
covenanted and agreed by and between the parties hereto, that all Bonds issued and secured hereunder are
to be issued, authenticated and delivered and that all the Trust Estate is to be held and applied under, upon
and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the City does hereby agree and covenant with the Trustee and with the
respective Owners from time to time, as follows:
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms. In addition to words and terms defined in the
Section 1.1 of the Lease, which definitions shall be deemed to be incorporated herein, and terms defined
elsewhere in this Indenture, the following words and terms as used in this Indenture shall have the
following meanings, unless some other meaning is plainly intended:
"Act" means, collectively, Article VI, Section 27(b) of the Missouri Constitution, as amended,
and Sections I 00.0 I 0 through I 00.200 of the Revised Statutes of Missouri, as amended.
"Additional Rent" means the additional rental described in Sections 5.2 and 6.2 of the Lease.
"Assessor" means the County Assessor of Cole County, Missouri.
"Authorized Company Representative" means the Chief Financial Officer of the Company, or
such other person at the time designated to act on behalf of the Company as evidenced by written
certificate furnished to the City and the Trustee containing the specimen signature of such person and
signed on behalf of the Company by authorized officers. Such certificate may designate an alternate or
alternates each of who shall be entitled to perform all duties of the Authorized Company Representative.
"Authorized City Representative" means the Mayor, City Clerk or such other person at the
time designated to act on behalf of the City as evidenced by written certificate furnished to the Company
and the Trustee containing the specimen signature of such person and signed on behalf of the City by its
Mayor. Such certificate may designate an alternate or alternates each of whom shall be entitled to
perform all duties of the Authorized City Representative.
"Basic Rent" means the rental described in Section 5.1 of the Lease.
"Bond" or "Bonds" means the Series 20 I 7 A Bonds and/or the Series 20 I 7B Bonds.
"Bond Fund" means the "City of Jefferson, Missouri, Bond Fund -Axium Plastics, LLC"
created in Section 601 of this Indenture.
"Bond Purchase Agreements" means, (i) with respect to the Series 20 I 7 A Bonds, the
agreement by that name with respect to the Series 20 I 7 A Bonds by and between the City and the
Purchaser of the Series 2017 A Bonds and, (ii) with respect to the Series 20 17B Bonds, the agreement by
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that name with respect to the Series 2017B Bonds by and between the City and the Purchaser of the Series
20 17B Bonds.
"Bon downer" means the registered owner of any Bond.
"Business Day" means any day other than a Saturday or Sunday or legal holiday or a day on
which banks located in the city in which the principal corporate trust office or the principal payment
office of the Trustee are required or authorized by law to remain closed.
"City" means City of Jefferson, Missouri, a home rule charter city and municipal corporation
organized and existing under the laws of the State of Missouri, and its successors and assigns.
"Closing Date" means the date identified in the Bond Purchase Agreements for the initial
issuance and delivery of the Bonds.
"Closing Price" means the amount specified in writing by the Purchasers and agreed to by the
City as the amount required to pay for the initial issuance of the Bonds on the Closing Date, which
amount shall be equal to any Project Costs spent by the Company from its own funds before the Closing
Date, including costs of issuance.
"Company" means, collectively, PJP Holdings, LLC and Axium Plastics, LLC, Delaware
limited liability companies, and their successors or assigns.
"Completion Date" means the dates of execution of the certificates with respect to each
component portion of the Project and the date of execution of the certificate with respect to the entire
Project required by Section 4.5 of the Lease and Section 504 of this Indenture and filed with the Trustee.
"Costs of Issuance Fund" means the "City of Jefferson, Missouri, Costs of Issuance Fund -
Axium Plastics, LLC" created in Section 501 of this Indenture.
"Cumulative Outstanding Principal Amount" means the aggregate principal amount of all
series of Bonds outstanding under the provisions of this Indenture, not to exceed $26,000,000 in total, as
reflected in the records maintained by the Trustee as provided herein or in the Table of Cumulative
Outstanding Principal Amount attached as Schedule 1 to each applicable series of Bonds and set forth in
the form of Bonds attached as Exhibit D hereto.
"Event of Default" means, with respect to this Indenture, any Event of Default as defined in
Section 901 hereof and, with respect to the Lease, any Event of Default as described in Section 12.1 of
the Lease.
"Financing Document" means any loan agreement, credit agreement, security agreement,
mortgage, participation agreement, lease agreement, sublease, ground lease, hedging agreement or other
document executed by or on behalf of a Financing Party.
"Financing Party" means any Person providing debt, lease or equity financing (including equity
contributions or commitments) or hedging arrangements, or any renewal, extension or refinancing of any
such financing or hedging arrangements, or any guarantee, insurance, letters of credit or credit support for
or in connection with such financing or hedging arrangements, in connection with the development,
construction, ownership, lease, operation or maintenance of the Project or interests or rights in the Lease,
or any part thereof, including any trustee or agent acting on any such Person's behalf.
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"Government Securities" means direct obligations of, or obligations the payment of principal of
and interest on which are unconditionally guaranteed by, the United States of America.
"Indenture" means this Trust Indenture, as from time to time amended and supplemented by
Supplemental Indentures in accordance with the provisions of Article XI hereof.
"Investment Securities" means any of the following securities:
(a) Government Securities;
(b) obligations of Fannie Mae, the Government National Mortgage Association, the
Federal Financing Bank, the Federal Intermediate Credit Limited liability company, Federal
Banks for Cooperatives, Federal Land Banks, Federal Home Loan Banks, Farmers Home
Administration and Federal Home Loan Mortgage Limited liability company;
(c) direct and general obligations of any state of the United States of America, to the
payment of the principal of and interest on which the full faith and credit of such state is pledged,
provided that at the time of their purchase under this Indenture such obligations are rated in either
of the two highest rating categories by a nationally-recognized bond rating agency;
(d) certificates of deposit, whether negotiable or nonnegotiable, issued by any bank
or trust company organized under the laws of any state of the United States of America or any
national banking association (including the Trustee or any of its affiliates}, provided that such
certificates of deposit shall be either (I) continuously and fully insured by the Federal Deposit
Insurance Limited liability company, or (2) continuously and fully secured by such securities as
are described above in clauses (a) through (c), inclusive, which shall have a market value at all
times at least equal to the principal amount of such certificates of deposit and shall be deposited
with the Trustee or a custodian bank, trust company or national banking association. The bank,
trust company or national banking association holding each such certificate of deposit required to
be so secured shall furnish the Trustee written evidence satisfactory to it that the aggregate
market value of all such obligations securing each such certificate of deposit will at all times be
an amount at least equal to the principal amount of each such certificate of deposit and the
Trustee shall be entitled to rely on each such undertaking;
(e) shares of a fund registered under the Investment Company Act of 1940, as
amended, whose shares are registered under the Securities Act of 1933, as amended, having
assets of at least $100,000,000, and which shares, at the time of purchase, are rated by Standard &
Poor's and Moody's in one of the two highest rating categories (without regard to any
refinements or gradation of rating category by numerical modifier or otherwise) assigned by such
rating agencies for obligations of that nature; or
(f) any other investment approved in writing by the Authorized City Representative
and the Owners of all of the Outstanding Bonds.
"Lease" means the Lease Agreement dated as of December 1, 2017, between the City, as lessor,
and the Company, as lessee, as from time to time amended and supplemented by Supplemental Leases in
accordance with the provisions thereof and of Article XII of this Indenture.
"Lease Term" means the period from the effective date of the Lease until the expiration thereof
pursuant to Section 3.2 of the Lease.
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"Leasehold Mortgage" means any leasehold mortgage, leasehold deed of trust, assignment of
rents and leases, security agreement or other agreement relating to the Project permitted pursuant to the
provisions of Section 10.4 of the 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 remaining after
payment of all expenses (including reasonable attorneys' fees, trustee's fees and any extraordinary
expenses of the City and the Trustee) incurred in the collection of such gross proceeds.
"Outstanding," when used with reference to Bonds, means, as of a particular date, all Bonds
theretofore authenticated and delivered, except:
(a) Bonds theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Bonds deemed to be paid in accordance with the provisions of Section 1302
hereof; and
(c) Bonds in exchange for or in lieu of which other Bonds have been authenticated
and delivered pursuant to this Indenture.
"Owner" shall have the same meaning as Bondowner.
"Paying Agent" means the Trustee and any other bank or trust company designated by this
Indenture as paying agent for the Bonds at which the principal of or interest on the Bonds shall be
payable.
"Payment Date" means the date on which principal of or interest on any Bond is payable, which
shall be December 1 of each year that the Bonds are Outstanding.
"Performance Agreement" means the Performance Agreement dated as of December 1, 2017,
among the City, the Company and the Assessor, as amended and supplemented from time to time.
"Person" means an individual, partnership, limited liability company, business trust, joint stock
company, limited liability company, bank, insurance company, unincorporated association, joint venture
or other entity of whatever nature.
"Project" means the project referred to in the recitals of this Indenture, including the Project Site,
the Project Improvements and the Project Equipment, and all additions, modifications, improvements,
replacements and substitutions made to the Project pursuant to the Lease as they may at any time exist.
"Project Costs" means all costs of purchase, construction, improvement and installation of the
Project, including the following:
(a) all costs and expenses necessary or incident to the acquisition, construction and
improvement of the Project Improvements located on the Project Site and the acquisition and
installation of Project Equipment on the Project Site, which the Company conveys to the City;
(b) fees and expenses of architects, appraisers, surveyors and engineers for estimates,
surveys, soil borings and soil tests and other preliminary investigations and items necessary to the
commencement of construction, preparation of plans, drawings and specifications and supervision
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of construction, as well as for the perfonnance of all other duties of professionals and consultants
in relation to the purchase, construction, improvement and installation of the Project or the
issuance of the Bonds;
(c) all costs and expenses of every nature incurred in purchasing, constructing and
improving the Project Improvements and otherwise improving the Project Site and purchasing
and installing the Project Equipment, including the actual cost of labor and materials, machinery,
furnishings and equipment as payable to contractors, builders and materialmen in connection with
the purchase, construction, improvement and installation of the Project;
(d) interest accruing on the Bonds during the construction period of the Project;
(e) the cost of title insurance policies and the cost of any other insurance maintained
during the construction period in accordance with Article VII of the Lease;
(t) reasonable expenses of administration, supervision and inspection properly
chargeable to the Project, legal fees and expenses, fees and expenses of accountants and other
consultants, publication and printing expenses, and initial fees and expenses of the Trustee to the
extent that said fees and expenses are necessary or incident to the issuance and sale of the Bonds
or the purchase, construction, improvement and installation of the Project;
(g) all other items of expense not elsewhere specified in this definition as may be
necessary or incident to: (I) the authorization, issuance and sale of the Bonds, including costs of
issuance of the Bonds; (2) the purchase, construction, improvement and installation of the
Project; and (3) the financing thereof; and
(h) reimbursement to the Company or those acting for it for any of the above
enumerated costs and expenses incurred and paid by them before or after the execution of the
Lease.
"Project Equipment" means all items of equipment or other personal property acquired or
installed or acquired for installation in the Project Improvements or elsewhere on the Project Site pursuant
to Article IV of the Lease and paid for in whole or in part from the proceeds of Series 20 17B Bonds, as
described in Exhibit C attached hereto and by this reference made a part hereof, and all replacements
thereof and substitutions therefor which, pursuant to Section 8.2 of the Lease, constitute part of the
Project Equipment.
"Project Fund" means the "'City of Jefferson, Missouri, Project Fund-Axium Plastics, LLC"
created in Section 501 of this Indenture.
"Project Improvements" means all buildings, structures, improvements and fixtures to be
purchased, constructed, installed and otherwise improved on the Project Site pursuant to Article IV of the
Lease and paid for in whole or in part from the proceeds of Series 2017 A Bonds, as described in Exhibit
B attached hereto, and all additions, alterations, modifications and improvements thereof made pursuant
to the Lease.
"Project Site" means all of the real estate as described in Exhibit A attached hereto and by this
reference made a part hereof.
"Purchasers" means, (i) with respect to the Series 2017 A Bonds, the entity identified in the
Bond Purchase Agreement for the Series 20 17 A Bonds as the purchaser of the Series 20 17 A Bonds, and
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(ii) with respect to the Series 20 17B Bonds, the entity identified in the Bond Purchase Agreement for the
Series 20 17B Bonds as the purchaser of the Series 20 17B Bonds.
"Series 2017 A Bonds" Taxable Industrial Development Revenue Bonds (Axium Plastics
Project), Series 2017 A, issued, authenticated and delivered under and pursuant to this Indenture, in the
maximum aggregate principal amount of $6,000,000.
"Series 2017B Bonds" Taxable Industrial Development Revenue Bonds (Axium Plastics
Project), Series 20 17B, issued, authenticated and delivered under and pursuant to this Indenture, in the
maximum aggregate principal amount of $20,000,000.
"State" means the State of Missouri.
"Supplemental Indenture" means any indenture supplemental or amendatory to this Indenture
entered into by the City and the Trustee pursuant to Article XI hereof.
"Supplemental Lease" means any supplement or amendment to the Lease entered into pursuant
to Article XII hereof.
"Trust Estate" means the Trust Estate described in the Granting Clauses of this Indenture.
"Trustee" means BOKF, N.A., Kansas City, Missouri, a national banking association duly
organized and existing under the laws of the United States of America, and its successor or successors and
any other limited liability company which at the time may be substituted in its place pursuant to and at the
time serving as Trustee under this Indenture.
Section 102. Rules of Interpretation.
(a) Unless the context shall otherwise indicate, the words importing the singular number
shall include the plural and vice versa, and words importing Persons shall include firms, associations and
limited liability companys, including public bodies, as well as natural Persons.
(b) Wherever in this Indenture 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.
(c) 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 Indenture as a whole and not to any particular Article, Section or subdivision.
(d) Whenever an item or items are listed after the word "including," such listing is not
intended to be a listing that excludes items not listed.
(e) The Table of Contents and the Article and Section headings of this Indenture shall not be
treated as a part of this Indenture or as affecting the true meaning of the provisions hereof.
ARTICLE II
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THE BONDS
Section 201. Title and Amount of Bonds. No Bonds may be issued under this Indenture
except in accordance with the provisions of this Article. There shall be issued under and secured by this
Indenture two series of bonds designated (i) "City of Jefferson, Missouri, Taxable Industrial Development
Revenue Bonds (Axium Plastics Project), Series 2017 A" and (ii) "City of Jefferson, Missouri, Taxable
Industrial Development Revenue Bonds (Axium Plastics Project), Series 20 17B." The maximum total
principal amount of the Series 2017 A Bonds that may be issued hereunder is hereby expressly limited to
$6,000,000. The maximum total principal amount of the Series 20 17B Bonds that may be issued
hereunder is hereby expressly limited to $20,000,000.
Section 202. Nature of Obligation. The Bonds and the interest thereon shall be special
obligations of the City payable solely out of the rents, revenues and receipts derived by the City from the
Project and the Lease, and not from any other fund or source of the City. The Bonds are secured by a
pledge and assignment of the Trust Estate to the Trustee in favor of the Owners, as provided in this
Indenture. The Bonds and the interest thereon shall not constitute general obligations of the City, the
State or any political subdivision thereof, and neither the City, the State or related political subdivision
thereof shall be liable thereon, and the Bonds shall not constitute an indebtedness within the meaning of
any constitutional or statutory debt limitation or restriction, and are not payable in any manner by
taxation.
Section 203. Denomination, Number and Dating of the Bonds.
(a) The Bonds shall be issuable in the form of one fully-registered Series 2017A Bond and
one fully registered Series 20 17B Bond, in substantially the forms set forth in Exhibit D hereto, in the
denomination of $0.0 I or any multiple thereof.
(b) The Bonds shall be dated by the Trustee as of the date of initial delivery thereof as
provided herein. If the Bonds are at any time thereafter transferred, any replacement Bonds shall be dated
as of the date of authentication thereof.
Section 204. Method and Place of Payment of Bonds.
(a) The principal of and interest on the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of payment thereof is legal tender for payment of
public and private debts.
(b) Payment of the principal of the Bonds shall be made upon the presentation and surrender
of such Bonds at the principal payment office of any Paying Agent named in the Bonds. The payment of
principal on the Bonds shall be noted on the Bonds on Schedule I thereto and the registration books
maintained by the Trustee pursuant to Section 206. Payment of the interest on the Bonds shall be made
by the Trustee on each Payment Date to the Person appearing on the registration books of the Trustee
hereinafter provided for as the Owner thereof on the fifteenth day (whether or not a Business Day) of the
calendar month next preceding such Payment Date by check or draft mailed to such Owner at such
Owner's address as it appears on such registration books.
(c) The Bonds and the original Schedule I thereto shall be held by the Trustee in trust, unless
otherwise directed in writing by the Owner. If the Bonds are held by the Trustee, the Trustee shall, on
each Payment Date, send a revised copy of Schedule I via facsimile or other electronic means to the
Owner, the Company (if not the Owner) and the City. Absent manifest error, the amounts shown on
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Schedule I as noted by the Trustee shall be conclusive evidence of the principal amount paid on the
Bonds.
(d) If there is one Owner of the Bonds, the Trustee is authorized to make the final or any
interim payments of principal on such Bonds by internal bank transfer or by electronic transfer to an
account at a commercial bank or savings institution designated in writing by such Owner and located in
the continental United States. The Trustee is also authorized to make interest payments on such Bonds by
internal bank transfer or by electronic transfer to an account at a commercial bank or savings institution
designated by such Owner and located in the continental United States. If the Company is the Owner of
all the Bonds Outstanding, payments of principal and interest on the Bonds may be made via a transaction
entry on the trust records held by the Trustee and Paying Agent.
Section 205. Execution and Authentication of Bonds.
(a) The Bonds shall be executed on behalf of the City by the manual or facsimile signature of
its Mayor and attested by the manual or facsimile signature of the City Clerk, and shall have the corporate
seal of the City affixed thereto or imprinted thereon. If any officer whose signature or facsimile thereof
appears on the Bonds ceases to be such officer before the delivery of such Bond, such signature or
facsimile thereof shall nevertheless be valid and sufficient for all purposes, the same as if such Person had
remained in office until delivery. Any Bond may be signed by such Persons as at the actual time of the
execution of such Bond are the proper officers to sign such Bond although at the date of such Bond such
Persons may not have been such officers.
(b) The Bonds shall have endorsed thereon a Certificate of Authentication substantially in the
fonn set forth in Exhibit D hereof, which shall be manually executed by the Trustee. No Bond shall be
entitled to any security or benefit under this Indenture or shall be valid or obligatory for any purposes
until such Certificate of Authentication has been duly executed by the Trustee. The executed Certificate
of Authentication upon any Bond shall be conclusive evidence that such Bond has been duly
authenticated and delivered under this Indenture. The Certificate of Authentication on any Bond shall be
deemed to have been duly executed if signed by any authorized signatory of the Trustee.
Section 206. Registration, Transfer and Exchange of Bonds.
(a) The Trustee shall keep books for the registration and for the transfer of Bonds as
provided in this Indenture.
(b) The Bonds may be transferred only upon the books kept for the registration and transfer
of Bonds upon surrender thereof to the Trustee duly endorsed for transfer or accompanied by an
assignment duly executed by the Owner or such Owner's attorney or legal representative in such fonn as
shall be satisfactory to the Trustee. In connection with any such transfer of the Bonds, the City and the
Trustee shall receive an executed representation letter signed by the proposed assignee in substantially the
fonn of Exhibit E hereto. Upon any such transfer, the City shall execute and the Trustee shall
authenticate and deliver in exchange for such Bond a new fully registered Bond or Bonds, registered in
the name of the transferee, of any denomination or denominations authorized by this Indenture, in an
aggregate principal amount equal to the outstanding principal amount of such Bond, of the same maturity
and bearing interest at the same rate.
(c) In all cases in which Bonds are exchanged or transferred hereunder the provisions of any
legend restrictions on the Bonds shall be complied with and the City shall execute and the Trustee shall
authenticate and deliver at the earliest practicable time Bonds in accordance with the provisions of this
Indenture. All Bonds surrendered in any such exchange or transfer shall forthwith be cancelled by the
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Trustee. The City or the Trustee may make a reasonable charge for every such exchange or transfer of
Bonds sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with
respect to such exchange or transfer, and such charge shall be paid before any such new Bond shall be
delivered. Neither the City nor the Trustee shall be required to make any such exchange or transfer of
Bonds during the 15 days immediately preceding a Payment Date on the Bonds or, in the case of any
proposed redemption of Bonds, during the 15 days immediately preceding the selection of Bonds for such
redemption or after such Bonds or any portion thereof has been selected for redemption.
(d) If any Owner fails to provide a certified taxpayer identification number to the Trustee, the
Trustee may make a charge against such Owner sufficient to pay any governmental charge required to be
paid as a result of such failure, which amount may be deducted by the Trustee from amounts otherwise
payable to such Owner under such Owner's Bond.
Section 207. Persons Deemed Owners of Bonds. As to any Bond, the Person in whose name
the same is registered as shown on the bond registration books required by Section 206 hereof shall be
deemed and regarded as the absolute owner thereof for all purposes. Payment of or on account of the
principal of and interest on any such Bond shall be made only to or upon the Ordinance of the Owner
thereof or a legal representative thereof. All such payments shall be valid and effectual to satisfy and
discharge the liability upon such Bond, including the interest thereon, to the extent of the sum or sums so
paid.
Section 208. Authorization of the Bonds.
(a) The Series 20 I7 A Bonds are authorized for the purpose of providing funds to pay a
portion of the costs of acquiring the Project Site and constructing the Project Improvements. The Series
20 I7B Bonds are authorized for the purpose of providing funds to pay a portion of the costs of acquiring
and installing the Project Equipment at the Project Site. The Bonds shall be dated as provided in
Section 203(b) hereof, shall become due on December I, 2032 (subject to prior redemption as provided in
Article Ill) and shall bear interest as specified in Section 208(t) hereof, payable on the dates specified in
Section 208(t) hereof.
(b) The Trustee is hereby designated as the Paying Agent. The Owners of a majority of
Bonds then outstanding may designate a different Paying Agent upon written notice to the City and the
Trustee.
(c) The Bonds shall be executed without material variance from the form and in the manner
set forth in Exhibit D hereto and delivered to the Trustee for authentication. Prior to or simultaneously
with the authentication and delivery of the Bonds by the Trustee, there shall be filed with the Trustee the
following:
(I) An original or certified copy of the Ordinance passed by the City Council
authorizing the issuance of the Bonds and the execution of this Indenture and the Lease;
(2) Original executed counterparts of this Indenture, the Lease, the Performance
Agreement and the Bond Purchase Agreements;
(3) A representation letter from the Purchasers in substantially the form attached as
Exhibit E hereto;
(4) A request and authorization to the Trustee on behalf of the City, executed by the
Authorized City Representative, to authenticate the Bonds and deliver the same to the applicable
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Purchasers upon payment, for the account of the City, of the applicable purchase price thereof
specified in the applicable Bond Purchase Agreements. The Trustee shall be entitled to
conclusively rely upon such request and authorization as to names of the purchaser and the
amount of such purchase price; and
(5) An opinion of counsel nationally recognized on the subject of municipal bonds to
the effect that the Bonds constitute valid and legally binding limited and special revenue
obligations of the City.
(d) When the documents specified in subsection (c) of this Section have been filed with the
Trustee, and when the Bonds have been executed and authenticated as required by this Indenture, either:
( 1) The Purchasers shall pay the Closing Price to the Trustee, and the Trustee shall
endorse each series of Bonds in an amount equal to the applicable Closing Price and then either
hold the Bonds in trust or if so directed in writing deliver the Bonds to or upon the order of the
Purchasers; or
(2) The Company shall submit a requisition certificate in accordance with
Section 4.4 of the Lease, in an amount equal to the Closing Price, and the Trustee shall
authenticate and endorse the Bonds in an amount equal to the Closing Price and then either hold
the Bonds in trust or if so directed in writing deliver the Bonds to the Company (or another
purchaser designated by the Company).
In either case, the Purchasers shall be deemed to have paid over to the Trustee, and the Trustee shall be
deemed to have deposited into the Project Fund, an amount equal or up to the Closing Price.
(e) Following the initial issuance and delivery of the Bonds, the Company may submit
additional requisition certificates in accordance with Section 4.4 of the Lease, and the Trustee shall, based
solely of the amount set forth in the requisition, endorse the applicable series of Bonds in an amount equal
to the amount set forth in each requisition certificate. The date of endorsement of each Principal Amount
Advanced (as defined in subsection (g) below) as set forth on Schedule I to the Bonds shall be the date of
the City's approval of each requisition certificate. The Trustee shall keep a record of the total requisitions
submitted, and shall notify the City if the requisitions submitted exceed the maximum Cumulative
Outstanding Principal Amount of each series of Bonds permitted hereunder.
(f) Both the Series 20 17 A Bonds and the Series 20 17B Bonds shall bear interest at the rate
of 5% per annum on the Cumulative Outstanding Principal Amount of such series of Bonds. Such
interest shall be payable in arrears on each December 1, commencing on December 1, 2018, and
continuing thereafter until the Cumulative Outstanding Principal Amount for such series of Bonds is paid
in full; provided that the aggregate maximum principal amount for the Bonds shall not exceed
$26,000,000 and further provided that the Bonds shall be paid in full no later than December 1, 2032.
Interest shall be calculated on the basis of a year of360 days consisting of twelve months of30 days each,
and the payment of which will be reflected via a transaction entry on the trust records held by the Trustee
and Paying Agent.
(g) The Trustee shall keep and maintain a record of the amount deposited into the
subaccounts within the Project Fund pursuant to the terms of this Indenture as "Principal Amount
Advanced" and shall enter the aggregate principal amount of the appropriate series of Bonds then
Outstanding on its records as the "Cumulative Outstanding Principal Amount." On each date upon which
a portion of the Cumulative Outstanding Principal Amount is paid to the Owners, pursuant to the
redemption provisions of this Indenture, the Trustee shall enter on its records the principal amount paid
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on the applicable series of Bonds as "Principal Amount Redeemed," and shall enter the then Outstanding
principal amount of the applicable series of Bonds as "Cumulative Outstanding Principal Amount." The
records maintained by the Trustee as to amounts deposited into the subaccounts of the Project Fund or
principal amounts paid on the each applicable series of Bonds shall be the official records of the
Cumulative Outstanding Principal Amount for all purposes and shall be in substantially the form of the
Table of Cumulative Outstanding Principal Amount as set out in the forms of each series of Bonds in
Exhibit D hereto. If any moneys are deposited by the Trustee into the Project Fund, then the Trustee
shall provide a statement of receipts and disbursements with respect thereto to the City and the Company
on a monthly basis. After the Project has been completed and the certificate of payment of all costs is
filed as provided in Section 504 hereof, the Trustee, to the extent it has not already done so pursuant to
this Section or Section 1012 hereof, shall file a final statement of receipts and disbursements with respect
thereto with the City and the Company.
Section 209. [Reserved].
Section 210. Mutilated, Lost, Stolen or Destroyed Bonds. If any Bond becomes mutilated,
or is lost, stolen or destroyed, the City shall execute and the Trustee shall authenticate and deliver a new
Bond of like series, date and tenor as the Bond mutilated lost, stolen or destroyed; provided that, in the
case of any mutilated Bond, such mutilated Bond shall first be surrendered to the Trustee, and in the case
of any lost, stolen or destroyed Bond, there shall be first furnished to the City and the Trustee evidence of
such loss, theft or destruction satisfactory to the Trustee, together with indemnity satisfactory to the
Trustee to save each of the City and the Trustee harmless. If any such Bond has matured, instead of
delivering a substitute Bond, the Trustee may pay the same without surrender thereof. Upon the issuance
of any substitute Bond, the City and the Trustee may require the payment of an amount sufficient to
reimburse the City and the Trustee for any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable fees and expenses incurred in connection therewith.
Section 211. Cancellation and Destruction of Bonds Upon Payment.
(a) All Bonds which have been paid or redeemed or which the Trustee has purchased or
which have otherwise been surrendered to the Trustee under this Indenture, either at or before maturity
shall be cancelled by the Trustee immediately upon the payment, redemption or purchase of such Bonds
and the surrender thereof to the Trustee.
(b) All Bonds cancelled under any of the provisions of this Indenture shall be destroyed by
the Trustee. The Trustee shall execute a certificate describing the Bonds so destroyed, and shall file
executed counterparts of such certificate with the City and the Company.
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds.
(a) The Bonds are subject to redemption and payment at any time before the stated maturity
thereof, at the option of the City, upon written instructions from the Company, (I) in whole, if the
Company exercises its option to purchase the Project and deposits an amount sufficient to effect such
purchase pursuant to the Lease on the applicable redemption date, or (2) in part, if the Company prepays
additional Basic Rent pursuant to the Lease. If only a portion of the Bonds are to be redeemed, (I) Bonds
aggregating 1 Oo/o of the maximum aggregate principal amount of Bonds authorized hereunder shall not be
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subject to redemption and payment before the stated maturity thereof, and (2) the Trustee shall keep a
record of the amount of Bonds to remain outstanding following such redemption. Any redemption of
Bonds pursuant to this paragraph shall be at a redemption price equal to the par value thereof being
redeemed, plus accrued interest thereon, without premium or penalty, to the redemption date.
(b) The Bonds are subject to mandatory redemption, in whole or in part, to the extent of
amounts deposited in the Bond Fund pursuant to Sections 9.l(d) or 9.2(c) of the Lease, in the event of
substantial damage to or destruction or condemnation of substantially all of the Project. Bonds to be
redeemed pursuant to this paragraph shall be called for redemption by the Trustee on the earliest
practicable date for which timely notice of redemption may be given as provided hereunder. Any
redemption of Bonds pursuant to this paragraph shall be at a redemption price equal to the par value
thereof being redeemed, plus accrued interest thereon, without premium or penalty, to the redemption
date. Before giving notice of redemption to the Owners pursuant to this paragraph (b), money in an
amount equal to the redemption price shall have been deposited in the Bond Fund.
(c) At its option, the Company, in its capacity as Owner of the Bonds, may deliver to the
Trustee for cancellation any Bonds owned by the Company and not previously paid, and the Company, in
its capacity as lessee under the Lease, shall receive a credit against the amounts payable by the Company
for the redemption of such Bonds in an amount equal to the principal amount of the Bonds so tendered for
cancellation, plus accrued interest.
Section 302. Effect of Call for Redemption. Before or on the date fixed for redemption,
funds, Government Securities, or a combination thereof, shall be placed with the Trustee which are
sufficient to pay the Bonds called for redemption and accrued interest thereon, if any, to the redemption
date. Upon the happening of the above conditions and appropriate written notice having been given, the
Bonds or the portions of the principal amount of Bonds thus called for redemption shall cease to bear
interest on the specified redemption date, and shall no longer be entitled to the protection, benefit or
security of this Indenture and shall not be deemed to be Outstanding under the provisions of this
Indenture. If the Bonds are fully redeemed before maturity and an amount of money equal to the
Trustee's and the Paying Agent's agreed to fees and expenses hereunder accrued and to accrue in
connection with such redemption is paid or provided for, the City shall, at the Company's direction,
deliver to the Company the items described in Section 11.2 of the Lease.
Section 303. Notice of Redemption. If the Bonds are to be called for redemption as provided
in Section 30l(a) hereof, the Company shall deliver written notice to the City and the Trustee that it has
elected to direct the City to redeem all or a portion of the Bonds at least 40 days ( 1 0 days if the Company
is the Owner) prior to the scheduled redemption date. The Trustee shall then deliver written notice to the
Owners at least 30 days (five days if the Company is the Owner) prior to the scheduled redemption date
by facsimile and by first-class mail stating the date upon which the Bonds will be redeemed and paid,
unless such notice period is waived by the Owners in writing.
ARTICLE IV
FORM OF BONDS
Section 401. Form Generally. The Bonds and the Trustee's Certificate of Authentication to
be endorsed thereon shall be issued in substantially the forms set forth in Exhibit D. The Bonds may
have endorsed thereon such legends or text as may be necessary or appropriate to confonn to any
applicable rules and regulations of any governmental authority or any custom, usage or requirements of
law with respect thereto.
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ARTICLE V
CUSTODY AND APPLICATION OF BOND PROCEEDS
Section 501. Creation of Funds. There are hereby created and ordered to be established in
the custody of the Trustee the following separate special trust funds in the name of the City:
(a) "City of Jefferson, Missouri, Project Fund-Axium Plastics, LLC" (herein called
the "Project Fund") and within such fund two separate and segregated trust accounts designated
as the "Series 2017 A Project Account" and the "Series 2017B Project Account"; and
(b) "City of Jefferson, Missouri, Costs of Issuance Fund -Axium Plastics, LLC"
(herein called the "Costs of Issuance Fund")
Section 502. Deposits into the Project Fund. The proceeds of the sale of the Series 2017 A
Bonds and Series 20 17B Bonds (whether actually paid or deemed paid under Section 208(d) and (e)
hereof), including Additional Payments provided for in the applicable Bond Purchase Agreements, when
received, excluding such amounts required to be paid into the Bond Fund pursuant to Section 602 hereof,
shall be deposited by the Trustee into the Series 20 17 A Project Account or Series 20 17B Project Account,
as applicable, within the Project Fund. Any money received by the Trustee from any other source for the
purpose of purchasing, constructing and installing the Project shall pursuant to any directions from the
Person depositing such moneys also be deposited into the applicable subaccount of the Project Fund.
Section 503. Disbursements from the Project Fund.
(a) The moneys in the Series 2017 A Project Account shall be disbursed by the Trustee for
the payment of, or reimbursement to the Company (or any other party that has made payment on behalf of
the Company) for payment of, Project Costs relating to the Project Site and Project Improvements upon
receipt of requisition certificates signed by the Company in accordance with the provisions of Article IV
of the Lease. The Trustee hereby covenants and agrees to disburse such moneys in accordance with such
provisions.
(b) If, pursuant to Section 208(d), the Trustee is deemed to have deposited into the Series
2017 A Project Account the amount specified in the requisition certificates submitted by the Company, the
Trustee shall upon endorsement of the Series 20 17 A Bonds in an equal amount be deemed to have
disbursed such funds from the Series 2017 A Project Account to the Company (or such other purchaser
designated by the Company) in satisfaction of the requisition certificate.
(c) The moneys in the Series 20 17B Project Account shall be disbursed by the Trustee for
the payment of, or reimbursement to the Company (or any other party that has made payment on behalf of
the Company) for payment of, Project Costs relating to the Project Equipment upon receipt of requisition
certificates signed by the Company in accordance with the provisions of Article IV of the Lease. The
Trustee hereby covenants and agrees to disburse such moneys in accordance with such provisions.
(d) If, pursuant to Section 208(d), the Trustee is deemed to have deposited into the Series
20 17B Project Account the amount specified in the requisition certificates submitted by the Company, the
Trustee shall upon endorsement of the Series 20 17B Bonds in an equal amount be deemed to have
disbursed such funds from the Series 2017B Project Account to the Company (or such other purchaser
designated by the Company) in satisfaction of the requisition certificate.
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(e) In paying any requisition under this Section, the Trustee may rely as to the completeness
and accuracy of all statements in such requisition certificate if such requisition certificate is signed by the
Authorized Company Representative. If the City so requests in writing, a copy of each requisition
certificate submitted to the Trustee for payment under this Section shall be promptly provided by the
Trustee to the City. The City hereby authorizes and directs the Trustee to make disbursements in the
manner and as provided for by the aforesaid provisions of the Lease.
Section 504. Completion of the Project. The completion of the Project and payment of all
costs and expenses incident thereto shall be evidenced by the filing with the Trustee of the certificate
required by the provisions of Section 4.5 of the Lease. As soon as practicable any balance remaining in the
Project Fund shall without further authorization be transferred to and deposited in the appropriate
subaccount(s) of the Bond Fund.
Section 505. Deposits into and Disbursements from the Costs of Issuance Fund. Money
deposited by the Company in the Costs of Issuance Fund shall be used solely to pay costs of issuing the
Bonds or refunded to the Company as hereinafter provided. The Trustee shall without further
authorization disburse from the Costs of Issuance Fund, to the extent available, money sufficient to pay
the amounts shown in a closing memorandum provided to the Trustee on or before the date of delivery of
the Bonds, which shall have attached thereto the statements, invoices and related items described in said
closing memorandum. The Trustee may rely conclusively on the amounts due as shown in the closing
memorandum and will not be required to make any independent inspection or investigation in connection
therewith. Any of such money not used to pay costs of issuance by March I, 2018 shall be refunded to
the Company.
Section 506. Disposition Upon Acceleration. If the principal of the Bonds has become due
and payable pursuant to Section 902 hereof, upon the date of payment by the Trustee of any moneys due
as hereinafter provided in Article IX, any balance remaining in the subaccounts within the Project Fund
shall without further authorization be deposited in the appropriate subaccounts of the Bond Fund by the
Trustee, with advice to the City and to the Company of such action.
ARTICLE VI
REVENUES AND FUNDS
Section 601. Creation of the Bond Fund. There is hereby created and ordered established in
the custody of the Trustee a special trust fund in the name of the City to be designated the "City of
Jefferson, Missouri, Bond Fund -Axium Plastics, LLC, Series 20 17" (herein called the "Bond Fund").
Within the Bond Fund, there shall be created one subaccount for each series of Bonds issued, which shall be
labeled the "Series 2017A Subaccount" and the "Series 2017B Subaccount" of the Bond Fund.
Section 602. Deposits Into the Bond Fund. The Trustee shall deposit into the Bond Fund, as
and when received, (a) all Basic Rent payable by the Company to the City specified in Section 5.1 of the
Lease; (b) any Additional Rent payable by the Company specified in Section 5.2 of the Lease; (c) any
amount in the Project Fund to be transferred to the appropriate subaccount of the Bond Fund pursuant to
Section 504 hereof upon completion of the Project or pursuant to Section 506 hereof upon acceleration of
the Series 2017 A Bonds; (d) the balance of any Net Proceeds (as defined in the Lease) of condemnation
awards or insurance received by the Trustee pursuant to Article IX of the Lease; (e) the amounts to be
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deposited in the Bond Fund pursuant to Sections 9.1(d) and 9.2(c) of the Lease; (g) all interest and other
income derived from investments of Bond Fund moneys as provided in Section 702 hereof; and (h) all
other moneys received by the Trustee under and pursuant to any of the provisions of the Lease when
accompanied by directions from the Person depositing such moneys that such moneys are to be paid into
the Bond Fund. Basic Rent payments made under Section 5.1 of the Lease shall be deposited into the
subaccount of the Bond Fund relating to the series of Bonds for which such payments are made. Other
amounts received by the Trustee for deposit into the Bond Fund shall be deposited into the appropriate
subaccount of the Bond Fund to the extent allocable to the related series of Bonds or the related portion of
the Project (with amounts allocable to the Series 2017 A Bonds and/or the Project Site or Project
Improvements being deposited in the Series 20 17 A Subaccount of the Bond Fund, amounts allocable to
the Series 20 17B Bonds and/or the Project Equipment deposited in the Series 20 17B Subaccount of the
Bond Fund); subject to the applicability of more specific direction of funds to particular subaccounts
found in the Lease.
The Trustee shall notify the Company in writing, at least 15 days prior to each date on which a
payment is due under Section 5.1 of the Lease, of the amount that is payable by the Company pursuant to
such Section.
Section 603. Application of Moneys in the Bond Fund.
(a) Except as provided in Section 605 and Section 908 hereof or in Section 4.6(a) of the
Lease, moneys in the Bond Fund shall be expended solely for the payment of the principal of and the
interest on the Bonds as the same mature and become due or upon the redemption thereof prior to
maturity; provided, however, that any amounts received by the Trustee as Additional Rent under
Section 5.2 of the Lease and deposited to the Bond Fund as provided in Section 602 above, shall be
expended by the Trustee for such items of Additional Rent as they are received or due without further
authorization from the City.
(b) The City hereby authorizes and directs the Trustee to withdraw sufficient funds from the
Bond Fund to pay the principal of and the interest on the Bonds as the same become due and payable and
to make said funds so withdrawn available to the Paying Agent for the purpose of paying said principal
and interest.
(c) Whenever the amount in the Bond Fund from any source whatsoever is sufficient to
redeem all of the Bonds Outstanding and to pay interest to accrue thereon prior to such redemption, the
City covenants and agrees, upon request of the Company, to take and cause to be taken the necessary
steps to redeem all such Bonds on the next succeeding redemption date for which the required redemption
notice may be given or on such later redemption date as may be specified by the Company. The Trustee
may use any moneys in the Bond Fund to redeem a part of the Bonds Outstanding in accordance with and
to the extent permitted by Article III hereof so long as the Company is not in default with respect to any
payments under the Lease and to the extent said moneys are in excess of the amount required for payment
of Bonds theretofore matured or called for redemption and past due interest, if any, in all cases when such
Bonds have not been presented for payment.
(d) After payment in full of the principal of and interest, if any, on the Bonds (or provision
has been made for the payment thereof as provided in this Indenture), and the reasonable fees, charges
and expenses of the Trustee, the City and any Paying Agent and any other amounts required to be paid
under this Indenture, the Lease and the Performance Agreement, all amounts remaining in the Bond Fund
shall be paid to the Company upon the expiration or sooner termination of the Lease.
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Section 604. Payments Due on Days Other Than Business Days. In any case where the
date of maturity of principal of or interest, if any, on the Bonds or the date fixed for redemption of any
Bonds is not a Business Day, then payment of principal or interest, if any, need not be made on such date
but may be made on the next succeeding Business Day with the same force and effect as if made on the
date of maturity or the date fixed for redemption, and no interest, if any, shall continue to accrue for the
period after such date.
Section 605. Nonpresentment of Bonds. If any Bond is not presented for payment when the
principal thereof becomes due, either at maturity or otherwise, or at the date fixed for redemption thereof,
if funds sufficient to pay such Bond shall have been made available to the Trustee, all liability of the City
to the Owner thereof for the payment of such Bond shall forthwith cease, detennine and be completely
discharged, and thereupon it shall be the duty of the Trustee to hold such fund or funds, without liability
for interest thereon, for the benefit of the Owner of such Bond who shall thereafter be restricted
exclusively to such fund or funds for any claim of whatever nature on his part under this Indenture or on,
or with respect to, said Bond. If any Bond is not presented for payment within one year following the
date when such Bond becomes due, whether by maturity or otherwise, the Trustee shall without liability
for interest thereon repay to the Company the funds theretofore held by it for payment of such Bond, and
such Bond shall, subject to the defense of any applicable statute of limitation, thereafter be an unsecured
obligation of the Company, and the Owner thereof shall be entitled to look only to the Company for
payment, and then only to the extent of the amount so repaid, and the Company shall not be liable for any
interest thereon and shall not be regarded as a trustee of such money.
Section 606. Repayment to the Company from the Bond Fund. After payment in full of
the principal of and interest on the Bonds (or provision has been made for the payment thereof as
provided in this Indenture), and the reasonable fees, charges and expenses of the Trustee and the City and
any other amounts required to be paid under this Indenture and the Lease, all amounts remaining in the
Bond Fund shall be paid to the Company upon the expiration or sooner tennination of the Lease.
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to be Held in Trust. All moneys deposited with or paid to the Trustee
for account of the Bond Fund or the Project Fund under any provision of this Indenture, and all moneys
deposited with or paid to any Paying Agent under any provision of this Indenture, shall be held by the
Trustee or Paying Agent in trust and shall be applied only in accordance with the provisions of this
Indenture and the Lease, and, until used or applied as herein provided, shall constitute part of the Trust
Estate and be subject to the lien hereof. Neither the Trustee nor any Paying Agent shall be under any
liability for interest on any moneys received hereunder except such as may be agreed upon in writing.
Section 702. Investment of Moneys in Project Fund and Bond Fund. Moneys held in the
Project Fund, Costs of Issuance Fund, and the Bond Fund shall, pursuant to written direction of the
Company, signed by the Authorized Company Representative, be separately invested and reinvested by
the Trustee in Investment Securities which mature or are subject to redemption by the owner thereof prior
to the date such funds will be needed; provided, however, in the absence of written directions from the
Company, the Trustee shall hold such funds uninvested in cash until the Trustee receives written directions
regarding investment. The Trustee shall promptly give written notice to the Company that any fund or
account hereunder is uninvested; provided, that the Trustee shall not be liable for losses resulting from
failure to promptly give such written notice. The Trustee is specifically authorized to implement its
automated cash investment system to assure that cash on hand is invested and to charge its nonnal cash
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management fees and cash sweep account fees, which may be deducted from income earned on
investments; provided that any such fees shall not exceed the interest income on the investment. Any
such Investment Securities shall be held by or under the control of the Trustee and shall be deemed at all
times a part of the fund in which such moneys are originally held, and the interest accruing thereon and
any profit realized from such Investment Securities shall be credited to such fund, and any loss resulting
from such Investment Securities shall be charged to such fund. After the Trustee has notice pursuant to
Section 1001(h) hereof of the existence of an Event of Default, the Trustee shall direct the investment of
moneys in the Bond Fund and the Project Fund. The Trustee shall sell and reduce to cash a sufficient
amount of such Investment Securities whenever the cash balance in any Fund is insufficient for the
purposes of such Fund. In determining the balance in any Fund, investments in such Fund shall be valued
at the lower of their original cost or their fair market value as of the most recent Payment Date. The
Trustee may make any and all investments permitted by the provisions of this Section through its own
bond department or any affiliate or short-term investment department. The Trustee may rely on the
investment directions of the Authorized Company Representative as to both the suitability and legality of
the directed investments. The Company and the City acknowledge that regulations of the Comptroller of
the Currency grant them the right to receive brokerage confirmations of security transactions as they
occur. The Company and the City specifically waive such notification to the extent permitted by law and
acknowledge that they will receive periodic transaction statements as provided in Section 1012, which
will detail all investment transactions.
Section 703. Record Keeping. The Trustee shall maintain records designed to show
compliance with the provisions of this Article and with the provisions of Article VI hereof for at least six
years after the payment of all of the Outstanding Bonds.
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal and Interest. The City covenants and agrees that it will,
but solely from the rents, revenues and receipts derived from the Project and the Lease as described
herein, deposit or cause to be deposited in the Bond Fund sufficient sums payable under the Lease
promptly to meet and pay the principal of and the interest on the Bonds as they become due and payable
at the place, on the dates and in the manner provided herein and in the Bonds according to the true intent
and meaning thereof. Nothing herein shall be construed as requiring the City to operate the Project as a
business other than as lessor or to use any funds or revenues from any source other than funds and
revenues derived from the Project.
Section 802. Authority to Execute Indenture and Issue Bonds. The City covenants that it is
duly authorized under the Constitution and laws of the State to execute this Indenture, to issue the Bonds
and to pledge and assign the Trust Estate in the manner and to the extent herein set forth; that all action on
its part for the execution and delivery of this Indenture and the issuance of the Bonds has been duly and
effectively taken; that the Bonds in the hands of the Owners thereof are and will be valid and enforceable
obligations of the City according to the import thereof.
Section 803. Performance of Covenants. The City covenants that it will faithfully perform at
all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in
the Bonds and in all proceedings of its governing body pertaining thereto. The Trustee may take such
action as it deems appropriate to enforce all such covenants, undertakings, stipulations and provisions of
the City hereunder.
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Section 804. Instruments of Further Assurance. The City covenants that it will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such Supplemental
Indentures and such further acts, instruments, financing statements and other documents as the Trustee
may reasonably require for the better pledging and assigning unto the Trustee the property and revenues
herein described to the payment of the principal of and interest, if any, on the Bonds. The City covenants
and agrees that, except as herein and in the Lease provided, it will not sell, convey, mortgage, encumber
or otherwise dispose of any part of the Project or the rents, revenues and receipts derived therefrom or
from the Lease, or of its rights under the Lease.
Section 805. Recordings and Filings. The City shall file or cause to be kept and filed all
financing statements, and hereby authorizes the Trustee to file or cause to be kept and filed continuation
statements with respect to such originally filed financing statements related to this Indenture and all
supplements hereto and such other document~ as may be required under the Uniform Commercial Code in
Ordinance to fully preserve and protect the security of the Owners and the rights of the Trustee hereunder.
The City will cooperate in causing this Indenture and all Supplemental Indentures, the Lease and all
Supplemental Leases and all other security instruments to be recorded and filed in such manner and in
such places as may be required by law in Ordinance to fully preserve and protect the security of the
Owners and the rights of the Trustee hereunder.
It being understood that the Trustee shall not be responsible for the sufficiency or accuracy of any
financing statements initially filed to perfect security interests granted under this Indenture. The Trustee
shall file continuation statements with respect to each Uniform Commercial Code financing statement
relating to the trust funds filed at the time of the issuance of the Bonds; provided that a copy of the filed
initial financing statement is timely delivered to the Trustee. In addition, unless the Trustee shall have
been notified in writing by the Company that any such initial filing or description of collateral was or has
become defective, the Trustee shall be fully protected in (a) relying on such initial filing and descriptions
in filing any financing or continuation statements or modifications thereto pursuant to this Section, and
(b) filing any continuation statements in the same filing offices as the initial filings were made.
Section 806. Inspection of Project Books. The City covenants and agrees that all books and
documents in its possession relating to the Project and the rents, revenues and receipts derived from the
Project shall at all times be open to inspection by such accountants or other agencies as the Trustee may
from time to time designate.
Section 807. Enforcement of Rights Under the Lease. The City covenants and agrees that it
will enforce all of its rights and all of the obligations of the Company (at the expense of the Company)
under the Lease to the extent necessary to preserve the Project in good repair and reasonably safe
operating condition, and to protect the rights of the Trustee and the Owners hereunder with respect to the
pledge and assignment of the rents, revenues and receipts coming due under the Lease; provided that, the
City and the Trustee, as its assignee, shall refrain from enforcing any such right or obligation (except for
the rights of the City or the Trustee to receive payments owing to either of them for their own account
under the Indenture, the Lease, the Performance Agreement or any other agreement related to the Bonds
or for their rights of indemnification or to be protected from liabilities by insurance policies required by
the Lease) if so directed in writing by the Owners of 1 00% of the Outstanding Bonds. The City agrees
that the Trustee, as assignee of the rentals and other amounts to be received by the City and paid by the
Company under the Lease, or in its name or in the name of the City, may enforce all rights of the City to
receive such rentals and other amounts and all obligations of the Company to pay such rentals and other
amounts under and pursuant to the Lease for and on behalf of the Owners, whether or not the City is in
default hereunder. So long as not otherwise provided in this Indenture, the Company shall be permitted to
possess, use and enjoy the Project and appurtenances so as to carry out its obligations under the Lease.
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ARTICLE IX
DEFAULT AND REMEDIES
Section 901. Events of Default; Notice; Opportunity to Cure. If any of the following
events occur, it is hereby defined as and declared to be and to constitute an "Event of Default":
(a) Default in the due and punctual payment of the principal on any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for redemption thereof;
(b) Default in the due and punctual payment of the interest on any Bond, whether at
the stated maturity or accelerated maturity thereof, or at any date fixed for redemption thereof; or
(c) Default as specified in Section 12.1 of the Lease shall have occurred.
No default specified above shall constitute an Event of Default until actual notice of such default
by registered or certified mail has been given by the City, the Company, the Trustee or by the Owners of
25% in aggregate principal amount of all Bonds Outstanding to the Company or the City (as the case may
be), and the Company or the City (as the case may be) has had 30 days after receipt of such notice to
correct said default or cause said default to be corrected and has not corrected said default or caused said
default to be corrected within such period; provided, however, if any such default (other than a default in
the payment of any money) is 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 or the City (as the case may be) within
such period and diligently pursued until the default is corrected.
Section 902. Acceleration of Maturity in Event of Default; Rescission. If an Event of
Default has occurred and is continuing after the notice and cure period described in Section 901 elapses,
the Trustee may, and upon the written request of the Owners of not less than 25% in aggregate principal
amount of Bonds then Outstanding, shall, by notice in writing delivered to the City and the Company,
declare the principal of all Bonds then Outstanding and the interest accrued thereon immediately due and
payable, and such principal and interest shall thereupon become and be immediately due and payable. At
any time after such a declaration of acceleration has been made, but before any judgment or decree for
payment of money due on any Bonds has been obtained by the Trustee as provided in this Article, the
owners of a majority in principal amount of the Bonds Outstanding may, by written notice to the
Company and Trustee but with the written consent of the City, rescind and annul such declaration and its
consequences if: (a) there is deposited with the Trustee a sum sufficient to pay: ( l) all overdue
installments of interest on all Bonds; (2) the principal of (and premium, if any, on) any Bonds which have
become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Bonds; and (3) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and (b) all events of default, other than the non-payment of the principal of Bonds which have become
due solely by such declaration of acceleration, have been cured or have been waived as provided in
Section 910 of this Indenture.
Section 903. Surrender of Possession of Trust Estate; Rights and Duties of Trustee in
Possession. If an Event of Default has occurred and is continuing, the City, upon demand of the Trustee,
shall forthwith surrender the possession of, and it shall be lawful for the Trustee, by such officer or agent
as it may appoint, to take possession of all or any part of the Trust Estate, together with the books, papers
and accounts of the City pertaining thereto, and including the rights and the position of the City under the
Lease, and to hold, operate and manage the same, and from time to time make all needful repairs and
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improvements. The Trustee may lease the Project or any part thereof, in the name and for account of the
City, and collect, receive and sequester the rents, revenues and receipts therefrom, and out of the same
and any moneys received from any receiver of any part thereof pay, and set up proper reserves for the
payment of all proper costs and expenses of so taking, holding and managing the same, including without
limitation (a) reasonable compensation to the Trustee, its agents and counsel, (b) any reasonable charges
of the Trustee hereunder, (c) any taxes and assessments and other charges prior to the lien of this
Indenture, (d) all expenses of such repairs and improvements, and (e) any amounts payable under the
Performance Agreement. The Trustee shall apply the remainder of the moneys so received in accordance
with the provisions of Section 908 hereof. Whenever all that is due upon the Bonds has been paid and all
defaults cured, the Trustee shall surrender possession of the Trust Estate to the City, its successors or
assigns, the same right of entry, however, to exist upon any subsequent Event of Default. While in
possession of such property, the Trustee shall render annually to the City and the Company a summarized
statement of receipts and expenditures in connection therewith.
Section 904. Appointment of Receivers in Event of Default. If an Event of Default has
occurred and is continuing, and upon the filing of a suit or other commencement of judicial proceedings
to enforce the rights of the Trustee and of the Owners under this Indenture, the Trustee shall be entitled,
as a matter of right, to the appointment of a receiver or receivers of the Trust Estate or any part thereof,
pending such proceedings, with such powers as the court making such appointment shall confer.
Section 905. Exercise of Remedies by the Trustee.
(a) Upon the occurrence of an Event of Default, the Trustee may pursue any available
remedy at law or in equity by suit, action, mandamus or other proceeding to enforce the payment of the
principal of and interest on the Bonds then Outstanding and all other amounts due hereunder, and to
enforce and compel the performance of the duties and obligations of the City or the Company as herein
set forth or as set forth in the Lease, respectively.
(b) If an Event of Default has occurred and is continuing after the notice and cure period
described in Section 901 elapses, and if requested to do so by (I) the City (in the case of an Event of
Default pursuant to Section 12.1(b), (c), (d), (e) or (f) of the Lease), or (2) the Owners of 25% in
aggregate principal amount of Bonds then Outstanding and indemnified as provided in subsection (I) of
Section 1001 hereof, the Trustee shall be obligated to exercise such one or more of the rights and powers
conferred by this Article as the Trustee, being advised by counsel, shall deem most expedient and in the
interests of the City or the Owners, as the case may be.
(c) All rights of action under this Indenture or under any of the Bonds may be enforced by
the Trustee without the possession of any of the Bonds or the production thereof in any trial or other
proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be brought in
its name as Trustee without necessity of joining as plaintiffs or defendants any Owners, and any recovery
of judgment shall, subject to the provisions of Section 908 hereof, be for the equal benefit of all the
Owners of the Outstanding Bonds.
Section 906. Limitation on Exercise of Remedies by Owners. No Owner shall have any
right to institute any suit, action or proceeding in equity or at law for the enforcement of this Indenture or
for the execution of any trust hereunder or for the appointment of a receiver or any other remedy
hereunder, unless (a) a default has occurred of which the Trustee has been notified as provided in
Section 100l(h) or of which by said subsection the Trustee is deemed to have notice, (b) such default has
become an Event of Default, (c) the Owners of 25% in aggregate principal amount of Bonds then
Outstanding have made written request to the Trustee, have offered it reasonable opportunity either to
proceed for such reasonable period not to exceed 60 days following such notice and to exercise the
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powers hereinbefore granted or to institute such action, suit or proceeding in its own name, and have
offered to the Trustee indemnity as provided in Section 1001(1), and (d) the Trustee thereafter fails or
refuses to exercise the powers herein granted or to institute such action, suit or proceeding in its own
name; such notification, request and offer of indemnity are hereby declared in every case, at the option of
the Trustee, to be conditions precedent to the execution of the powers and trusts of this Indenture, and to
any action or cause of action for the enforcement of this Indenture, or for the appointment of a receiver or
for any other remedy hereunder it being understood and intended that no one or more Owners shall have
any right in any manner whatsoever to affect, disturb or prejudice this Indenture by their action or to
enforce any right hereunder except in the manner herein provided, and that all proceedings at law or
equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of
the Owners of all Bonds then Outstanding. Nothing in this Indenture contained shall, however, affect or
impair the right of any Owner to payment of the principal of and interest on any Bond at and after the
maturity thereof or the obligation of the City to pay the principal of and interest on each of the Bonds
issued hereunder to the respective Owners thereof at the time, place, from the source and in the manner
herein and in the Bonds expressed.
Section 907. Right of Owners to Direct Proceedings.
(a) The Owners of a majority in aggregate principal amount of Bonds then Outstanding shall
have the right, at any time, by an instrument or instruments in writing executed and delivered to the
Trustee, to direct the time, method and place of conducting all proceedings to be taken in connection with
the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any
other proceedings hereunder; provided that such direction shall not be otherwise than in accordance with
the provisions of law and of this Indenture, including Section 1001(1) hereof.
(b) Notwithstanding any provision in this Indenture to the contrary, including paragraph (a)
of this Section, the Owners shall not have the right to control or direct any remedies hereunder upon an
Event of Default under Section 12.1(b), (c), (d), (e) or (t) of the Lease.
Section 908. Application of Moneys in Event of Default.
(a) All moneys received by the Trustee pursuant to any right given or action taken under the
provisions of this Article shall, after payment of any obligations outstanding under the Performance
Agreement, of the cost and expenses of the proceedings resulting in the collection of such moneys and of
the reasonable fees, expenses, liabilities and advances incurred or made by the Trustee (including any
reasonable attorneys' fees and expenses) or amounts to be paid pursuant to Section 903 hereof, be
deposited in the Bond Fund and all moneys so deposited in the Bond Fund shall be applied as follows:
(I) Unless the principal of all the Bonds shall have become or shall have been
declared due and payable, all such moneys shall be applied:
FIRST --To the payment to the Persons entitled thereto of all installments of
interest, if any, then due and payable on the Bonds, in the Ordinance in which such
installments of interest became due and payable, and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the payment ratably, according
to the amounts due on such installment, to the Persons entitled thereto, without any
discrimination or privilege;
SECOND --To the payment to the Persons entitled thereof of the unpaid
principal of any of the Bonds which shall have become due and payable (other than
Bonds called for redemption for the payment of which moneys are held pursuant to the
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provisions of this Indenture), in the Ordinance of their due dates, and, if the amount
available shall not be sufficient to pay in full Bonds due on any particular date, together
with such interest, then to the payment, ratably, according to the amount of principal due
on such date, to the Persons entitled thereto without any discrimination or privilege.
(2) If the principal of all the Bonds shall have become due or shall have been
declared due and payable, all such moneys shall be applied to the payment of the principal and
interest, if any, then due and unpaid on all of the Bonds, without preference or priority of
principal over interest or of interest over principal or of any installment of interest over any other
installment of interest or of any Bond over any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the Person entitled thereto, without any discrimination
or privilege.
(3) If the principal of all the Bonds shall have been declared due and payable, and if
such declaration shall thereafter have been rescinded and annulled under the provisions of
Section 910, then, subject to the provisions of subsection (2) of this Section in the event that the
principal of all the Bonds shall later become due or be declared due and payable, the moneys shall
be applied in accordance with the provisions of subsection (1) of this Section.
(b) Whenever moneys are to be applied pursuant to the provisions of this Section, such
moneys shall be applied at such times and from time to time as the Trustee shall determine, having due
regard to the amount of such moneys available and which may become available for such application in
the future. Whenever the Trustee shall apply such moneys, it shall fix the date (which shall be a Payment
Date unless it shall deem another date more suitable) upon which such application is to be made and upon
such date interest on the amounts of principal to be paid on such dates shall cease to accrue.
(c) Whenever all of the Bonds and interest thereon, if any, have been paid under the
provisions of this Section, and all reasonable fees, expenses and charges of the City and the Trustee and
any other amounts required to be paid under this Indenture and the Lease have been paid (including any
amounts payable under the Performance Agreement), any balance remaining in the Bond Fund shall be
paid to the Company as provided in Section 603 hereof.
(d) Notwithstanding anything to the contrary in this Section, no amounts deposited in a
subaccount established under this Indenture for a particular series of Bonds shall be applied to make any
payment with respect to a different series of Bonds.
Section 909. Remedies Cumulative. No remedy by the terms of this Indenture conferred
upon or reserved to the Trustee or to the Owners is intended to be exclusive of any other remedy, but each
and every such remedy shall be cumulative and shall be in addition to any other remedy given to the
Trustee or to the Owners hereunder or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right, power or remedy accruing upon any Event of Default shall impair
any such right, power or remedy or shall be construed to be a waiver of any such Event of Default or
acquiescence therein; every such right, power or remedy may be exercised from time to time and as often
as may be deemed expedient. If the Trustee has proceeded to enforce any right under this Indenture by
the appointment of a receiver, by entry, or otherwise, and such proceedings have been discontinued or
abandoned for any reason, or have been determined adversely, then and in every such case the City, the
Company, the Trustee and the Owners shall be restored to their former positions and rights hereunder, and
all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken.
Section 910. Waivers of Events of Default. The Trustee shall waive any Event of Default
hereunder and its consequences and rescind any declaration of maturity of principal of and interest, if any,
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on Bonds, and only upon the written request of the Owners of at least SOo/o in aggregate principal amount
of all the Bonds then Outstanding, provided, however, that ( 1) there shall not be waived without the
consent of the City an Event of Default hereunder arising from an Event of Default under
Section 12.1(b), (c), (d) (e) or (f) of the Lease, and (2) there shall not be waived without the consent of
the Owners of all the Bonds Outstanding (a) any Event of Default in the payment of the principal of any
Outstanding Bonds when due (whether at the date of maturity or redemption specified therein), or (b) any
Event of Default in the payment when due of the interest on any such Bonds, unless prior to such waiver
or rescission, all arrears of interest, or all arrears of payments of principal when due, as the case may be,
and all reasonable expenses of the Trustee and the City (including reasonable attorneys' fees and
expenses), in connection with such default, shall have been paid or provided for. In case of any such
waiver or rescission, or in case any proceeding taken by the Trustee on account of any such default shall
have been discontinued or abandoned or determined adversely, then and in every such case the City, the
Company, the Trustee and the Owners shall be restored to their former positions, rights and obligations
hereunder, respectively, but no such waiver or rescission shall extend to any subsequent or other default,
or impair any right consequent thereon, and all rights, remedies and powers of the Trustee shall continue
as if no such proceedings had been taken.
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts. The Trustee hereby accepts the trusts imposed upon
it by this Indenture, but only upon and subject to the following express terms and conditions, and no
implied covenants or obligations shall be read into this Indenture against the Trustee:
(a) The Trustee, prior to the occurrence of an Event of Default and after the curing or
waiver of all Events of Default that may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. If any Event of Default has
occurred and is continuing, subject to Section 1001(1) below, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill
in their exercise, as a prudent Person would exercise or use under the circumstances in the
conduct of its own affairs.
(b) The Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or through agents, affiliates, attorneys or receivers and shall not
be responsible for any misconduct or negligence on the part of any agent, attorney or receiver
appointed or chosen by it with due care. The Trustee may conclusively rely upon and act or
refrain from acting upon any opinion or advice of counsel, who may be counsel to the City or to
the Company, concerning all matters of trust hereof and the duties hereunder, and may in all cases
pay such reasonable compensation to all such agents, attorneys and receivers as may reasonably
be employed in connection with the trusts hereof. The Trustee shall not be responsible for any
loss or damage resulting from any action or inaction by it taken or omitted to be taken in good
faith in reliance upon such opinion or advice of counsel addressed to the City and the Trustee.
(c) The Trustee shall not be responsible for any recital herein or in the Bonds (except
with respect to the Certificate of Authentication of the Trustee endorsed on the Bonds), or except
as provided in the Lease and particularly Section 10.8 thereof, for the recording or rerecording,
filing or refiling of this Indenture or any security agreement in connection therewith (excluding
the continuation of Uniform Commercial Code financing statements), or for insuring the Project
or collecting any insurance moneys, or for the validity of the execution by the City of this
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Indenture or of any Supplemental Indentures or instruments of further assurance, or for the
sufficiency of the security of the Bonds. The Trustee shall not be responsible or liable for any
loss suffered in connection with any investment of funds made by it in accordance with
Article VII hereof.
(d) The Trustee shall not be accountable for the use of any Bonds authenticated and
delivered hereunder. The Trustee, in its individual or any other capacity, may become the Owner
or pledgee of Bonds with the same rights that it would have if it were not Trustee. The Trustee
shall not be accountable for the use or application by the City or the Company of the proceeds of
any of the Bonds or of any money paid to or upon the Ordinance of the City or Company under
any provision of this Indenture.
(e) The Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, Ordinance, affidavit, letter, telegram or other paper or document provided for under this
Indenture believed by it to be genuine and correct and to have been signed, presented or sent by
the proper Person or Persons. Any action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of any Person who, at the time of making such request or giving
such authority or consent is an Owner, shall be conclusive and binding upon all future Owners of
the same Bond and upon Bonds issued in exchange therefor or upon transfer or in place thereof.
(f) As to the existence or nonexistence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, or whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee shall be entitled to rely upon a certificate signed by the
Authorized City Representative or an Authorized Company Representative as sufficient evidence
of the facts therein contained, and prior to the occurrence of a default of which the Trustee has
been notified as provided in subsection (h) of this Section or of which by said subsection it is
deemed to have notice, the Trustee shall also be at liberty to accept a similar certificate to the
effect that any particular dealing, transaction or action is necessary or expedient, but may at its
discretion secure such further evidence deemed necessary or advisable, but shall in no case be
bound to secure the same.
(g) The permissive right of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty, and the Trustee shall not be answerable for other than its
negligence or willful misconduct.
(h) The Trustee shall not be required to take notice or be deemed to have notice of
any default hereunder except failure by the City to cause to be made any of the payments to the
Trustee required to be made in Article VI hereof, unless the Trustee is specifically notified in
writing of such default by the City or by the Owners of at least 25% in aggregate principal
amount of all Bonds then Outstanding.
(i) At any and all reasonable times and subject to the Company's reasonable and
standard security procedures, the Trustee and its duly authorized agents, attorneys, experts,
engineers, accountants and representatives shall have the right, but shall not be required, to
inspect any and all of the Project, and all books, papers and records of the City pertaining to the
Project and the Bonds, and to take such memoranda from and in regard thereto as may be desired.
The Trustee shall treat all proprietary information of the Company as confidential.
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U) The Trustee shall not be required to give any bond or surety in respect to the
execution of its trusts and powers hereunder or otherwise in respect of the Project.
(k) The Trustee shall have the right, but shall not be required, to demand, in respect
of the authentication of any Bonds, the withdrawal of any cash, the release of any property, or any
action whatsoever within the purview of this Indenture, any showings, certificates, opinions,
appraisals or other information, or corporate action or evidence thereof, in addition to that by the
terms hereof required, as a condition of such action by the Trustee deemed desirable for the
purpose of establishing the right of the City to the authentication of any Bonds, the withdrawal of
any cash, or the taking of any other action by the Trustee.
(I) Notwithstanding anything in the Indenture or the Lease to the contrary, before
taking any action under this Indenture other than the payments from moneys on deposit in the
Project Fund or the Bond Fund, as provided herein, the Trustee may require that satisfactory
indemnity be furnished to it for the reimbursement of all costs and expenses to which it may be
put and to protect it against all liability which it may incur in or by reason of such action, except
liability which is adjudicated to have resulted from its negligence or willful misconduct by reason
of any action so taken.
(m) Notwithstanding any other prov1s1on of this Indenture to the contrary, any
provision relating to the conduct of, intended to provide authority to act, right to payment of fees
and expenses, protection, immunity and indemnification to the Trustee, shall be interpreted to
include any action of the Trustee, whether it is deemed to be in its capacity as Trustee, bond
registrar or Paying Agent.
(n) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of its duties hereunder.
Section 1002. Fees, Charges and Expenses of the Trustee. The Trustee shall be entitled to
payment of and/or reimbursement for reasonable fees for its ordinary services rendered hereunder (which
compensation shall not be limited by a provision of law in regard to compensation of a trustee of an
express trust) and all advances, agent and counsel fees and other ordinary expenses reasonably made or
incurred by the Trustee in connection with such ordinary services. If it becomes necessary for the Trustee
to perform extraordinary services, it shall be entitled to reasonable extra compensation therefor and to
reimbursement for reasonable extraordinary expenses in connection therewith; provided that if such
extraordinary services or extraordinary expenses are occasioned by the neglect or willful misconduct of
the Trustee, it shall not be entitled to compensation or reimbursement therefor. The Trustee shall be
entitled to payment and reimbursement for the fees and charges of the Trustee as Paying Agent for the
Bonds. Pursuant to the provisions of Section 5.2 of the Lease, the Company has agreed to pay to the
Trustee all reasonable fees, charges and expenses of the Trustee under this Indenture. The Trustee agrees
that the City shall have no liability for any reasonable fees, charges and expenses of the Trustee, and the
Trustee agrees to look only to the Company for the payment of all reasonable fees, charges and expenses
of the Trustee and any Paying Agent as provided in the Lease. Upon the occurrence of an Event of
Default and during its continuance, the Trustee shall have a lien with right of payment prior to payment
on account of principal of or interest on any Bond, upon all moneys in its possession under any provisions
hereof for the foregoing reasonable advances, fees, costs and expenses incurred.
Section 1003. Notice to Owners if Default Occurs. If a default occurs of which the Trustee is
by Section lOOl(h) hereof required to take notice or if notice of default is given as in said subsection (h)
provided, then the Trustee shall give written notice thereof to the last known Owners of all Bonds then
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Outstanding as shown by the bond registration books required by Section 206 to be kept at the corporate
trust office of the Trustee.
Section 1004. Intervention by the Trustee. In any judicial proceeding to which the City is a
party and which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of
Owners, the Trustee may intervene on behalf of Owners and, subject to the provisions of Section 1001(1)
hereof, shall do so if requested in writing by the Owners of at least 25% of the aggregate principal amount
of Bonds then Outstanding.
Section 1005. Successor Trustee Upon Merger, Consolidation or Sale. Any corporation or
association into which the Trustee may be merged or converted or with or into which it may be
consolidated, or to which it may sell or transfer its corporate trust business and assets as a whole or
substantially as a whole, or any limited liability company or association resulting from any merger,
conversion, sale, consolidation or transfer to which it is a party, shall be and become successor Trustee
hereunder and shall be vested with all the trusts, powers, rights, obligations, duties, remedies, immunities
and privileges hereunder as was its predecessor, without the execution or filing of any instrument or any
further act on the part of any of the parties hereto.
Section 1006. Resignation of Trustee. The Trustee and any successor Trustee may at any time
resign from the trusts hereby created by giving 30 days' written notice to the City, the Company and the
Owners, and such resignation shall take effect at the end of such 30 days, or upon the earlier appointment
of a successor Trustee by the Owners or by the City, but in any event not before a successor Trustee has
been appointed and accepted its duties hereunder.
Section 1007. Removal of Trustee. The Trustee may be removed at any time, with or without
cause, by an instrument or concurrent instruments in writing (a) delivered to the Trustee, the City and the
Company and signed by the Owners of a majority in aggregate principal amount of Bonds then
Outstanding, or (b) so long as no Event of Default under this Indenture or the Lease shall have occurred
and be continuing, delivered to the Trustee, the City and the Owners and signed by the Company.
Section 1008. Appointment of Successor Trustee. If the Trustee hereunder resigns or is
removed, or otherwise becomes incapable of acting hereunder, or if it is taken under the control of any
public officer or officers or of a receiver appointed by a court, a successor Trustee (a) reasonably
acceptable to the City may be appointed by the Company (so long as no Event of Default has occurred
and is continuing), or (b) reasonably acceptable to the City and the Company may be appointed by the
Owners of a majority in aggregate principal amount of Bonds then Outstanding, by an instrument or
concurrent instruments in writing; provided, nevertheless, that in case of such vacancy, the City, by an
instrument executed and signed by its Mayor and attested by its City Clerk under its seal, may appoint a
temporary Trustee to fill such vacancy until a successor Trustee shall be appointed in the manner above
provided. Any such temporary Trustee so appointed by the City shall immediately and without further
acts be superseded by the successor Trustee so appointed as provided above. Every such Trustee
appointed pursuant to the provisions of this Section shall be a trust company or bank in good standing and
qualified to accept such trust having, or whose obligations are guaranteed by a financial institution
having, a reported capital, surplus and undivided profits of not less than $50,000,000. If no successor
Trustee has been so appointed and accepted appointment in the manner herein provided within 30 days of
any resignation or removal, the Trustee or any Owner may petition any court of competent jurisdiction for
the appointment of a successor Trustee, until a successor shall have been appointed as above provided.
Section 1009. Vesting of Trusts in Successor Trustee. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor and also to the City and the Company
an instrument in writing accepting such appointment hereunder, and thereupon such successor shall,
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without any further act, deed or conveyance, become fully vested with all the trusts, powers, rights,
obligations, duties, remedies, immunities and privileges of its predecessor and the duties and obligations
of such predecessor hereunder shall thereafter cease and tenninate; but such predecessor shall,
nevertheless, on the written request of the City, and upon approval by the City of the records and accounts
of the predecessor Trustee, a release of the predecessor Trustee by the City, and payment of the
reasonable fees and expenses of the predecessor Trustee, execute and deliver an instrument transferring to
such successor Trustee all the trusts, powers, rights, obligations, duties, remedies, immunities and
privileges of such predecessor hereunder; every predecessor Trustee shall deliver all securities and
moneys held by it as Trustee hereunder to its successor. Should any instrument in writing from the City
be required by any predecessor or successor Trustee for more fully and certainly vesting in such successor
the trusts, powers, rights, obligations, duties, remedies, immunities and privileges hereby vested in the
predecessor, any and all such instruments in writing shall, on request, be executed, acknowledged and
delivered by the City.
Section 1010. Right of Trustee to Pay Taxes and Other Charges. If any tax, assessment or
governmental or other charge upon, or insurance premium with respect to, any part of the Project is not
paid as required herein or in the Lease, the Trustee may pay such tax, assessment or governmental charge
or insurance premium, without prejudice, however, to any rights of the Trustee or the Owners hereunder
arising in consequence of such failure; any amount at any time so paid under this Section, with interest
thereon from the date of payment at the rate of 10% per annum, shall become an additional obligation
secured by this Indenture, and the same shall be given a preference in payment over any payment of
principal of or interest on the Bonds, and shall be paid out of the proceeds of rents, revenues and receipts
collected from the Project, if not otherwise caused to be paid; but the Trustee shall be under no obligation
to make any such payment unless it shall have been requested to do so by the Owners of at least 25% of
the aggregate principal amount of Bonds then Outstanding and shall have been provided adequate funds
for the purpose of such payment.
Section 1011. Trust Estate May be Vested in Co-Trustee.
(a) It is the purpose of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the State of Missouri) denying or restricting the right of banking
limited liability companys or associations to transact business as trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture or the Lease, and in particular in case of the
enforcement of either on default or in case the Trustee deems that by reason of any present or future law
of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Trustee,
or take any other action which may be desirable or necessary in connection therewith, it may be necessary
or desirable that the Trustee appoint an additional individual or institution as a co-trustee or separate
trustee, and the Trustee is hereby authorized to appoint such co-trustee or separate trustee. Such co-
trustee or separate trustee must be approved by the Company so long as the Company is not in default
under the Lease.
(b) If the Trustee appoints an additional individual or institution as a co-trustee or separate
trustee (which appointment shall be subject to the approval of the Company), each and every remedy,
power, right, claim, demand, cause of action, immunity, title, interest and lien expressed or intended by
this Indenture to be exercised by the Trustee with respect thereto shall be exercisable by such co-trustee
or separate trustee but only to the extent necessary to enable such co-trustee or separate trustee to exercise
such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by
such co-trustee or separate trustee shall run to and be enforceable by either of them.
(c) Should any deed, conveyance or instrument in writing from the City be required by the
co-trustee or separate trustee so appointed by the Trustee for more fully and certainly vesting in and
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confirming to such co-trustee such properties, rights, powers, trusts, duties and obligations, any and all
such deeds, conveyances and instruments in writing shall, on request, be executed, acknowledged and
delivered by the City.
(d) If any co-trustee or separate trustee shall die, become incapable of acting, resign or be
removed, all the properties, rights, powers, trusts, duties and obligations of such co-trustee or separate
trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a
successor to such co-trustee or separate trustee.
Section 1012. Accounting. The Trustee shall render an annual accounting for the period
ending December 31 of each year to the City, the Company and to any Owner requesting the same and,
upon the request of the Company or the Owner, a semi-annual accounting to the Company and the
Owner, showing in reasonable detail all financial transactions relating to the Trust Estate during the
accounting period and the balance in any funds or accounts created by this Indenture as of the beginning
and close of such accounting period.
Section 1013. Performance of Duties Under the Lease. The Trustee hereby accepts and
agrees to perform all duties and obligations assigned to it under the Lease.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners. The City and
the Trustee may from time to time, without the consent of or notice to any of the Owners, enter into such
Supplemental Indenture or Supplemental Indentures as shall not be inconsistent with the terms and
provisions hereof, for any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this Indenture, or to make
any other change which, in the judgment of the Trustee, is not to the material prejudice of the
Trustee or the Owners (provided the Trustee is entitled to receive and may conclusively rely upon
an opinion of counsel in exercising such judgment);
(b) To grant to or confer upon the Trustee for the benefit of the Owners any
additional rights, remedies, powers or authority that may lawfully be granted to or conferred upon
the Owners or the Trustee or either of them;
(c) To more precisely identify any portion of the Project or to add additional
property thereto;
(d) To conform the Indenture to amendments to the Lease made by the City and the
Company; or
(e) To subject to this Indenture additional revenues, properties or collateral.
Section 1102. Supplemental Indentures Requiring Consent of Owners.
(a) Exclusive of Supplemental Indentures covered by Section 1101 hereof and subject to the
terms and provisions contained in this Section, and not otherwise, the Owners of not less than a majority
in aggregate principal amount of the Bonds then Outstanding shall have the right, from time to time,
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anything contained in this Indenture to the contrary notwithstanding, to consent to and approve the
execution by the City and the Trustee of such other Supplemental Indenture or Supplemental Indentures
as shall be deemed necessary and desirable by the City for the purpose of modifying, amending, adding to
or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any
Supplemental Indenture; provided, however, that without the consent of the Owners of I 00% of the
principal amount of the Bonds then Outstanding, nothing in this Section contained shall permit or be
construed as permitting (I) an extension of the maturity or a shortening of the redemption date of the
principal of or the interest, if any, on any Bond issued hereunder, or (2) a reduction in the principal
amount of any Bond or the rate of interest thereon, if any, or (3) a privilege or priority of any Bond or
Bonds over any other Bond or Bonds, or ( 4) a reduction in the aggregate principal amount of Bonds the
Owners of which are required for consent to any such Supplemental Indenture.
(b) If at the time the City requests the Trustee to enter into any such Supplemental Indenture
for any of the purposes of this Section, the Trustee shall cause notice of the proposed execution of such
Supplemental Indenture to be mailed to each Owner as shown on the bond registration books required by
Section 206 hereof. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture
and shall state that copies thereof are on file at the designated corporate trust office of the Trustee for
inspection by all Owners. If within 60 days or such longer period as may be prescribed by the City
following the mailing of such notice, the Owners of not less than a majority in aggregate principal amount
of the Bonds Outstanding at the time of the execution of any such Supplemental Indenture shall have
consented to and approved the execution thereof as herein provided, no Owner shall have any right to
object to any of the terms and provisions contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or restrain the Trustee or the City from
executing the same or from taking any action pursuant to the provisions thereof.
Section 1103. Company's Consent to Supplemental Indentures. Anything herein to the
contrary notwithstanding, a Supplemental Indenture under this Article that affects any rights of the
Company shall not become effective unless and until the Company shall have consented in writing to the
execution and delivery of such Supplemental Indenture. The Trustee shall cause notice of the proposed
execution and delivery of any Supplemental Indenture (regardless of whether it affects the Company's
rights) together with a copy of the proposed Supplemental Indenture to be mailed to the Company at least
15 days prior to the proposed date of execution and delivery of the Supplemental Indenture.
Section 1104. Opinion of Counsel. In executing, or accepting the additional trusts created by,
any Supplemental Indenture permitted by this Article or the modification thereby of the trusts created by
this Indenture, the Trustee and the City shall receive, and, shall be fully protected in relying upon, an
opinion of counsel addressed and delivered to the Trustee and the City stating that the execution of such
Supplemental Indenture is permitted by and in compliance with this Indenture and will, upon the
execution and delivery thereof, be a valid and binding obligation of the City. The Trustee may, but shall
not be obligated to, enter into any such Supplemental Indenture which affects the Trustee's rights, duties
or immunities under this Indenture or otherwise.
ARTICLE XII
SUPPLEMENTAL LEASES
Section 1201. Supplemental Leases Not Requiring Consent of Owners. The City and the
Trustee shall, without the consent of or notice to the Owners, consent to the execution of any
Supplemental Lease or Supplemental Leases by the City and the Company as may be required (a) by the
provisions of the Lease and this Indenture, (b) for the purpose of curing any ambiguity or formal defect or
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omission in the Lease, (c) so as to more precisely identify the Project or add additional property thereto,
or (d) in connection with any other change therein which, in the judgment of the Trustee, does not
materially and adversely affect the Trustee or security for the Owners (provided the Trustee is entitled to
receive and may conclusively rely upon an opinion of counsel in exercising such judgment);.
Section 1202. Supplemental Leases Requiring Consent of Owners. Except for Supplemental
Leases as provided for in Section 1201 hereof, neither the City nor the Trustee shall consent to the
execution of any Supplemental Lease or Supplemental Leases by the City or the Company without the
mailing of notice and the obtaining of the written approval or consent of the Owners of not less than a
majority in aggregate principal amount of the Bonds at the time Outstanding given and obtained as
provided in Section 1102 hereof. If at any time the City and the Company shall request the consent of the
Trustee to any such proposed Supplemental Lease, the Trustee shall cause notice of such proposed
Supplemental Lease to be mailed in the same manner as provided in Section 1102 hereof with respect to
Supplemental Indentures. Such notice shall briefly set forth the nature of such proposed Supplemental
Lease and shall state that copies of the same are on file in the designated corporate trust office of the
Trustee for inspection by all Owners. If within 60 days or such longer period as may be prescribed by the
City following the mailing of such notice, the Owners of not less than 50% in aggregate principal amount
of the Bonds Outstanding at the time of the execution of any such Supplemental Lease shall have
consented to and approved the execution thereof as herein provided, no Owner shall have any right to
object to any of the terms and provisions contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or restrain the Trustee or the City from
executing the same or from taking any action pursuant to the provisions thereof.
Section 1203. Opinion of Counsel. In executing or consenting to any Supplemental Lease
permitted by this Article, the City and the Trustee shall receive, and shall be fully protected in relying
upon, an opinion of counsel addressed to the Trustee and the City stating that the executing of such
Supplemental Lease is authorized or permitted by the Lease and the applicable law and will upon the
execution and delivery thereof be valid and binding obligations of the parties thereof.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1301. Satisfaction and Discharge of this Indenture.
(a) When the principal of and interest on all the Bonds have been paid in accordance with
their terms or provision has been made for such payment, as provided in Section 1302 hereof, and
provision also made for paying all other sums payable hereunder and under the Lease and the
Performance Agreement, including the reasonable fees and expenses of the Trustee, the City and Paying
Agent to the date of retirement of the Bonds, then the right, title and interest of the Trustee in respect
hereof shall thereupon cease, determine and be void. Thereupon, the Trustee shall cancel, discharge and
release this Indenture and shall upon the written request of the City or the Company execute,
acknowledge and deliver to the City such instruments of satisfaction and discharge or release as shall be
required to evidence such release and the satisfaction and discharge of this Indenture, and shall assign and
deliver to the City (subject to the City's obligations under Section 11.2 of the Lease) any property at the
time subject to this Indenture which may then be in its possession, except amounts in the Bond Fund
required to be paid to the Company under Section 603 hereof and except funds or securities in which such
funds are invested held by the Trustee for the payment of the principal of and interest on the Bonds.
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(b) The City is hereby authorized to accept a certificate by the Trustee that the whole amount
of the principal and interest, if any, so due and payable upon all of the Bonds then Outstanding has been
paid or such payment provided for in accordance with Section 1302 hereof as evidence of satisfaction of
this Indenture, and upon receipt thereof shall cancel and erase the inscription of this Indenture from its
records.
Section 1302. Bonds Deemed to be Paid.
(a) Bonds shall be deemed to be paid within the meaning of this Article when payment of the
principal of and interest thereon to the due date thereof (whether such due date be by reason of maturity
or upon redemption as provided in this Indenture, or otherwise), either ( 1) have been made or caused to be
made in accordance with the terms thereof, or (2) have been provided for by depositing with the Trustee
or other commercial bank or trust company having full trust powers and authorized to accept trusts in the
State in trust and irrevocably set aside exclusively for such payment (i) moneys sufficient to make such
payment or (ii) Government Securities maturing as to principal and interest in such amount and at such
times as will insure the availability of sufficient moneys to make such payment, or (3) have been provided
for by surrendering the Bonds to the Trustee for cancellation. At such time as Bonds are deemed to be
paid hereunder, as aforesaid, they shall no longer be secured by or entitled to the benefits of this
Indenture, except for the purposes of such payment from such moneys or Government Securities.
(b) Notwithstanding the foregoing, in the case of Bonds which by their terms may be
redeemed before the stated maturities thereof, no deposit under clause (2) of the immediately preceding
paragraph shall be deemed a payment of such Bonds as aforesaid until, as to all such Bonds which are to
be redeemed before their respective stated maturities, proper notice of such redemption shall have been
given in accordance with Article III of this Indenture or irrevocable instructions shall have been given to
the Trustee to give such notice.
(c) Notwithstanding any provision of any other section of this Indenture which may be
contrary to the provisions of this Section, all moneys or Government Securities set aside and held in trust
pursuant to the provisions of this Section for the payment of Bonds shall be applied to and used solely for
the payment of the particular Bonds, with respect to which such moneys and Government Securities have
been so set aside in trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners. Any consent, request, direction,
approval, objection or other instrument required by this Indenture to be signed and executed by the
Owners may be in any number of concurrent writings of similar tenor and may be signed or executed by
such Owners in Person or by agent appointed in writing. Proof of the execution of any such instrument or
of the writing appointing any such agent and of the ownership of Bonds (other than the assignment of
ownership of a Bond) if made in the following manner, shall be sufficient for any of the purposes of this
Indenture, and shall be conclusive in favor of the Trustee with regard to any action taken, suffered or
omitted under any such instrument, namely:
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(a) The fact and date of the execution by any Person of any such instrument may be
proved by the certificate of any officer in any jurisdiction who by law has power to take
acknowledgments within such jurisdiction that the Person signing such instrument acknowledged
before him the execution thereof, or by affidavit of any witness to such execution.
(b) The fact of ownership of Bonds and the amount or amounts, numbers and other
identification of such Bonds, and the date of holding the same shall be proved by the registration
books of the City maintained by the Trustee pursuant to Section 206 hereof.
Section 1402. Limitation of Rights Under this Indenture. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds
is intended or shall be construed to give any Person other than the parties hereto, and the Owners, if any,
any right, remedy or claim under or in respect to this Indenture, this Indenture and all of the covenants,
conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto and the Owners, as herein provided.
Section 1403. Notices. It shall be sufficient service of any notice, request, complaint, demand
or other paper required by this Indenture to be given or filed with the City, the Trustee, the Company or
Owners if the same is duly mailed, postage prepaid, sent by overnight delivery or other delivery service or
sent by facsimile:
(a) To the City:
City of Jefferson, Missouri
City Hall
320 E. McCarty St.
Jefferson City Missouri 6510 I
Attention: City Clerk
Fax: (573) 634-6522
(b) To the Trustee:
BOKF, N.A.
4600 Madison A venue, Suite 800
Kansas City, Missouri 64112
Attention: Corporate Trust Department
Fax: (816) 932-7315
(c) To the Company:
Axium Plastics, LLC
9005 Smith's Mills Rd. N
New Albany, OH 43054
Attention: Chief Financial Officer
P JP Holdings, LLC
[Address]
[City, State Zip)
Attention: Chief Financial Officer
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(d) To the Owners if the same is duly mailed by first class, registered or certified mail
addressed to each of the Owners of Bonds at the time Outstanding as shown by the bond registration
books required by Section 206 hereof to be kept at the corporate trust office of the Trustee.
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed; provided, however, that notice to the Trustee shall be effective only upon receipt.
All notices given by overnight delivery or other delivery service shall be deemed fully given as of the date
when receipted. All notices given by facsimile shall be deemed fully given as of the date when receipted.
A duplicate copy of each notice, certificate or other communication given hereunder by either the City or
the Trustee to the other shall also be given to the Company. 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 1404. Severability. If any provision of this Indenture shall be held or deemed to be
invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions
or in all jurisdictions, or in all cases because it conflicts with any other provision or provisions hereof or
any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not
have the effect of rendering the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatever.
Section 1405. Execution in Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 1406. Governing Law. This Indenture shall be governed exclusively by and construed
in accordance with the applicable laws of the State.
Section 1407. Electronic Storage. The parties agree that the transaction described herein may
be conducted and related documents may be stored by electronic means. Copies, telecopies, facsimiles,
electronic files and other reproductions of original executed documents shall be deemed to be authentic
and valid counterparts of such original documents for all purposes, including the filing of any claim,
action or suit in the appropriate court of law.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the City has caused this Indenture to be signed in its name and
behalf by its Mayor and the seal of the City to be hereunto affixed and attested by the City Clerk, and to
evidence its acceptance of the trusts hereby created, the Trustee has caused this Indenture to be signed in
its name and behalf by its duly authorized officer, all as of the date first above written.
[SEAL]
ATTEST:
By: ------------------------------Name: Phyllis Powell
Title: City Clerk
Trust Indenture
Axium Plastics Project. Series 2017
S-1
CITY OF JEFFERSON, MISSOURI
By: ----------------------------Name: Carrie Tergin
Title: Mayor
APPROVED AS TO FORM:
[SEAL]
ATTEST:
By __________________________ __
Name:
Title:
. TrustJndenture
· .. Axiuin Plastics.Project, Series 20 I 7
S-2
BOKF,N.A.,
as Trustee
By __________________________ __
Name:
Title:
::t~~:'~~')
... ..: ..
EXHIBIT A
LEGAL DESCRIPTION
A-1
· ..... '
"'' •. :t :·~:·~,{-~:.";_ ... :~:· ~
,·. _.;. '·
EXHIBITB
PROJECT IMPROVEMENTS
The Project Improvements consist of all improvements made to the Project Site and paid for with
Series 2017 A Bond proceeds.
B-1
EXHIBITC
PROJECT EQUIPMENT
All equipment and personal property items designated by the Company now or hereafter
procured, assembled, manufactured or installed on the Project Site by the Company paid for with Series
20 178 Bond proceeds and all additions, replacements, alterations, substitutions thereto now or hereafter
effected and specifically designated by the Company. A replacement item may be included by the
Company as a part of the Project Equipment under the conditions set forth in the Lease.
C-1
No.1
EXHIBITD
FORM OF SERIES 2017A BOND
THIS BOND OR ANY PORTION HEREOF MAY BE TRANSFERRED, ASSIGNED OR
NEGOTIATED ONLY AS PROVIDED IN THE HEREIN DESCRIBED INDENTURE.
UNITED STATES OF AMERICA
STATE OF MISSOURI
CITY OF JEFFERSON, MISSOURI
TAXABLEINDUSTRIALDEVELOPMENTREVENUEBOND
(AXIUM PLASTICS PROJECT)
SERIES 2017 A
Not to Exceed
$6,000,000
Interest Rate Maturity Date Dated Date
December 1, 2032 December_, 2017
OWNER: PJP HOLDINGS, LLC
MAXIMUM PRINCIPAL AMOUNT: SIX MILLION DOLLARS
CITY OF JEFFERSON, MISSOURI, a home rule charter city and municipal corporation
organized and existing under the laws of the State of Missouri (the "City"), for value received, promises
to pay, but solely from the source hereinafter referred to, to the Owner named above, or registered assigns
thereof, on the Maturity Date shown above, the principal amount shown above, or such lesser amount as
may be outstanding hereunder as reflected on Schedule I hereto held by the Trustee as provided in the
hereinafter referred to Indenture. The City agrees to pay such principal amount to the Owner in any coin
or currency of the United States of America which on the date of payment thereof is legal tender for the
payment of public and private debts, and in like manner to pay to the Owner hereof, either by check or
draft mailed to the Owner at a stated address as it appears on the bond registration books of the City kept
by the Trustee under the within mentioned Indenture or, in certain situations authorized in the Indenture,
by internal bank transfer or by wire transfer to an account in a commercial bank or savings institution
located in the continental United States. Interest on the Cumulative Outstanding Principal Amount (as
hereinafter defined) at the per annum Interest Rate stated above, payable in arrears on each December 1,
commencing on December I, 2018, and continuing thereafter until the earlier of the date on which said
Cumulative Outstanding Principal Amount is paid in full or the Maturity Date. Interest on each
advancement of the principal amount of this Bond shall accrue from the date that such advancement is
made, computed on the basis of a year of 360 days consisting of 12 months of 30 days each.
As used herein, the term "Cumulative Outstanding Principal Amount" means the principal
amount of the Series 2017 A Bond outstanding under the terms of the hereinafter-defined Indenture, as
reflected on Schedule I hereto maintained by the Trustee.
D-1
THIS BOND is one of a duly authorized series of Bonds of the City designated "City of
Jefferson, Missouri, Taxable Industrial Development Revenue Bonds (Axium Plastics Project), Series
2017 A," in the maximum aggregate principal amount of $6,000,000 (the "Series 2017 A Bond" or the
"Bond"), to be issued for the purpose of making certain real property improvements (the "Project
Improvements") to the Company's existing manufacturing facility (the "Facility"), located on certain
real property in the City (the "Project Site"). Simultaneously with the issuance of this Series 2017 A
Bond, the City is issuing its City of Jefferson, Missouri, Taxable Industrial Development Revenue Bonds
(Axium Plastics Project), Series 20 17B (the "Series 2017B Bond"), in the maximum aggregate principal
amount of $20,000,000 for the purpose of equipping the Facility with certain personal property (the
"Project Equipment"). The City will lease the Project Site, the Project Improvements and the Project
Equipment (collectively, the "Project") to Axium Plastics, LLC, a limited liability company organized
and existing under the laws of the State of Delaware and authorized to do business in Missouri
("Axiom") and PJP Holdings, LLC, a limited liability company organized and existing under the laws of
the state of Delaware and authorized to do business in Missouri ("PJP") (together, the "Company"),
under the terms of a Lease Agreement dated as of December I, 2017 (said Lease Agreement, as amended
and supplemented from time to time in accordance with the provisions thereof, being herein called the
"Lease"), between the City and the Company, all pursuant to the authority of and in full compliance with
the provisions, restrictions and limitations of the Constitution and statutes of the State of Missouri,
including particularly the Act and pursuant to proceedings duly had by the City Council.
THIS BOND is issued on a parity with the Series 20 17B Bond under the Indenture (this Bond, the
Series 20 17B Bond, authenticated and delivered under and pursuant to this Indenture are referred to herein
as the "Bonds").
THE BONDS are issued under and are equally and ratably secured and entitled to the protection
given by a Trust Indenture dated as of December 1, 2017 (said Trust Indenture, as amended and
supplemented from time to time in accordance with the provisions thereof, being herein called the
"Indenture"), between the City and BOKF, N.A., Kansas City, Missouri, as trustee (the "Trustee").
Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
Reference is hereby made to the Indenture for a description of the provisions, among others, with
respect to the nature and extent of the security for the Bonds, the rights, duties and obligations of the City,
the Trustee and the Owners, and the terms upon which the Bonds are issued and secured.
THE BONDS shall be subject to redemption and payment at any time before the stated maturity
thereof, at the option of the City, upon written instructions from the Company, ( 1) in whole, if the
Company exercises its option to purchase the Project and deposits an amount sufficient to effect such
purchase pursuant to the Lease on the applicable redemption date, or (2) in part, if the Company prepays
additional Basic Rent pursuant to the Lease; provided, however, if only a portion of the Bonds are to be
redeemed, Bonds aggregating 1 0% of the maximum principal amount of Bonds authorized under the
Indenture shall not be subject to redemption and payment before the stated maturity thereof. Any
redemption of Bonds pursuant to this paragraph shall be at a redemption price equal to the par value
thereof being redeemed, plus accrued interest thereon, without premium or penalty, to the redemption
date.
THE BONDS are be subject to mandatory redemption, in whole or in part, to the extent of
amounts deposited in the Bond Fund pursuant to Sections 9.l(d) or 9.2(c) of the Lease, in the event of
substantial damage to or destruction or condemnation of substantially all of the Project. Bonds to be
redeemed pursuant to this paragraph shall be called for redemption by the Trustee on the earliest
practicable date for which timely notice of redemption may be given as provided hereunder. Any
D-2
redemption of Bonds pursuant to this paragraph shall be at a redemption price equal to the par value
thereof being redeemed, plus accrued interest thereon, without premium or penalty, to the redemption
date. Before giving notice of redemption to the Owners pursuant to this paragraph, money in an amount
equal to the redemption price shall have been deposited in the Bond Fund.
If the Bonds are to be called for optional redemption, the Company shall deliver written notice to
the City and the Trustee that it has elected to redeem all or a portion of the Bonds at least 40 days
( 1 0 days if there is one Owner) prior to the scheduled redemption date. The Trustee shall then deliver
written notice to the Owner of this Bond at least 30 days (five days if there is one Owner) before the
scheduled redemption date by facsimile and by first-class mail stating the date upon which the Bonds will
be redeemed and paid.
THE BONDS, including interest thereon, are special obligations of the City and are payable
solely out of the rents, revenues and receipts derived by the City from the Project and the Lease and not
from any other fund or source of the City, and is secured by a pledge and assignment of the Project and of
such rents, revenues and receipts, including all rentals and other amounts to be received by the City under
and pursuant to the Lease, all as provided in the Indenture. The Bonds do not constitute a general
obligation of the City or the State of Missouri, and neither the City nor said State shall be liable thereon,
and the Bonds shall not constitute an indebtedness within the meaning of any constitutional, charter or
statutory debt limitation or restriction, and are not payable in any manner by taxation. Pursuant to the
provisions of the Lease, rental payments sufficient for the prompt payment when due of the principal of
and interest on the Bonds are to be paid by the Company directly to the Trustee for the account of the City
and deposited in a special fund created by the City and designated the "City of Jefferson, Missouri, Bond
Fund -Axium Plastics, LLC"
THE OWNER of this Bond shall have no right to enforce the provisions of the Indenture or to
institute action to enforce the covenants therein, or to take any action with respect to any event of default
under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto,
except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect
set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then Outstanding
may become or may be declared due and payable before the stated maturity thereof, together with interest
accrued thereon. Modifications or alterations of this Bond or the Indenture may be made only to the
extent and in the circumstances permitted by the Indenture.
THIS BOND is transferable, as provided in the Indenture, only upon the books of the City kept
for that purpose at the above-mentioned office of the Trustee by the Owner hereof in Person or by such
Person's duly authorized attorney, upon surrender of this Bond together with a written instrument of
transfer satisfactory to the Trustee duly executed by the Owner or such Person's duly authorized attorney,
and thereupon a new fully registered Bond or Bonds, in the same aggregate principal amounts, shall be
issued to the transferee in exchange therefor as provided in the Indenture, and upon payment of the
charges therein prescribed. The City, the Trustee and any Paying Agent may deem and treat the Person in
whose name this Bond is registered as the absolute owner hereof for the purpose of receiving payment of,
or on account of, the principal or redemption price hereof and interest due hereon and for all other
purposes.
THIS BOND is issuable in the form of one fully-registered Bond without coupons in the
maximum principal amount of $6,000,000.
THIS BOND shall not be valid or become obligatory for any purposes or be entitled to any
security or benefit under the Indenture until the Certificate of Authentication hereon shall have been
executed by the Trustee.
D-3
IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things required
to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the
issuance of this Bond do exist, have happened and have been performed in due time, form and manner as
required by the Constitution and laws of the State of Missouri.
IN WITNESS WHEREOF, City of Jefferson, Missouri, has caused this Bond to be executed in
its name by the manual or facsimile signature of its Mayor, attested by the manual or facsimile signature
of its City Clerk and its corporate seal to be affixed hereto or imprinted hereon, and has caused this Bond
to be dated the date set forth above.
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds
of the issue described in the
within-mentioned Resolution.
Registration Date: _______ _
as Trustee
By ----------------Authorized Signatory
D-4
CITY OF JEFFERSON, MISSOURI
By: -------------------------
Mayor
ATTEST: (Seal)
City Clerk
APPROVED AS TO FORM:
SCHEDULE I
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(AXIUM PLASTICS PROJECT)
SERIES 2017 A
Bond No.1
Cumulative
Outstanding Notation
Principal Amount Principal Amount Principal Made
Date Advanced Redeemed Amount By
D-5
FORM OF ASSIGNMENT
(NOTE RESTRICTIONS ON TRANSFERS)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Print or Typewrite Name, Address and Social Security or
other Taxpayer Identification Number of Transferee
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
____________ attorney to transfer the within Bond on the books kept by the Trustee
for the registration and transfer of Bonds, with full power of substitution in the premises.
Dated: -------------
D-6
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular.
Signature Guaranteed By:
(Name of Eligible Guarantor Institution as
defined by SEC Rule 17 Ad-15 (17 CFR 240.17
Ad-15))
By ___________________________ _
Title: -----------------
No.1
FORM OF SERIES 2017B BOND
THIS BOND OR ANY PORTION HEREOF MAY BE TRANSFERRED, ASSIGNED OR
NEGOTIATED ONLY AS PROVIDED IN THE HEREIN DESCRIBED INDENTURE.
UNITED STATES OF AMERICA
STATE OF MISSOURI
CITY OF JEFFERSON, MISSOURI
Not to Exceed
$20,000,000
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(AXIUM PLASTICS PROJECT)
SERIES 2017B
Interest Rate Maturity Date Dated Date
Decem her 1, 2032 December_, 2017
OWNER: AXIUM PLASTICS, LLC
MAXIMUM PRINCIPAL AMOUNT: TWENTY MILLION DOLLARS
CITY OF JEFFERSON, MISSOURI, a home rule charter city and municipal corporation
organized and existing under the laws of the State of Missouri (the "City"), for value received, promises
to pay, but solely from the source hereinafter referred to, to the Owner named above, or registered assigns
thereof, on the Maturity Date shown above, the principal amount shown above, or such lesser amount as
may be outstanding hereunder as reflected on Schedule I hereto held by the Trustee as provided in the
hereinafter referred to Indenture. The City agrees to pay such principal amount to the Owner in any coin
or currency of the United States of America which on the date of payment thereof is legal tender for the
payment of public and private debts, and in like manner to pay to the Owner hereof, either by check or
draft mailed to the Owner at a stated address as it appears on the bond registration books of the City kept
by the Trustee under the within mentioned Indenture or, in certain situations authorized in the Indenture,
by internal bank transfer or by wire transfer to an account in a commercial bank or savings institution
located in the continental United States. Interest on the Cumulative Outstanding Principal Amount (as
hereinafter defined) at the per annum Interest Rate stated above, payable in arrears on each December 1,
commencing on December 1, 2018, and continuing thereafter until the earlier of the date on which said
Cumulative Outstanding Principal Amount is paid in full or the Maturity Date. Interest on each
advancement of the principal amount of this Bond shall accrue from the date that such advancement is
made, computed on the basis of a year of 360 days consisting of 12 months of 30 days each.
As used herein, the term "Cumulative Outstanding Principal Amount" means the principal
amount of the Series 20 17B Bond outstanding under the terms of the hereinafter-defined Indenture, as
reflected on Schedule I hereto maintained by the Trustee.
D-7
THIS BOND is one of a duly authorized series of Bonds of the City designated "City of
Jefferson, Missouri, Taxable Industrial Development Revenue Bonds (Axium Plastics Project), Series
20 17B," in the maximum aggregate principal amount of $20,000,000 (the "Series 2017B Bond" or the
"Bond"), to be issued for purpose of equipping the Facility (defined herein) with certain personal
property (the "Project Equipment"). Simultaneously with the issuance of this Series 20 17B Bond, the
City is issuing its City of Jefferson, Missouri, Taxable Industrial Development Revenue Bonds (Axium
Plastics Project), Series 2017 A (the "Series 2017 A Bond"), in the maximum aggregate principal amount
of $6,000,000 for the purpose of making certain real property improvements (the "Project
Improvements") to the Companis existing manufacturing facility (the "Facility"), located on certain
real property in the City (the "Project Site"). The City will lease the Project Site, the Project
Improvements and the Project Equipment (collectively, the "Project") to Axium Plastics, LLC, a limited
liability company organized and existing under the laws of the State of Delaware and authorized to do
business in Missouri ("Axiom") and PJP Holdings, LLC, a limited liability company organized and
existing under the laws of the state of Delaware and authorized to do business in Missouri ("PJP")
(together, the "Company"), under the terms of a Lease Agreement dated as of December 1, 2017 (said
Lease Agreement, as amended and supplemented from time to time in accordance with the provisions
thereof, being herein called the "Lease"), between the City and the Company, all pursuant to the
authority of and in full compliance with the provisions, restrictions and limitations of the Constitution and
statutes of the State of Missouri, including particularly the Act and pursuant to proceedings duly had by
the City Council.
THIS BOND is issued on a parity with the Series 2017 A Bond under the Indenture (this Bond, the
Series 20 17 A Bond, authenticated and delivered under and pursuant to this Indenture are referred to herein
as the "Bonds").
THE BONDS are issued under and are equally and ratably secured and entitled to the protection
given by a Trust Indenture dated as of December 1, 2017 (said Trust Indenture, as amended and
supplemented from time to time in accordance with the provisions thereof, being herein called the
"Indenture"), between the City and BOKF, N.A., Kansas City, Missouri, as trustee (the "Trustee").
Capitalized terms not defined herein shall have the meanings set forth in the Indenture.
Reference is hereby made to the Indenture for a description of the provisions, among others, with
respect to the nature and extent of the security for the Bonds, the rights, duties and obligations of the City,
the Trustee and the Owners, and the terms upon which the Bonds are issued and secured.
THE BONDS shall be subject to redemption and payment at any time before the stated maturity
thereof, at the option of the City, upon written instructions from the Company, (I) in whole, if the
Company exercises its option to purchase the Project and deposits an amount sufficient to effect such
purchase pursuant to the Lease on the applicable redemption date, or (2) in part, if the Company prepays
additional Basic Rent pursuant to the Lease; provided, however, if only a portion of the Bonds are to be
redeemed, Bonds aggregating 1 0% of the maximum principal amount of Bonds authorized under the
Indenture shall not be subject to redemption and payment before the stated maturity thereof. Any
redemption of Bonds pursuant to this paragraph shall be at a redemption price equal to the par value
thereof being redeemed, plus accrued interest thereon, without premium or penalty, to the redemption
date.
THE BONDS are subject to mandatory redemption, in whole or in part, to the extent of amounts
deposited in the Bond Fund pursuant to Sections 9.l(d) or 9.2(c) of the Lease, in the event of substantial
damage to or destruction or condemnation of substantially all of the Project. Bonds to be redeemed
pursuant to this paragraph shall be called for redemption by the Trustee on the earliest practicable date for
which timely notice of redemption may be given as provided hereunder. Any redemption of Bonds
D-8
pursuant to this paragraph shall be at a redemption price equal to the par value thereof being redeemed,
plus accrued interest thereon, without premium or penalty, to the redemption date. Before giving notice
of redemption to the Owners pursuant to this paragraph, money in an amount equal to the redemption
price shall have been deposited in the Bond Fund.
If the Bonds are to be called for optional redemption, the Company shall deliver written notice to
the City and the Trustee that it has elected to redeem all or a portion of the Bonds at least 40 days
(I 0 days if there is one Owner) prior to the scheduled redemption date. The Trustee shall then deliver
written notice to the Owner of this Bond at least 30 days (five days if there is one Owner) before the
scheduled redemption date by facsimile and by first-class mail stating the date upon which the Bonds will
be redeemed and paid.
THE BONDS, including interest thereon, are special obligations of the City and are payable
solely out of the rents, revenues and receipts derived by the City from the Project and the Lease and not
from any other fund or source of the City, and is secured by a pledge and assignment of the Project and of
such rents, revenues and receipts, including all rentals and other amounts to be received by the City under
and pursuant to the Lease, all as provided in the Indenture. The Bonds do not constitute a general
obligation of the City or the State of Missouri, and neither the City nor said State shall be liable thereon,
and the Bonds shall not constitute an indebtedness within the meaning of any constitutional, charter or
statutory debt limitation or restriction, and are not payable in any manner by taxation. Pursuant to the
provisions of the Lease, rental payments sufficient for the prompt payment when due of th~ principal of
and interest on the Bonds are to be paid by the Company directly to the Trustee for the account of the City
and deposited in a special fund created by the City and designated the "City of Jefferson, Missouri, Bond
Fund -Axium Plastics, LLC"
THE OWNER of this Bond shall have no right to enforce the provisions of the Indenture or to
institute action to enforce the covenants therein, or to take any action with respect to any event of default
under the Indenture, or to institute, appear in or defend any suit or other proceedings with respect thereto,
except as provided in the Indenture. In certain events, on the conditions, in the manner and with the effect
set forth in the Indenture, the principal of all the Bonds issued under the Indenture and then Outstanding
may become or may be declared due and payable before the stated maturity thereof, together with interest
accrued thereon. Modifications or alterations of this Bond or the Indenture may be made only to the
extent and in the circumstances permitted by the Indenture.
THIS BOND is transferable, as provided in the Indenture, only upon the books of the City kept
for that purpose at the above-mentioned office of the Trustee by the Owner hereof in Person or by such
Person's duly authorized attorney, upon surrender of this Bond together with a written instrument of
transfer satisfactory to the Trustee duly executed by the Owner or such Person's duly authorized attorney,
and thereupon a new fully registered Bond or Bonds, in the same aggregate principal amounts, shall be
issued to the transferee in exchange therefor as provided in the Indenture, and upon payment of the
charges therein prescribed. The City, the Trustee and any Paying Agent may deem and treat the Person in
whose name this Bond is registered as the absolute owner hereof for the purpose of receiving payment of,
or on account of, the principal or redemption price hereof and interest due hereon and for all other
purposes.
THIS BOND is issuable in the form of one fully-registered Bond without coupons in the
maximum principal amount of $20,000,000.
THIS BOND shall not be valid or become obligatory for any purposes or be entitled to any
security or benefit under the Indenture until the Certificate of Authentication hereon shall have been
executed by the Trustee.
D-9
IT IS HEREBY CERTIFIED AND DECLARED that all acts, conditions and things required
to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the
issuance of this Bond do exist, have happened and have been performed in due time, form and manner as
required by the Constitution and laws of the State of Missouri.
IN WITNESS WHEREOF, City of Jefferson, Missouri, has caused this Bond to be executed in
its name by the manual or facsimile signature of its Mayor, attested by the manual or facsimile signature
of its City Clerk and its corporate seal to be affixed hereto or imprinted hereon, and has caused this Bond
to be dated the date set forth above.
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds
of the issue described in the
within-mentioned Resolution.
Registration Date: _______ _
as Trustee
By ----------------------------Authorized Signatory
D-10
CITY OF JEFFERSON, MISSOURI
By: -------------------------------------------Mayor
ATTEST: (Seal)
City Clerk
APPROVED AS TO FORM:
-
SCHEDULE I
TABLE OF CUMULATIVE OUTSTANDING PRINCIPAL AMOUNT
CITY OF JEFFERSON, MISSOURI
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(AXIUM PLASTICS PROJECT)
SERIES 2017B
Bond No.I
Cumulative
Outstanding Notation
Principal Amount Principal Amount Principal Made
Date Advanced Redeemed Amount By
D-11
FORM OF ASSIGNMENT
(NOTE RESTRICTIONS ON TRANSFERS)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Print or Typewrite Name, Address and Social Security or
other Taxpayer Identification Number of Transferee
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
---------------------attorney to transfer the within Bond on the books kept by the Trustee
for the registration and transfer of Bonds, with full power of substitution in the premises.
Dated: -----------------
D-12
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Bond in every particular.
Signature Guaranteed By:
(Name of Eligible Guarantor Institution as
defined by SEC Rule 17 Ad-15 ( 17 CFR 240.17
Ad-15))
By ______________________________ __
Title: --------------------------
EXHffiiTE
FORM OF REPRESENTATION LETTER
City of Jefferson, Missouri
City Hall
320 E. McCarty St.
Jefferson City, Missouri 65101
Attention: Mayor
BOKF, N.A.
4600 Madison Avenue, Suite 800
Kansas City, Missouri 64112
Attention: Corporate Trust Department
Fax: (816) 932-7315
Re: $[6,000,000]/[20,000,000] Maximum Principal Amount of Taxable Industrial
Development Revenue Bonds (Axium Plastics Project), Series 2017[A]/[B] of City of
Jefferson, Missouri
Ladies and Gentlemen:
In connection with the purchase of the above-referenced Bonds (the "Bonds"}, the undersigned
purchaser of the Bonds ("Purchaser") hereby represents, warrants and agrees as follows:
1. Purchaser fully understands that (a) the Bonds have been issued under and pursuant to a
Trust Indenture dated as of December 1, 2017 (the "Indenture"), between City of Jefferson, Missouri
(the "City") and BOKF, N.A. as trustee (the ~'Trustee"}, and (b) the Bonds are payable solely out of
certain rents, revenues and receipts to be derived from the leasing or sale of the Project (as defined in the
Indenture) to PJP Holdings, LLC, a Delaware limited liability company ("PJP") and Axium Plastics,
LLC, a Delaware limited liability company ("Axium")(PJP and Axium are collectively referred to as the
"Company"), under a Lease Agreement dated as of December I, 2017 (the "Lease"), between the City
and the Company, with certain of such rents, revenues and receipts being pledged and assigned by the
City to the Trustee under the Indenture to secure the payment of the principal of and interest on the
Bonds.
2. Purchaser understands that the Bonds have not been registered under the Securities Act of
1933, as amended (the "1933 Act"), or the securities laws of any state and will be sold to Purchaser in
reliance upon certain exemptions from registration and in reliance upon the representations and warranties
of Purchaser set forth herein.
3. Purchaser understands that the Bonds are transferable only in the manner provided for in
the Indenture and discussed below and warrants that it is acquiring the Bonds for its own account with the
intent of holding the Bonds as an investment, and the acquisition of the Bonds is not made with a view
toward their distribution or for the purpose of offering, selling or otherwise participating in a distribution
of the Bonds.
D-1
4. Purchaser agrees not to attempt to offer, sell, hypothecate or otherwise distribute the
Bonds to others unless authorized by the terms of the Indenture and upon receipt of any required opinion
of counsel acceptable to the City, the Company, the Trustee and the purchaser that all registration and
disclosure requirements of the Securities and Exchange Commission and all other appropriate federal and
Missouri securities laws and the securities law of any other applicable state are complied with.
5. The Company has (a) furnished to Purchaser such information about itself as Purchaser
deems necessary in Ordinance for it to make an informed investment decision with respect to the purchase
of the Bonds, (b) made available to Purchaser, during the course of this transaction, ample opportunity to
ask questions of, and to receive answers from, appropriate officers of the City and the terms and
conditions of the offering of the Bonds, and (c) provided to the undersigned all additional information
which it has requested.
6. Purchaser acknowledges that no offering document has been prepared in connection with
the sale of the Bonds. The Purchaser further acknowledges that it has timely received in satisfactory form
and manner all proceedings, certificates, opinions, letters and other documents required to be submitted to
Purchaser pursuant to the Bond Purchase Agreement prior to or on the date of the delivery of and
payment for the Bonds, and that the City and the Company have in all respects complied with and
satisfied all of their respective obligations to Purchaser which are required under the Bond Purchase
Agreement to be complied with and satisfied on or before such date.
7. Purchaser is now, and was when it agreed to purchase the Bonds, familiar with the
operations of the Company and fully aware of terms and risks of the Bonds and that Purchaser is relying
on its own knowledge and investigation of facts and circumstances relating to the purchase of the Bonds.
Purchaser believes that the Bonds being acquired are a security of the type that Purchaser wishes to
purchase and hold for investment and that the nature and amount thereof are consistent with its
investment program.
8. Purchaser is fully aware of and satisfied with (i) the current status of the title to the
Project and any issues related thereto and (ii) the terms, amounts and providers of the insurance
maintained pursuant to Article VII of the Lease, and the undersigned is purchasing the Bonds with full
knowledge of such matters.
9. Purchaser understands and agrees that the interest on the Bonds is subject to federal and
state income taxation.
10. Purchaser hereby directs the Trustee to hold the Bonds in trust for the undersigned
pursuant to Section 204(c) of the Indenture.
Dated: ---------' 20_
(PJP HOLDINGS, LLC]/[AXIUM PLASTICS
LLC)
By: _____________ _
Name: -----------------
Title: -----------------
D-2
$20,000,000
(Aggregate Maximum Principal Amount)
CITY OF JEFFERSON, MISSOURI
Approval Version
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(AXIUM PLASTICS PROJECT)
City of Jefferson, Missouri
City Hall
320 E. McCarty St.
Jefferson City Missouri 65101
Ladies and Gentlemen:
SERIES 2017B
DATED AS OF DECEMBER 1, 2017
BOND PURCHASE AGREEMENT
On the basis of the representations and covenants and upon the terms and conditions contained in
this Bond Purchase Agreement, Axium Plastics, LLC, a Delaware limited liability company (the
"Purchaser"), offers to purchase from City of Jefferson, Missouri (the "City"}, the above-referenced
series of Taxable Industrial Development Revenue Bonds (Axium Plastics Project), Series 20 17B (the
"Series 2017B Bonds"), to be issued by the City under and pursuant to Ordinance No. passed
by the governing body of the City on , 2017 (the "Ordinance") and a Trust Indenture
dated as of December 1, 2017 (the "Indenture"), by and between the City and BOKF, N.A., Kansas City,
Missouri, as trustee (the "Trustee"). Simultaneously with the issuance of the Series 20 17B Bonds, the
City will issue under the Indenture "City of Jefferson City, Missouri, Taxable Industrial Development
Revenue Bonds (Axium Plastics Project), Series 2017 A" (the "Series 2017 A Bonds") in the maximum
aggregate principal amount of $6,000,000 on a parity with the Series 2017B Bonds (collectively, the
"Bonds"), which will be sold to PJP Holdings, LLC. Capitalized terms not otherwise defined herein
shall have the meanings set forth in Section 101 of the Indenture.
SECTION 1. REPRESENTATIONS AND AGREEMENTS
(a) By the City's acceptance hereof, the City hereby represents to the Purchaser that:
( 1) The City is a home rule charter city and municipal corporation duly organized
and validly existing under the laws of the State of Missouri. The City is authorized under Article
VI, Section 27(b) of the Missouri Constitution and Sections 100.010 through 100.200 of the
Revised Statutes of Missouri, as amended, to authorize, issue and deliver the Bonds and to
consummate all transactions contemplated by this Bond Purchase Agreement, the Ordinance, the
Indenture, the Lease, the Performance Agreement and any and all other agreements relating
thereto. The proceeds of the Bonds shall be used to finance the Project for PJP Holdings, LLC, a
Delaware limited liability company, and Axium Plastics, LLC, a Delaware limited liability
company (the "Company"), and to pay for the costs incurred in connection with the issuance of
the Bonds;
(2) There is no controversy, suit or other proceeding of any kind pending or
threatened wherein or whereby any question is raised or may be raised, questioning, disputing or
affecting in any way the legal organization of the City or its boundaries, or the right or title of any
of its officers to their respective offices, or the legality of any official act leading up to the
issuance of the Bonds or the constitutionality or validity of the obligations represented by the
Bonds or the validity of the Bonds, the Ordinance, the Lease, the Indenture or the Perfonnance
Agreement; and
(3) Any certificate signed by an authorized representative of the City and delivered
to the Purchaser shall be deemed a representation and warranty by the City to such party as to the
statements made therein.
(b) The Purchaser represents as follows:
( 1) Organization. The Purchaser is a limited liability company duly organized and
validly existing under the laws of the State of Delaware and is authorized to do business in and is
in good standing under the laws of the State of Missouri;
(2) No Conflict or Breach. The execution, delivery and perfonnance of this Bond
Purchase Agreement by the Purchaser has been duly authorized by all necessary action of the
Purchaser and does not and will not conflict with or result in the breach of any of the terms,
conditions or provisions of, or constitute a default under, its organizational documents, any law,
court or administrative regulation, decree or Ordinance applicable to or binding upon the
Purchaser, or, insofar as it has knowledge, any agreement, indenture, mortgage, lease or
instrument to which the Purchaser is a party or by which it is bound;
(3) Documents Legal, Valid and Binding. When executed and delivered by the
Purchaser, this Bond Purchase Agreement will be, and is, a legal, valid and binding obligation,
enforceable in accordance with its tenns, subject, as to enforcement, to any applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of
creditors' rights generally and further subject to the availability of equitable remedies; and
( 4) Purchaser's Certificates. Any certificate signed by an authorized officer or agent
of the Purchaser and delivered to the City shall be deemed a representation and warranty by the
Purchaser to such party as to the statements made therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SERIES 2017B BONDS
On the basis of the representations and covenants contained herein and in the other agreements
referred to herein, and subject to the terms and conditions herein set forth and in the Indenture, the
Purchaser agrees to purchase from the City and the City agrees to sell to the Purchaser the Series 20 17B
Bonds on the tenns and conditions set forth herein.
The Series 20 17B Bonds shall be sold to the Purchaser by the City on the Closing Date
(hereinafter defined) upon payment of an amount equal to the Closing Price (hereinafter defined) for the
Series 20 1 7B Bonds, which amount shall be deposited in the applicable Series 20 17B Project Account
within the Project Fund as provided in the Indenture and shall thereafter on the Closing Date immediately
-2-
be applied to the payment of the Project Costs related to the Project Equipment as provided in the Lease,
which deposit and payment shall be recorded via a transaction entry on the trust records held by the
Trustee and Paying Agent. From time to time after the Closing Date as additional Project Costs related to
the Project Equipment are incurred, the Purchaser may make additional payments with respect to the
Bonds ("Additional Payments") to the Trustee, which Additional Payments shall be deposited in the
Series 20 17B Project Account within the Project Fund and applied to the payment of such Project Costs,
which deposit(s) and payment(s) shall be recorded via a transaction entry on the trust records held by the
Trustee and Paying Agent; provided that the sum of the Closing Price and all such Additional Payments
for the Series 20 17B Bonds shall not, in the aggregate, exceed $20,000,000.
As used herein, the term "Closing Date" shall mean , 2017, or such other date as
shall be mutually agreed upon by the City and the Purchaser; the term "Closing Price" shall mean, with
respect to the Series 20 17B Bonds, that certain amount specified in writing by the Purchaser and agreed to
by the City as the amount required to fund the initial disbursement from the Series 20 17B Project Account
within the Project Fund on the Closing Date.
The Series 20 17B Bonds shall be issued, simultaneously with the issuance of the Series 2017 A
Bonds, under and secured as provided in the Ordinance, the Indenture and the Lease authorized thereby
and the Series 20 17B Bonds shall have the maturity, interest rate and shall be subject to redemption as set
forth therein. The delivery of the Series 20 17B Bonds shall be made in definitive form as a fully
registered bond in the maximum aggregate principal denomination of $20,000,000; provided, that the
principal amount of the Series 20 17B Bonds outstanding at any time shall be that amount recorded in the
official bond registration records of the Trustee and further provided that interest shall be payable on the
Series 20 17B Bonds only on the outstanding principal amount of the Series 20 17B Bonds, as more fully
provided in the Indenture.
The Company agrees to indemnify and hold harmless the City, the Trustee, and any member,
officer, official or employee of the City or of the Trustee and any person controlling the Trustee within the
meaning of Section I 5 of the Securities Act of 1933, as amended (collectively, the "Indemnified
Parties"), against any and all losses, claims, damages, liabilities or expenses whatsoever to the extent
caused by any violation by the Company of, or failure by the Company to comply with, any federal or
state securities laws in connection with the Bonds.
In case any action shall be brought against one or more of the Indemnified Parties based upon the
foregoing indemnification and in respect of which indemnity may be sought against the Company, the
Indemnified Parties shall promptly notify the Company in writing and the Company shall promptly
assume the defense thereof, including the employment of counsel, the payment of all expenses and the
right to negotiate and consent to settlement. Any one or more of the Indemnified Parties shall have the
right to employ separate counsel in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party or Indemnified Parties
unless employment of such counsel has been specifically authorized by the Company. The Company shall
not be liable for any settlement of any such action effected without its consent by any of the Indemnified
Parties, but if settled with the consent of the Company or if there be a final judgment for the plaintiff in
any such action against the Company or any of the Indemnified Parties, with or without the consent of the
Company, then provided that the Company was given prompt written notice and the ability to assume the
defense thereof as required by this paragraph, the Company agrees to indemnify and hold harmless the
Indemnified Parties to the extent provided herein.
-3-
SECTION 3. CONDITIONS TO THE PURCHASER'S OBLIGATIONS
The Purchaser's obligations hereunder shall be subject to the due perfonnance by the City of the
City's obligations and agreements to be perfonned hereunder on or prior to the Closing Date and to the
accuracy of and compliance with the City's representations contained herein, as of the date hereof and as
of the Closing Date, and are also subject to the following conditions:
(a) There shall be delivered to the Purchaser on or prior to the Closing Date a duly
executed copy of the Ordinance, the Trust Indenture, the Perfonnance Agreement, this Bond
Purchase Agreement and the Lease and any other instrument contemplated thereby and such
documents shall be in full force and effect and shall not have been modified or changed except as
may have been agreed to in writing by the Purchaser;
(b) The City shall con finn on the Closing Date by a certificate that at and as of the
Closing Date the City has taken all action necessary to issue the Bonds and that there is no
controversy, suit or other proceeding of any kind pending or threatened wherein any question is
raised affecting in any way the legal organization of the City or the legality of any official act
shown to have been done in the transcript of proceedings leading up to the issuance of the Bonds,
or the constitutionality or validity of the indebtedness represented by the Bonds or the validity of
the Bonds or any proceedings in relation to the issuance or sale thereof;
(c) The Company shall execute a certificate, dated the Closing Date, to the effect
that (i) no litigation, proceeding or investigation is pending against the Company or its affiliates
or, insofar as the Company has knowledge, threatened which would (A) contest, affect, restrain or
enjoin the issuance, validity, execution, delivery or perfonnance of the Bonds, or (B) in any way
contest the existence or powers of the Company, (ii) no litigation, proceeding or investigation is
pending or, insofar as the Company has knowledge, threatened against the Company that could
reasonably be expected to adversely affect its ability to perfonn its obligations hereunder, (iii) the
representations and warranties of the Company herein were and are true and correct in all
material respects and not misleading as of the date made and as of the Closing Date, and (iv) such
other matters as are reasonably requested by the other parties in connection with the issuance of
the Bonds; and
(d) Receipt by the Purchaser and the Company of an approving optmon from
Gilmore & Bell, P.C., in fonn and substance satisfactory to the Purchaser and the Company.
SECTION 4. THE PURCHASER'S RIGHT TO CANCEL
The Purchaser shall have the right to cancel its obligation hereunder to purchase the Series 20 17B
Bonds by notifying the City in writing of its election to make such cancellation at any time prior to the
Closing Date.
SECTION 5. CONDITIONS OF OBLIGATIONS
The obligations of the parties hereto are subject to the receipt of the approving opinion of
Gilmore & Bell, P.C., Bond Counsel, with respect to the validity of the authorization and issuance of the
Bonds.
-4-
SECTION 6. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY
All of the representations and agreements by either party shall remain operative and in full force
and effect, and shall survive delivery of the Bonds to the Purchaser.
SECTION 7. PAYMENT OF EXPENSES
The Company shall pay all reasonable expenses and costs to effect the authorization, preparation,
issuance, delivery and sale of the Bonds. To the best of the City's knowledge and belief, the only
expenses payable by the Company in connection with the issuance of the Bonds are the following: (1) the
legal fees of Gilmore & Bell, P.C., as Bond Counsel in the amount of $48,500, plus reimbursement for
out-of-pocket expenses of$ , (2) the consultant fee for preparation of the cost-benefit analysis
($5,800), (3) publication costs and filing fees in the amount of$ , and (4) the Trustee's initial
acceptance fee and first year's administrative fee totaling$ __ _
SECTION 8. NOTICE
Any notice or other communication to be given to the City under this Agreement may be given by
mailing or delivering the same in writing to City of Jefferson, Missouri, City Hall, 320 E. McCarty St.,
Jefferson City, Missouri 651 01, Attention: City Clerk; any notice or other communication to be given to
the Purchaser or the Company under this Agreement may be given by delivering the same in writing to
Axium Plastics, LLC, 9005 Smith's Mills Rod. N, New Albany, OH 43054.
SECTION 9. APPLICABLE LAW; ASSIGNABILITY
This Bond Purchase Agreement shall be governed by the laws of the State of Missouri and may
be assigned by the Purchaser with the written consent of the City, which consent shall not be
unreasonably withheld, conditioned or delayed.
SECTION 10. EXECUTION OF COUNTERPARTS
This Bond Purchase Agreement may be executed in several counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same document.
[Remainder of this page intentionally left blank]
-5-
Date of Execution:
_____ ,2017
Bond Purchase Agreement
Axium Plastics Project, Series 2017
Very truly yours,
AXIUM PLASTICS, LLC,
as Purchaser
By: ---------------------------Name:
Title:
-6-
Accepted and agreed to this ___ day of _____ , 2017.
[SEAL]
ATTEST:
By:
Name: Phyllis Powell
Title: City Clerk
Bond Purchase Agreement
Axium Plastics Project. Series 2017
CITY OF JEFFERSON, MISSOURI
By: -------------------------Name: Carrie Tergin
Title: Mayor
APPROVED AS TO FORM:
-7-
i '•
Accepted and agreed to this __ day of ______ _.. 2017.
-8-
Bond Purchase Agreement
Axium Plastics Project. Series 2017
AXIUM PLASTICS, LLC, as Company
By: --------------------Name:
Title:
COLE COUNTY ASSESSOR'S OFFICE opt cot,,��
Christopher D. Estes, Assessor v
210 Adams Street
Jefferson City, MO 65101
Phone: 573-634-9131 fax: 573-634-9139 www.colecounty.org/assessor 9SSsso*
June 13, 2018
City of Jefferson
320 E McCarty St
Jefferson City, MO 65101
RE: Real Estate Parcel 11-06-24-0002-002-001
Personal Property Account#115506
Axium Plastics
Dear Property Owner:
As required by the Performance Agreement Among City of Jefferson, Missouri and PJP
Holdings, LLC and Axium Plastics, LLC, "The County Assessor shall notify the City and
Company of the assessed valuation in writing."
For the tax year of 2018, the assessed valuation is as follows:
Real Estate Parcel 11-06-24-0002-002-001: Assessed Value-$ 199,900
Personal Property Account#115506: Assessed Value-$2,219,820
If you have any questions on the Real Estate Value, you may contact me at the number
below. If you have any questions on the Personal Property Value, please contact Deputy
Assessor, Alvyne Scheperle at(573) 634-9134.
Sincerely,
—16 r t A t Q
Tom Butler
Commercial Real Estate Department Manager
Cole County Assessor's Office
(573) 635-3209
CC: PJP Holdings, LLC and Axium Plastics, LLC
Cole County Assessor's Office
210 Adams St. THIS IS NOT A TAX BILL
Jefferson City, MO 65101
www.colecounty.org/assessor
NOTICE OF REAL PROPERTY ASSESSED VALUE
CITY OF JEFFERSON
320 E MCCARTY ST
JEFFERSON CITY MO 65101
Parcel: 11-06-24-0002-002-001 ***PROPERTY DESCRIPTION***
Situs: 355 N SHAMROCK RD PUBLIC SURVEY 2906
Acres: 11.41 PT PS 2906
School: JC City: JEF Fire: Lib: PT NW QTR & PT NE QTR SEC 23.
Dear Property Owner:
You are receiving this official notice pursuant to RSMo 137.115, which states that any real property new construction or
improvements added in the EVEN year shall be assessed and valued as if they had been completed as of January 1st
of the preceding odd-numbered year.
New construction and improvements can include any new structures, remodeling, additions, subdivisions of land, etc.
If after reviewing the information below, you have any questions concerning this notice, please contact the Assessor's
Office for an informal hearing. If after presenting your evidence of value you are not satisfied with the value placed on
your property, state statutes provide that you may appeal further to the County Board of Equalization.
NOTICE TO TAXPAYER: If your assessed value has increased, it may increase your real property
taxes which are due December 31st. If you do not agree that the value of your property reflects
market value, you may appeal the value prior to June 26th by contacting the Assessor's Office
at 573-634-9131.
FORMAL APPEALS with the Board of Equalization must be scheduled prior to July 9th by calling 573-634-9105.
PREVIOUS VALUE(S)2017:
CLASS MARKET ASSESSMENT ASSESSED
VALUE RATIO VALUE
RESIDENTIAL 19%
AGRICULTURAL 12%
COMMERCIAL 1,038,200 32% 332,220
TOTAL PREVIOUS VALUE 1,038,200 332,220
NEW VALUE(S)AS OF JANUARY 1, 2018:
CLASS MARKET ASSESSMENT ASSESSED
VALUE RATIO VALUE
RESIDENTIAL 19%
AGRICULTURAL 12%
COMMERCIAL 624,700 32% 199,900
TOTAL NEW VALUE 624,700 199,900